Di v. Cleveland Clinic Found. , 2016 Ohio 686 ( 2016 )

[Cite as Di v. Cleveland Clinic Found., 2016-Ohio-686.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101760
XIAO DI, M.D., ET AL.
PLAINTIFFS-APPELLEES
vs.
CLEVELAND CLINIC FOUNDATION, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-806377
BEFORE: E.A. Gallagher, P.J., Boyle, J., and Blackmon, J.
RELEASED AND JOURNALIZED: February 25, 2016
ATTORNEYS FOR APPELLANTS
Joseph E. Herbert
Anna Moore Carulas
Roetzel & Andress L.P.A.
1375 E. Ninth Street
One Cleveland Center 9th Floor
Cleveland, Ohio 44114
Douglas G. Leak
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway
Suite 100
Akron, Ohio 44333
ATTORNEYS FOR APPELLEES
Stephen S. Crandall
Crandall Law L.L.C.
15 ½ N. Franklin Street
Chagrin Falls, Ohio 44022
Paul W. Flowers
Paul W. Flowers Co. L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
Richard C. Haber
Haber, Polk & Kabat, L.L.P.
737 Bolivar Road
Suite 4400
Cleveland, Ohio 44115
Norman A. Moses
Crandall Law L.L.C.
100 Marwood Circle
Boardman, Ohio 44512
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendants-appellants the Cleveland Clinic Foundation (“the CCF”) and Dr.
Andrew Esposito appeal from a medical negligence judgment in the Cuyahoga County
Court of Common Pleas in favor of plaintiffs-appellees, Dr. Xiao Di and Nan Qiao.
Appellants argue that various errors at trial require either a judgment notwithstanding the
verdict or, in the alternative, a new trial on the medical negligence claim. Appellees
cross-appeal, arguing that in the event that a new trial is ordered, all claims including
those for which a defense verdict was returned at trial must be remanded for a new trial.
For the following reasons, we affirm, in part, and reverse, in part.
{¶2} Appellees filed a complaint pertaining to injuries to Dr. Di’s left eye and
raised claims of medical negligence against Dr. James Kim and claims of medical
negligence, lack of informed consent, battery and alterations of records against Dr.
Andrew Esposito. Dr. Di’s wife, Nan Qiao, asserted a claim for loss of consortium. The
CCF, as the employer of Doctors Kim and Esposito, was also named as a defendant on all
counts.
{¶3} Dr. Di’s claim against Dr. Kim arose subsequent to an injury Dr. Di suffered
to his left eye while he was performing a spine surgery at the CCF. Dr. Di asserted that
Dr. Kim, the on-call opthalmalogist at that time, violated the standard of care by failing to
properly respond to his request for treatment.
{¶4} Dr. Di’s claims against Dr. Esposito arose from a surgery conducted by Dr.
Esposito on Dr. Di’s left eye at the CCF nearly a year later. Dr. Di claimed that Dr.
Esposito performed the surgery in violation of the standard of care. Dr. Di further asserted
that Dr. Esposito performed surgery on his iris without his informed consent, thus
committing a battery, and that Dr. Esposito altered the relevant records to conceal this
fact.
{¶5} The case proceeded to a jury trial and the jury returned a verdict in favor of
Dr. Kim and in favor of Dr. Esposito on Dr. Di’s claims of lack of informed consent,
battery and alteration of records. However, the jury found in favor of Dr. Di on his
medial negligence claim against Dr. Esposito and returned a verdict of $7,200,000. The
jury also found in favor of Nan Qiao on her loss of consortium claim and awarded her
$500,000. The trial court reduced Dr. Di’s noneconomic damages by $500,000 pursuant
to R.C. 2323.43 in its entry of judgment.
{¶6} Following the trial, appellants filed a motion to enforce the statutory cap on
Dr. Di’s noneconomic damages, a motion for judgment notwithstanding the verdict and a
motion for new trial. The trial court denied appellants’ motions on July 28, 2014 and this
appeal followed.
{¶7} The following relevant evidence was adduced at trial:1
{¶8} Dr. Di entered into a fellowship with the CCF in 2003 and was added to the
staff as a neurosurgeon following his fellowship in 2006. Dr. Di specialized in
endoscopic surgery and performed 150 to 200 procedures annually. Dr. Di’s left eye
was injured when struck by a bone fragment during surgery on February 12, 2010. Dr.
1
We limit our recitation of facts to only those facts relevant to Dr. Di’s medical negligence
claim against Dr. Esposito because all other claims resulted in a defense verdict and are not relevant
to this appeal.
Di’s eye improved in the weeks following the injury but, in September of 2010, he
consulted his primary care physician due to gradually decreasing visual acuity in the eye.
{¶9} Dr. Di began consulting with Dr. Esposito, an ophthalmologist working as a
part time consultant for the CCF, on December 10, 2010. Records from December 10,
2010 and a January 11, 2011 visit with Dr. Esposito indicate that Dr. Di was suffering
from blurry vision. Dr. Di had a visually significant cataract as well as a corneal scar
and an iris adhesion. The iris adhesion was described as Dr. Di’s iris “tenting” or
“plugging” a corneal laceration likely acquired from his February 12, 2010 injury. Dr.
Di’s pupils were reactive to light and able to constrict indicating that the sphincter muscle
in his pupil was intact prior to the eye surgery.
{¶10} On January 14, 2011, Dr. Esposito performed surgery to remove Dr. Di’s
cataract and repair his iris. All parties agree that the cataract portion of the surgery was
a success. In attempting to repair Dr. Di’s iris adhesion, Dr. Esposito used a
cyclodialysis spatula to “tint the iris away from the back surface of the cornea.” Dr.
Esposito then used endoshears to dissect the scarred iris tissue from the cornea. Dr.
Esposito’s operative note reports that “at this point, about 2-3 o’clock iris defect was
noted.” Dr. Esposito attempted to close the defect with two stitches but was
unsuccessful and aborted the procedure.
{¶11} Following the surgery, Dr. Esposito met with Dr. Di’s wife Nan Qiao. She
testified that Dr. Esposito indicated that Dr. Di’s iris had been torn during the attempt to
remove the corneal scar. Dr. Esposito indicated that problem could be addressed with
stitches after the swelling from the procedure receded in a few months.
{¶12} Dr. Di met with Dr. Esposito after the surgery and Dr. Esposito indicated
that he had accidentally torn Dr. Di’s iris during the surgery but that he could fix it.
Following the surgery, Dr. Di reported that he suddenly began experiencing glare,
photophobia and ghost images. Prior to surgery his only symptom was blurry vision.
{¶13} Concerned about his new symptoms, Dr. Di was referred to Dr. Kosmorsky,
an ophthalmologist with the CCF. A record of Dr. Di’s January 17, 2011 consult with
Dr. Kosmorsky reported that Dr. Di was suffering from blurred and double vision,
dizziness and a headache.
{¶14} In describing Dr. Di’s surgery, Dr. Kosmorsky initially wrote in a draft that
Dr. Di’s eye had been “macerated” but withdrew this language. Dr. Kosmorsky later
wrote a letter stating the following:
Dr. Xiao Di has been under my care for a complicated cataract surgery
performed on his left eye on 1/14/2011. He sustained iris damage during
the surgery and now has an eccentric pupil that is causing ghosting and
refractive halos. Additionally, he has an acquired astigmatism that will
likely require refractive surgical correction, and this will need to wait at
least several months for the cataract surgery to heal completely. In the
interim he has lost his depth perception and this will make it impossible for
him to work as a neurosurgeon until and unless he heals to the point of
regaining stero [sic] visual acuity. It is anticipated that his final vision
outcome will not be determined for another 3 months at which time a
judgment can be made as to whether or not he will be capable of performing
the kind of fine visual tasks required of a neurosurgeon.
{¶15} Dr. Di testified that Dr. Kosmorsky refused to operate further on his iris to
fix the post-surgery defect because it could not be fixed. During his course of
post-surgery treatment with Dr. Kosmorsky, Dr. Di attempted to use a piggyback lens to
address his symptoms but he was unable to tolerate it. Finally, Dr. Kosmorsky testified
that, on June 13, 2011, it was decided that the best remaining option was for Dr. Di to use
a colored contact lens to completely block out the vision in his left eye. At the time of
trial, Dr. Di remained monocular.
{¶16} At trial, five ophthalmologists offered varying opinions on the condition of
Dr. Di’s left eye and the cause of his vision problems. Dr. George Corrent, an
ophthalmologist with the Bascom Palmer Eye Institute in Florida consulted with Dr. Di
about potential solutions to his vision problems. He found that Dr. Di had a corneal scar
with some astigmatism that had caused an irregularity in the shape of Dr. Di’s cornea.
He further stated that Dr. Di’s iris was damaged and did not respond to light. Dr.
Corrent concluded that these problems were minor in comparison to what he saw as the
major problem with Dr. Di’s eye: changes in the left optic nerve. Dr. Corrent stated that
treatments could improve some of Dr. Di’s problems but no intervention would fix his
optic nerve and restore sufficient vision for him to have good depth perception. Dr.
Corrent did not offer an opinion on the cause of the damage to Dr. Di’s optic nerve.
{¶17} Dr. Marc Abrams, an ophthalmologist with 29 years of experience in private
practice, including iris surgery, testified as an expert for Dr. Di. He agreed with Dr.
Kosmorsky’s assessment from the above-quoted letter, which indicated that Dr. Di had
sustained iris damage during his eye surgery. He further agreed with Kosmorsky’s
assessment that the iris damage was causing Dr. Di to experience ghosting and reflective
halos and that Dr. Di had lost the depth perception necessary to work as a neurosurgeon.
Dr. Abrams explained that Dr. Di currently has a “sector defect” in his eye that lets in too
much light leading to fluctuating vision from glare and brightness.
{¶18} Dr. Abrams opined that Dr. Di did not have an iris defect of any kind prior
to his eye surgery. He explained that although the records reflect that Dr. Di had a
corneal scar with iris tenting, the tenting was not causing any of Dr. Di’s decreased visual
acuity. Abrams testified that the sole cause of Dr. Di’s decreased visual acuity prior to
surgery was the cataract. Dr. Abrams further confirmed that medical records established
that the sphincter muscle in Dr. Di’s eye was intact prior to surgery and allowed his pupils
to react to light and constrict.
{¶19} Dr. Abrams testified that, in his opinion, Dr. Esposito had cut Dr. Di’s
sphincter muscle during the removal of the iris from the cornea and created the sector
defect. He stated that Dr. Di did have a functional pupil but the surgery left him without
one. Dr. Abrams stated that Dr. Di now has a “giant area that doesn’t restrict, it’s just
really not a pupil.” Dr. Abrams explained that the pupil is important because “[it]
regulates the amount of light coming in. If you can’t regulate the light coming in and if all
the light just comes pouring in, you get ghost imaging, sometimes double vision * * *.”
{¶20} Dr. Abrams testified that it was below the standard of care for Dr. Esposito
to attempt to repair Dr. Di’s iris because it didn’t need to be fixed, stating: “Going after
the iris almost a year after a trauma was doomed to failure.” Dr. Abrams explained that
the iris tissue trapped in the cornea was already dead due to a lack of blood supply. He
stated that:
The only way to get the iris from being tented up is to basically dissect it
away, which creates a huge defect in the iris, which is what happened here.
He didn’t have a defect. He had a tenting-up position of the iris, but it did
block the light from coming in. By doing this, by basically amputating the
iris away from the cornea * * *.
***
[N]ow the iris is literally peeled back away from where it should be, and
that leaves — it’s like a door that’s being held wide open * * *.
{¶21} Dr. Abrams concluded that by attempting to amputate the iris and repair it,
Dr. Esposito destroyed Dr. Di’s pupil. Dr. Abrams stated that it was a deviation of the
standard of care to attempt the iris reconstruction because it was not a logical, reasonable
approach and would not work in light of the extended period of time that had passed since
Dr. Di’s initial injury. Dr. Abrams opined that the negligence of Dr. Esposito directly
and proximately caused injury to Dr. Di and had rendered his eye relatively useless
visually due to glare and photophobia. He further stated that Dr. Di lacked good depth
of vision due to the loss of vision in his left eye.
{¶22} Dr. Carl Asseff, a private ophthalmologist with experience performing
approximately 1,000 iris surgeries, also testified on behalf of Dr. Di. He agreed with Dr.
Abrams’ assessment that Dr. Di did not have an iris defect prior to the eye surgery but
instead had an iris adhesion that was plugging a laceration wound in his cornea. He also
testified that Dr. Di’s sphincter and radial muscles were intact prior to surgery because
Dr. Di’s eye was able to dilate. Dr. Asseff opined that prior to the eye surgery, the
tenting of Dr. Di’s iris was not affecting his vision in any way and was not a problem.
According to Dr. Asseff, Dr. Di’s only pre-surgery symptom, blurry vision, was due to the
cataract.
{¶23} Dr. Asseff testified that when Dr. Esposito attempted to remove Dr. Di’s iris
from the scar, the iris was severed and dramatically pulled away from the iris root and
blood supply resulting in the death of that tissue. Dr. Di’s pupil sphincter was also cut.
According to Dr. Asseff, today Dr. Di has a massive opening in his iris resulting in ghost
images from light, constant glare and photophobia.
{¶24} Dr. Asseff rejected the defense theory that Dr. Di’s symptoms were
pre-existing and are only now visible due to the removal of the cataract the presence of
which had prevented their detection. Dr. Asseff explained that Dr. Di did not have any
of the symptoms before the eye surgery. Dr. Di’s iris possessed 95 percent functionality
and efficiency before the surgery and his pupil was able to constrict and reduce the
amount of light that entered his eye. After the surgery, Dr. Di lost approximately 40
percent of his iris tissue and has no sphincter muscle, resulting in massive amounts of
light entering his eye.
{¶25} Dr. Asseff opined that Dr. Esposito should have performed only the cataract
operation because Dr. Di’s iris injury was not salvageable at the time of surgery. Dr.
Asseff further opined that, had Dr. Esposito done only the cataract operation, Dr. Di
would still be performing neurosurgery today and would not suffer from photophobia,
glare and ghost imaging. Finally, Dr. Asseff concluded that Dr. Di had lost depth
perception, was unable to perform the duties of a neurosurgeon and his vision problem
could not be fixed.
{¶26} Dr. Kosmorsky testified that Dr. Di had an iris defect prior to the eye
surgery. However, he conceded that none of his own records and notations from treating
Dr. Di attributed his post-surgery vision problems to anything other than the eye surgery.
In contrast to his earlier letter describing Dr. Di’s eye injury, at trial Dr. Kosmorsky
attributed Dr. Di’s vision problems to a pre-existing iris defect. He asserted that the
reason that Dr. Di only began to experience glare, photophobia and ghost images
immediately following the eye surgery was because the cataract had been masking these
symptoms by blocking light out of Dr. Di’s eye.
{¶27} Dr. Kosmorsky’s differential diagnosis for Dr. Di included amblyopia
possibly caused by a congenital optic nerve abnormality, conversion disorder and an
ulterior motive, i.e., that Dr. Di was faking the injury. In contrast to this opinion,
defendant-appellant Dr. Esposito conceded Dr. Di’s eye is injured and he is not faking.
In fact, Dr. Kosmorsky admitted that after surgery Dr. Di’s sphincter muscle in the
relevant section of his iris had been completely cut to the pupil despite documentation
from Dr. Esposito that it had been intact prior to surgery. Dr. Kosmorsky further
conceded that despite numerous opportunities during the treatment of Dr. Di, no
ophthalmologist for the CCF ever diagnosed Dr. Di with either amblyopia or a congenital
optic nerve abnormality.
{¶28} Dr. Asseff rejected Dr. Kosmorsky’s differential diagnosis of latent
amblyopia and a congenital optic nerve defect because there was no documentation of
damage prior to the surgery. He additionally opined that, “hypothetically,” if Dr. Di now
has optic nerve damage, such damage was sustained during the trauma of the eye surgery
due to increased intraocular pressure.
{¶29} Finally, Dr. Michael Snyder, an ophthalmologist who specializes in cornea
and refractive surgery for the Cincinnati Eye Institute, testified for the appellants. Dr.
Snyder testified that Dr. Di had a defect in his iris and damage to his pupil prior to the eye
surgery due to a corneal laceration. Dr. Snyder opined that Dr. Di did not see glare or
photophobia until after the surgery because of the cataract and his iris being incarcerated
in the corneal wound resulted in a blockage of light. Dr. Snyder testified that the
cataract was masking problems such as light sensitivity and multiple images that Dr. Di
did not notice until the cataract was removed.
{¶30} Dr. Snyder agreed with Dr. Esposito’s decision to attempt the iris
reconstruction surgery and testified that he would have made the same choice. Dr.
Snyder testified that Dr. Esposito was competent and qualified to make the surgical
recommendation and perform the surgery. However, Snyder conceded that “it is very
difficult, almost impossible, to remove the iris from the scar where it has become
entrapped.” Despite this, Dr. Snyder maintained he would have performed the surgery
because if Dr. Di’s iris had been left plugging the corneal wound, he would continue to be
at risk for photophobia and glare.
{¶31} Dr. Snyder testified that it is impossible to predict how a patient’s iris will
react to this type of surgery and a perfect outcome cannot be guaranteed. Dr. Snyder
testified that a perfect outcome was not achieved in Dr. Di’s case and that while Dr. Di
had a pre-surgery iris abnormality the abnormality was enlarged by the surgical
intervention. He further conceded that light was entering Dr. Di’s eye through this
larger aperture and that while Dr. Di’s pupil had been reactive to light prior to surgery,
afterward the pupil showed minimal reactivity.
{¶32} Dr. Snyder testified that the present defects in Dr. Di’s eye could be
addressed with various treatments including a contact lens designed to limit the amount of
light that enters the eye, an artificial iris and a corneal transplant. Dr. Abrams disagreed
with Dr. Snyder’s opinion and testified that Dr. Di’s iris defect could not be fixed with a
jupiter lens, a corneal transplant or an artificial iris transplant. He explained that a
corneal transplant would not address Dr. Di’s iris defect and an artificial iris is not a
device approved by the FDA. He further opined that an artificial iris would be
contraindicated in Dr. Di’s case because it would increase his risk to suffer intractable
glaucoma. Dr. Snyder maintained that Dr. Abrams’ concerns regarding the artificial iris
were factually incorrect.
{¶33} Finally, Dr. Snyder testified that he examined Dr. Di’s left optic nerve after
the eye surgery and did not find the nerve to be damaged. However, Dr. Snyder
repeatedly described the nerve as “funny looking.” While not opining that Dr. Di’s optic
nerve was the cause of his present vision problems, Dr. Snyder testified that the nerve had
an abnormal shape from development in utero. He further maintained that the shape of
the nerve does not change based on intervention and that the eye surgery did not cause
damage to Dr. Di’s optic nerve.
{¶34} The record reflects that the CCF chose not to renew Dr. Di’s employment
contract after 2010 in a decision that was completely unrelated to his eye injury. It was
established that Dr. Di was a fellow at the CCF from 2003 to 2006 and then a clinical
associate from 2006 until the end of his employment in 2011. Dr. Di’s annual salary
was $150,000 from 2003 until April 1, 2010. In April 2010 the CCF increased Dr. Di’s
salary to $300,000. The record reflects that the average annual salary for a staff level
neurosurgeon at the CCF was $475,000. CCF witnesses maintained that Dr. Di’s value
was beneath “staff level” because he was ineligible for board certification in neurosurgery
due to his education and training outside the United States.
{¶35} In anticipation of his annual contract not being renewed with the CCF, Dr.
Di obtained a neurosurgery position at the Children’s Mercy Hospital in Missouri with an
annual salary of $480,000. Dr. Di’s ability to obtain a license to practice medicine in the
state of Missouri was uncertain and in the process of being appealed when he underwent
eye surgery. Due to his vision problems subsequent to the surgery, he was forced to
withdraw from his contract with Children’s Mercy Hospital because he could not operate
as a neurosurgeon.
{¶36} Dr. Di’s economic damages expert, Dr. David Boyd, detailed his
calculations of Dr. Di’s future lost wages due to his inability to operate as a neurosurgeon
following the eye surgery. Dr. Boyd presented alternative calculations based on
different work life expectancy figures and salaries of $300,000 and $475,000.
{¶37} Lastly, Dr. Di’s wife, Nan Qiao, testified and described the detrimental
impact that Dr. Di’s eye injury had upon their family.
I. Motion for Judgment Notwithstanding the Verdict
{¶38} Appellants argue in their first assignment of error that the trial court erred in
denying their motion for a judgment notwithstanding the verdict.
{¶39} Review of a trial court’s ruling on a motion for judgment notwithstanding
the verdict is de novo, because it presents a question of law. Seese v. Admr., Bur. of
Workers’ Comp., 11th Dist. Trumbull No. 2009-T-0018, 2009-Ohio-6521, ¶ 11. We
review the denial of a motion for judgment notwithstanding the verdict under the
following standard:
The evidence adduced at trial and the facts established by admissions in the
pleadings and in the record must be construed most strongly in favor of the
party against whom the motion is made, and, where there is substantial
evidence to support his side of the case, upon which reasonable minds may
reach different conclusions, the motion must be denied. Neither the weight
of the evidence nor the credibility of the witnesses is for the court’s
determination in ruling upon either of the above motions.
Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St. 2d 271, 275, 344 N.E.2d 334 (1976).
{¶40} A motion for judgment notwithstanding the verdict tests the legal
sufficiency of the evidence. This is a question of law that does not require the reviewing
court to weigh the evidence or test the credibility of witnesses. Ruta v.
Breckenridge-Remy Co., 69 Ohio St. 2d 66, 430 N.E.2d 935 (1982).
{¶41} Appellants argue that the evidence presented at trial was legally insufficient
to support the jury’s verdict and they cite the jury’s response to interrogatory number 7
that asked in what respect Dr. Esposito was negligent. The jury answered as follows:
[D]id not meet the required standard of care.
Attempted a surgery he was not qualified to preform [sic].
{¶42} The Ohio Supreme Court has repeatedly approved the use of interrogatories
requesting the jury to state “in what respects the defendant was negligent.” Moretz v.
Muakkassa, 137 Ohio St. 3d 171, 2013-Ohio-4656, 998 N.E.2d 479, ¶ 77. The essential
purpose to be served by interrogatories is to test the correctness of a general verdict by
eliciting from the jury its assessment of the determinative issues presented by a given
controversy in the context of evidence presented at trial. Cincinnati Riverfront Coliseum,
Inc. v. McNulty Co., 28 Ohio St. 3d 333, 336-37, 504 N.E.2d 415 (1986).
{¶43} Here, appellants argue that the jury’s response to interrogatory number 7
was legally insufficient to support the jury’s verdict because Dr. Di presented no expert
testimony that Dr. Esposito was unqualified to perform the iris reconstruction or that a
lack of qualifications caused Dr. Di’s injury. We do not agree.
{¶44} Appellants’ argument is flawed in two respects. First, appellant asks this
court to completely ignore the first sentence in the jury’s response to the interrogatory —
that Dr. Esposito “did not meet the required standard of care.” Even if we were to
accept appellants’ argument that the jury’s second sentence was not supported by the
evidence, the jury heard sufficient testimony from Dr. Abrams and Dr. Asseff detailing a
violation of the standard of care by Dr. Esposito and establishing that such violation
proximately caused Dr. Di’s injury. Assuming arguendo that the second sentence
represents a flawed rationale in support of medical negligence, the first sentence stands,
by itself, as an independent and adequate explanation of the negligence determination.
The jury’s first stated rationale for its negligence finding— that Dr. Esposito violated the
standard of care — is supported by sufficient evidence on the record.
{¶45} Second, we reject appellants’ strict and narrow construction of the jury’s
second sentence, “[a]ttempted a surgery he was not quailified [sic] to preform [sic].” In
Prendergast v. Ginsburg, 119 Ohio St. 360, 164 N.E. 345 (1928), the Ohio Supreme
Court held that, “[j]udgment should not be rendered on special findings of fact as against
the general verdict unless such special findings, when considered together, are
inconsistent and irreconcilable with the general verdict.” Id. at paragraph one of the
syllabus. Jury interrogatory answers should be liberally construed with a view to
ascertaining the jury’s reason for its verdict. Elio v. Akron Transp. Co., 147 Ohio St. 363,
370, 71 N.E.2d 707 (1947). Neither the court nor counsel may put words into the
mouths of the jury. Id.
{¶46} Over the course of a 13 day trial, the jury heard conflicting testimony from
five ophthalmologists regarding the damage to Dr. Di’s eye, the cause of said damage and
the relevant standard of care. In addition to that information, the jurors heard evidence
regarding Dr. Di’s claims against Dr. Kim and they were inundated with a massive
quantity of specialized medical information. Appellants now argue that this court should
reverse the jury’s verdict because their interrogatory response failed to strictly conform to
the proper use of legal and medical terminology. We decline to adopt appellants’ strict
construction approach to a layperson jury’s description of medical negligence.
{¶47} There is no dispute that appellant introduced sufficient expert evidence that
Dr. Esposito violated the standard of care by performing an unnecessary and unlikely to
succeed surgical procedure (the iris reconstruction). Furthermore, Dr. Di introduced
sufficient expert evidence to establish that this unnecessary procedure proximately caused
the damage to his iris. In a situation such as this, where the record contains sufficient
evidence to establish medical negligence, we decline to interject ourselves into the minds
of the jury and apply strict legal meaning to ambiguous terminology and overturn their
verdict. We do not find Dr. Di’s theory of negligence, that Dr. Esposito erred in
deciding to engage in an unnecessary and risky surgical course, to be patently inconsistent
with the jury’s finding that he engaged in a surgery he was not qualified to perform.
{¶48} Appellants’ first assignment of error is overruled.
II. Trial Court’s Admission of Employment–Related Evidence
{¶49} Appellants argue in their second assignment of error that the trial court erred
in allowing Dr. Di to introduce evidence pertaining to his employment with CCF.
Appellants argue that the testimony of certain witnesses and the introduction of a letter
evidencing neglect of Dr. Di’s compensation by his employer constituted inflammatory
and irrelevant evidence.
{¶50} “Relevant” evidence is defined by Evid.R. 401 as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” All
relevant evidence is admissible and irrelevant evidence is inadmissible. Evid.R. 402.
{¶51} “Decisions concerning the admission or exclusion of evidence are within the
discretion of the trial court and will not be reversed absent an abuse of that discretion.”
Smith v. Gold-Kaplan, 8th Dist. Cuyahoga No. 100015, 2014-Ohio-1424, ¶ 17, citing
Beard v. Meridia Huron Hosp., 106 Ohio St. 3d 237, 2005-Ohio-4787, 834 N.E.2d 323.
A trial court’s determination of the relevance of any evidence is also reviewed for an
abuse of discretion. State v. Allen, 73 Ohio St. 3d 626, 633, 653 N.E.2d 675 (1995). A
reviewing court will uphold an evidentiary decision absent an abuse of discretion that has
affected the substantial rights of the adverse party or is inconsistent with substantial
justice. Beard at ¶ 20. The term “abuse of discretion” connotes more than an error of
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
{¶52} Appellants argue that the trial court abused its discretion in allowing Dr. Di
to call Dr. Michael Modic, Dr. Marc Luciano and Dr. Edward Benzel as witnesses. We
disagree. The testimony of all three doctors was relevant to establish Dr. Di’s future
earning capacity, his capabilities as a surgeon and his ability to function as a
neurosurgeon in the future.
{¶53} Dr. Michael Modic’s testimony established that a staff level neurosurgeon at
the CCF has an average salary of $475,000. Dr. Marc Luciano was Dr. Di’s immediate
supervisor at the CCF and established that Dr. Di was considered one of the leading
neurosurgeons in the United States regarding endoscopic chiari surgery during his time at
the CCF. He confirmed that he wrote a letter of recommendation for Dr. Di and that Dr.
Di was a very good physician and a mature technical neurosurgeon who possessed good
judgment.
{¶54} Appellants and Dr. Di took opposing positions at trial on the question of
whether Dr. Di could continue to function as a monocular neurosurgeon. No testimony
was more relevant to this issue than that of Dr. Edward Benzel. Dr. Benzel testified that
he had been the chairman of neurosurgery at the CCF since 2007. He testified that he
disagreed with Dr. Kosmorsky’s opinion that Dr. Di was unable to function as a
neurosurgeon due to a loss of depth perception, explaining that “a lot” of Dr. Di’s surgery
involves interpreting images displayed on a two dimensional television screen.
However, he conceded that complications during endoscopic procedures can require a
neurosurgeon to convert the procedure to an open procedure that would require depth
perception and that endoscopic procedures in general require depth perception to place
the endoscope in the patient’s body.
{¶55} Nonetheless, Dr. Benzel maintained that Dr. Di’s monocular vision would
suffice for neurosurgery. When pressed for an explanation, Dr. Benzel stated that depth
perception is “tactile, visual, other cues, et cetera.” This was the most significant
testimony introduced at trial on the subject of Dr. Di’s future capability as a neurosurgeon
because it is likely that the jury found this explanation to be lacking in credibility. The
record established that Dr. Di was monocular and lacked vision in his left eye for depth
perception. The record further established the incredibly delicate and precise nature of
Dr. Di’s surgeries that required him to operate in spaces as small as one millimeter and
where mistakes can result in the death of a patient. Within that context, it is difficult to
accept Dr. Benzel’s claim that “tactile” sense would be sufficient for such surgeries.
{¶56} Dr. Benzel also provided testimony regarding Dr. Di’s appropriate salary
and value in the market as a neurosurgeon. His testified that Dr. Di’s salary for the
majority of his time at the CCF, $150,000 per year, was appropriate because Dr. Di’s
value as a non-board certified surgeon was “low.” However, this testimony was directly
contradicted by an internal email indicating that Dr. Di had been underpaid. It was also
refuted by Dr. Di’s ability to obtain a contract for his services at the Children’s Mercy
Hospital in Missouri with an annual salary of $480,000.
{¶57} Furthermore, Dr. Benzel questioned Dr. Di’s skill, stating that a letter of
recommendation that he, himself, had written that included effusive praise of Dr. Di was
not accurate. In testimony that likely damaged his credibility, Dr. Benzel maintained
that despite his praise and the well established unique character of Dr. Di’s neurosurgical
practice, Dr. Di was merely an “adequate surgeon.” Dr. Benzel explained that his
effusive letter of recommendation contained a “code word” in the form of the phrase:
“[s]hould you have any further questions or concerns, please do not hesitate to contact
me.” Regarding prospective employers who relied on the veracity of his statements of
praise in the letter, Dr. Benzel stated “[i]f you don’t call me, you’re bad.”
{¶58} Due to the plethora of relevant testimony introduced during the questioning
of the above witness we cannot say that the trial court abused its discretion in allowing
Dr. Di to call them as witnesses.
{¶59} Finally, appellants argue that the trial court erred in allowing Dr. Di to
introduce an April 1, 2010 internal CCF email written by Dr. Modic that stated “believe it
or not [Dr. Di] was hired at 150k and never given a raise [from 2006 to 2010].” The letter
indicated that Dr. Di was “actually a good surgeon but not board eligible and * * * not
part of our long term planning.” In anticipation of transitioning Dr. Di’s work to a
newly recruited pediatric neurosurgeon at the end of 2010, Dr. Modic stated:
I would like to increase his compensation to 300k year [sic] starting in May
for his cooperation in staying with us through the transition, even though
we were not going to reappoint him. (Might also get us off the hook if he
sues his [sic] under the US anti slavery laws). I know we are in a
compensation budget crunch but he has been mistreated. My only excuse,
and a lame one at that, is that he has been under my radar as a clinical
associate.
{¶60} The trial court initially ruled that the email would be excluded from trial
and, consistent with this ruling, it was not introduced during the testimony of Dr. Modic.
However, when Dr. Di’s economics expert, Dr. Boyd, provided testimony regarding his
future lost wages based on alternative annual salaries of $300,000 and $475,000,
appellants challenged these salary figures. Appellants forced Dr. Boyd to concede that
Dr. Di had never earned $300,000 for a full year but rather his W-2 forms indicated
salaries in the $150,000 range. Further questioning by appellants’ attorney suggested
that Dr. Boyd’s economic damages calculations should be cut in half based on this
information.
{¶61} Following an objection by Dr. Di, the trial court reversed its decision to
exclude Dr. Modic’s email and allowed it to be introduced during the testimony of Dr.
Benzel who described it as “a joke.”
{¶62} In State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, this
court explained:
Under the “opening the door doctrine,” where a party has elicited or
introduced prejudicial or inadmissible testimony, his opponent, in the trial
court’s discretion, may introduce evidence on the same issue in order to
rebut any false impression that may have resulted from the earlier
admission. A prerequisite of any view regarding “opening the door” is that
the initial evidence was somehow prejudicial to the party attempting to
present rebuttal evidence.
(Internal citations omitted.) Id. at ¶ 122
{¶63} A party may use relevant information to rebut the inference arising from
evidence when a party opens the door to otherwise inadmissible evidence. State v.
Battiste, 8th Dist. Cuyahoga No. 102299, 2015-Ohio-3586, ¶ 33, citing State v. Jackson,
57 Ohio St. 3d 29, 565 N.E.2d 549 (1991). This court has applied the “opening the door”
doctrine in the context of civil trials. See, e.g., Spisak v. Salvation Army, 8th Dist.
Cuyahoga No. 99633, 2013-Ohio-5429, ¶ 53.
{¶64} We find no error in the trial court’s application of the doctrine in this
instance. Appellants were fully capable of introducing independent testimony on the
topic of Dr. Di’s future market value and instead chose to take advantage of the trial
court’s initial decision to exclude the letter. The record contained significant evidence
that Dr. Di’s market value was greater than $150,000 per year. Despite this fact,
appellants attempted to wield the trial court’s exclusion of the Modic email against Dr. Di
by arguing that his true value was $150,000, knowing that the ruling barred Dr. Di from
introducing relevant evidence that his salary history was below market value. We
cannot say that the trial court abused its discretion when it allowed the letter to be
introduced to provide appropriate context in response to appellants’ misleading tactic.
{¶65} Appellants’ second assignment of error is overruled.
III. The New Proximate Cause Opinion
{¶66} In their third assignment of error, appellants argue that the trial court erred
in allowing Dr. Di’s expert, Dr. Asseff, to introduce a new theory of causation not
previously disclosed in his expert report or discovery deposition. Specifically, appellants
argue that the trial court erred in allowing Dr. Asseff to testify that if Dr. Di did possess
optic nerve damage, it was caused by trauma sustained during the cataract surgery.
Appellants argue that they suffered unfair surprise due to this testimony and were
precluded from effectively cross-examining Dr. Asseff and introducing expert testimony
to refute his position.
{¶67} It is unclear from the record why the parties failed to fully explore the
question of optic nerve damage during discovery. Although Dr. Corrent was the only
ophthalmologist who directly attributed Dr. Di’s permanent vision loss to optic nerve
damage, his opinion was known by both parties prior to trial. Furthermore, Dr. Corrent
offered no opinion on the cause of the alleged optic nerve damage.
{¶68} Dr. Kosmorsky raised the theory of a congenital optic nerve abnormality as
part of his differential diagnosis but admitted that neither amblyopia or an optic nerve
abnormality was documented in Dr. Di’s CCF records. Dr. Snyder repeatedly referred to
Dr. Di’s optic nerve as a “funny looking nerve” but testified that he performed an optic
nerve coherence tomography on Dr. Di and did not find the nerve to be damaged. Dr.
Snyder admitted that he did not disclose his opinion regarding Dr. Di’s “funny looking”
optic nerve at his deposition but conceded that he did not believe the nerve to be the
ultimate limiting factor in Dr. Di’s vision problems.
{¶69} Dr. Asseff testified that the medical records documented that Dr. Di
sustained increased intraocular pressure as a result of the eye surgery and opined that,
hypothetically, if Dr. Di’s optic nerve was damaged, such damage was caused by the
trauma of the surgery. There is no dispute that Dr. Asseff never opined, prior to trial,
that Dr. Di suffered optic nerve damage as a result of the eye surgery.
{¶70} Civ.R. 26(E)(1)(b) requires a party to seasonably supplement responses to
any questions directly addressed to the subject matter on which an expert is expected to
testify. “This duty * * * is necessary because preparation for effective cross-examination
is especially compelling where expert testimony is to be introduced.” Shumaker v. Oliver
B. Cannon & Sons, Inc., 28 Ohio St. 3d 367, 370, 504 N.E.2d 44 (1986), abrogated on
other grounds, State v. D’Abrosio, 67 Ohio St. 3d 185, 1993-Ohio-170, 616 N.E.2d 909.
The purpose of Civ.R. 26(E)(1)(b) is to prevent “trial by ambush.” Id. at 371.
{¶71} Loc.R. 21.1(B), which governs the use of expert witnesses and expert
reports in Cuyahoga County, further provides, in pertinent part:
A party may not call an expert witness to testify unless a written report has
been procured from the witness and provided to opposing counsel. It is
counsel’s responsibility to take reasonable measures, including the
procurement of supplemental reports, to insure that each report adequately
sets forth the expert’s opinion. However, unless good cause is shown, all
supplemental reports must be supplied no later than thirty (30) days prior to
trial. The report of an expert must reflect his opinions as to each issue on
which the expert will testify. An expert will not be permitted to testify or
provide opinions on issues not raised in his report.
{¶72} The trial court has discretion to determine whether there has been a violation
of Loc.R. 21.1 and how to remedy that violation. Nakoff v. Fairview Gen. Hosp., 75 Ohio
St.3d 254, 257-258, 662 N.E.2d 1 (1996); Pang v. Minch, 53 Ohio St. 3d 186, 559 N.E.2d
1313 (1990), paragraph one of the syllabus. Thus, a reviewing court should not disturb a
trial court’s decision regarding a discovery sanction absent an abuse of discretion. Nakoff
at syllabus; Cox v. MetroHealth Med. Ctr. Bd. of Trustees, 2012-Ohio-2383, 971 N.E.2d
1026, ¶ 41 (8th Dist.). The Nakoff court explained that, “[t]he discovery rules give the
trial court great latitude in crafting sanctions to fit discovery abuses” and “[i]n order to
have an abuse of that choice, the result must be so palpably and grossly violative of fact
or logic that it evidences not the exercise of will but the perversity of will, not the
exercise of judgment but the defiance of judgment, not the exercise of reason but instead
passion or bias.” Nakoff at 256.
{¶73} An inquiry into whether a trial court abused its discretion in applying Loc.R.
21.1 is necessarily fact intensive. One purpose of Civ.R. 26(E)(1) is to prevent “trial by
ambush.” Amerifirst Savs. Bank of Xenia v. Krug, 136 Ohio App. 3d 468, 498, 737
N.E.2d 68 (2d Dist.1999); Walker v. Holland, 117 Ohio App. 3d 775, 785-786, 691
N.E.2d 719 (2d Dist.1997); Waste Mgt. of Ohio, Inc. v. Mid-America Tire, Inc., 113 Ohio
App.3d 529, 681 N.E.2d 492 (2d Dist.1996). “If discovery is to serve its purpose, the
parties must be entitled, upon the unveiling of a contention, to a reasonable opportunity to
prepare to defend against it.” Waste Mgt. at 533; Shumaker at 371.
{¶74} In Cox, this court found that a trial court had abused its discretion by
allowing a defense expert to offer a new theory of causation based on new information
that the expert learned after preparing his expert report and being deposed by the plaintiff.
Cox at ¶ 37-48. The court held that, in the absence of a supplement to the expert’s
deposition testimony, the plaintiffs had a reasonable expectation that the defense expert’s
trial testimony would be consistent with his original responses provided in discovery. Cox
at ¶ 43. We held that the plaintiffs in Cox were “surprised and prejudiced” by the
expert’s testimony. Cox at ¶ 43.
{¶75} In O’Connor v. Cleveland Clinic Found., 161 Ohio App. 3d 43,
2005-Ohio-2328, 829 N.E.2d 350, ¶ 25 (8th Dist.), this court found a party’s failure to
disclose a critical new theory by an expert witness to be a violation of Civ.R. 26(E) and
Loc.R. 21.1. In O’Connor, we recognized the necessity of supplementing expert
testimony, stating that “the introduction of a new theory that has not been disclosed prior
to trial ‘smacks of ambush’ and thwarts an opposing counsel’s ability to effectively offer
a counter theory or to cross-examine the expert.” Id. at ¶ 20. We concluded that the trial
court abused its discretion by allowing an expert witness to offer a new opinion on the
possible cause of the injury, holding that “[t]he failure to disclose the new theory in either
an expert report, as a supplement to [the doctor’s] deposition, or by supplementing
responses to original interrogatories distorted the level playing field.” Id. at ¶ 23.
{¶76} The exclusion of otherwise reliable and probative evidence, however, is an
extreme sanction for a discovery violation. Cucciolillo v. E. Ohio Gas Co., 4 Ohio
App.3d 36, 446 N.E.2d 175 (7th Dist.1980); Mulford v. Columbus & S. Ohio Elec. Co.,
4th Dist. Athens No. CA-1548, 1994 Ohio App. LEXIS 32 (Jan. 12, 1994). Thus, a
court should exclude evidence only when clearly necessary to enforce willful
noncompliance or to prevent unfair surprise. See Nickey v. Brown, 7 Ohio App. 3d 32,
454 N.E.2d 177 (9th Dist.1982). In deciding whether to exclude evidence, “‘the trial
court should weigh the conduct of the party offering the expert testimony along with the
level of prejudice that the opposing party suffered as a result of the discovery violation.’”
Culp v. Olukoga, 4th Dist. Scioto No. 12CA3470, 2013-Ohio-5211, ¶ 38, quoting Savage
v. Correlated Health Serv., 64 Ohio St. 3d 42, 591 N.E.2d 1216 (1992).
{¶77} In the present case, we find no abuse of discretion because we find no
indication of surprise or prejudice on the record. The record reflects that appellants
introduced the theory of a pre-existing congenital optic nerve abnormality in contradiction
of the documentary evidence and the opinions of their own experts. Under these
circumstances, the trial court did not abuse its discretion in allowing Dr. Asseff, who
attributed Dr. Di’s injury to a completely separate proximate cause, to answer a
hypothetical question regarding Dr. Di’s optic nerve.
{¶78} Dr. Kosmorsky ingenuously raised the theory of a congenital optic nerve
abnormality as part of his “differential diagnosis” despite admitting that neither
amblyopia nor an optic nerve abnormality was documented in Dr. Di’s CCF records.
Furthermore, Dr. Kosmorsky’s theory of a pre-existing congenital optic nerve condition
was refuted by his own admission that two internal medicine physicians and an
ophthamologist found Dr. Di’s optic nerve to be normal prior to surgery. Kosmorsky
conceded that Dr. Esposito himself performed a fundus examination on Dr. Di’s optic
nerve on December 10, 2010 and reported no abnormalities.
{¶79} Dr. Snyder’s testimony in regards to Dr. Di’s optic nerve was more evasive
than Dr. Kosmorsky. Dr. Snyder repeatedly referred to Dr. Di’s optic nerve as a “funny
looking nerve.” Dr Synder testified that he performed an optic nerve OCT on Dr. Di and
did not find the nerve to be damaged. Dr. Snyder further admitted that he had no
baseline view of Dr. Di’s optic nerve as it existed prior to surgery for comparison.
Despite this testimony, Dr. Synder concluded that Dr. Di’s optic nerve possessed an
“abnormal shape” from development in utero. Finally, and most importantly, Dr. Snyder
opined that the surgery could not have caused damage to Dr. Di’s optic nerve.
{¶80} Despite Dr. Snyder’s opinion as to the “funny looking” nature of Dr. Di’s
optic nerve he testified that he did not believe the nerve to be the ultimate limiting factor
in Dr. Di’s vision problems. Dr. Snyder further admitted that he did not disclose his
opinion regarding Dr. Di’s optic nerve at his deposition. He conceded that his report
mentioned Dr. Di’s optic nerve but, in contrast to his trial testimony, did not give an
opinion on what caused it to look “funny.”
{¶81} In response to this testimony, Dr. Asseff, who also concluded that Dr. Di’s
optic nerve was not the source of his vision problems, answered a hypothetical question
that required him to assume that the nerve was, in fact, damaged. Although he found no
such damage to Dr. Di’s optic nerve, he testified that if the optic nerve was damaged, the
damage was attributable to increased intraocular pressure from the trauma of the surgery.
{¶82} To conclude, both Dr. Asseff and Dr. Snyder held the opinion that Dr. Di’s
vision problems stemmed from the damage to his iris and pupil. Both experts were
provided an opportunity to presume that Dr. Corrent’s conflicting diagnosis of optic nerve
damage was true and offer opinions on its cause. In other words, the only disagreement
between the two experts on this issue was what could have caused this hypothetical injury
that neither found Dr. Di to possess. Within that context both experts were allowed to
offer an opinion regarding whether hypothetical optic nerve damage sustained by Dr. Di
was attributable to the surgery.
{¶83} We find no element of “ambush” here. This case is similar to Faulk v.
Internatl. Business Machines, 1st Dist. Hamilton Nos. C-765 and C-778, 2001 Ohio App.
LEXIS 3980 (Sept. 7, 2001), where the court held that the trial court did not abuse its
discretion by allowing a defense expert to testify regarding causation. The plaintiff
argued that the trial court erroneously permitted the defense expert to testify regarding
causation when his causation opinion given at trial differed from what he gave during his
deposition and when the defense did not inform the plaintiff of the change. The plaintiff
asserted that the defense expert changed his theory of how the plaintiff suffered her
injury. The appellate court disagreed, stating:
[W]e must decide whether the subject matter of [the expert’s] trial
testimony materially differed from the subject matter of his deposition
testimony. Throughout this litigation, [the expert] has opined that the
surge protector was the cause of [the plaintiff’s] injury. That opinion did
not change. [The expert] has also consistently opined that the building was
appropriately wired and grounded. What changed at trial was that [the
expert] was presented with a hypothetical as to what effect an ungrounded
electrical system would have had on his conclusion that the surge protector
was the cause of [the plaintiff’s] injuries. He opined that, in that situation,
the ungrounding would have resulted in an electric shock to any device
plugged into the defective surge protector, whenever a person touched a
metal part of the device.
This is not a case where an expert was unable to give an opinion on
causation during his deposition, but did so at trial. See Waste
Management, of Ohio, Inc. v. Mid-America Tire, Inc., 113 Ohio App. 3d
529, 533, 681 N.E.2d 492 (2d Dist.1996). Nor is it a situation where the
expert specifically changed his or her opinion at trial. See Fetters v. St.
Francis/St. George Hospital, Inc., 1st Dist. Hamilton No. C-990410, 2000
Ohio App. LEXIS 999 (Mar. 17, 2000). This is also not a case where
“the subject matter [of the expert’s testimony] [was] revealed for the first
time at trial and the opposing party had no reason to anticipate it.” See
Fetters v. St. Francis/St. George Hospital, Inc. In fact, the issue of the
consequences of an ungrounded circuit was touched upon in [the expert’s]
deposition. Further, since it was obvious that the two expert’s opinions
were premised on whether the building’s electrical system was grounded,
we do not believe that [the expert’s] opinion concerning the hypothetical
was “an ambush.”
Id.
{¶84} In this case, Dr. Asseff testified in his deposition that based on his testing,
Dr. Di’s optic nerve was normal. Dr. Asseff did not alter that opinion at trial. Dr.
Asseff simply answered a hypothetical question posed that allowed him to assume certain
facts were true — facts that neither Asseff nor Snyder found in their examinations of Dr.
Di. Morever, both experts had the opportunity to offer what amounted to opinions on
this hypothetical question.
{¶85} Appellants argue that because their expert, Dr. Snyder, testified out of order
during Dr. Di’s case-in-chief, he was prevented from effectively countering Dr. Asseff’s
purported new proximate cause theory. But Dr. Snyder had addressed the exact issue
during his redirect-examination that the clinic is now claiming it could not counter: Dr.
Snyder opined that there was no way that the January 14, 2011 surgery could have caused
Dr. Di’s optic nerve abnormality. Notably, it is quite possible that if Dr. Snyder had not
first stated that Dr. Di’s optic nerve abnormality could not have been caused by the
January 14, 2011 surgery, then Dr. Asseff would not have responded with his counter
opinion. Again, this is because Dr. Asseff’s ultimate opinion did not involve Dr. Di’s
optic nerve — and that did not change. Further, even if Dr. Asseff had testified first,
and then Dr. Snyder testified regarding his opinion, Dr. Di would have been able to recall
Dr. Asseff to rebut Dr. Snyder’s testimony.
{¶86} Thus, although Dr. Asseff testified that if Dr. Di had optic nerve damage,
then it was caused by the January 14, 2011 surgery, his expert opinion that Dr. Di’s vision
problems were caused by the damage to his iris during the surgery — the ultimate issue in
the case — remained unchanged. Accordingly, we cannot say that the trial court abused
its discretion.
{¶87} Although differences of opinions on this matter are possible, a mere
disagreement with the trial court’s decision does not show a “perversity of will” on the
trial court’s part necessary to find an abuse of discretion. We cannot say that the trial
court’s decision here was “so palpably and grossly violative of fact or logic that it
evidences not the exercise of will but the perversity of will, not the exercise of judgment
but the defiance of judgment, not the exercise of reason but instead passion or bias.”
Nakoff, 75 Ohio St. 3d at 256, 662 N.E.2d 1. This was a complicated case that took place
over a two-week period, involving specialized medical issues and the testimony of five
competing experts. In the end, the jury simply believed Dr. Di’s experts over the
appellants’ experts on the issue of whether Dr. Esposito deviated from the standard of
care and whether that deviation was the proximate cause of Dr. Di’s vision problems.
{¶88} Appellants’ third assignment of error is overruled.
IV. Defendant’s Failure to Pass Board Certification Examinations
{¶89} In their fourth assignment of error, appellants argue that the trial court erred
in permitting Dr. Di’s counsel to argue and cross-examine Dr. Esposito regarding his
failure to pass his board certification examinations in the field of ophthalmology. We
agree that the trial court erroneously permitted this testimony but find the error to be
harmless.
{¶90} Dr. Di’s counsel stated during opening statements that Dr. Esposito was
inexperienced and had “failed his boards.” He further questioned Dr. Esposito on the
board certification exams and elicited an admission that Dr. Esposito had taken, and
failed, the board exams twice.
{¶91} It is well established under Ohio law that questions regarding a defendant
doctor’s failure to pass board certification examinations is not relevant to the ultimate
issue of whether the doctor breached the standard of care in a particular instance.
O’Loughlin v. Mercy Hosp. Fairfield, 1st Dist. Hamilton No. C-130484, 2015-Ohio-152,
¶ 9; Shoemake v. Hay, 12th Dist. Clermont No. CA2002-06-048, 2003-Ohio-2782, ¶
13-15; Keller v. Bacevice, 9th Dist. Lorain No. 94CA005812, 1994 Ohio App. LEXIS
5444 (Nov. 30, 1994). This court has previously held that a trial court did not abuse its
discretion in finding that questions about a doctor’s failure to pass board certification
examinations were not relevant to his competency or credibility. Johnston v. Univ.
Mednet, 8th Dist. Cuyahoga No. 65623, 1994 Ohio App. LEXIS 3495 (Aug. 11, 1994),
overruled on other grounds, 71 Ohio St. 3d 608, 1995-Ohio-1, 645 N.E.2d 453.
{¶92} Although we find that the trial court erred in admitting the testimony
regarding Dr. Esposito’s failure to pass his board certification examinations, we find the
error to be harmless. Absent a showing that a party’s substantial rights were affected by
the admission of evidence, we will disregard errors in the admission of evidence as
harmless error. See Civ.R. 61. Litigants are not entitled to a perfect trial, only a fair one.
Spisak v. Salvation Army, 8th Dist. Cuyahoga No. 99633, 2013-Ohio-5429, citing Grundy
v. Dhillon, 120 Ohio St. 3d 415, 2008-Ohio-6324, 900 N.E.2d 153. The erroneous
admission of evidence “will not justify reversal of an otherwise valid adjudication where
the error does not affect the substantial rights of the complaining party.” O’Brien v.
Angley, 63 Ohio St. 2d 159, 407 N.E.2d 490 (1980); Civ.R. 61; R.C. 2309.59.
{¶93} Under Civ.R. 61, harmless error means:
No error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or omitted by the court or
by any of the parties is ground for granting a new trial or for setting aside a
verdict or for vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.
{¶94} In order to determine whether a substantial right has been affected, “‘the
reviewing court must not only weigh the prejudicial effect of those errors but also
determine that, if those errors had not occurred, the jury * * * would probably have made
the same decision.”’ Cox v. MetroHealth Med. Ctr. Bd. of Trustees, 8th Dist. Cuyahoga
No. 96848, 2012-Ohio-2383, 971 N.E.2d 1026, ¶ 23, quoting O’Brien, 63 Ohio St. 2d at
165, 407 N.E.2d 490 (1980).
{¶95} As addressed in the above assignments of error, the record contains
substantial evidence upon which the jury reasonably relied to conclude that Dr. Esposito
violated the standard of care by attempting to repair Dr. Di’s iris adhesion. This case
turned upon which party’s experts the jury believed regarding the standard of care, not
upon Dr. Esposito’s failure to pass his board certification examinations. The fact that
Dr. Esposito failed his boards was wholly irrelevant to the standard of care question
presented in this case — whether Dr. Esposito erred in deciding to engage in an
unnecessary and risky surgical course based on the conditions presented by Dr. Di’s eye
before surgery. The ultimate question presented was simple: was Dr. Esposito’s surgical
course of action a breach of the standard of care? His failure to pass the board
examinations had no bearing on this issue. Thus, because we find no evidence of
prejudice in this instance, we find the trial court’s admission of this testimony to be
harmless error.
{¶96} Appellants’ fourth assignment of error is overruled.
V. Dr. Di’s Contributory and Comparative Negligence
{¶97} In their fifth assignment of error, appellants argue that the trial court
erred in failing to instruct the jury on Dr. Di’s contributory or comparative negligence in
this case.
{¶98} Requested jury instructions should ordinarily be given if they are correct
statements of law applicable to the facts in the case and reasonable minds might reach the
conclusion sought by the specific instruction. Murphy v. Carrollton Mfg. Co., 61 Ohio
St.3d 585, 591, 575 N.E.2d 828 (1991). In Ohio, it is well established that the trial court
will not instruct the jury where there is no evidence to support an issue. Riley v.
Cincinnati, 46 Ohio St. 2d 287, 348 N.E.2d 135 (1976), paragraph two of the syllabus.
When reviewing a trial court’s jury instructions, the proper standard of review for an
appellate court is whether the trial court’s refusal to give a requested jury instruction
constituted an abuse of discretion under the facts and circumstances of the case. Harris v.
Noveon, Inc., 8th Dist. Cuyahoga No. 93122, 2010-Ohio-674, ¶ 20.
{¶99} R.C. 2315.33 provides:
The contributory fault of a person does not bar the person as plaintiff from
recovering damages that have directly and proximately resulted from the
tortuous conduct of one or more other persons, if the contributory fault of
the plaintiff was not greater than the combined tortuous conduct of all other
persons from whom the plaintiff seeks recovery in this action and of all
other persons from whom the plaintiff does not seek recovery in this action.
The court shall diminish any compensatory damages recoverable by the
plaintiff by an amount that is proportionately equal to the percentage of
tortuous conduct of the plaintiff as determined pursuant to section 2315.34
of the Revised Code.
R.C. 2315.33.
{¶100} “Ohio law recognizes the defense of contributory negligence in medical
malpractice cases * * * [and] such negligence can serve to diminish recovery under
modern comparative negligence principles * * *.” Faber v. Syed, 8th Dist. Cuyahoga
No. 65359, 1994 Ohio App. LEXIS 2976, *22 (July 7, 1994) quoting Lambert v. Shearer,
84 Ohio App. 3d 266, 284, 616 N.E.2d 965 (10th Dist. 1992).
“To prove the affirmative defense of contributory negligence, the defendant
must prove that the plaintiff breached a duty, proximately causing his or her
own injury. Thus, the plaintiff’s own ‘want of ordinary care * * * [must
have] combined and concurred with the defendant’s negligence and
contributed to the injury as a proximate cause thereof, and as an element
without which the injury would not have occurred.’”
Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 182 Ohio App. 3d 768,
2009-Ohio-2460, 915 N.E.2d 361, ¶ 61, (9th Dist.) quoting Brinkmoeller v. Wilson, 41
Ohio St. 2d 223, 226, 325 N.E.2d 233 (9th Dist. 1975).
{¶101} Appellants’ sole argument to support such an instruction is that Dr. Di was
contributory or comparatively negligent in selecting and relying upon Dr. Esposito to
perform his eye surgery. None of the authority cited by appellants support the
proposition that a patient’s actions in selecting a doctor held out to be qualified to
perform a surgery can amount to contributory or comparative negligence nor is this court
aware of any such authority.
{¶102} Appellants’ fifth assignment of error is overruled.
VI. Plaintiff Counsel’s Inflammatory Remarks
{¶103} In their sixth assignment of error, appellants argue that improper and
inflammatory comments made by Dr. Di’s trial counsel during trial constituted attorney
misconduct that prejudicially influenced the outcome of the jury’s verdict.
{¶104} As a general rule, “it is axiomatic that great latitude is afforded counsel
in the presentation of closing argument to the jury.” Pang v. Minch, 53 Ohio St. 3d 186,
194, 559 N.E.2d 1313 (1990). Counsel is allowed wide latitude in presenting oral
argument although at all times counsel is subject to the supervision of the trial judge.
Yerrick v. E. Ohio Gas Co., 119 Ohio App. 220, 223, 198 N.E.2d 472 (9th Dist.1964).
{¶105} “[T]he determination of whether the bounds of permissible argument have
been exceeded is, in the first instance, a discretionary function to be performed by the trial
court. Therefore, the trial court’s determination will not be reversed absent an abuse of
discretion.” Caruso v. Leneghan, 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, ¶ 57,
quoting Pesek v. Univ. Neurologists Assn., 87 Ohio St. 3d 501, 2000-Ohio-483, 721
N.E.2d 1011. However, that discretion is not absolute. Where “gross and abusive
conduct occurs, the trial court is bound, sua sponte, to correct the prejudicial effect of
counsel’s misconduct.” Id. citing Snyder v. Stanford, 15 Ohio St. 2d 31, 37, 238 N.E.2d
563 (1968).
{¶106} We note that appellants failed to object to any of the statements made in
closing argument with which they now take issue. A party must generally raise a timely
objection to preserve a claim of error. Villella v. Waikem Motors, Inc., 45 Ohio St. 3d 36,
39-40, 543 N.E.2d 464 (1989). Pursuant to Snyder v. Stanford, 15 Ohio St. 2d 31, 238
N.E.2d 563 (1968), this failure prevents reversal absent gross and persistent abuse of
counsel’s privilege in closing argument.
{¶107} We find no such abuse in this instance. While some of the remarks made
by plaintiff’s counsel during closing argument may have arguably been inflammatory, we
cannot say that they were so outrageous as to call into doubt whether the verdict was
rendered upon the evidence and thus warrant a new trial. Again, there was sufficient
evidence to support the jury’s verdict. We note that plaintiffs’ counsel’s reference to Dr.
Modic’s email to which appellants now complain would never have occurred but for
appellants’ own strategic miscalculation in attempting to manipulate the trial court’s
initial exclusion of the letter to their benefit as addressed in the second assignment of
error.
{¶108} Many of the other statements that appellants now challenge represent
legitimate argument regarding the credibility of various witnesses based on evidence
introduced at trial. “A [party] may freely comment in closing argument on what the
evidence has shown and what reasonable inferences the [party] believes may be drawn
therefrom.” Peffer v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 94356,
2011-Ohio-450, ¶ 27, citing State v. Clay, 181 Ohio App. 3d 563, 2009-Ohio-1235, 910
N.E.2d 14, ¶ 47 (8th Dist.).
{¶109} Finally, opening and closing statements are not evidence. Peffer at ¶ 27.
The trial judge in this instance instructed the jury as such and the jury is presumed to
follow the proper instructions of the trial court. State v. Ahmed, 103 Ohio St. 3d 27,
2004-Ohio-4190, 813 N.E.2d 637; State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160,
840 N.E.2d 1032.
{¶110} Appellants’ sixth assignment of error is overruled.
VII. Appellants’ Motion for a New Trial
{¶111} Appellants argue in their seventh assignment of error that the trial court
erred in denying their motion for a new trial. Appellants begin by arguing that a new
trial should have been granted due to the perceived errors addressed above in the first six
assignments including the “cumulative effect” of such errors. Having found no merit to
those arguments, we decline to revisit them here.
{¶112} Appellants present us with two new arguments: (1) that the jury’s verdict
was against the manifest weight of the evidence, and (2) that the jury rendered an
excessive verdict under the influence of passion and prejudice. Civ.R. 59(A)(6) and (4),
respectively, allow for a new trial to be granted on these grounds.
{¶113} A trial court’s judgment on a Civ.R. 59 motion for a new trial is reviewed
under the abuse of discretion standard. May v. Marc Glassman, Inc., 8th Dist. Cuyahoga
No. 93966, 2011-Ohio-1581, ¶12, citing Effingham v. XP3 Corp., 11th Dist. Portage No.
2006-P-0083, 2007-Ohio-7135. The decision to grant a motion for a new trial rests within
the sound discretion of the trial court and will not be disturbed upon appeal unless there
has been an abuse of that discretion. Id., citing Pena v. N.E. Ohio Emergency Affiliates,
Inc., 108 Ohio App. 3d 96, 104, 670 N.E.2d 268 (9th Dist. 1995).
{¶114} When reviewing the manifest weight of the evidence in a civil case, this
court weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the finder of fact
clearly lost its way and created such a manifest miscarriage of justice that the judgment
must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St. 3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. Weight of the evidence concerns “‘the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other.’” State v. Thompkins, 78 Ohio St. 3d 380, 387,
1997-Ohio- 52, 678 N.E.2d 541, quoting Black’s Law Dictionary 1594 (6th Ed.1990).
{¶115} We are guided by a presumption that the findings of the trier of fact are
correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273
(1984). This presumption arises because the trier of fact had an opportunity “to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.” Id.
{¶116} With regard to appellants’ first argument, we cannot say that the verdict
was against the manifest weight of the evidence. The jury had the opportunity to assess
the credibility of the various experts and weigh their testimony in conjunction with the
documentary evidence. We cannot say the jury lost its way in finding Dr. Di’s experts,
their testimony regarding the relevant standard of care and their explanation of his injury
to be more credible than that of appellants’ experts. Appellants’ experts offered a
comparatively less believable explanation of the relevant events: that Dr. Di’s various
maladies including the photophobia, glare and ghost images were attributable to his
original injury caused by the bone fragment rather than the iris reconstruction procedure.
Appellants’ experts’ theory that Dr. Di’s cataract masked these symptoms until it was
removed during the eye surgery was inconsistent with Dr. Di’s testimony describing a
gradual decrease in his vision, the relevant and documented time line of his pursuit of
treatment between the two events and his continued practice as a neurosurgeon after the
initial injury. We cannot say that the weight of the evidence supported appellants’
position.
{¶117} Finally, appellants argue that the jury returned an excessive verdict that
“appears to have been given under the influence of passion and prejudice.”
{¶118} “[T]he assessment of damages lies ‘so thoroughly within the province of
the [trier of fact] that a reviewing court is not at liberty to disturb the [trier of fact’s]
assessment’ absent an affirmative finding of passion and prejudice or a finding that the
award is manifestly excessive or inadequate.” Pesic v. Pezo, 8th Dist. Cuyahoga No.
90855, 2008-Ohio-5738, at ¶ 21, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d
638, 655, 635 N.E.2d 331 (1994).
{¶119} To determine whether a verdict was influenced by passion or prejudice, the
court should consider the amount of damages returned and whether the record discloses
that the verdict was induced by: “(a) admission of incompetent evidence, (b) misconduct
on the part of the court or counsel, or (c) by any other action occurring during the course
of the trial which can reasonably be said to have swayed the jury in their determination of
the amount of damages that should be awarded.” Fromson & Davis Co. v. Reider, 127
Ohio St. 564, 569, 189 N.E. 851 (1934); Banas v. Shively, 8th Dist. Cuyahoga No. 96226,
2011-Ohio-5257, ¶ 44.
{¶120} The size of the verdict alone is insufficient to demonstrate passion or
prejudice. Rinehart v. Brown, 4th Dist. Ross No. 05CA2854, 2006-Ohio-1912, ¶ 16,
citing Airborne Express, Inc. v. Sys. Research Laboratories, Inc., 106 Ohio App. 3d 498,
510, 666 N.E.2d 584 (12th Dist. 1995). “‘[T]here must be something contained in the
record which the complaining party can point to that wrongfully inflamed the sensibilities
of the [factfinder].”’ Pesic at ¶ 23, citing Shoemaker v. Crawford, 78 Ohio App. 3d 53,
65, 603 N.E.2d 1114 (10th Dist. 1991).
{¶121} We find no evidence that the verdict in this case was the result of passion
or prejudice. Even if we found evidence in the record that the jury was “wrongfully
inflamed,” we find no merit to any of the arguments presented by appellants taking issue
with individual aspects of the jury’s reward. Contrary to appellants’ arguments, the
evidence at trial revealed that Dr. Di was permanently deprived of useful vision in his left
eye resulting in a loss of depth perception and the effective end of his career as a
neurosurgeon. The testimony further documented appellees’ noneconomic losses
including pain and suffering and loss of consortium. Appellants argue that the jury’s
award of $500,000 to Nan Qiao for loss of consortium was “excessive,” however, Nan
Qiao testified in great detail to the devastating effects Dr. Di’s injury had upon their
family relationships and dynamics.
{¶122} Finally, we find no merit to appellants’ contention that Dr. Di failed to
prove future wage loss. Contrary to appellants’ assertions, the testimony revealed that
Dr. Di was fully capable of finding employment as a neurosurgeon and aborted a process
of seeking an appeal to practice in Missouri due to his vision loss. Contrary to
appellants’ allegations of a jury verdict inflamed by passion and prejudice, we note that
the jury’s cumulative lost wages award of $4,200,000 was less than the least favorable
economic loss projection offered by Dr. Di’s economics expert.
{¶123} Even if appellants’ argument that Dr. Di would be unable to practice in
Missouri were to be accepted, we find no merit to the broader argument that after years of
successful practice at the CCF he instantaneously became unemployable upon his
departure from the CCF solely due to his inability to obtain board certification. The
record reflects that Dr. Di possessed a unique and sought after skill set as a neurosurgeon.
Indeed, Dr. Di testified that he was able to find the position in Missouri in less than a
month after it became clear he would no longer be employed with the CCF. He also
testified that it was not the only job available for a neurosurgeon who was non-board
certified.
{¶124} After reviewing the record, we do not find the trial court abused its
discretion in denying a new trial on the ground that the jury awarded an excessive verdict
given under the influence of passion or prejudice.
{¶125} Appellants’ seventh assignment of error is overruled.
VIII. Application of Ohio’s Statutory Caps on Noneconomic Damages
{¶126} In appellants’ eighth and final assignment of error they argue that the trial
court erred in failing to properly apply Ohio’s statutory cap on non-economic damages.
{¶127} The jury’s award of damages for Dr. Di in this case was set forth in
interrogatory No. 13 as follows:
Past Economic Loss (Lost Wages): $ 1.2 mil
Past Noneconomic Loss (Pain and Suffering): $ 1 mil
Future Economic Loss (Wages): $ 3 mil
Future Noneconomic Loss (Pain and Suffering): $ 0
Permanent Disability: $ 2 mil
Total: $ 7.2 mil
{¶128} Citing R.C. 2323.43(A)(3)(a), the trial court reduced the $1,000,000 award
for Dr. Di’s “Past Noneconomic loss (Pain and Suffering)” to the statutory cap of
$500,000. Appellants sought for the judgment to be further reduced by $2,000,000
arguing that the award for “Permanent Disability” constituted noneconomic damages in
excess of the statutory cap. The trial court refused.
{¶129} Under Ohio law, a tort plaintiff may recover unlimited compensatory
damages for noneconomic losses if the plaintiff has sustained either “permanent and
substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or
“permanent physical functional injury that permanently prevents the injured person from
being able to independently care for self and perform life-sustaining activities.” R.C.
2315.18(B)(3); Simpkins v. Grace Brethren Church of Del., 2014-Ohio-3465, 16 N.E.3d
687, ¶ 77 (5th Dist.).
{¶130} However, R.C. 2323.43 provides more stringent limitations upon
noneconomic damages in actions based on medical claims. R.C. 2323.43(A) provides in
relevant part:
(1) There shall not be any limitation on compensatory damages that
represent the economic loss of the person who is awarded the damages in
the civil action.
(2) Except as otherwise provided in division (A)(3) of this section, the
amount of compensatory damages that represents damages for noneconomic
loss that is recoverable in a civil action under this section to recover
damages for injury, death, or loss to person or property shall not exceed the
greater of two hundred fifty thousand dollars or an amount that is equal to
three times the plaintiff’s economic loss, as determined by the trier of fact,
to a maximum of three hundred fifty thousand dollars for each plaintiff or a
maximum of five hundred thousand dollars for each occurrence.
(3) The amount recoverable for noneconomic loss in a civil action under
this section may exceed the amount described in division (A)(2) of this
section but shall not exceed five hundred thousand dollars for each plaintiff
or one million dollars for each occurrence if the noneconomic losses of the
plaintiff are for either of the following:
(a) Permanent and substantial physical deformity, loss of use of a
limb, or loss of a bodily organ system;
(b) Permanent physical functional injury that permanently prevents
the injured person from being able to independently care for self and
perform life sustaining activities.
(Emphasis added.) R.C. 2323.43(A)
{¶131} In interrogatory No. 14 the jury found that Dr. Di’s eye injury constituted a
permanent and substantial physical deformity. The dispute in this instance is whether
the jury’s award of $2,000,000 for Dr. Di’s “Permanent Disability” constitutes economic
or noneconomic damages.
{¶132} R.C. 2323.43(H) defines economic and noneconomic loss as follows:
(1) “Economic loss” means any of the following types of pecuniary harm:
(a) All wages, salaries, or other compensation lost as a result of an
injury, death, or loss to person or property that is a subject of a civil
action upon a medical, dental, optometric, or chiropractic claim;
(b) All expenditures for medical care or treatment, rehabilitation
services, or other care, treatment, services, products, or
accommodations as a result of an injury, death, or loss to person or
property that is a subject of a civil action upon a medical, dental,
optometric, or chiropractic claim;
(c) Any other expenditures incurred as a result of an injury, death,
or loss to person or property that is a subject of a civil action upon a
medical, dental, optometric, or chiropractic claim, other than
attorney’s fees incurred in connection with that action.
***
(3) “Noneconomic loss” means nonpecuniary harm that results from an
injury * * * including, but not limited to, pain and suffering, loss of society,
consortium, companionship, care, assistance, attention, protection, advice,
guidance, counsel, instruction, training, or education, disfigurement, mental
anguish, and any other intangible loss.
R.C. 2323.43(H).
{¶133} Appellants argue that Dr. Di’s “Permanent Disability” award constituted
noneconomic damages for disfigurement in the form of a permanent and substantial
physical deformity. Dr. Di argues that the jury’s award for “Permanent Disability”
compensated him for economic harm in the form of lost earning potential beyond merely
wages, lost net worth, lost returns on investments and future expenses. Dr. Di further
argues that by failing to object to the ambiguous jury interrogatory providing for
“Permanent Disability” or the jury’s verdict, appellants have waived the right to challenge
the trial court’s application of R.C. 2323.43(A). Dr. Di further argues that this
assignment of error should be overruled because appellants cannot prove that the
permanent disability award was purely noneconomic.
{¶134} We find one fatal flaw in all three of Dr. Di’s arguments: The “Permanent
Disability” interrogatory was plainly unambiguous within the context of this case and,
considering that context, the only possible interpretation is that it constituted
noneconomic damages. We reach this conclusion because Dr. Di presented no
evidence of economic damages, past or future, other than lost wages. Consistent with
this, in Dr. Di’s closing argument he specifically limited his request for economic
damages to lost wages while requesting noneconomic damages for his pain, suffering, and
permanent and substantial physical deformity of his left eye. Dr. Di’s trial attorney
detailed to the jury the damages he sought as follows:
Our damages are noneconomic and economic.
What are noneconomic damages? Dr Di’s pain, suffering, and permanent
and substantial physical deformity of his left eye; Nan’s loss of consortium
and the destruction of the family unit.
***
* * * [W]hat are the economic damages? If you take his prior salary of
300 grand, it’s going to range from five to $6 million in future lost earning
capacity. If you take the average compensation— remember Dr. Modic
said 475— the range is 7 to $9 million.
***
So the damages in this case, I’m asking for $1 million for Dr. Di for
noneconomic damages and $1 million for Nan. Lost earning capacity,
there’s a range. You can give him the $300,000 one, which is $5 million.
Or, you can give him the full fare that Dr. Modic said he should have
gotten, which is $9 million. So I believe a full and fair verdict in this case
is anywhere between seven to $11 million, depending on which economic
analysis you accept.
{¶135} None of the purported economic damages that Dr. Di now asserts that the
$2,000,000 permanent disability award represents were sought at trial or supported by any
evidence. Indeed, if we were to accept Dr. Di’s argument that the permanent disability
award secretly represented unintroduced, unproven and unsought economic damages, our
analysis of the jury’s award under appellants’ manifest weight challenge would be altered
to address this discrepancy. Considering the subject interrogatory within the appropriate
context, we find no ambiguity in the permanent disability award’s nature as noneconomic
damages and find that the trial court erred in failing to reduce the award pursuant to R.C.
2323.43(A)(3)(a).
{¶136} Appellants’ eighth assignment of error is sustained.
IX. Appellees’ Cross-Assignment of Error
{¶137} Appellees argue in their cross-assignment of error that if this court orders a
new trial on the medical negligence claim against Dr. Esposito, then we should also order
a new trial on the claims for which the jury returned a defense verdict. We find this
assignment of error to be moot.
X. Conclusion
{¶138} The judgment of the trial court is affirmed in part, reversed in part and
remanded.
It is ordered that appellants and appellees share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
PATRICIA ANN BLACKMON, J., CONCUR