Thamann v. Bartish , 167 Ohio App. 3d 620 ( 2006 )

{¶¶ 48} I dissent. Despite this court's statements that "[w]e are reluctant to reverse a case because of improper closing argument," to the exclusion of Thamann's other assigned errors, the majority focuses solely on the opening statement and closing argument by Dr. Bartish's counsel to overturn a jury verdict reached after two and one-half weeks of trial.¹³

{¶ 49} Following this court's recent trend inRoetenberger v. Christ Hosp.,¹⁴ Fehrenbach v.O'Malley,¹⁵ and Furnier v. Drury,¹⁶ the majority struggles to find a brightline test or to impose Marquis of Queensberry rules to restrain counsel in medical-malpractice trials. The effect of our decisions, however, is to elevate the otherwise laudable goals of civility and professionalism above the traditional requirement of overturning a jury's verdict only where counsel's comments, properly preserved by a timely objection, affect the outcome of the trial.

{¶ 50} To overturn a jury's verdict due to counsel's remarks in opening statement or closing argument, to which there was no objection, invites "sandbagging." Trial counsel can sit on his hands, gambling that the verdict will be favorable. If not, on appeal, counsel can argue that the remarks were so disparaging and outrageous that the jury's verdict must be overturned.

{¶ 51} The issue for the jury here was whether Dr. Bartish negligently failed to diagnose and treat a pulmonary embolism from the symptoms that Meredith Thamann presented in the emergency room. The evidence was undisputed that 75 percent of the deaths caused by a pulmonary embolism are not discovered until there is an autopsy.

{¶ 52} There was but one lone objection during the 39 pages of closing argument by Dr. Bartish's counsel. The commonlaw waiver doctrine, adopted by the Ohio Supreme Court, requires that a timely objection be made to improper remarks so that the trial court may take proper action, including the giving of a curative instruction.¹⁷

{¶ 53} Statements that counsel did not object to are waived unless they are plain error. The doctrine originated in criminal law and permits an appellate court to notice errors affecting substantial rights that were not brought to the attention of the trial court.¹⁸ A party in a civil case does not have the Sixth Amendment protections of a criminal defendant.¹⁹ Thus, it is the law in Ohio that "[i]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself."]²⁰

{¶ 54} In addition to failing to recognize the limitations of unobjected-to error, the majority castigates Dr. Bartish's counsel for his harsh comments. But context matters. The majority has identified the comment that the plaintiffs told the jury "half truths" as a key basis for concluding that Dr. Bartish's counsel disparaged Mr. Thamann, his counsel, and his experts. The transcript, however, shows that it was Mr. Thamann's counsel who first used the phrase in closing argument, saying "again, there's an old saying half a truth is worse than a whole lie." Dr. Bartish's comments were made to rebut Mr. Thamann's claim.

{¶ 55} For example, on direct examination, Mr. Thamann had presented himself as a man left to struggle on, in his counsel's phrase, as "Mr. Mom" for his eight-year-old daughter since the death of his wife. In closing argument, Dr. Bartish's counsel argued that this profile was only part of the truth of Mr. Thamann's situation. Counsel noted that it was not until the cross-examination of Mr. Thamann that he disclosed to the jury that, for three years, he had been living with a 26-year-old woman and that they had had a child together. He also admitted that he had postponed their impending marriage until after the trial. Counsel's "half truth" statement was within the bounds of fair argument, because he was commenting on the evidence — that Mr. Thamann told the jury only part of the truth, and that the rest of the story had to be dragged from him on cross-examination.

{¶ 56} The majority is also concerned that Dr. Bartish's counsel exceeded the bounds of acceptable argument by directing abusive comments at Mr. Thamann's experts in closing argument. The purpose of these comments was to differentiate the testimony of Dr. Bartish's expert witnesses — practicing physicians working regularly in the operating room — from Mr. Thamann's expert witnesses — physicians hired from a group that was in the business of providing expert testimony in malpractice trials. An expert's bias and pecuniary interests and the limitations of his opinion are appropriate subjects for cross-examination and comment.²¹

{¶ 57} The majority castigates Dr. Bartish's counsel for his harsh comments about Dr. Buerger's professionalism. But the deposition testimony, read into the record, reveals that Dr. Buerger, the pathologist, repeatedly and needlessly commented on how fat Meredith was. He also admitted that he had not autopsied her legs to search for deep-vein thromboses — conditions that Mr. Thamann's experts stated were almost always the cause of pulmonary embolism. Moreover, the deposition was not conducted by Dr. Bartish's trial counsel, but by counsel no longer in the case.

{¶ 58} An appellate court should recognize that disparagement of an expert witness is not determined by how rough the cross-examination is or how withering the closing argument seems to one reading the transcript. Only "`[w]hen argument spills into disparagement not based on anyevidence, is it improper.'"²² The majority agrees that counsel must be afforded wide latitude during opening statement and closing argument as long as the remarks are based on the evidence.²³ But a reviewing court cannot easily discern the limits of that latitude from a cold record. This task is made more difficult when trial counsel has failed to raise a timely objection to "specific acts or omissions by the trial court constituting legal error, * * * properly suggested as error to the trial court."²⁴

{¶ 59} An additional hurdle to appellate review of the case is the difficulty of reconciling the civil plain-error doctrine codified in the syllabus paragraph ofGoldfuss and the analysis in Pesek. InPesek, the Supreme Court appeared to impose a duty on the trial court to intervene sua sponte to admonish counsel and to take curative action.²⁵ The court said that, on review, we should be guided by the principle that "if `there is room for doubt, whether the verdict was rendered upon the evidence, or may have been influenced by improper remarks of counsel, that doubt should be resolved in favor of the defeated party.'"²⁶ Acknowledging that the "line between forceful advocacy and unacceptable conduct is sometimes obscure," the Supreme Court concluded that any error should be resolved on the side of professionalism.²⁷

{¶ 60} But this open-ended test is at odds with the plain-error rule in civil cases requiring exceptional circumstances that challenge the legitimacy of the underlying judicial process before reversal. Furthermore, in every medical-malpractice case, something has gone terribly wrong in an operating room or a doctor's office, but not necessarily as the result of medical negligence. Accordingly, under the subjective standard of Pesek, there would always be "room for doubt" that counsel's comment influenced the jury, whether objected to or not.

{¶ 61} As harsh as some of the comments by counsel for Dr. Bartish may have sounded to the jury, the judicial system was not a casualty in this case. The remarks that the majority calls into question, when examined in context rather than as isolated comments strung together to make a worst-case scenario, were based on the evidence in the record or were squarely within recognized limits for challenging the foundation for the opinions of Mr. Thamann's experts.

{¶ 62} I suggest that this court's recent trend toward overturning defense jury verdicts in medical-malpractice cases by focusing on counsel's use of taboo words, to the exclusion of all else, places the court on a slippery slope. Appellate courts should look to whether counsel's unobjected-to comments in closing argument constitute misconduct or merely reflect representation "zealously within the bounds of the law."²⁸ A reviewing court should be guided by the following: (1) although counsel has wide latitude during closing argument, statements and inferences not warranted by the evidence create an atmosphere of passion or prejudice and inflame the minds of the jurors;²⁹ (2) before reversal of a jury verdict, counsel's remarks must be so prejudicial that an appropriate curative instruction cannot eliminate the probability that the remarks affected the jury's verdict; (3) whether counsel's remarks, such as appeals to racial, ethnic, or religious bias, so unfairly affected the trial that, if left uncorrected, they would undermine the integrity and public confidence in the jury system;³⁰ (4) whether the misconduct, no matter how improper or unethical, affected the outcome of the trial; and (5) reversal does not simply provide the court a method to deal with a lawyer's unprofessional conduct.³¹

{¶ 63} I cannot imagine that public confidence in the jury system will be undermined if we follow Ohio law and enforce the waiver doctrine when an appellant's experienced trial counsel, specializing in medical-malpractice cases, does not object to opposing counsel's remarks on the evidence in the opening statement or closing argument.

¹³ Clark v. Doe (1997), 119 Ohio App. 3d 296, 307,695 N.E.2d 276.

¹⁴ 163 Ohio App. 3d 555, 2005-Ohio-5205, 839 N.E.2d 441.

¹⁵ 164 Ohio App. 3d 80, 2005-Ohio-5554, 841 N.E.2d 350.

¹⁶ 163 Ohio App. 3d 793, 2004-Ohio-7362, 840 N, E.2d 1082.

¹⁷ See Pfeifer v. Jones Laughlin Steel Corp. (C.A.3, 1982), 678 F.2d 453. 457, fn. 1, vacated on other grounds, sub nom. Jones Laughlin Steel Corp. v.Pfeifer (1983), 462 U.S. 523, 103 S. Ct. 2541,76 L. Ed. 2d 768; see, also, Snyder v. Stanford (1968),15 Ohio St. 2d 31, 44 O.O.2d 18, 238 N.E.2d 563, paragraph one of the syllabus; Bowden v. Annenberg, 1st Dist. No. C-040499,2005-Ohio-6515, 2005 WL 3338935, at ¶ 31.

¹⁸ See Goldfuss v. Davidson (1997),79 Ohio St. 3d 116, 121, 679 N.E.2d 1099; see, also, Crim.R. 52(B).

¹⁹ See Goldfuss v. Davidson, 79 Ohio St.3d at 126,679 N.E.2d 1099 (Cook, J., concurring in judgment only); see, also, State v. Barnes (2002), 94 Ohio St. 3d 21, 27,759 N.E.2d 1240.

²⁰ Goldfuss v. Davidson, syllabus.

²¹ See Clark v. Doe, 119 Ohio App. 3d 296, 306,695 N.E.2d 276.

²² (Emphasis added.) Fehrenbach v. O'Malley,164 Ohio App. 3d 80, 2005-Ohio-5554, 841 N.E.2d 350, at ¶ 25, quoting Clark v. Doe, 119 Ohio App.3d at 307,695 N.E.2d 276.

²³ See Pesek v. Univ. Neurologists Assn., Inc. (2000), 87 Ohio St.3d at 501, 721 N.E.2d 1011.

²⁴ Pfeifer v. Jones Laughlin Steel Corp.,678 F.2d at 457, fn. 1.

²⁵ Pesek (2000), 87 Ohio St.3d at 501-502,721 N.E.2d 1011.

²⁶ Id. at 502, 721 N.E.2d 1011, quoting Warder, Bushnell Glessner Co. v. Jacobs (1898), 58 Ohio St. 77, 85, 50 N.E. 97.

²⁷ Id. at 503, 721 N.E.2d 1011.

²⁸ See EC 7-1.

²⁹ See DR 7-106 and EC 7-19, 7-24, and 7-25.

³⁰ See Goldfuss, 79 Ohio St.3d at 121,679 N.E.2d 1099.

³¹ See Murphy v. Internatl. Robotic Sys. Inc. (Fla. 2000), 766 So. 2d 1010, 1029.