R.T. v. Knobeloch , 111 N.E.3d 588 ( 2018 )

[Cite as R.T. v. Knobeloch, 2018-Ohio-1596.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
R.T. et al., :
Plaintiffs-Appellees, :
v. : No. 16AP-809
(C.P.C. No. 14CV-4879)
William Knobeloch, M.D. et al., :
(REGULAR CALENDAR)
Defendants-Appellants. :
D E C I S I O N
Rendered on April 24, 2018
On brief: Hale Westfall, LLP, and Allan L. Hale; Burg
Simpson Eldredge Hersh & Jardine PC, Calvin S. Tregre and
Janet G. Abaray, for appellees. Argued: Peter J. Krumholz.
On brief: Arnold Todaro & Welch, Grier D. Schaffer and
Gregory B. Foliano, for appellants. Argued: Grier D.
Schaffer.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} William Knobeloch, M.D., American Health Network, Inc., American Health
Network of Ohio Care Organization, LLC, and American Health Network of Ohio
Professional Corp. ("appellants"), are appealing the jury verdict of the Franklin County
Court of Common Pleas awarding damages to appellee, S.T., a minor, by and through her
mother and next friend, R.T. For the following reasons, we affirm the judgment of the
Franklin County Court of Common Pleas.
I. FACTS AND CASE HISTORY
{¶ 2} This case arises from the treatment of then six year old S.T. by Dr. Knobeloch,
a pediatrician, in the summer of 2012. S.T. was presenting significant behavioral issues in
No. 16AP-809 2
kindergarten which led to a consultation with Dr. Knobeloch. On June 4, 2012, Dr.
Knobeloch referred S.T. for counseling with Karen Cowie, LSW.
{¶ 3} On July 31, 2012, S.T. and her mother met with Dr. Knobeloch for a
behavioral consultation. Dr. Knobeloch gave a diagnosis of anxiety and panic disorder but
did not rule out pediatric bipolar disorder. S.T. was prescribed 10 mg of Prozac. While the
Prozac did seem to make some improvement in S.T.'s behavior, new behavior problems
arose.
{¶ 4} On August 21, 2012, R.T. and Dr. Knobeloch discussed S.T.'s behavior. Dr.
Knobeloch spoke with Ms. Cowie who indicated it was her impression that there were
instances of mania being exhibited. Dr. Knobeloch, with this new information, now
determined a different diagnosis of bipolar disorder though there was a question of whether
Dr. Knobeloch told R.T. this new diagnosis. Dr. Knobeloch instructed R.T. to immediately
stop giving the Prozac to S.T. and begin administering Lamictal with a one-time daily dose
of 25 mg. Lamictal is an anti-epileptic drug that has been used off-label to treat pediatric
bipolar disorder.
{¶ 5} On September 4, 2012, Dr. Knobeloch increased the dosage of Lamictal to 50
mg per day after his nurse spoke to R.T. about S.T.'s behavior. On September 5, 2012, S.T.
was seen by Dr. Knobeloch' s partner, Brad Pfau, M.D. S.T. had what Dr. Pfau called bug
bites and some sort of eye infection that blurred her vision and produced swollen dry eyes.
S.T. was prescribed antibiotics as treatment. R.T. expressed her concern that the problems
with S.T.'s eyes were related to the Lamictal.
{¶ 6} On September 7, 2012, S.T. was seen by Dr. Knobeloch. S.T. had redness and
swelling around her eyes with a greenish discharge, had oral ulcers, and was covered in a
target rash, which appeared as little bullseyes. R.T. also stated that S.T. had developed a
high fever. Dr. Knobeloch diagnosed S.T. with Stevens-Johnson Syndrome ("SJS"), a
serious rash that develops painful sores and in which the skin sloughs off. SJS exhibits a
targeted rash and the involvement of two mucus membranes, the eyes and mouth in this
case. S.T. was taken directly to Nationwide Children's Hospital where she remained from
September 7, to October 1, 2012. S.T. had to be placed in a medically induced coma to
combat the pain of her skin sloughing off.
No. 16AP-809 3
{¶ 7} On May 6, 2014, appellees filed suit against Dr. Knobeloch, American Health
Network, Inc., and CVS pharmacy, claiming among others, medical malpractice,
negligence, and a lack of informed consent. The claims centered on Dr. Knobeloch's
improper prescription of Lamictal which allegedly proximately caused SJS.
{¶ 8} On August 15, 2016, a jury trial began and, over two weeks later, the jury
returned a verdict. It found that Dr. Knobeloch had been negligent and there was a lack of
informed consent while finding no liability as to CVS. The total verdict was $1,578,539.51.
A remittitur reduced the verdict to $1,028,539.51.
{¶ 9} On October 31, 2016, the verdict was journalized creating a final appealable
order. Appellants timely appealed.
II. ASSIGNMENTS OF ERROR
{¶ 10} Appellants bring seven assignments of error for our consideration:
I. The trial court gave two improper jury instructions and
failed to give a third instruction, which is prejudicial error.
II. The court's repeated, leading, invasive interrogation of,
and instructions to four of Plaintiffs' experts violated Evid.R.
614(B) and destroyed Defendants' right to receive a fair,
impartial trial.
III. The improper exclusion of liability expert, David Franz,
M.D., denied Defendants a fair trial, prejudiced the defense
before the jury and prohibited presentation of new, material
evidence as represented in opening statement.
IV. The court committed prejudicial error by submitting the
unsupported informed consent claim to the jury and by
overruling Defendants' repeated motions for directed verdict.
V. The jury had no competent evidence to find that Dr.
Knobeloch's negligence caused harm by "doubling the
patient's dose of Lamictal without seeing the patient."
VI. The court erred by admitting prejudicial, scientifically
unreliable, misleading testimony that the dosage of Lamictal
proximately caused this patient's SJS and by denying our
repeated motions for a directed verdict.
VII. The court erred by admitting testimony of Drs. Kaye and
Arrendondo, as their legal competency was never established
pursuant to Evid.R. 601(D).
No. 16AP-809 4
III. THE TRIAL COURT DID NOT ERR IN GIVING THE JURY
INSTRUCTIONS
{¶ 11} We will address the assignments of error in logical groupings. In the first
assignment of error, appellants argue the trial court improperly gave jury instructions on
the lack of informed consent and instructions on the Federal Drug Administration's
("FDA") "Black Box" warning. Appellants also argue the trial court erred in failing to give
a failure to mitigate damages instruction to the jury.
{¶ 12} A trial court has discretion in deciding whether to give or refuse a particular
instruction, and an appellate court will not disturb that decision absent an abuse of
discretion. Clark v. Grant Med. Ctr., 10th Dist. No. 14AP-833, 2015-Ohio-4958, ¶ 50.
Requested instructions should be given if they are correct statements of the law applicable
to the facts in the case and reasonable minds might reach the conclusion sought by the
instruction. Murphy v. Carrollton Mfg. Co., 61 Ohio St. 3d 585, 591 (1991).
{¶ 13} "However, when a jury instruction contains an incorrect statement of the law,
a reviewing court applies a mixed de novo and abuse of discretion standard of review."
State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, ¶ 127, citing State v. Morris,
132 Ohio St. 3d 337, 2012-Ohio-2407, ¶ 21, citing Kokitka v. Ford Motor Co., 73 Ohio St. 3d
89, 93 (1995). Thus, "[i]n examining errors in a jury instruction, a reviewing court must
consider the jury charge as a whole and 'must determine whether the jury charge probably
misled the jury in a matter materially affecting the complaining party's substantial rights.' "
Kokitka at 93, quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St. 3d 202, 208 (1990).
However, in reviewing "the instructions as a whole, and, if taken in their entirety, the
instructions fairly and correctly state the law applicable to the evidence presented at trial,
reversible error will not be found merely on the possibility that the jury may have been
misled." State v. Shepard, 10th Dist. No. 07AP-223, 2007-Ohio-5405, ¶ 7, citing Wozniak
v. Wozniak, 90 Ohio App. 3d 400, 410 (9th Dist.1993). "In reviewing a record to ascertain
the presence of sufficient evidence to support the giving of a special instruction, an
appellate court should determine whether the record contains evidence from which
reasonable minds might reach the conclusion sought by the instruction." Feterle v.
Huettner, 28 Ohio St. 2d 54 (1971), syllabus.
A. DISCLOSURE IS REQUIRED TO GIVE INFORMED CONSENT
No. 16AP-809 5
{¶ 14} Appellees argue that, because appellants offered their own jury instruction as
to informed consent, they cannot now complain that the trial court should not have given
one under the invited-error doctrine. Under the invited-error doctrine, "[a] party will not
be permitted to take advantage of an error which he himself invited or induced." Hal Artz
Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St. 3d 20 (1986).
While appellants did offer a proposed instruction as to informed consent that was reviewed
by the trial court, it is not in the record. Without the language of the proposed instruction,
we cannot determine whether appellants invited or induced the error they now complain
of.
{¶ 15} The doctrine of informed consent emerged in the context of the tort of
battery. The theory was that failure to obtain informed consent violates the right that every
competent human has, a right to determine what is to be done to their body. Bedel v. Univ.
of Cincinnati Hosp., 107 Ohio App. 3d 420, 427 (10th Dist.1995). The doctrine of informed
consent has never required that the physician, prior to administering the treatment, fully
inform the patient of all potential risks. Id., citing O'Brien v. Angley, 63 Ohio St. 2d 159
(1980).
The tort of lack of informed consent is established when:
(a) The physician fails to disclose to the patient and discuss
the material risks and dangers inherently and potentially
involved with respect to the proposed therapy, if any;
(b) the unrevealed risks and dangers which should have been
disclosed by the physician actually materialize and are the
proximate cause of the injury to the patient; and
(c) a reasonable person in the position of the patient would
have decided against the therapy had the material risks and
dangers inherent and incidental to treatment been disclosed
to him or her prior to the therapy.
Nickell v. Gonzalez, 17 Ohio St. 3d 136 (1985), syllabus.
{¶ 16} The lack of informed consent jury instruction given in this case states:
LACK OF INFORMED CONSENT: DEFENDANT WILLIAM
KNOBELOCH, M.D.
Plaintiffs claim that Defendant Dr. Knobeloch breached the
standard of care by failing to inform them about his treatment
No. 16AP-809 6
of his diagnosis of bipolar disorder, and the risks and benefits
of the drug Lamictal he prescribed for [S.T.] To demonstrate
lack of informed consent, [appellees] must prove by a greater
weight of the evidence that:
(A) Defendant Dr. Knobeloch failed to disclose and discuss the
material risks and dangers inherently and potentially involved
with his treatment of his diagnosis of bipolar disorder, and the
risks and benefits of the drug Lamictal; and
(B) the risks and dangers that should have been disclosed
actually occurred and were a proximate or direct cause of
injuries, harm, or loss to the Plaintiffs; and
(C) a reasonable person in the Plaintiffs' position would have
decided against taking Lamictal if the material risks and
dangers inherent and incidental to it had been disclosed.
(Aug. 31, 2016 Jury Instructions at 9-10.)
{¶ 17} Appellants not only argue there was no testimony as to what constitutes the
proper standard of care in order to give informed consent, they also argue the instructions
improperly contained the phrase "of his diagnosis of bipolar disorder." Appellants argue
that the instructions improperly focused the jury on a factual untruth that Dr. Knobeloch
did not tell R.T. he was treating S.T. for bipolar disorder with Lamictal. This argument is
not well-taken. The jury instruction does not state whether Dr. Knobeloch informed R.T.
of his diagnosis of bipolar disorder. The focus of the instruction is whether Dr. Knobeloch
discussed the material risks and dangers inherently and potentially involved with the
treatment.
{¶ 18} Appellants argue there was no testimony from appellees' experts as to what
the standard of care should have been to give proper informed consent stating that it was
misleading and improper to submit the unsupported informed consent claim to the jury.
This argument is a mischaracterization of the law. The first prong of a lack of informed
consent claim requires appellees to present evidence that a physician failed to disclose to
the patient and discuss the material risks and dangers inherently and potentially involved
with respect to the proposed therapy. Nickell at syllabus. The jury instruction properly
states that appellees must prove that "Dr. Knobeloch failed to disclose and discuss the
material risks and dangers inherently and potentially involved with his treatment of his
No. 16AP-809 7
diagnosis of bipolar disorder, and the risks and benefits of the drug Lamictal." (Aug. 31,
2016 Jury Instructions at 10.)
{¶ 19} The remaining question is whether appellees presented competent and
credible evidence that Dr. Knobeloch failed to disclose to R.T. and discuss the material risks
and dangers inherently and potentially involved with respect to the proposed therapy of
prescribing Lamictal for a diagnosis of pediatric bipolar disorder.
{¶ 20} R.T. testified at trial that, on August 21, 2012, Dr. Knobeloch called her after
talking to Ms. Cowie who had seen S.T. the previous day. R.T. was very concerned about
S.T.'s behavior and her reaction to Prozac. Dr. Knobeloch instructed her to immediately
stop administering Prozac and begin Lamictal:
Q. What were you told by Dr. Knobeloch that day?
A. Dr. Knobeloch said that he had spoken with Karen Cowie
and that he was going to prescribe a medication that would
help stabilize her mood.
***
Q. What were you told about Lamictal?
A. I was just told that it was a drug that was going to be used
to calm her down, to take away the side effects from the Prozac
that she was having.
Q. Did he tell you about the risks and benefits of Lamictal?
A. No, he did not.
Q. Did he tell you about any other alternatives?
A. No, he did not.
Q. Had he told you about any other drugs?
A. No.
Q. What about the alternatives of taking nothing?
A. He did not.
***
No. 16AP-809 8
Q. What were you told about the dosage of Lamictal?
A. We did not discuss a dosage.
Q. Did Dr. Knobeloch ask to see [S.T.]?
A. No.
Q. What did he tell you about the dose he was prescribing for
Lamictal?
A. He didn't discuss a dosage. He didn't tell me.
***
Q. Did he tell you about any possible adverse reactions and
what to look for?
A. No. No, he did not.
Q. What did he say about the black box warning?
A. He never discussed the black box warning.
(July 22, 2016 Tr. 117-20.) A "black box" warning from the FDA is the strongest warning
for an FDA-approved drug indicating a risk of very serious harm or death. Howland v.
Purdue Pharma L.P., 104 Ohio St. 3d 584, 2004-Ohio-6552, ¶ 6. Again, R.T. further
testified that Dr. Knobeloch failed to disclose any risks or dangers in taking Lamictal:
Q. Were you advised by Dr. Knobeloch that [S.T.] was being
given an overdose?
A. No, I was not. I never would have given it to her. Never.
***
Q. Did Dr. Knobeloch tell you about the risks and benefits of
Lamictal?
A. No, he did not.
Q. Did he tell you about any alternatives to Lamictal or other
drugs?
A. No.
No. 16AP-809 9
Q. What about alternatives of doing nothing?
A. No.
(Aug. 26, 2016 Tr. Vol. II at 127.) Dr. Knobeloch testified that he explained the risks and
benefits of Lamictal, and that there was a risk of SJS and he explained what the black box
warning was, but he admitted he did not indicate he was using the drug off label:
Q. Okay. And I think you told us that you spoke with [R.T.]
about the risks and benefits of Lamictal?
A. Correct.
Q. In fact, you told us that you explained what Stevens-
Johnson syndrome was, and there was a risk of taking
Lamictal, correct?
A. Correct.
Q. But you've gotten no written record reflecting what you told
her about that?
A. That's correct.
Q. And you prescribed Lamictal for anxiety and panic
disorder, correct?
A. I did not. I prescribed it for bipolar.
***
Q. So I guess here's my question then: You prescribed the
Prozac for anxiety and panic disorder, and now you're looking
for a mood stabilizer, right?
A. I'm following you, yes.
Q. The mood stabilizer, this is for bipolar I disorder, correct?
A. Correct.
Q. And that's why you choose Lamictal?
A. Correct.
No. 16AP-809 10
Q. Did you explain to R.T. that you were using this drug off
label?
A. I did not.
Q. Okay. So you prescribed - - you told her what SJS was,
correct?
A. Correct.
Q. And sort of the gist of the black box warning?
A. Correct.
Q. But you didn't explain to her that you were using it off
label?
A. That's correct.
Q. For use that had not been indicated for pediatric patients
on the manufacturer's label, correct?
A. That's correct.
Q. Did you consider that and decide that she didn't need that
information or that that was too much information?
A. No.
(Aug. 23, 2016 Tr. Vol. VII at Tr. 1464-66.) Dr. Knobeloch did not discuss the specifics of
the dosing of Lamictal that was prescribed for S.T. at nearly four times the recommended
dosage by the manufacturer's guidelines:
Q. Okay. You didn't go into the specifics of dosing with [R.T.],
correct?
A. Correct.
Q. You didn't tell her that the 25-milligram dose of Lamictal
per day you prescribed for [S.T.] was nearly four times of what
had been recommended by the manufacturer in its guidelines,
correct?
A. Correct.
(Aug. 23, 2016 Tr. Vol. VII at 1470.)
No. 16AP-809 11
{¶ 21} Appellees presented evidence that Dr. Knobeloch failed to disclose or discuss
any risks or dangers with R.T. The jury, as the trier of fact, can determine independently
of expert medical testimony whether there was any disclosure or discussion of any risks or
dangers. "It is true that a determination of whether a patient consents to a treatment does
not necessarily require expert testimony." Fernandez v. Ohio State Pain Control Ctr., 10th
Dist. No. 03AP-1018, 2004-Ohio-6713, ¶ 12.
{¶ 22} If the jury determines there was no disclosure or discussion, as in this case,
then whether a risk was material or not is inconsequential to the first prong of a claim of a
lack of informed consent. To put it another way, if there was no disclosure of the risks and
dangers then no further evidence is needed to determine if a non-existent disclosure
touched on all material risks.
{¶ 23} There are two considerations here: the material risks and dangers and the
significance of those risks and dangers. White v. Leimbach, 131 Ohio St. 3d 21, 2011-Ohio-
6238, ¶ 37. The first consideration is that "[e]xpert medical testimony is required to
establish the material risks and dangers inherently and potentially involved with a medical
procedure." Id. Here, there is abundant expert medical testimony in the record of the
dangers of taking Lamictal and the deadly risks of SJS. The second consideration is "what
a reasonable patient would have done in light of these disclosed risks is determined by the
trier of fact." Id. If a jury could determine there was no disclosure of any risk, let alone the
material ones, then no medical expert testimony is required to determine if a non-existent
disclosure was medically sufficient to truly make the patient aware of the risks and dangers.
{¶ 24} We have previously found that "[e]xpert testimony is required to support an
allegation that a treating or consulting physician did not tell the patient enough about the
medication being prescribed." (Emphasis added.) Anderson v. Eli Lilly & Co., 10th Dist.
No. 15AP-479, 2015-Ohio-5239, ¶ 22. In the case at bar, we need not determine whether
Dr. Knobeloch disclosed enough information about the risks to R.T. because there is
competent and credible evidence from which the jury could find that Dr. Knobeloch did not
disclose any information. Appellees established sufficient evidence to satisfy the first prong
of a claim of a lack of informed consent to support submitting that claim to the jury.
{¶ 25} There was evidence that the second prong of a lack of informed consent claim
was also satisfied. "Expert medical testimony is also required to establish that an
No. 16AP-809 12
undisclosed risk or danger actually materialized and proximately caused injury to the
patient." Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140,
¶ 107, citing White at ¶ 38. There is extensive and detailed expert testimony in the record
that there is a risk that Lamictal can cause SJS and was the proximate cause of S.T.'s
injuries. Dr. Kaye testified extensively about the risks and dangers of Lamictal and how it
relates to this case and gave opinions to a reasonable degree of medical probability about
Dr. Knobeloch's actions:
A. Dr. Knobeloch should have counseled the family on any
risks and benefits of a drug he chooses to prescribe. When a
drug has a black box warning, he's obligated to an even greater
extent.
***
Q. And what's the basis of that opinion, sir?
A. The basis of that opinion is that Dr. Knobeloch did not
speak to [S.T.]'s family about the risks and benefits of the
drug, nor did he speak to the degree of a black box warning
about the potential catastrophic side effect of the skin rash
that we talked about.
(Aug. 17, 2016 Tr. Vol. III at 561-62.)
{¶ 26} Appellees also established the third prong of the lack of informed consent
claim. R.T. testified:
Q. What did he say about the black box warning?
A. He never discussed the black box warning. Had he
mentioned the black box warning, I would have never given
[Lamictal] to her. I would have taken her to the hospital.
Q. What would you have done if you had been told that the
dose of Lamictal prescribed for [S.T.] was 400 percent of what
was recommended by the manufacturer and the FDA?
A. I never would have given it her. No mother in her right
mind would ever give her daughter an overdose of a
medication on purpose. I never would have given it to her.
No. 16AP-809 13
(July 22, 2016 Tr. at 120-21.) From R.T.'s testimony, the jury could conclude that a
reasonable person in R.T.'s position would have decided against using Lamictal had any
risks and dangers been disclosed prior to the therapy.
{¶ 27} There exists in the record sufficient evidence that reasonable minds might
reach the conclusion that there was a lack of informed consent. The trial court did not abuse
its discretion in coming to this conclusion that the instructions contained the correct
statements of law applicable to the facts in this case.
B. THE FDA'S WARNING CAN BE EVIDENCE OF CAUSATION
{¶ 28} Appellants also argue that the trial court erred in giving a jury instruction that
the FDA warnings establish that a drug is a probable cause of a condition warned of by the
FDA. Appellants state that the FDA warns of mere possibilities and the warnings alone do
not establish that the drug is the probable cause of a condition warned of.
{¶ 29} The jury instruction in question states:
FDA WARNINGS AND PROXIMATE CAUSE
In this case there was evidence presented concerning the Food
and Drug Administration (FDA) warnings for medications
prescribed to [S.T.]. The FDA approved warnings standing
alone cannot provide evidence of proximate cause but may be
considered in determining whether proximate cause has been
established.
(Aug. 31, 2016 Jury Instructions at 11-12.) Appellants claim that this instruction is
improper and allows jurors to accept a standard of causation less than 51 percent by
allowing the FDA warning to be considered in determining proximate cause. This
argument is not well-taken. The jury instruction does not allow a lesser standard than a
preponderance of evidence to be applied. It merely states that evidence of the warning may
be considered on the issue of causation.
{¶ 30} Further, the immediately preceding jury instruction specifically states that
"[y]ou will not reach the issue of proximate cause if you do not find by a preponderance of
the evidence that [Appellants] were negligent." (Aug. 31, 2016 Jury Instructions at 11.) The
trial court did not abuse its discretion in allowing this jury instruction.
C. LACK OF A MITIGATION OF DAMAGE INSTRUCTION
No. 16AP-809 14
{¶ 31} Appellants argue that the trial court erred in not allowing a failure to mitigate
damage instruction be submitted to the jury. Appellants claim that S.T. has stopped
treatment for her underlying psychiatric condition which should be continued to be treated
to mitigate the harm caused by SJS.
{¶ 32} In reviewing a trial court's jury instruction, an appellate court determines
whether the trial court abused its discretion in refusing to give a requested instruction
under the facts and circumstances of the case. State v. Gover, 10th Dist. No. 05AP-1034,
2006-Ohio-4338, ¶ 22, citing State v. Wolons, 44 Ohio St. 3d 64, 68 (1989). We recognize
a three-part test to determine when the trial court commits reversible error in failing to give
a requested instruction: "(1) the proposed instruction must be a correct statement of the
law; (2) the proposed instruction must not be redundant of other instructions given; and
(3) the failure to give the proposed instruction impaired the theory of the case of the party
requesting it." Gower v. Conrad, 146 Ohio App. 3d 200, 203 (10th Dist.2001); State v.
Dodson, 10th Dist. No. 10AP-603, 2011-Ohio-1092, ¶ 6.
{¶ 33} The trial court refused to give the proposed failure to mitigate jury
instruction, noting the objection. The trial court reasoned that the duty to mitigate
instruction was not relevant and that there was no evidence to support it. Appellants point
to the testimony of Dr. Prince to support the instruction. When asked to a reasonable
degree of medical certainty whether S.T. required any current psychiatric treatment, Dr.
Prince answered that "from the records that I had to review and look at, I believe [S.T.]
would benefit from some treatment." (Tr. 1576.) Then, when asked whether treatment
would improve S.T.'s situation as opposed to no treatment at all, Dr. Prince responded only
if someone wants to get help. "The difficulty is, if someone doesn't want to get help, just
showing up and trying to do counseling is not going to be helpful. It's a collaborative
interactive process. It's not passive like surgery or things like that." (Tr. at 1576.) The
testimony bears no relevance to the issue of whether psychiatric treatment would mitigate
the effect of SJS. This testimony does not show that the trial court abused its discretion in
refusing to give instructions about appellees' failure to mitigate damages to the jury.
{¶ 34} The trial court did not improperly give jury instructions on the lack of
informed consent and on the FDA warning, nor did the trial court err in failing to give a
failure to mitigate damages instruction to the jury.
No. 16AP-809 15
{¶ 35} The first assignment of error is overruled.
IV. THERE IS SUFFICIENT EVIDENCE TO OVERCOME A MOTION FOR
DIRECTED VERDICT
{¶ 36} In the fourth assignment of error, appellants argue there was insufficient
evidence to support the jury's verdict on the claim of a lack of informed consent and that
the trial court erred in denying a motion for directed verdict. Here, appellants bring many
of the same arguments we rejected under the first assignment of error. We therefore
examine whether the trial court improperly denied the motion for directed verdict.
{¶ 37} "According to Civ.R. 50(A)(4), a motion for directed verdict should be
granted when, after construing the evidence most strongly in favor of the party against
whom the motion is directed, 'reasonable minds could come to but one conclusion upon
the evidence submitted and that conclusion is adverse to such party.' " Groob v. KeyBank,
108 Ohio St. 3d 348, 2006-Ohio-1189, ¶ 14, quoting Civ.R. 50(A)(4), reconsideration
denied, 109 Ohio St. 3d 1483, 2006-Ohio-2466. "[A] motion for directed verdict tests
whether the evidence is sufficient to warrant a jury's consideration, so in deciding whether
to grant a directed verdict, a trial court considers neither the weight of the evidence nor the
credibility of the witnesses." Jarupan v. Hanna, 173 Ohio App. 3d 284, 2007-Ohio-5081, ¶
8 (10th Dist.), citing Estate of Cowling v. Estate of Cowling, 109 Ohio St. 3d 276, 2006-
Ohio-2418, ¶ 31. " 'In deciding [a motion for directed verdict], the court must assume that
the evidence presented by the non-movant is true and must give the non-movant the benefit
of all reasonable inferences to be drawn from that evidence.' " Koss v. Kroger Co., 10th
Dist. No. 07AP-450, 2008-Ohio-2696, ¶ 15, quoting Halk v. Cedarville College, 2d Dist.
No. 97-CA-75 (June 26, 1998).
{¶ 38} A motion for directed verdict only tests the sufficiency of the evidence. It
presents a question of law that an appellate court reviews de novo. Goodyear Tire &
Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St. 3d 512, 2002-Ohio-2842, ¶ 4. De novo
appellate review requires that the court of appeals independently review the record and
afford no deference to the trial court's decision. Koss at ¶ 16.
{¶ 39} Construing the evidence most strongly in favor of appellees, reasonable
minds could not come to but one conclusion that is adverse to appellees. Appellees
presented evidence that Dr. Knobeloch failed to disclose or discuss any risks or dangers
No. 16AP-809 16
with R.T., there was extensive and detailed expert testimony in the record that there is a
risk Lamictal can cause SJS and that the administration of Lamictal at the dosage
prescribed was the proximate cause of S.T. 's injuries. There exists in the record sufficient
evidence that reasonable minds might reach the conclusion that there was a lack of
informed consent. The trial court did not improperly deny appellants' motions for directed
verdict on the informed consent claim.
{¶ 40} The fourth assignment of error is overruled.
V. THERE IS EVIDENCE OF THE CAUSAL CONNECTION BETWEEN
LAMICTAL AND SJS
{¶ 41} In the sixth assignment of error, appellants argue that this case should not
have been allowed to go to a jury because there is no reliable scientific evidence that the
dosage of Lamictal given to S.T. caused SJS. Appellants argue that Dr. Kaye and other
experts should have been prevented from giving their causal opinions that there is a
probability of developing SJS from taking Lamictal.
{¶ 42} Evid.R. 702 governs the admissibility of expert testimony, and provides:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond
the knowledge or experience possessed by lay persons or
dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding
the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific,
technical, or other specialized information. To the extent that
the testimony reports the result of a procedure, test, or
experiment, the testimony is reliable only if all of the following
apply:
(1) The theory upon which the procedure, test, or experiment
is based is objectively verifiable or is validly derived from
widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result.
No. 16AP-809 17
{¶ 43} Dr. Kaye's testimony related to matters beyond the knowledge of laypersons
and, as will be discussed with respect to the seventh assignment of error, he was properly
qualified as an expert. Thus, we examine whether his opinion was reliable.
{¶ 44} "To determine whether a proposed expert's testimony about a scientific
technique or a scientific methodology is scientifically reliable, the court focuses on factors
identified by the United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993) as adopted by the Supreme Court in Miller v. Bike
Athletic Co., 80 Ohio St. 3d 607, 611-12 (1998)." State v. Mobarak, 10th Dist. No. 14AP-517,
2017-Ohio-7999, ¶ 20. These factors are: (1) whether the theory or technique has been
tested, (2) whether it has been subjected to peer review, (3) whether there is a known or
potential rate or error, and (4) whether the methodology has gained general acceptance.
Miller at 611, citing Daubert at 593-94. The focus of assessing reliability must generally be
on principles and methodology, not on the conclusions that they generate. Additionally, to
be admissible, the expert testimony must assist the trier of fact in determining a fact issue
or understanding the evidence.
{¶ 45} Appellants aver that Dr. Kaye's opinion must rest on FDA warnings as he does
not prescribe Lamictal nor has he done any research with the drug. Dr. Kaye earned his
doctorate in pharmacology and teaches medicine specializing in anesthesia and pain. Dr.
Kaye is also on an advisory board for anesthesia, analgesics, and addiction products for the
FDA which reviews new drugs, and whether there should be black box warnings or
guidelines. Dr. Kaye is also board certified in anesthesia and pain management. Dr. Kaye
has extensive training in pharmacology and is the author of journals and textbooks. Dr.
Kaye was qualified as an expert and his medical opinions do not rely only on the FDA "black
box" warning as he has a career's worth of experience in pharmacology. Moreover, Dr. Kaye
need not have prescribed or researched a specific drug in order to assist the jury in
understanding the evidence and he need not be the best witness on the subject. Alexander
v. Mt. Carmel Med. Ctr., 56 Ohio St. 2d 155, 159 (1978).
{¶ 46} Appellants argue SJS is not predictable and that a causal relationship
between SJS and Lamictal is unproven. Based on his education, experience, and training,
Dr. Kaye explained that the FDA warned of a rash that would cause the skin to slough off.
When 10 percent of the skin sloughs off it is called Stevens-Johnson Syndrome. S.T. had in
No. 16AP-809 18
excess of 30 percent of her skin sloughing off which would classify as toxic epidermal
necrolysis. The FDA warning had four aspects, the first one being unrelated to this case.
The other three aspects (exceeding the recommended initial dose of Lamictal, exceeding
the recommended dose escalation, and at the first sign of a rash to immediately discontinue
Lamictal) all occurred in this case. Dr. Kaye explained that in a study of children ages 2 to
16, approximately 8 out of 1,000 showed risk of SJS with an increased dose of Lamictal.
{¶ 47} There was abundant evidence that the improper prescription of Lamictal
caused SJS. Dr. Kaye explained that the dosage prescribed was three to four times the
recommended dosage. The higher amounts of Lamictal in a child's body increases the
possibility there would be toxicity. If too much Lamictal is given initially, it quickly
increases the risk of toxicity. In S.T.'s situation, the amount given was so high that it had a
toxic effect, and the doubling of the dose further compounded this toxic effect. Dr. Kaye
also opined that failure to stop the drug at the first sign of a rash also increased the
likelihood of SJS. There was evidence presented that there is a causal relationship between
SJS and Lamictal. The FDA warning and the study referenced show there is a connection.
The actions of Dr. Knobeloch in prescribing too high of an initial dose, then increasing that
dose above recommended levels, and failing to stop prescribing Lamictal at the initial
appearance of a rash, all increased the risk of SJS developing.
{¶ 48} Dr. Kaye was qualified to give expert testimony of the causal connection
between Lamictal and SJS. He then proceeded to give evidence of such a connection and
that the actions of Dr. Knobeloch increased the risk of SJS at multiple points during the
treatment.
{¶ 49} The sixth assignment of error is overruled.
VI. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S VERDICT
{¶ 50} In the fifth assignment of error, appellants argue there was no evidence
presented that Dr. Knobeloch's failure to see S.T. before doubling the dose of Lamictal
proximately caused injury.
{¶ 51} Appellants aver there is no competent evidence that failing to see S.T. on
September 4, 2012 before increasing the dosage of Lamictal to 50 mg a day was a proximate
cause of her injuries, sufficient to support the jury's affirmative answer to Jury
No. 16AP-809 19
Interrogatory No. 2. The second jury interrogatory read: "If you found by a preponderance
of the evidence that Defendant, William Knobeloch, M.D., fell below the standard of care,
do you find by a preponderance of the evidence that any such deviation proximately caused
injury to Plaintiff, [S.T.]?" (Aug. 31, 2016 Jury Interrogatory No. 2.) Appellants argue there
is a lack of sufficient evidence to support the jury's verdict as a matter of law.
{¶ 52} Sufficiency of the evidence is the legal standard applied to determine whether
the case should have gone to the jury. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-
2179, citing State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). In other words, sufficiency
tests the adequacy of the evidence and asks whether the evidence introduced at trial is
legally sufficient as a matter of law to support a verdict. Id. If the evidence presented at
trial is susceptible to more than one interpretation, we are bound to uphold the trial court's
decision. Estate of Barbieri v. Evans, 127 Ohio App. 3d 207 (9th Dist.1998).
{¶ 53} The second jury interrogatory does not specifically focus only on whether Dr.
Knobeloch's failure to see S.T. on September 4, 2012 proximately caused her injuries.
Rather, the jury was asked if whether it found by a "preponderance of the evidence that
Defendant, William Knobeloch, M.D., fell below the standard of care, do you find by a
preponderance of the evidence that any such deviation proximately caused injury."
(Emphasis added.) (Aug. 31, 2016 Jury Interrogatory No. 2.) There was ample evidence
that when viewed in a light most favorable to appellees, Dr. Knobeloch's deviation from the
standard of care proximately caused S.T.'s injuries. We find there was legally sufficient
evidence to support the jury's verdict on the second interrogatory.
{¶ 54} The fifth assignment of error is overruled.
VII. THE TRIAL COURT DID NOT SHOW BIAS IN QUESTIONING
WITNESSES
{¶ 55} In their second assignment of error, appellants argue that the trial court
showed bias in comments and asking questions of appellees' expert witnesses that resulted
in plain error in violation of Evid.R. 614(B).
{¶ 56} "The court may interrogate witnesses, in an impartial manner, whether called
by itself or by a party." Evid.R. 614(B). "Because Evid.R. 614(B) imbues trial courts with
the discretion to decide whether or not to question a witness, appellate courts must review
any questioning by a trial court under the abuse of discretion standard." Brothers v.
No. 16AP-809 20
Morrone-O'Keefe Dev. Co., LLC, 10th Dist. No. 05AP-161, 2006-Ohio-1160, ¶ 10, citing
State v. Johnson, 10th Dist. No. 03AP-1103, 2004-Ohio-4842, ¶ 10. "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 (1983).
{¶ 57} Evid.R. 614(B) allows the trial court to fulfill its obligation to control the
proceedings before it, to clarify ambiguities, and to take steps to ensure substantial justice.
Brothers at ¶ 11, citing State v. Stadmire, 8th Dist. No. 81188, 2003-Ohio-873, ¶ 26.
Therefore a trial court should not hesitate to pose pertinent and even-handed questions to
witnesses. Id. at ¶ 11.
{¶ 58} "Evid.R. 614(B), however, requires the court to question impartially and thus
tempers a trial court's ability to question a witness." Andrew v. Power Mkt. Direct, 10th
Dist. No. 11AP-603, 2012-Ohio-4371, ¶ 79, citing Brothers at ¶ 12. Therefore, in a jury trial
where the intensity, tenor, range, and persistence of the court's interrogation of a witness
can reasonably indicate to the jury the court's opinion as to the credibility of the witness or
the weight to be given to the testimony, the interrogation is prejudicially erroneous. State
ex rel. Wise v. Chand, 21 Ohio St. 2d 113 (1970), paragraph four of the syllabus. "[A]bsent
' "any showing of bias, prejudice, or prodding of a witness to elicit partisan testimony, it will
be presumed that the trial court acted with impartiality [in * * * [its] questions from the
bench] in attempting to ascertain a material fact or to develop the truth." ' " Brothers at
¶ 12, quoting State v. Baston, 85 Ohio St. 3d 418, 426 (1999), quoting Jenkins v. Clark, 7
Ohio App. 3d 93, 98 (2d Dist.1982). "A trial court's questioning of a witness is not impartial
merely because it elicits evidence that is damaging to one of the parties." Id. at ¶ 12, citing
Klasa v. Rogers, 8th Dist. No. 83374, 2004-Ohio-4490, ¶ 32.
{¶ 59} "A judge is presumed to follow the law and not to be biased, and the
appearance of bias or prejudice must be compelling to overcome these presumptions." In
re Disqualification of George, 100 Ohio St. 3d 1241, 2003-Ohio-5489, ¶ 5, citing In re
Disqualification of Olivito, 74 Ohio St. 3d 1261 (1994). "[T]he term, 'biased or prejudiced,'
when used in reference to a judge before whom a cause is pending, implies a hostile feeling
or spirit of ill will or undue friendship or favoritism toward one of the litigants or his
attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as
No. 16AP-809 21
contradistinguished from an open state of mind which will be governed by the law and the
facts." State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469 (1956).
{¶ 60} Appellants cite multiple places in the record that purport to show the trial
court's bias, prejudice, or the prodding of a witness was to elicit partisan testimony:
Q. So now let's get to your opinions. Dr. Kaye, do you have an
opinion about whether Lamictal has an indication for
pediatric bipolar disorder?
A. Lamictal has no indication for pediatric bipolar disease.
THE COURT: When you give opinions, Doctor, you have to
make sure all of your opinions are to a reasonable degree of
medical certainty and probability, i.e., 51 percent or more
likely. Will you make sure that all your opinions are within
that degree?
(Aug. 23, 2016 Vol. 3 at Tr. at 554-55.) Here, the court was clarifying under what
circumstances Dr. Kaye was permitted to express his medical opinion. The court reminded
Dr. Kaye that he was limited to opinions supported by a reasonable degree of medical
certainty and probability. This clarification can be interpreted as beneficial to appellants
as well as the appellees.
{¶ 61} Appellants take issue with the court reminding appellees' counsel of the
limitations of their witnesses' testimony and sustaining the appellants' objections:
Q. And that the opinions you've given with respect to what
happened as a result of those breaches, in other words, what
caused [S.T.]'s injuries, you've tied that together?
A. Yes, sir.
Q. Okay. And that what happened to [S.T.] was as a result of
those breaches?
MR. SCHAFFER: Object as to form.
THE WITNESS: Yes, sir.
THE COURT: You objected to form. Sustained.
Q. (By Mr. Hale) So the breach of -- the breaches that you've
identified, were they the cause of injuries to [S.T.] with respect
to [S.T.]?
No. 16AP-809 22
MR. SCHAFFER: Object to form.
MS. MULLIN: Join.
THE COURT: It should be direct and proximate cause.
Q. Direct and proximate cause to [S.T.]
MR. SCHAFFER: Objection.
MS. MULLIN: Join
THE COURT: Overruled.
(Aug. 17, 2016 Vol. 3 at Tr. at 584-85.) The court is again clarifying the boundaries of what
the witness can testify to. This is not a compelling example of bias. This exchange may be
a situation in which appellees' counsel made a mistake, appellants objected, and the court
sided with appellants.
{¶ 62} Appellants further argue that another instance of the court clarifying the
limitation of a witness testimony is a compelling example of bias:
MR. SCHAFFER: Object, Your Honor.
THE COURT: Let's get his opinions within the proper
question format.
MR. HALE: Okay.
Q. (By Mr. Hale) do you have an opinion about
THE COURT: Doctor, all your opinions you're going to give in
this case have to be within a reasonable degree of medical
probability. So any opinion you give has to be more likely than
not. If you can't give it that way, don't give an opinion. If you
give an opinion, can you assure the jury it will be within a
reasonable degree of medical probability?
(Aug. 18, 2016 Vol. 4 at Tr. at 869.) This is not a compelling example of bias. The court is
clarifying an ambiguity and controlling the proceedings.
{¶ 63} Appellants also argue that it was improper for the court to allow a witness,
Helen Woodard, to recalculate damages so as not to confuse the jury. It is reasonable for
the trial court to want the jury to hear a final dollar value of damages the life care planner
No. 16AP-809 23
was testifying to. The delay in the proceeding to allow for the recalculation was not evidence
of bias.
{¶ 64} Appellants separately argue that the court improperly interrupted the cross-
examination of one of appellees' witnesses. Appellants argue that the court changed a
question about probability of developing SJS on a properly titrated dose of Lamictal into a
question about possibility of developing SJS. This argument is without merit. The court
gave appellants' counsel ample opportunity to clarify the line of questioning and to have the
witnesses answer appellants' questions to counsel's satisfaction.
{¶ 65} We find that the trial court did not abuse its discretion when interrogating
various witnesses during the trial. We must initially presume that the trial court is not
biased and the transcript does not show compelling evidence to overcome these
presumptions.
{¶ 66} The second assignment of error is overruled.
VIII. THE TRIAL COURT PROPERLY EXCLUDED DR. FRANZ
{¶ 67} In the third assignment of error, appellants argue that the trial court
improperly excluded Dr. David Franz, M.D., from testifying for the defense at trial.
Appellants claim that Dr. Franz's testimony is not cumulative and that his abilities and
experience in prescribing Lamictal off-label and off-dosing provided additional details and
insight.
{¶ 68} The admission or exclusion of evidence is generally within the sound
discretion of the trial court, and a reviewing court may reverse only on the showing of an
abuse of that discretion. Peters v. Ohio State Lottery Comm., 63 Ohio St. 3d 296, 299
(1992).
{¶ 69} "Evid.R. 403(B) provides that relevant evidence is not admissible if its
probative value is substantially outweighed by consideration of undue delay or needless
presentation of cumulative evidence, and a trial court has the discretion to exclude expert
testimony where the testimony would not assist the trier of fact." Holman v. Shiloh Grove
L.P., 10th Dist. No. 15AP-228, 2016-Ohio-2809, ¶ 16, citing Bostic v. Connor, 37 Ohio St. 3d
144 (1988), paragraph three of the syllabus. See State v. Campbell, 69 Ohio St. 3d 38, 51
(1994) ("Evid.R. 403(B) does not require exclusion of cumulative evidence. The court has
discretion to admit or exclude it. We find no abuse of discretion and hence overrule this
No. 16AP-809 24
proposition."). "Cumulative evidence is additional evidence of the same kind to the same
point." Kroger v. Ryan, 83 Ohio St. 299 (1911), paragraph one of syllabus.
{¶ 70} The trial court precluded Dr. Franz from testifying on Friday, August 26,
2016. The trial court's reasoning was that the testimony was cumulative. Dr. Prince, who
prescribes Lamictal extensively in his practice, had already testified for the defense about
treating mood disorders with Lamictal, how there are no guidelines for doing so, and it
depends on experience. Dr. Prince, a pediatric psychiatrist, said that he was familiar with
the pharmacological effects of Lamictal. The trial court concluded after hearing from
defense counsel that Dr. Franz, a pediatric neurologist, would not be able to add anything
to the prior testimony.
{¶ 71} The trial court also admonished defense counsel for the inability to
coordinate their witness availability. Dr. Franz was apparently available to testify on
Tuesday, August 23, 2016, and would not be available again until Friday, August 26, 2016.
The trial court made its decision on Wednesday, August 24 that the testimony would be
cumulative.
{¶ 72} The trial court did not abuse its discretion in determining that Dr. Franz's
testimony would be cumulative. It did not act unreasonably, arbitrarily, or unconscionably.
{¶ 73} The third assignment of error is overruled.
IX. THE TRIAL COURT PROPERLY QUALIFIED EXPERT WITNESSES TO
TESTIFY
{¶ 74} In the seventh assignment of error, appellants argue that the legal
competency of Drs. Kaye and Arrendondo was never established pursuant to Evid.R.
601(D) leaving their liability opinions defective and incompetent.
{¶ 75} Evid.R. 601(D) specifies that only those who are licensed to practice medicine
and who devote at least one-half of their professional time to the active clinical practice of
medicine or instruction in an accredited school may testify in a civil action on a physician's
liability with respect to the diagnosis, care or treatment of a person. Celmer v. Rodgers,
114 Ohio St. 3d 221, 2007-Ohio-3697, ¶ 2.
No. 16AP-809 25
{¶ 76} "A trial court has discretion to determine whether a witness is competent to
testify as an expert, and the trial court's decision will not be reversed absent a clear showing
that the court abused its discretion." Id. at ¶ 19, citing McCrory v. State, 67 Ohio St. 2d 99,
105 (1981), citing In re Ohio Turnpike Comm. v. Ellis, 164 Ohio St. 377 (1955), paragraph
eight of the syllabus; Alexander, 56 Ohio St. 2d 155 (1978); State v. Maupin, 42 Ohio St. 2d
473 (1975); Akron v. Pub. Util. Comm., 5 Ohio St. 2d 237 (1966); and Tully v. Mahoning
Express Co., 161 Ohio St. 457 (1954).
{¶ 77} It is a general rule that the expert witness is not required to be the best witness
on the subject. Alexander. "The test is whether a particular witness offered as an expert
will aid the trier of fact in the search for the truth." Id. at 159. "[A] witness from a school
or specialty other than that of the defendant physician may qualify as an expert witness if
he demonstrates sufficient knowledge of the standards of the defendant's school and
specialty enabling him to give an expert opinion as to the conformity of the defendant's
conduct to those particular standards." Ishler v. Miller, 56 Ohio St. 2d 447, 453 (1978).
{¶ 78} Appellants argue that Dr. Kaye was never qualified as a competent witness
under Evid.R. 601(D). Dr. Kaye testified that he is a professor of anesthesia and
pharmacology at Tulane University; an editor on a journal; edits many medical books; and
serves on committees including an advisory board for the FDA. (Tr. at 537-39.) The trial
court declared Dr. Kaye an expert witness and allowed him to express his opinions
regarding pharmacology and drugs. However, before Dr. Kaye testified, the court reminded
the parties outside the presence of the jury that a pair of rulings on appellees' motions had
already been issued on this matter.
{¶ 79} The April 22, 2016 ruling prevented Dr. Kaye from testifying about Dr.
Knobeloch's diagnosis of S.T. with bipolar disorder. Dr. Kaye is not a psychiatrist or
pediatrician. The court found on the given state of the record that he did not have the
expertise required to render an opinion on the diagnosis of bipolar disorder.
{¶ 80} The court agreed with appellants that Dr. Kaye could not opine or give an
opinion about whether or not Dr. Knobeloch breached the standard of pediatric care.
{¶ 81} The trial court did indicate that Dr. Kaye had the expertise to give an opinion
about whether Dr. Knobeloch should have advised appellants of the black box warning,
whether he prescribed incorrect dosages, whether S.T. suffered an adverse drug reaction
No. 16AP-809 26
and whether or not Dr. Knobeloch failed to diagnose and provide proper treatment for the
alleged drug reaction. This testimony was within the realm of Dr. Kaye's expertise.
{¶ 82} The trial court overruled appellants' May 11, 2016 motion and stated that Dr.
Kaye could testify as to the dosage and whether the over dosage caused the onset of SJS.
{¶ 83} During Dr. Kaye's testimony, at one point, he offered his opinion on the
standard of care in diagnosing bipolar disorder. This was objected to and the trial court
sustained the objection and told the jury to disregard the opinion.
A. [Dr. Kaye]. I'm aware there are experts in pediatrics and
pediatric psychiatry who have opined, which I agree it was not
a proper diagnosis, on bipolar disease.
Mr. Schaffer: Objection.
***
THE COURT: I'm going to sustain the objection and just ask
the jury to disregard that. He's not a pediatrician, so I'm not
going to let him testify about diagnosis. He can testify about
whether the drug was appropriate or not.
(Aug. 17, 2016 Vol. 3 at Tr. 559-60.) The trial court was very careful to make sure that Dr.
Kaye's testimony stayed within the limits of its prior rulings. Appellants argue that it was
improper for Dr. Kaye to opine what Dr. Knobeloch's obligation to counsel the patient's
family should be. However, that opinion related to the risks and benefits of a drug with a
black box warning.
{¶ 84} The trial court reviewed Dr. Kaye's deposition testimony, credentials,
qualifications, all other related evidence, the applicable law, and the parties arguments in
rendering its opinion on Dr. Kaye's qualifications as an expert. It prohibited his testimony
as to the standard of care in diagnosing bipolar disorder. When Dr. Kaye did offer his
opinion on the standard of care, the trial court sustained the objection, told the jury to
disregard the opinion, and pointed out to the jury that Dr. Kaye was not a pediatrician and
could not testify about the diagnosis of patients.
{¶ 85} Dr. Kaye is a professor at Tulane University but he is not a pediatrician or
psychiatrist. This court has thoroughly reviewed this issue, and the record reveals that he
is a professor. The record does not indicate that Dr. Kaye devotes one-half of his
professional time to the active clinical practice of medicine or instruction in an accredited
No. 16AP-809 27
school. Evid.R. 601(D). The trial court did not abuse its discretion in outlining and
enforcing the parameters of Dr. Kaye's testimony, or in finding that he was qualified to
testify within certain limits.
{¶ 86} Appellants also argue that Dr. Arredondo failed to qualify as an expert under
Evid.R. 601(D). Dr. Arredondo stated his qualifications: he is board certified in psychiatry
and neurology, he has been in continuous clinical practice since his residency with some in
child and adolescent psychiatry. Dr. Arredondo is the medical director at a non-profit that
provides mental health services for adolescents where there is an education component to
his work. He also maintains a private practice where, among other services, he assesses
youth who have been seen by other people, but it is not clear what the diagnosis might be
or what the right treatment is. The trial court did not abuse its discretion in qualifying Dr.
Arredondo as an expert and qualified to testify as to Dr. Knobeloch's liability under Evid.R.
601(D).
{¶ 87} The seventh assignment of error is overruled.
X. CONCLUSION
{¶ 88} Having overruled appellant's seven assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur.