Wildenthaler v. Galion Community Hosp. , 2019 Ohio 4951 ( 2019 )

[Cite as Wildenthaler v. Galion Community Hosp., 2019-Ohio-4951.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Paul C. Wildenthaler, Administrator :
of the Estate of Kay C. Wildenthaler,
: No. 18AP-574
Plaintiff-Appellant, (C.P.C. No. 15CV-5091)
:
v. (REGULAR CALENDAR)
:
Galion Community Hospital, et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on December 3, 2019
On brief: Law Offices of Daniel R. Mordarski LLC, and
Daniel R. Mordarski; Oliver Law Office, and Jami S. Oliver,
for appellant. Argued: Daniel R. Mordarski.
On brief: Robison, Curphey & O'Connell, LLC, Julia Smith
Wiley, and Corey L. Tomlinson, for appellee, Mary Wadika,
D.O. Argued: Corey L. Tomlinson.
On brief: Gallagher Sharp, Monica A. Sansalone,
Theresa A. Richthammer, and Quinn M. Schmiege, for
appellee, John Kerns, D.O. Argued: Quinn M. Schmiege.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Plaintiff-appellant, Paul C. Wildenthaler, administrator of the estate of his
late wife, Kay C. Wildenthaler (as a collective party, "Wildenthaler"), appeals from a
judgment in favor of defendants-appellees, Mary Wadika, D.O., and John Kerns, D.O.,
entered on May 8, 2018, after a jury rendered a general verdict for the defendants.
Wildenthaler also appeals the trial court's decision, entered on June 27, 2018, denying his
motion for a new trial. Because we find the trial court erred by permitting the jury to
No. 18AP-574 2
execute a general verdict without completing interrogatories consistent with the general
verdict, we sustain Wildenthaler's assignment of error and reverse and remand for a new
trial.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On Saturday, June 22, 2013, at 2:00 a.m., Kay Wildenthaler ("Kay1") and her
husband, Paul Wildenthaler ("Paul"), went to the emergency room of the Galion
Community Hospital. (Wildenthaler Ex. 15.) Kay complained of back pain that had been
ongoing for several days and which had worsened progressively. Id. at 1. She related that
she had been given Tylenol with codeine in connection with treatments related to lung
cancer and had taken four doses without perceptible effect. Id. She was seen by Dr. Kerns.
Id. According to the records dictated by Dr. Kerns, Kay was 73, appeared uncomfortable,
cachectic2 and "really look[ed] like a walking skeleton." Id. He noted a respiratory rate of
20 and an oxygen saturation level of 94 percent on room air (no oxygen tank). Id. at 1. In
addition, an x-ray revealed pre-existing compression fractures of T12 and T7, diffuse
osteoporotic demineralization, and a mass or infiltrative change of the left upper lobe of her
lung. Id. at 9. Dr. Kerns gave her hydrocodone 7.5 mg with some amount of Tylenol (the
records are unclear whether it was 325 mg or 500 mg) and sent her home with instructions
to take further doses of the same as needed and see her family physician in three days. Id.
at 1; see also Tr. Vol. I at 184-86, filed Nov. 5, 2018.
{¶ 3} Kay and Paul returned to the emergency room again later in the same day, at
7:08 a.m., with Kay still complaining of back pain, and they were seen by Dr. Wadika.
(Wildenthaler Ex. 16 at 1.) Dr. Wadika also marked Kay's cachectic appearance and
recorded a body weight of 32 kg (70.5 lb3). Dr. Wadika recorded diminished breath sounds
but otherwise clear lungs with a respiration rate of 28 and an oxygen saturation level of 93
percent. Id. at 2. In light of the fact that Kay had already taken "a Vicodin[4] earlier without
any pain relief," Dr. Wadika gave Dilaudid5 and then waited 30 minutes to observe the
1 As Kay and Paul Wildenthaler share a last name, we shall, for clarity, refer to them by their first names. No
informality or lack of respect is intended by this choice.
2 A person is cachectic or has cachexia when they show "general physical wasting and malnutrition usually
associated with chronic disease." Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/cachexia (last accessed Nov. 15, 2019).
3 32 kg * 2.2 kg/lb = 70.5 lb
4 Vicodin contains hydrocodone (an opioid pain-reliever) and Tylenol.
5 Dilaudid is hydromorphone (an opioid pain-reliever).
No. 18AP-574 3
effect. Id. When Kay reported mild relief but still showed restlessness, Dr. Wadika gave
25 mg Benadryl intramuscularly and waited a further 25 or 30 minutes. Id. At that time,
when restlessness had decreased some but Kay still complained of pain, Dr. Wadika gave
Percocet6 orally. Id. Dr. Wadika then discharged Kay with a prescription for Duragesic
12.5, a patch dispensing 12.5 micrograms of fentanyl (an opioid pain-reliever) per hour
transdermally. Id. Dr. Wadika concluded that Kay's pain was related to compression
fractures and metastatic cancer and instructed Kay to see her family doctor on Monday. Id.
{¶ 4} Kay and Paul returned to the emergency room a final time on Sunday, June
23, 2013, at 2:33 p.m., and were seen by Dr. Kerns and his physician's assistant, Haley
Bartholomew. (Wildenthaler Ex. 17 at 4.) Bartholomew noted Kay's apparent discomfort
despite having had Tylenol with codeine at 10:00 a.m. and having placed the fentanyl patch
(Duragesic) at 11:00 a.m. Id. Her respirations were recorded at 28 and her oxygen
saturation was 92 percent on room air. Id. at 5. A CT scan (computed tomography scan)
of her back showed a compression fracture not previously observed at the T6 level. Id. at
12. Kay was treated intravenously with 30 mg Norflex (a muscle relaxer) and 15 mg Toradol
(a non-opioid pain reliever). Id. at 5. Bartholomew gave her a Percocet orally when she
continued to experience pain and, when that did not relieve the pain, followed up with 4 mg
of intravenous morphine. Id. After the morphine, Kay felt better and Bartholomew
discharged her with instructions to leave the patch on, take half a Vicodin in the event she
began to be in pain again, followed by the other half of the Vicodin if, after an hour, the first
half-pill had provided no relief. Id. Dr. Kerns and Bartholomew discussed Kay's situation
and Dr. Kerns agreed with the course and management of the case. Id.
{¶ 5} According to Paul's testimony at trial, Kay seemed lethargic when he got her
home from the emergency room and slept peacefully most of the day on Monday, June 24.
(Tr. Vol. II at 52-56, filed Nov. 5, 2018.) At one point, even though she was groggy, Kay
seemed restless. Id. at 56-59. So, as instructed, he gave her another half a Vicodin. Id. Paul
did not call the family doctor on Monday because Kay seemed to be resting. Id. at 59-60.
In order to avoid disturbing her, he slept in the spare bedroom on Monday night. Id. at 60-
61. When he awoke and checked on her Tuesday at 6:00 a.m., she was cold. Id. at 61-62.
6 Percocet contains oxycodone (an opioid pain-reliever) and Tylenol.
No. 18AP-574 4
{¶ 6} The autopsy and toxicology reports, issued approximately four months after
Kay's death, were somewhat self-contradictory. (Wildenthaler Ex. 29.) The coroner's
report concluded that the "[c]ause of death" was "METASTATIC CARCINOMA OF LUNG."
(Emphasis sic.) Id. at 1. Yet it concluded the "[m]anner of death" was an "[a]ccident" and
listed "[h]ow the injury occurred" as "TOOK EXCESSIVE PRESCRIPTION
MEDICATION." (Emphasis sic.) Id. It also recognized "[s]ignificant condition[s]" of
"ACUTE COMBINED DRUG INTOXICATION" and "SEVERE PANLOBULAR
EMPHYSEMA." (Emphasis sic.) Id. The toxicology report noted in relevant part the
presence of fentanyl, hydrocodone, morphine, noroxycodone, oxycodone, and
oxymorphone in blood samples taken from Kay's heart and in her urine. Id. at 7. The
amount of fentanyl in Kay's heart blood was less than 3 nanograms per milliliter, below the
toxicity threshold of more than 5 nanograms per milliliter. Id.
{¶ 7} Just short of two years after Kay's death, on June 16, 2015, Paul brought suit
against Dr. Kerns and Wadika for wrongful death.7 (June 16, 2015 Compl.) The complaint
alleged that "Kay died from respiratory depression because the [f]entanyl and other opioid
medication prescribed by [the defendants] combined with Kay's diminished lung functions
from her lung cancer and emphysema caused her to stop breathing." Id. at ¶ 42. Trial
began on April 23, 2018. (Tr. Vol. I at 1.)
{¶ 8} During the week-long trial, 14 witnesses testified. As the issues in this appeal
are limited, we likewise limit our discussion of their testimony.
{¶ 9} Drs. Kerns and Wadika testified to the course of treatment they provided.
Both indicated that when they saw Kay, they felt that she was in extremely poor health, that
she did not have long to live, and that she was in pain due, at least in part, to her advanced
lung cancer. Id. at 65-66, 71-72, 94, 96-98, 159, 180, 188, 206-08, 212-15; Tr. Vol. III at
352-54, filed Nov. 5, 2018; Tr. Vol. IV at 263-64, 276-77, filed Nov. 5, 2018. While
acknowledging that both the manufacturer of Duragesic and the FDA had warned against
the use of fentanyl patches in cases where the patient has not already developed a tolerance
to opioids because of the risk of respiratory depression and death, each doctor opined that
neither of them violated the standard of care or caused Kay's death in permitting her to use
7 The complaint also named other persons and entities. However, these persons and entities were dismissed
from the action prior to trial. (Feb. 6, 2018 Notice of Dismissal.)
No. 18AP-574 5
the patch, particularly at such a low dose. (Tr. Vol. I at 100-08, 119-20, 223-24; Tr. Vol. III
at 362-63; Tr. Vol. IV at 276-78.)
{¶ 10} In addition to relating the circumstances surrounding Kay's death, Paul and
his son (Jeff Wildenthaler) testified that Kay was always an extremely slightly built woman
(weighing around 85 to 100 pounds when healthy), had not lost much weight during cancer
treatment, and had received a very good report from her oncologist indicating that she was
responding well to treatment. (Tr. Vol. II at 7, 25-29, 138-46, 159-60.)
{¶ 11} The plaintiff called two experts to testify. The first, an emergency room
doctor, Frederick Carlton, M.D., testified that using the patch on Kay was a terrible
decision. (Tr. Vol. II at 210-11.) Her frail condition, low weight, lung problems (including
COPD and lung cancer), and lack of an established tolerance for opioids put her at risk for
respiratory depression. Id. Use of the patch in a case like Kay's was contraindicated by
both the FDA warnings and manufacturer's instructions. Id. at 213-14. Even if it had been
necessary to use the patch, Dr. Carlton opined that Kay should have been admitted to the
hospital for observation and monitoring. Id. at 215. Based on the timeline of events and
the clinical conditions, Dr. Carlton explained there was no good explanation for the cause
of Kay's death other than respiratory depression. Id. at 225-33. Accordingly, he opined
that she died of a fentanyl overdose. Id. at 225. He further opined that Dr. Wadika
breached the standard of care in prescribing the patch for Kay to fill and use at home given
her small size, lack of significant opioid tolerance history, and frail condition. Id. at 234-
38. He testified that Dr. Kerns violated the standard of care by allowing Kay to go home
still wearing the patch rather than removing the patch or admitting her to the hospital. Id.
at 239-42.
{¶ 12} The plaintiff's second expert, a hospitalist, Cregg Ashcraft, M.D., testified
similarly. He opined that in the absence of any evidence of another possible cause of death,
respiratory depression brought on by the fentanyl patch was the cause of Kay's death. (Tr.
Vol. III at 70-77, 173-79.) Though he did not directly opine whether Drs. Wadika and Kerns
violated the standard of care, he testified that Kay should have been admitted for
observation and monitoring if she was going to be on the patch. Id. at 58-65, 110-11, 154-
55.
No. 18AP-574 6
{¶ 13} The defense called four experts, two emergency room doctors, Neal Little,
M.D., and Michael Dick, M.D.; a forensic pathologist, Carl Schmidt, M.D.; and a forensic
toxicologist, John Wyman, Ph.D.
{¶ 14} Drs. Little and Dick testified that the defendants met the standard of care.
Dr. Little testified that Dr. Wadika was trying to be creative in dealing with intractable pain
and that, given the failure of so many other options, the fentanyl patch was a reasonable
thing to try. (Tr. Vol. IV at 49-51.) Because Kay had tolerated many times the dose of
opioids that the patch was capable of releasing, and because of the very low levels of
fentanyl detected in her blood during the autopsy, he opined that Dr. Wadika's treatment
did not cause Kay's death. Id. at 49-52, 78. Dr. Dick found the approach taken by the
emergency room doctors in the case to have been a reasonable escalation of opioid
treatment and not violative of the standard of care. (Tr. Vol. V at 30-33, 36-39, 41-42, 50.)
In this connection, he noted that some evidence in the autopsy of necrotic tissue in her
spine could suggest that the cancer had progressed to her bones. Id. at 33-34. While he
acknowledged that it might have been a safer option to admit Kay, he observed that being
admitted is not a pleasant experience and opined that it did not violate the standard of care
for the doctors to have failed to insist that she be admitted. Id. at 42-44, 50. He concluded
that neither Dr. Kerns' care nor Dr. Wadika's care caused Kay's death. Id. at 33-34, 48, 51.
{¶ 15} Dr. Schmidt opined that Kay did not die of a fentanyl overdose but was more
likely just worn out by age and malnourishment (as a consequence of disease). (Tr. Vol. IV
at 107, 115, 126-27.) He admitted that Kay's full bladder and heavy lungs at the time of the
autopsy are both signs of an opioid overdose and that there have been cases in which people
have died of fentanyl overdoses with less than three nanograms per milliliter blood
concentration. Id. at 145-46, 163-64. Nonetheless, he opined that her death was a natural
result of not having enough muscle, fat, and energy stores to run her vital body processes.
Id. at 131-32, 159.
{¶ 16} Dr. Wyman's testimony agreed with many aspects of Dr. Schmidt's. He stated
that blood drawn from the heart often shows falsely inflated levels of drugs because of post-
mortem redistribution, which is when decomposition processes release drugs from organs
and tissues where they are stored and the drugs make their way into the chest-cavity blood.
Id. at 195-97. In this case, given that a toxic level of fentanyl is 5-10 nanograms per
No. 18AP-574 7
milliliter, while 10-15 nanograms per milliliter is toxic to fatal, and 15 nanograms per
milliliter is generally fatal, Kay's heart blood concentration of below 3 nanograms per
milliliter was not likely the cause of death. Id. at 207-08. Dr. Wyman acknowledged that
drug concentrations can drop in overdose cases where a person dies a lingering death and
that a full bladder and heavy lungs are two indications of an opioid overdose. Id. at 211-12,
236-39, 246. Nevertheless, Dr. Wyman testified that one cannot say to a reasonable degree
of medical certainty that Kay died from an opioid overdose based on the toxicology results.
Id.
{¶ 17} In the closing argument, the attorney for Wildenthaler talked the jurors
through how, based on the evidence presented at trial, the jury should decide each of the
ten interrogatories that were presented with the verdict forms. (Tr. Vol. V at 94-98.) In
instructing the jury, the judge also explained the use of the interrogatories. Id. at 195-99.
In addition to paraphrasing each interrogatory, the judge instructed the jury:
You will be given written questions called interrogatories. You
must answer them in writing starting with the first question.
You must carefully follow the directions about how to proceed
because the directions will tell you what questions to answer
and whether to sign the general verdict form for the plaintiff or
for the defendants.
A question in the interrogatory is answered when at least six of
the jurors agree. All who agree must sign. If six jurors cannot
agree on the answer, you will be instructed to report that to the
court.
***
* * * As regards to the jury interrogatories, do not assume that
because you have been provided with multiple interrogatories
that all of them must be completed. The interrogatories will
instruct you as to which interrogatories and verdict forms must
be completed based upon your answers.
Id. at 179, 190.
{¶ 18} After deliberating for a period of time, the jury posed a question to the trial
court:
In reference to jury instructions page 11, paragraph beginning
"If you find the Plaintiff failed to prove." , [sic] six jurors feel
No. 18AP-574 8
the plaintiff failed to prove the cause of death. We are unable
to have six jurors agree on Interrogatory 1 and 3.
If we do agree that the Plaintiff failed to prove cause of death,
do we need to agree on the negligence?
(Juror Question 1, Ex. 1 to May 24, 2018 Dr. Wadika Memo. in Opp.) Interrogatories 1 and
3 were the interrogatories asking whether Drs. Kerns or Wadika, respectively, were
negligent in their care and treatment of Kay. (Jury Interrogatories at 1, 3, filed May 2,
2018.) The interrogatories instructed that interrogatories 1 through 4 had to be completed
in numerical order. Id. at 1-4. In effect, the interrogatories instructed the jury to first decide
whether the doctors were negligent before moving to consider whether their negligence
caused Kay's death. However, each interrogatory stated: "If six jurors cannot agree on an
answer to this Interrogatory, report this to the Court." Id. in passim.
{¶ 19} The attorney for Wildenthaler argued that the trial court should instruct the
jury that the interrogatories had to be completed in numerical order as the instructions
indicated. (Tr. Vol. VI at 4, filed Nov. 5, 2018.) After some initial discussion, attorneys for
both Drs. Kerns and Wadika took the opposite position, that the jury could consider
causation independently from negligence. Id. at 11-14. After hearing arguments from both
sides, the trial court reasoned that "if they don't have six [jurors] that agree on negligence
but they have six that agree * * * on causation [] that's case[-]dispositive. And -- and to
make them sit there and discuss negligence when[/]if, in fact, there are six that agree on
the question of [causation] * * * is a waste of everybody's time and effort." Id. at 9.
Ultimately, the trial court decided to answer the jury's question in the negative, thereby
permitting the jurors to proceed to consider causation. Id. at 14.
{¶ 20} The jury then asked a second question:
In reference to the previous question, six are agreed the
plaintiff failed to prove the cause of death. May we proceed to
the verdict since we are unable to complete the interrogatories?
Id. at 15. The attorney for Wildenthaler repeated his argument that the interrogatories
must be completed in order and asserted that if the jurors could not do that, a mistrial
should be granted. Id. at 15-16. Based on the fact that the jury apparently believed the
cause of death had not been proven, attorneys for Drs. Kerns and Wadika reasoned that
completion of a general verdict in their client's favor would be appropriate notwithstanding
No. 18AP-574 9
the jury's failure to answer the specific questions posed by the interrogatories as to
negligence and proximate causation. Id. at 16-17. The trial court decided to answer the
question in the affirmative, thereby permitting the jury to complete the verdict without
answering even the interrogatory on causation. Id. at 18.
{¶ 21} After receiving the trial court's response to the second question, the jury
announced a general verdict in favor of the defendants. Id. at 20-21; Verdict Forms at 1-2,
filed May 2, 2018. The jury completed none of the interrogatories. (Tr. Vol. VI at 20.) A
jury poll of the six jurors who signed the general verdict revealed no dissenting jurors. Id.
at 21-22. The trial court memorialized the verdict in a judgment in favor of defendants on
May 8, 2018. (May 8, 2018 Jgmt. Entry.)
{¶ 22} On May 10, 2018, Wildenthaler moved for a new trial.8 (May 10, 2018 Mot.
for New Trial.) After the parties fully briefed the matter, on June 27, 2018, the trial court
denied Wildenthaler's motion. (June 27, 2018 Decision & Entry.) The trial court reasoned
that the fault in the jury's struggle with the interrogatories was in the interrogatory forms,
not the jury's reasoning. Id. at 3. That is, the interrogatories improperly required the jury
to reach a consensus (six votes of eight) one way or the other on the question of whether
each doctor was negligent before considering the cause of Kay's death. Id. at 3-4. Yet
negligence and proximate cause are both necessary elements of a wrongful death claim, and
so the failure to prove the manner of Kay's death rendered the question of negligence
irrelevant. Id. at 4. Just because the jury could not reach a consensus on whether or not
the doctors were negligent does not mean that the jurors could not reach a decision on
whether or not Kay's death was a result of the treatment the doctors provided. Id. Thus,
the court concluded that the plaintiff had suffered no prejudice as a result of the jury's
failure to complete the interrogatories. Id.
{¶ 23} Wildenthaler now appeals.
II. ASSIGNMENT OF ERROR
{¶ 24} Wildenthaler presents a single assignment of error for review:
8 Although the caption and preamble of the motion also suggested Wildenthaler was requesting judgment
notwithstanding the verdict, Wildenthaler did not argue for or request judgment notwithstanding the verdict
in the body of the memorandum in support. (May 10, 2018 Mot. for New Trial in passim.)
No. 18AP-574 10
THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT
ORDERING A NEW TRIAL WHERE JURORS DID NOT
ANSWER ANY OF THE JURY INTERROGATORIES.
III. DISCUSSION
{¶ 25} Ohio Rule of Civil Procedure 59 sets forth grounds on which a court may grant
a new trial as follows:
(A) Grounds for new trial. A new trial may be granted * * *
upon any of the following grounds:
(1) Irregularity in the proceedings of the court, [or] jury, * * *
by which an aggrieved party was prevented from having a fair
trial;
(2) Misconduct of the jury * * * ;
***
(9) Error of law occurring at the trial and brought to the
attention of the trial court by the party making the application.
In addition to the above grounds, a new trial may also be
granted in the sound discretion of the court for good cause
shown.
Civ.R. 59(A).
{¶ 26} We have previously explained the standard of appellate review for decisions
on motions for a new trial:
Consistent with the fact that the rule is permissive (may) rather
than mandatory (shall), we generally review decisions on
motions for new trials under an abuse of discretion standard.
Frash v. Ohio Dep't of Rehab. & Corr., 10th Dist. No. 14AP-932,
2016-Ohio-360, ¶ 7, 59 N.E.3d 566, citing Reeves v. Healy, 192
Ohio App.3d 769, 2011-Ohio-1487, ¶ 18, 950 N.E.2d 605 (10th
Dist.). However, it is also true that "no court has the authority,
within its discretion, to commit an error of law." [State v.]
Akbari[, 10th Dist. No. 13AP-319, 2013-Ohio-5709,] ¶ 7. Thus
we have also observed that " 'when the basis of the motion [for
a new trial] involves a question of law, the de novo standard of
review applies, and when the basis of the motion involves the
determination of an issue left to the trial court's discretion, the
abuse of discretion standard applies.' " Frash at ¶ 7, quoting
Dragway 42, L.L.C. v. Kokosing Constr. Co., 9th Dist. No.
09CA0073, 2010-Ohio-4657, ¶ 32.
No. 18AP-574 11
Shaw v. Underwood, 10th Dist. No. 16AP-605, 2017-Ohio-845, ¶ 32.9 In this case, the two
issues appear to be legal questions—whether the jury was permitted to answer the
interrogatories out of order and whether, even if they were permitted to answer out of order,
they were permitted to fail to answer entirely.
{¶ 27} Ohio Rule of Civil Procedure 49 provides for the use of jury interrogatories:
(B) General verdict accompanied by answer to
interrogatories. The court shall submit written
interrogatories to the jury, together with appropriate forms for
a general verdict, upon request of any party prior to the
commencement of argument. Counsel shall submit the
proposed interrogatories to the court and to opposing counsel
at such time. The court shall inform counsel of its proposed
action upon the requests prior to their arguments to the jury,
but the interrogatories shall be submitted to the jury in the
form that the court approves. The interrogatories may be
directed to one or more determinative issues whether issues of
fact or mixed issues of fact and law.
The court shall give such explanation or instruction as may be
necessary to enable the jury both to make answers to the
9 Frequent perfunctory citation to Blakemore v. Blakemore, has often resulted in the incorrect suggestion that
an abuse of discretion is "more than a mere error of law or judgment." (Emphasis added.) See, e.g., State v.
Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶ 60, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
(1983). This concept originated in Steiner v. Custer, and Steiner came by it through reference to the second
edition of Black's Law Dictionary. Steiner v. Custer, 137 Ohio St. 448, 451 (1940). However, Steiner's
comments on abuse of discretion were only "in relation to the present controversy," and did not purport to
define the term generally. Id. Moreover, the second edition of Black's actually did not include the language
that abuse of discretion is "more than a mere error of law or judgment." (Emphasis added.) Blakemore at
219. Rather, that early edition of Black's defined abuse of judicial discretion by stating, "[t]his term, commonly
employed to justify an interference by a higher court with the exercise of discretionary power by a lower court,
implies not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral
delinquency. The exercise of an honest judgment, however erroneous it may appear to be, is not an abuse of
discretion." (Emphasis added.) Black's Law Dictionary 11 (2d Ed.1910). The modern edition of Black's,
defines abuse of discretion so as to fully take into account the fact that an error of law constitutes an abuse of
discretion. It states that an abuse of discretion is "[a]n adjudicator's failure to exercise sound, reasonable, and
legal decision-making," or "[a]n appellate court's standard for reviewing a decision that is asserted to be
grossly unsound, unreasonable, illegal, or unsupported by the evidence." (Emphasis added.) Black's Law
Dictionary 12 (10th Ed.2014). Moreover, courts that have directly considered the matter have invariably
concluded that a court does not have discretion to violate the law. See State v. Boles, 187 Ohio App.3d 345,
2010-Ohio-278, ¶ 15-26 (2d Dist.) (discussing the varying formulations of what constitutes abuse of discretion
and concluding "[n]o court -- not a trial court, not an appellate court, nor even a supreme court -- has the
authority, within its discretion, to commit an error of law"); see also, e.g., State v. Robinson, 10th Dist. No.
17AP-707, 2018-Ohio-1166, ¶ 7; State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7. In short,
though Steiner's incautious misstatement of Black's has continued to persist in the caselaw as an improper
generalized definition, the modern Supreme Court of Ohio has opined, " '[a] court abuses its discretion when
its ruling is founded on an error of law or a misapplication of law to the facts.' " Independence v. Office of the
Cuyahoga Cty. Exec., 142 Ohio St.3d 125, 2014-Ohio-4650, ¶ 49, quoting Doe v. Natl. Bd. Of Med. Examiners,
199 F.3d 146, 154 (3d. Cir.1999).
No. 18AP-574 12
interrogatories and to render a general verdict, and the court
shall direct the jury both to make written answers and to render
a general verdict.
When the general verdict and the answers are consistent, the
appropriate judgment upon the verdict and answers shall be
entered pursuant to Rule 58. When one or more of the answers
is inconsistent with the general verdict, judgment may be
entered pursuant to Rule 58 in accordance with the answers,
notwithstanding the general verdict, or the court may return
the jury for further consideration of its answers and verdict
or may order a new trial.
(Emphasis added.) Civ.R. 49(B). In other words, where a general verdict is inconsistent
with the interrogatory answers, a trial court has three options: (1) to enter judgment in
accordance with the answers; (2) to return the jury for further consideration; or (3) to order
a new trial. But if the interrogatories are blank, there is no way to know what general verdict
would be "in accordance with the answers." Id. And if the trial court discharges the jury, it
no longer has the option to "return the jury for further consideration." Id. In such cases,
its options narrow to one—"order[ing] a new trial." Id.{¶ 28} Consistent with this reading of the rule, caselaw in Ohio is to the effect that
where a jury does not complete all necessary interrogatories or completes them in a way
that is inconsistent with the general verdict and the trial court discharges the jury, a new
trial is to be granted. State ex rel. Bd. of State Teachers Retirement Sys. v. Davis, 113 Ohio
St.3d 410, 2007-Ohio-2205, ¶ 38, 46 (failure to answer interrogatories on punitive damages
meant that the jury had not completed its duties to resolve the claims at issue in the case
and a new trial was necessary); Aetna Cas. & Surety Co. v. Niemiec, 172 Ohio St. 53 (1961),
paragraphs two through four of the syllabus ("don't know" answers on interrogatories were
not definite answers and required a new trial); cf. Bloor v. Platt, 78 Ohio St. 46 (1908),
paragraph two of the syllabus (noting that an answer of "don't know" to interrogatories on
elements of the plaintiff's claim is consistent with a general verdict for defendants).
{¶ 29} In this case, we agree with the trial court's resolution of the first jury question.
(June 27, 2018 Decision & Entry at 3-4.) That is, we agree (and have previously held) that
the model interrogatories provided in the Ohio Jury Instructions are flawed in that they
wrongly imply that interrogatories on negligence and proximate cause must be answered
in order of negligence first and that the full jury cannot consider both negligence and
No. 18AP-574 13
proximate causation. Dillon v. OhioHealth Corp., 10th Dist. No. 13AP-467, 2015-Ohio-
1389, ¶ 24-27 (holding that "[p]roximate cause is a separate question not dependent on a
finding of negligence" and that the Ohio Jury Instructions, CV Section 403.01 (Rev. Oct. 11,
2008) was erroneous in that it operated to prevent a full jury from independently
considering negligence and proximate causation); see also O'Connell v. Chesapeake & Ohio
RR. Co., 58 Ohio St.3d 226, 235-36 (1991) (noting that the full jury is to deliberate as to
negligence and proximate cause); Estate of Lawson v. Mercy Hosp. Fairfield, 12th Dist.
No. CA2010-12-340, 2011-Ohio-4471, ¶ 16 (where the court "recognized that a party's right
to a full jury would in fact be deprived if the full jury were not permitted to deliberate as to
both negligence and proximate cause"). Thus, we agree with the trial court and rely on our
prior precedent; interrogatories that restrict the order in which jurors consider negligence
and proximate cause (and which therefore restrict the jurors' participation in considering
proximate cause) are not appropriate.
{¶ 30} In this case, jurors who would find that Drs. Kerns and Wadika had been
negligent could still have answered the question of whether the doctors' negligence had or
had not caused Kay's death. Jurors who would not have found that Drs. Kerns and Wadika
were negligent could also still have found that the doctors' course of treatment had or had
not caused Kay's death. That is, the jury could have believed, for example, that Kay died of
natural causes, or that the defendants' negligent treatment killed her, or that she was so
frail that even treatment within the standard of care proximately caused her death. As was
true in Dillon, negligence and proximate cause are separate and independent inquiries. See
Dillon at ¶ 24, fn. 6. Regardless of whether or not a juror thought Drs. Kerns or Wadika
had been negligent, that juror could still entertain a variety of conclusions about the cause
of Kay's death. By suggesting otherwise and insisting that the jury decide negligence first,
thus prohibiting full jury consideration of proximate cause, the interrogatories were in
error, and the trial court was correct to allow the jury to proceed to consider proximate
cause when the jury asked permission to do so.
{¶ 31} However, after resolving the jury's first question and permitting the jury to
consider proximate cause without first answering the negligence interrogatory, we see no
reason why the jury should have been excused from answering the interrogatories on
proximate causation. Regardless of a juror's position on whether there was negligence, that
No. 18AP-574 14
juror could still have offered a definite answer to the question, "Did [the defendants']
negligence directly and proximately cause Kay Wildenthaler's death?" (May 2, 2018
Interrogatories at 2, 4.) Accordingly, the trial court should not have permitted the jury to
skip the remaining interrogatories and move directly to the verdict forms. In so doing and
then discharging the jury, the trial court created a mistrial under Civ.R. 49(B) and Ohio
precedent because the jury did not complete its assigned task. Essentially, being unable to
reach a majority consensus for either a negative or positive answer on interrogatories for
negligence or proximate cause, the jury was hung and a defense verdict was therefore
inconsistent. A new trial is required. Davis, 2007-Ohio-2205, at ¶ 38, 46; Niemiec, 172
Ohio St. 53, at paragraphs two through four of the syllabus.
{¶ 32} Dr. Kerns and Wadika argue that the jury forewoman's questions suggest that
the jury's failure to complete the verdict forms was consistent with the general defense
verdict. (Dr. Wadika's Brief at 6-11; Dr. Kerns' Brief at 32-41.) That is, Drs. Kerns and
Wadika assert that the questions show that the jury believed Wildenthaler had failed to
prove the cause of Kay's death, which means the general verdict in favor of the defense is
consistent with the jury's failure to answer questions about whether the defendants'
"negligence directly and proximately cause[d] Kay Wildenthaler's death." (May 2, 2018
Interrogatories at 2, 4.) We do not agree. First, the jury forewoman's note, executed only
by her, cannot speak for the entire jury in the manner in which an interrogatory executed
by a 75 percent majority does. We simply have no way of knowing if the forewoman
accurately understood and indicated the view of a 75 percent majority of the jury on the
issue of causation.
{¶ 33} More important, if the jury indeed believed that the plaintiff had failed to
prove the cause of Kay Wildenthaler's death, then the answer to the interrogatory about
whether the defendants' negligence caused Kay Wildenthaler's death was simply "no."
Dr. Kerns argues that there was no interrogatory to take account of a jury that was "unable
to determine how [Kay's] death occurred "and that in such an instance, the jury's verdict
"must be for all Defendants." (Dr. Kerns' Brief at 39, quoting May 2, 2018 Jury Instructions
at 11.) But if Wildenthaler failed to prove the manner of Kay's death, then the allegation
that the doctors' negligence caused Kay's death was unproven, and the interrogatory about
whether that was the cause of death needed to be answered in the negative. Contrary to the
No. 18AP-574 15
doctors' position, the fact that the jury was apparently unable to answer "no" and fully
execute the interrogatory does not indicate that a majority of the jury had definitively found
the allegation "unproven"; it rather indicates that the jury was hung on the issue. That the
jurors signed general defense verdicts despite being hung on both negligence and
proximate cause is an inconsistency. And since the jury has been discharged, that
inconsistency can only now be rectified by a new trial. Davis, 2007-Ohio-2205, at ¶ 38, 46;
Niemiec, 172 Ohio St. 53, at paragraphs two through four of the syllabus.
{¶ 34} Drs. Kerns and Wadika also submit what Dr. Kerns' brief characterizes as a
cross-assignment of error.10 (Dr. Wadika's Brief at 21-29; Dr. Kerns' Brief at 43-49.) The
essence of their argument is that even if the interrogatory issue constitutes an otherwise
reversible error, we should not order reversal because the trial court should have granted
them a directed verdict.11 Drs. Kerns and Wadika urge us to find that the evidence at trial
was insufficient as a matter of law to show the cause of Kay's death and thus that they were
entitled to a directed verdict.
{¶ 35} The Supreme Court of Ohio has explained the standard for directed verdicts
as follows:
Civ.R. 50(A) motions for directed verdict do not present factual
issues but instead present questions of law. Goodyear Tire &
Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002
Ohio 2842, 769 N.E.2d 835, ¶ 4. The same is true for a Civ.R.
50(B) JNOV motion. Posin v. A.B.C Motor Court Hotel, Inc.,
45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976) ("The test to be
applied by a trial court in ruling on a motion for judgment
notwithstanding the verdict is the same test to be applied on a
motion for a directed verdict"). Faced with the question of
sufficiency through a directed verdict motion, the court must
determine whether any evidence exists on every element of
each claim or defense for which the party has the burden to go
forward.
10Such a characterization is not necessary under Ohio Rule of Appellate Procedure 3(C)(2).
11Another way to characterize the doctors' argument would be that the interrogatory issue is harmless error.
We note that "courts are generally required 'at every stage of the proceeding[s]' to 'disregard any error or
defect in the proceeding which does not affect the substantial rights of the parties.' " Cahill v. Owens, 10th
Dist. No. 15AP-925, 2016-Ohio-4972, ¶ 22, quoting Civ.R. 61. The Supreme Court of Ohio has interpreted this
inquiry in civil cases to require consideration of whether " 'without th[at] error[]' the factfinder 'probably
would not have arrived at the same verdict.' " Cahill at ¶ 22, quoting Hayward v. Summa Health Sys., 139
Ohio St.3d 238, 2014-Ohio-1913, ¶ 25.
No. 18AP-574 16
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 25. The question a trial court
confronts in deciding whether to grant a directed verdict or to submit a case to a jury is
whether "reasonable minds" could differ on the outcome based on the evidence presented.
Id. at ¶ 27. That inquiry does not require any weighing of evidence or questioning of
credibility. Id. In this case, the question is whether there was "any evidence" to support
Wildenthaler's allegations that Kay died as a result of negligent prescribing and
administration of opioids.
{¶ 36} In short, there was. Both of Wildenthaler's expert witnesses opined that Kay
died as a result of the fentanyl patch. (Tr. Vol. II at 225; Tr. Vol. III at 70-77, 173-78.)
Although one of Wildenthaler's experts did not directly opine on whether Drs. Kerns and
Wadika breached the standard of care, he testified that Wildenthaler should have been
admitted to the hospital if she was on the patch. (Tr. Vol. III at 58-65, 110-11, 154-55.) The
other expert directly testified that both Drs. Kerns and Wadika violated the standard of
care; Dr. Wadika, by prescribing the patch to a person of Kay's circumstances, and Dr.
Kerns, by allowing her to go home still wearing it. (Tr. Vol. II at 234-42.) The defendants
were not entitled to a directed verdict and they did not prevail on their motion for directed
verdict in the trial court for precisely the reasons we have just enunciated. (Tr. Vol. III at
Tr. at 206-14; Tr. Vol. V at 76-77.)
{¶ 37} We sustain Wildenthaler's sole assignment of error.
IV. CONCLUSION
{¶ 38} The trial court did not err when it permitted the jury to consider proximate
causation without first requiring an agreement on negligence. However, the trial court did
err by permitting the jury to execute a general verdict without completing interrogatories
consistent with the general verdict. Because the trial court discharged the jury without the
jury having completed its task and answering interrogatories to justify the general verdict,
reversal and remand for a new trial is necessary.
Judgment reversed and cause remanded.
BROWN, J., concurs.
BEATTY BLUNT, J., concurs in judgment only.