Morgan v. Ohio State Univ. College of Dentistry , 2014 Ohio 1846 ( 2014 )

[Cite as Morgan v. Ohio State Univ. College of Dentistry, 2014-Ohio-1846.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Gregory B. Morgan, :
Plaintiff-Appellant, : No. 13AP-287
(Ct.Cl. No. 2010-05111)
v. :
(REGULAR CALENDAR)
The Ohio State University College of :
Dentistry,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on May 1, 2014
Gregory B. Morgan, pro se.
Michael DeWine, Attorney General, and Daniel R. Forsythe,
for appellee.
APPEAL from the Court of Claims of Ohio
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Gregory B. Morgan ("appellant"), appeals from a
judgment entered by the Court of Claims of Ohio finding defendant-appellee, The Ohio
State University College of Dentistry ("OSU"), not liable for either (1) professional
negligence in the practice of dentistry ("dental malpractice"), or (2) the tort of providing
dental treatment without having first obtained the patient's informed consent ("lack of
informed consent"). For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} On March 24, 2006, appellant sought care for a toothache at OSU's
emergency pre-doctoral student dental clinic. Appellant was advised he needed to have a
filling replaced. He was also advised that there was a possibility he would need a root
No. 13AP-287 2
canal procedure on the tooth that was causing pain. According to the general system used
in dentistry of numbering teeth, that posterior (back) tooth was tooth number 2.
{¶ 3} Appellant was referred to the OSU post-graduate endodontics clinic where
he was further examined and advised that the pain in tooth number 2 might resolve on its
own. Appellant returned home with pain medication and returned the following day.
After reviewing x-rays, OSU pre-doctoral clinicians determined that four of appellant's
posterior teeth—teeth numbers 2, 15, 30, and 19—were in need of further treatment and
began developing a treatment plan to remove decay, replace fillings, and place crowns on
those four posterior teeth.
{¶ 4} Appellant had a longstanding habit of grinding his teeth and indicated to
OSU clinicians that he was interested in having restorative dental work done on his
anterior (front) teeth to increase their length.1 The clinicians noted that restorative work
of this nature would be complex and not suitable for the pre-doctoral dental clinic.
Appellant was advised that he could consult with the OSU post-graduate prosthodontics
department regarding treatment options to lengthen his anterior teeth.
{¶ 5} On May 8, 2006, appellant returned to the pre-doctoral clinic and signed a
document reflecting a treatment plan for his four posterior teeth. The plan included
crowning the four posterior teeth. Appellant initialed the treatment plan, thereby
documenting his agreement that: (1) he had been informed about the risks of the
proposed services; (2) he had been told how the services would help him and what might
happen should he not proceed with the services; (3) he had been given time to ask
questions about the services; (4) his questions had been answered well; and (5) he had not
been given promises about the results of the proposed services.
{¶ 6} During the summer of 2006, OSU dental students in the pre-doctoral clinic
removed decay and placed new fillings in four of appellant's posterior teeth consistent
with the May 8, 2006 treatment plan. OSU did not, however, place either temporary or
permanent crowns on any of the four teeth during the summer of 2006.
{¶ 7} On January 29, 2007, appellant met with Dr. Julie Holloway, director of the
OSU post-doctoral prosthodontics department. Dr. Holloway screened and evaluated
1Appellant's expert described plaintiff's anterior upper and lower teeth as "extremely worn, pathologically
worn." (Tr. Vol II X6-312.)
No. 13AP-287 3
appellant to identify possible treatment options to accomplish appellant's stated desire to
lengthen his anterior teeth. Holloway advised appellant of two possible treatment plans to
accomplish that goal.
{¶ 8} The first plan, described as a full-mouth rehabilitation, involved placing
crowns on all of his teeth, effectively lengthening all of his teeth, at an estimated cost of
$23,254. The second plan involved two steps: (1) use of braces, placed by an OSU post-
graduate orthodontics clinician, to first create space in appellant's mouth, followed by (2)
placing crowns only on the anterior teeth to lengthen them. Dr. Holloway advised
appellant that, should he choose treatment plan two, OSU would need to place crowns on
the four posterior teeth prior to employing the braces in order to ensure that the teeth
could withstand the forces the braces would exert. Those crowns would result in
appellant's teeth being restored to their existing level. Holloway advised that plan two
would cost $16,698 and was the more conservative dental option, as it would involve less
grinding down of existing tooth structure. She further advised appellant that he would be
required to make a down payment of 50 percent of the estimated cost and sign a
treatment plan before any orthodontic or prosthodontic dental treatment of his anterior
teeth could commence.
{¶ 9} Appellant did not decide at the initial screening consultation with Dr.
Holloway whether to proceed with either of the two treatment plans to lengthen his
anterior teeth. On July 16, 2007, however, an OSU endodontist performed a root canal
procedure on the tooth that had initially caused pain—tooth number 2. During August
and September 2007, an OSU pre-doctoral student placed temporary crowns on the four
posterior teeth.
{¶ 10} In October 2007, a dental student in OSU's pre-doctoral clinic placed the
first of four permanent crowns on appellant's posterior teeth, which resulted in the tooth
being restored to its existing length. The parties agree that this crowning was consistent
with treatment plan two. Appellant testified that he was aware at that time that he was
effectively committing to treatment plan two, rather than treatment plan one, as
treatment plan one contemplated the placement of longer crowns on appellant's posterior
teeth.
No. 13AP-287 4
{¶ 11} In November 2007, OSU placed a permanent crown on another posterior
tooth, also restoring that tooth to its existing length. Appellant testified that, at that time,
an OSU faculty member in the pre-doctoral clinic suggested that treatment plan two, as
described to the faculty member by appellant, was complex and might not be successful.
Appellant testified that he had not previously been advised that treatment plan two might
fail.
{¶ 12} In a subsequent visit to the pre-doctoral clinic, tooth number 15 broke at the
gum line while the clinician was attempting to place a permanent crown on it. It was
discovered that the tooth was necrotic, necessitating another root canal procedure.
Appellant testified that he described treatment plan two to the endodontist who
performed the root canal and that she told him, in response to his inquiry, that it would be
a bad idea for appellant to proceed with treatment plan two.
{¶ 13} OSU pre-doctoral clinicians had completed the permanent crowning of
appellant's four posterior teeth by February 2008. Thereafter, appellant consulted with
OSU orthodontic resident, Dr. Matthew Ames, and with a post-doctoral prosthodontics
resident, Dr. Mohamed Abdelhamed. These clinicians performed additional diagnosis and
analytical steps relative to lengthening appellant's anterior teeth. Appellant, who
described himself as a "very proactive patient" (Tr. Vol. I X6-12) asked a great number of
questions of the OSU clinicians with whom he consulted.
{¶ 14} On June 13, 2008, Dr. Abdelhamed presented appellant with a summary of
a proposed treatment plan involving both orthodontic and prosthodontic treatment to
lengthen appellant's upper anterior teeth. Appellant had concerns and questions about
the proposed plan which was different than the plans previously described to him. He
testified that Dr. Abelhamed informed him that it would not be possible to lengthen
appellant's lower anterior teeth at all.
{¶ 15} On June 24, 2008, appellant called the post-graduate prosthodontics
clinic and requested a meeting with Dr. Abelhamed, Dr. Ames, and Dr. Holloway. On
July 25, 2008, appellant met with both Dr. Abdelhamed and Dr. Ames to again discuss
appellant's options relative to the treatment plan to lengthen his anterior teeth that Dr.
Abelhamed had proposed. Dr. Holloway did not participate in the meeting.
No. 13AP-287 5
{¶ 16} On September 19, 2008, appellant met with Dr. Holloway. Dr. Holloway
acknowledged that OSU could not proceed with implementing treatment plan two as
previously described. She advised appellant that, should he choose to proceed with
treatment plan one involving placement of longer crowns on all of his teeth, it would be
necessary to remove the crowns that had already been placed at the existing level and that
the removal would be at appellant's expense. Dr. Holloway testified that "things started
getting contradictory" (Tr. Vol. III X6-430), and she ultimately advised appellant during
the meeting that his case was not appropriate for the advanced prosthodontics and
orthodontics clinics.2
{¶ 17} Dr. Holloway confirmed the substance of their meeting by writing a letter to
appellant dated September 19, 2008. The letter dismissed appellant as a patient in OSU's
graduate clinics and advised that he might consult with another dentist or prosthodontist
of his choice for treatment of his anterior tooth wear. Dr. Holloway thus effectively
terminated the possibility of appellant proceeding with any treatment plan at OSU to
accomplish the goal of lengthening his anterior teeth. She additionally advised appellant
that his dismissal from the post-graduate clinics did not preclude him from seeking
routine treatment in the pre-doctoral dental clinic for simple decay issues and cleanings.
{¶ 18} Appellant never signed a final treatment plan relative to either treatment
plan one or two, or any other treatment plan developed to address the restoration of his
anterior teeth, nor did he deposit any funds towards dental care of that nature.
A. Procedural History
{¶ 19} On March 22, 2010, appellant initiated this action in the Court of Claims by
filing a 37-page pro se complaint asserting claims of dental malpractice, failure to obtain
his informed consent, breach of contract, and "aiding and abetting." The parties
conducted multiple depositions, and the court decided numerous pretrial motions. The
court ordered bifurcation for trial of the issues of liability and damages. The liability trial
took place over four days in December 2012. Appellant tried the case pro se and called a
single expert witness, Dr. Davis Cagna, in support of his claims.
2 Dr. Holloway recorded in notes of the meeting that she "informed the patient that due to the difficulty in
starting treatment, the history of wanting refunds for the work done, and the threat of contacting an
attorney, [she did] not feel that [appellant was] an appropriate teaching case for the advanced
prosthodontics clinic." ( Tr. Vol. III x6-430.)
No. 13AP-287 6
{¶ 20} On January 18, 2013, the court entered judgment in favor of OSU. It found
that appellant had acknowledged in his closing argument3 that his only theory of dental
malpractice was based on OSU's failure to have a treatment plan in place to improve the
aesthetics of his anterior teeth at the time the pre-doctoral clinicians placed the posterior
permanent crowns. The court found that appellant had withdrawn his remaining claims
and, that, even had he not withdrawn them, they nevertheless failed for lack of proof.
The court specifically concluded that appellant had failed to prove the elements of the
torts of dental malpractice and lack of informed consent in that he had failed to prove
that: (1) OSU's treatment of him fell below the requisite standard of care; (2) appellant
had been injured as the proximate result of OSU's treatment; and (3) OSU had treated
appellant without having first obtained his informed consent.
{¶ 21} Appellant filed motions seeking judgment notwithstanding the verdict and a
motion for new trial, both of which the trial court denied. Appellant then timely appealed
the judgment to this court. We affirm.4
II. Analysis
{¶ 22} We begin our analysis by reiterating that the trial court found that appellant
had failed to offer expert testimony establishing all of the elements of either dental
malpractice or lack of informed consent. We therefore first identify the elements of those
two torts.
{¶ 23} In order to establish dental malpractice, a claimant must show by a
preponderance of the evidence that: (1) the claimant was injured; (2) the injury was
proximately caused by a dentist's act or omission; and (3) the act or omission was one that
a dentist of ordinary skill, care, and diligence would not have taken under like or similar
conditions or circumstances. Palmer v. Richland Corr. Inst., 10th Dist. No. 04AP-540,
2004-Ohio-6717, ¶ 10, citing Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976), syllabus. See
also Danch v. Mitchell, 10th Dist. No. 82AP-221 (Mar. 15, 1983) (citing Bruni and
observing that, "[i]n light of the similar training and professional competency required of
both doctors and dentists, we hold that dentists are required to exercise a correspondingly
high standard of care" as required of physicians). To demonstrate the requisite standard
3 The record before us does not include a transcript of appellant's closing argument.
4 We also grant a pending motion filed by appellant to supplement the record with additional pages of the
trial transcript as OSU specifically indicated at oral argument that it had no objection to the motion.
No. 13AP-287 7
of skill and care of dentists in the dental community, the claimant must present expert
testimony. Palmer at ¶ 10; Condello v. Raiffe, 8th Dist. No. 83076, 2004-Ohio-2554,
¶ 34-35; Campbell v. The Ohio State Univ. Med. Ctr., 10th District No. 04AP-96, 2004-
Ohio-6072, ¶ 10; Bruni at 130.
{¶ 24} The elements of the tort of lack of informed consent have been established
by the Supreme Court of Ohio as follows:
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, 139 (1985).
{¶ 25} In addition, the Supreme Court of Ohio has determined that the tort of lack
of informed consent is a medical claim, and therefore expert medical testimony is
required to establish the first and second elements of the tort, i.e. (1) that the physician
failed to disclose material risks and dangers inherently and potentially involved with a
proposed therapy, and (2) that the undisclosed risk or danger actually materialized and
proximately caused injury to the patient. White v. Leimbach, 131 Ohio St.3d 21, 2011-
Ohio-6238, syllabus, citing Nickell. The third element, i.e., establishment of what a
reasonable person in the position of a patient would have done had the material risks and
dangers been disclosed prior to therapy, is a separate issue for the fact finder. Stanley v.
Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, ¶ 107, citing White.
Consistent with our observation in Danch, we find these elements applicable to lack of
informed consent claims asserted against dentists as they are to claims against physicians.
{¶ 26} Thus, proximate cause of injury is an element of both the tort of dental
malpractice and the tort of lack of informed consent, and expert testimony is required to
No. 13AP-287 8
establish the proximate cause element of both torts. That is, where a plaintiff alleges that
a dentist is liable to him for either the tort of dental malpractice or the tort of lack of
informed consent, liability is dependent upon the plaintiff producing expert testimony
that the dentist's conduct was the proximate cause of an injury suffered by the claimant.
{¶ 27} The trial court observed that Dr. Cagna, appellant's sole expert witness,
"gave only one opinion that was properly adduced and properly rendered," i.e., stated as
being given to a reasonable degree of dental certainty. (Jan. 18, 2013 Decision, 9.) That
opinion was that OSU breached the standard of care by prematurely placing four crowns
on appellant's posterior teeth, i.e., "before performing a comprehensive occlusal analysis
in formulating [appellant's] treatment plan." (Decision, 9.)
{¶ 28} The trial court concluded that Dr. Cagna had not testified that appellant's
treatment by OSU proximately resulted in any injury to him. Specifically, the trial court
concluded that "[appellant] has failed to prove by a preponderance of the evidence * * *
that if there was negligence on behalf of [appellant], such negligence was a proximate
cause of any injury to [appellant]." Moreover, as to the tort of lack of informed consent, it
observed that appellant "clearly has the ability at this time to go forward with whatever
subsequent treatment he would choose [and] has failed to prove * * * that any lack of
informed consent proximately caused injury to him." (Jan. 18, 2013 Decision, 12.)
{¶ 29} In reviewing appellant's 19 assignments of error, we observe that none of
them assign as error the trial court's finding that appellant had failed to elicit expert
evidence of proximate cause. At oral argument, appellant explained that he did not
address proximate cause at trial because the court restricted him from doing so when it
ruled that Dr. Cagna's testimony shall be limited to the opinions he expressed in his
deposition. In his first assignment of error, appellant alleges the trial court erred in this
regard. Because the resolution of this first assignment of error could render moot many of
appellant's assignments of error, we begin our analysis here.
{¶ 30} In his first assignment of error, appellant suggests that the trial court
abused its discretion by limiting, prior to trial, the scope of Dr. Cagna's expert testimony.
That assignment of error reads as follows:
ASSIGNMENT OF ERROR NUMBER ONE
The trial Court abused its discretion in its December 17, 2012
entry, when it restricted the trial testimony of Appellant's
No. 13AP-287 9
expert witness, Dr. David R. Cagna, to those opinions he had
offered in his deposition.
{¶ 31} The record shows that OSU trial counsel deposed Dr. Cagna on December 3,
2012, and asked questions concerning a 13-page expert report prepared by Dr. Cagna
dated October 2, 2012 ("original report"). The original report primarily addressed issues
relative to whether OSU fell below the requisite standard of care in treating appellant but
also briefly addressed issues concerning proximate cause of injury.5
{¶ 32} On December 6, 2012, with trial scheduled to begin on December 18, 2012,
appellant sought leave to allow the submission of a supplemental expert report of Dr.
Cagna and requested a status conference to discuss the matter. On December 12, 2012,
appellant filed with the court a copy of the proposed supplemental report.
{¶ 33} On December 17, 2012, the trial court conducted a pretrial conference with
the parties by telephone and, thereafter, entered the order at issue resolving numerous
pending motions. In resolving the matter of allowing Dr. Cagna's untimely supplemental
report, the court's entry dated that same day stated as follows:
Plaintiff's request to provide a supplemental expert report of
Dr. Cagna is GRANTED; however, Dr. Cagna's testimony shall
be limited to the opinions he expressed in his deposition.
{¶ 34} It is evident that this trial court ruling concerning the scope of Dr. Cagna's
testimony was an in limine order, i.e., "a tentative, interlocutory, precautionary ruling by
the trial court reflecting its anticipatory treatment of an evidentiary issue." State v.
Kalusa, 10th Dist. No. 11AP-826, 2012-Ohio-6021, ¶ 20, citing State v. Grubb, 28 Ohio
St.3d 199, 201-02 (1986). A preliminary in limine ruling has no effect until it is acted
upon at trial. Id. As particularly relevant to the case now before us, when a "trial court
5 Dr. Cagna's original report stated, as follows:
As a proximate result of the treatment rendered on or about 03/24/2006
to 09/19/2008 by the OSU College of Dentistry to Mr. Morgan: (1) the
plaintiff lost several years of appropriately directed treatment time, (2)
dental disease processes affecting the plaintiff may have progressed
beyond levels present on or about 03/24/2006, (3) the plaintiff invested
substantial money receiving subtotal treatment at the OSU College of
Dentistry that may need to be re-accomplished, and (4) the plaintiff now
faces the need to embark on significant full-mouth dental treatment.
(Dec. 3, 2012 Cagna Depo., Exh. B, 11.)( Dec. 3, 2012 Cagna Depo., Exh. B, 11.)
No. 13AP-287 10
bars evidence by granting a motion in limine, the opposing party must proffer the
evidence during trial so that the court can make a final ruling." Id., citing Grubb at 202–
03. "Otherwise, the appellate court has nothing to consider, and the evidentiary issue has
not been preserved for appeal." Id. During trial, appellant did not attempt to present or
proffer evidence he felt the trial court had excluded in error in its in limine ruling.
{¶ 35} In the case before us, the trial court observed, after the presentation of all
the evidence, that Dr. Cagna did not "say one word about proximate cause in his entire
testimony, and [appellant] didn't ever ask him that question." ( Tr. Vol. III X6-555.) In
the absence of a proffer of expert testimony supporting the existence of proximate cause,
and consistent with Kalusa, we conclude that appellant did not preserve for appellate
review error, if any, concerning the trial court's pretrial, in limine, ruling concerning the
scope of Dr. Cagna's testimony.
{¶ 36} Notwithstanding appellant's failure to preserve the issue for appeal, we note
that Dr. Cagna's deposition contained his opinions regarding proximate cause. Therefore,
it appears appellant could have examined Dr. Cagna regarding issues of proximate cause
as expressed in his deposition while still complying with the trial court's in limine order.
{¶ 37} We therefore overrule appellant's first assignment of error.
{¶ 38} Having found no error as alleged in the first assignment of error and
considering appellant has not otherwise challenged the trial court's finding that appellant
failed to establish proximate cause, we now review his remaining assignments of error. As
discussed below, that circumstance renders moot the majority of appellant's assignments
of error.
{¶ 39} We first address appellant's assignments of error that challenge findings of
fact made by the trial court, as follows:
ASSIGNMENT OF ERROR NUMBER FOUR
The trial Court abused its discretion and erred when it found
that Appellant failed to choose a treatment plan.
ASSIGNMENT OF ERROR NUMBER SIX
The trial Court abused its discretion when it accepted as fact
Dr. Abdelhamed's contention that treatment options 1 and 2
were only options, and that no firm treatment plan was in
place, and that the placement of the four crowns on
Appellant's posterior teeth had nothing to do with treatment
option 2.
No. 13AP-287 11
ASSIGNMENT OF ERROR NUMBER SEVEN
The trial Court abused its discretion when it found that
Appellant failed to prove OSU's failure to obtain informed
consent.
ASSIGNMENT OF ERROR NUMBER EIGHT
The trial Court erred when it found that Appellant failed to
show that he was "ready, willing, and able" to pay for
treatment.
ASSIGNMENT OF ERROR NUMBER NINE
The trial Court erred when it found that Appellant was not
committed to treatment plan 2 by the time the first crown was
placed.
ASSIGNMENT OF ERROR NUMBER FIFTEEN
The trial Court erred when it found that OSU could not wait to
put the crowns on until Appellant was able to pay $23.000.00
[sic] for option 1 or $16,000.00 for option 2.
ASSIGNMENT OF ERROR NUMBER SIXTEEN
The trial Court erred when it found that Appellant chose to
proceed with treatment option 3 which involved doing
nothing.
{¶ 40} These assignments of error challenge the trial court's findings of fact relative
to OSU's alleged breach of the requisite standard of care. Assuming, arguendo, that the
trial court erred in those findings of fact, that error would not affect the trial court's case-
determinative conclusion that appellant failed to provide expert testimony of proximate
cause of injury. We therefore find the foregoing assignments of error to be moot.
{¶ 41} Appellant's second assignment of error challenges the credibility of Dr.
Holloway. It reads as follows:
ASSIGNMENT OF ERROR NUMBER TWO
The trial Court abused its discretion when it found Dr. Julie
Holloway to be a credible witness.
{¶ 42} This assignment of error is also moot in light of the absence of expert
opinion on proximate cause in appellant's case-in-chief. Upon finding a lack of expert
testimony demonstrating proximate cause, the trial court had no alternative but to find
No. 13AP-287 12
OSU not liable on appellant's tort claims, rendering irrelevant the question of whether Dr.
Holloway's defense testimony in rebuttal was credible.
{¶ 43} Appellant's third assignment of error posits as follows:
ASSIGNMENT OF ERROR NUMBER THREE
The trial Court abused its discretion when it accepted expert
testimony from Dr. Julie Holloway and other OSU doctors
[sic] after they failed to comply with Local R. 7(E) in spite of
Appellant's ongoing objections.
{¶ 44} In support of this proposition, appellant argues that OSU failed to comply
with Loc.R. C.C.R. 7(E) in that it did not timely provide appellant with expert reports.
Again, we need not address the substantive merits of this assignment of error because the
testimony of the OSU dentists that OSU neither fell below the required standard of care,
nor proximately caused injury, did not affect the outcome of the case. Appellant simply
did not establish in his case-in-chief all the elements of his tort claims. Rebuttal testimony
elicited by the defense was superfluous. Appellant's third assignment of error is therefore
moot.
{¶ 45} For similar reasons, we also find appellant's fifth assignment of error to be
moot. The fifth assignment of error challenges the trial court's admission at trial of Dr.
Abdelhamed's discovery deposition. It reads as follows:
ASSIGNMENT OF ERROR NUMBER FIVE
The trial Court erred when it admitted expert medical
testimony from Dr. Mohamed Abdelhamed and admitted his
"discovery" deposition as a "trial" deposition.
{¶ 46} Again, Dr. Abdelhamed's deposition testimony rebutting the elements of
appellant's tort theories was superfluous in the absence of prima facie expert testimony
that appellant suffered an injury and that the injury was proximately caused by the
conduct of OSU. Moreover, appellant was asked by the trial court at trial whether he
objected to the introduction of this deposition, and he replied "No, your Honor." (Tr. Vol
III X6-562.) Having failed to object at trial and, to the contrary, specifically indicating his
acquiescence to the introduction of the deposition, appellant has waived error, if any,
concerning the introduction of Dr. Abdelhamed's deposition.
{¶ 47} We turn to discussion of appellant's assignments of error that have not been
rendered moot based on appellant's failure to prove proximate cause of injury at trial.
No. 13AP-287 13
{¶ 48} Appellant's eleventh assignment of error challenges the court's pretrial
refusal to allow him to amend his complaint. It reads as follows:
ASSIGNMENT OF ERROR NUMBER ELEVEN
The trial Court abused its discretion when it failed to "freely"
grant Appellant's motion to amend his complaint both before,
and during trial.
{¶ 49} On August 9, 2010, appellant sought leave to amend his complaint to add
counts of fraudulent concealment, civil conspiracy, and battery. He argued that
amendment of his complaint would more closely conform his pleading to the evidence he
expected to produce at trial and would be in the interest of justice. On September 7, 2010,
the court denied the motion without additional comment.
{¶ 50} We review the trial court's denial of leave to amend a complaint for abuse of
discretion. Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120(1991).
{¶ 51} It is true that Civ.R. 59(A) provides that leave of court to amend a complaint
shall be freely given when justice requires. However, we do not find that justice required
the amendment of appellant's complaint. Despite appellant's protestations to the
contrary, the record reflects that the trial court granted appellant a full and complete
opportunity to introduce ample evidence concerning his grievances against OSU.
Moreover, appellant did not suggest at the conclusion of the trial that he had established
OSU liability for fraudulent conduct, civil conspiracy, or battery, nor did he ask the court
to conform the complaint to the evidence as authorized by Civ.R. 15(B) ("[A]mendment of
the pleadings as may be necessary to cause them to conform to the evidence * * * may be
made upon motion of any party at any time, even after judgment."). Accordingly, we do
not find an abuse of trial court discretion relative to denial of leave to amend appellant's
filed complaint, and we overrule his eleventh assignment of error.
{¶ 52} In his twelfth assignment of error, appellant asserts another alleged pretrial
error, as follows:
ASSIGNMENT OF ERROR NUMBER TWELVE
The trial Court erred by denying Appellant's motion for a
continuance of the liability phase of trial.
No. 13AP-287 14
{¶ 53} "In ruling upon a motion for a continuance, the trial court balances its
interest in controlling its docket and the public's interest in an efficient dispatch of justice
with the possibility of prejudice to the movant." J & H Reinforcing & Structural Erectors,
Inc. v. Ohio School Facilities Comm., 10th Dist. No. 12AP-588, 2013-Ohio-3827, ¶ 55.
The court may consider the length of delay requested, prior requests for continuances, the
legitimacy of the request, whether the moving party contributed to the need for
a continuance, inconvenience to the parties, counsel, and the court, and other relevant
factors. Townsend v. Ohio Dept. of Transp., 10th Dist. No. 11AP-672, 2012-Ohio-2945,
¶ 29. A trial court has broad discretion when ruling on a motion for continuance, and an
appellate court reviews the trial court's determination of a motion to continue a trial date
for abuse of discretion. Id. at ¶ 55.
{¶ 54} Appellant asked for a continuance of the December 10, 2012 trial date four
days before trial, on December 6, 2012. The case had been pending since March 24, 2010.
The trial court had previously granted a continuance of the trial. The parties had by that
date conducted multiple depositions, and the court had resolved numerous procedural
motions. Under these circumstances, the trial court did not abuse its discretion in
refusing to grant another continuance, and we therefore overrule appellant's twelfth
assignment of error.
{¶ 55} In his nineteenth assignment of error, appellant challenges the pretrial
denial of appellant's December 10, 2012 motion to compel two other OSU dentists to
testify via video link. It reads as follows:
ASSIGNMENT OF ERROR NINETEEN
The trial Court erred in denying Appellant's motion to compel
the video link trial testimony of Dr. Matthew Ames and Dr.
[Mayes] McEntire.
{¶ 56} In his motion, appellant argued that counsel for OSU had agreed that Dr.
McEntire and Dr. Ames, both of whom no longer lived in Ohio, could testify via a video
conference, rather than travel to Columbus for the trial in the Court of Claims. Appellant
specifically asked the court to "compel [OSU] to keep the parties' agreement." (Dec. 10,
2010 Motion, 2.)
{¶ 57} In response to the motion, OSU stated that "there was never any agreement
or promise between the parties that OSU would arrange video conference testimony of
No. 13AP-287 15
two out of state witnesses." (Dec. 11, 2012 Memoranda Contra, 1.) It supported that
proposition with an affidavit of OSU trial counsel to the same effect. The affidavit also
included counsel's testimony that appellant had indicated as late as December 6, 2012,
that, should OSU not call Dr. Ames and Dr. McEntire as defense witnesses, appellant
would use their depositions in lieu of testimony at trial. The trial court denied appellant's
motion on December 17, 2012, the day before trial commenced.
{¶ 58} We note that appellant has failed to cite any authority requiring the trial
court to accept testimony of witnesses not physically present at trial. In view of this, as
well as the circumstances described above, we find that the trial court did not abuse its
discretion in denying appellant's motion to compel Dr. Ames and Dr. McEntire to testify
via video link at the trial. We therefore overrule appellant's nineteenth assignment of
error.
{¶ 59} In his tenth assignment of error, appellant asserts that the trial court erred
in finding at the conclusion of the trial that appellant had chosen not to pursue two
theories of recovery pled in the complaint. That assignment of error reads as follows:
ASSIGNMENT OF ERROR NUMBER TEN
The trial Court erred when it found that Appellant dropped his
claims for breach of contract and aiding and abetting,
dismissing these with no findings in fact and conclusions of
law related to these causes of action.
{¶ 60} Appellant characterizes his claims of breach of contract and "aiding and
abetting" as "non-medical claims" and suggests that the trial court erroneously refused to
allow him to present evidence in support of those claims. He bases this argument on the
fact that the trial court stated, during the course of appellant's own testimony in his case-
in-chief, that the court "only want[ed] to deal with those matters that are relevant to the
issue of whether the standard of care was maintained by the University and its faculty and
staff." (Tr. Vol. I X6-139.)
{¶ 61} The court made this statement, however, in the context of a question by
appellant as to whether the court "want[ed] him to testify to anything" that occurred after
the date appellant had filed his complaint. (Tr. Vol. I X6-138.) We do not view this
isolated statement as representing a ruling excluding evidence. Moreover, appellant does
not identify any instances where the trial court sustained an OSU objection to the
No. 13AP-287 16
appellant's attempted introduction of evidence, nor to any instances where the trial court
excluded proffered evidence relevant to either his contract or aiding and abetting claims.
In the absence of objection in the trial court, appellant has waived error, if any, relative to
appellant's claims for breach of contract and aiding and abetting.
{¶ 62} Moreover, appellant suggests that he provided evidence that OSU had
breached a contract between himself and OSU in which OSU would follow treatment plan
two and restore length in both his upper and lower anterior teeth. But it is axiomatic that
a contract claim requires proof of an agreement, i.e., a meeting of the minds. Schleicher v.
Alliance Corporate Resources, Inc., 10th Dist. No. 95APE-3-311 (Dec. 7, 1995). The trial
court found that OSU and appellant never reached a meeting of the minds as to what
treatment plan, if any, OSU would follow in regard to lengthening his teeth. We do not
disturb that finding of fact by the trial court, as the record includes competent, credible
evidence to support it.
{¶ 63} Appellant also suggests in the text of his tenth assignment of error that he
did not abandon his claim of "aiding and abetting," contrary to the trial court's decision.
Appellant does not, however, identify any authority recognizing any such theory of tort
liability, nor does he address his "aiding and abetting" claim in the body of his argument
in support of the tenth assignment of error.
{¶ 64} App.R. 12(A)(2) authorizes an appellate court to "disregard an assignment
of error presented for review if the party raising it fails to identify in the record the error
on which the assignment of error is based or fails to argue the assignment separately in
the brief, as required under App.R. 16(A)." Lundeen v. State Med. Bd. of Ohio, 10th Dist.,
10th Dist. No. 12AP-629, 2013-Ohio-112, ¶ 16. In addition, "[p]ursuant to App.R.
16(A)(7), an appellant must present his or her contentions with respect to each
assignment of error presented for review and the reasons in support of those contentions,
including citations to legal authorities." Id. In an appeal to this court, "[t]he burden of
affirmatively demonstrating error on appeal rests with the party asserting error." Id.{¶ 65} Pursuant to App.R. 12(A)(2), we may disregard an assignment of error if an
appellant fails to cite to any legal authority in support of an argument as required by
App.R. 16(A)(7). We disregard appellant's argument concerning the abandonment of a
claim for aiding and abetting pursuant to those rules.
No. 13AP-287 17
{¶ 66} We therefore overrule appellant's tenth assignment of error
{¶ 67} Appellant's thirteenth and seventeenth assignments of error challenge the
trial court's rulings relative to appellant's post-trial Civ.R. 59 motion for a new trial, as
follows:
ASSIGNMENT OF ERROR NUMBER THIRTEEN
The trial Court abused its discretion when it failed to grant
Appellant's motion for a new trial.
ASSIGNMENT OF ERROR NUMBER SEVENTEEN
The trial Court erred when it denied Appellant's motion to
present new evidence in support of his motion for a new trial.
{¶ 68} "As a general matter, Civ.R. 59 does not require that a trial court grant a
new trial, but rather, the rule allows a trial court the discretion to decide whether a new
trial is appropriate." Alderman v. Alderman, 10th Dist. No. 10AP-1037, 2011-Ohio-3928,
¶ 11. "The decision to grant or deny a motion for a new trial pursuant to Civ.R. 59
generally lies within the sound discretion of the trial court and will not be reversed absent
an abuse of that discretion." Weinstock v. McQuillen, 10th Dist. No. 09AP-539, 2010-
Ohio-1071, ¶ 10. The rule provides a mechanism by which a trial court may permit the
parties to try their case anew in order to prevent a miscarriage of justice. Alderman at ¶
10. An abuse of discretion is more than an error of law or judgment; it implies that the
court's attitude is unreasonable, arbitrary or unconscionable. Id., citing Masters v.
Masters, 69 Ohio St.3d 83, 85 (1994). Under an abuse-of-discretion standard, we are
required to "defer to a trial court's ruling because 'the trial judge is better situated than a
reviewing court to pass on questions of witness credibility and the "surrounding
circumstances and atmosphere of the trial." ' " Alderman at ¶ 13, quoting Malone v.
Courtyard by Marriott Ltd. Partnership, 74 Ohio St.3d 440, 448 ( 1996).
{¶ 69} Appellant contends the trial court should have granted him a new trial
because: (1) the trial court should have, but did not, enforce its order requiring OSU to
supply expert reports of defense witnesses resulting in appellant experiencing surprise at
trial; (2) the court erred in limiting Cagna's expert testimony; and (3) OSU did not
provide him all pertinent medical records until shortly before trial. To the extent we have
not previously addressed these contentions individually earlier in this decision, we reject
them, as they lack merit as justification for a new trial. Contrary to appellant's assertions,
No. 13AP-287 18
the court's judgment was supported by competent, credible, and sufficient evidence, and
appellant had a full opportunity to ask Dr. Cagna questions concerning the issue of
whether he suffered injury as the proximate result of OSU's treatment of him. Appellant
has not demonstrated that the trial court abused its discretion in denying his motion for
new trial.
{¶ 70} We therefore overrule appellant's thirteenth and seventeenth assignments
of error.
{¶ 71} Similarly, we overrule appellant's fourteenth assignment of error, which
challenges the trial court's denial of a Civ.R. 50(B) motion for judgment notwithstanding
the verdict. It reads as follows:
ASSIGNMENT OF ERROR NUMBER FOURTEEN
The trial Court erred when it failed to grant Appellant's motion
for judgment notwithstanding the verdict.
{¶ 72} A Civ.R. 50 motion, however, is not appropriate in cases tried to the bench
where no jury verdict is rendered. As we observed in Boyer v. Ohio State Univ. Med.
Ctr., 10th Dist. No. 07AP-742, 2008-Ohio-2278, ¶ 18:
In Freeman v. Wilkinson (1992), 65 Ohio St.3d 307, 603
N.E.2d 993, the Supreme Court of Ohio explained: "Civ.R.
50(B) governs motions for judgment notwithstanding the
verdict; however, as the term 'verdict' implies, it only applies
in cases tried by jury." Id. at 309, 603 N.E.2d 993. See, also,
Brooks v. Lady Foot Locker, Summit App. No. 22297, 2005-
Ohio-2394, at ¶ 61 (noting that "[a] motion for judgment
notwithstanding the verdict can only be made regarding
claims that the jury returned a verdict on.") In this [court of
claims] case, plaintiff was not entitled to a jury trial, and the
matter was tried to the court. See R.C. 2743.11 ("No claimant
in the court of claims shall be entitled to have his civil action
against the state determined by a trial by jury.")
{¶ 73} In this Court of Claims case, the trial court sat as the trier of fact without a
jury pursuant to R.C. 2743.11 ("No claimant in the court of claims shall be entitled to have
his civil action against the state determined by a trial by jury."). Accordingly, the Court of
Claims appropriately denied appellant's Civ.R. 50 motion for judgment notwithstanding
the verdict and we, therefore, overrule his fourteenth assignment of error.
No. 13AP-287 19
{¶ 74} Finally, we address appellant's eighteenth assignment of error, which states
as follows:
ASSIGNMENT OF ERROR NUMBER EIGHTEEN
The trial Court abused its discretion when it denied Appellant's
request to lift Dr. Holloway's immunity.
{¶ 75} The entirety of appellant's argument in support of this assignment of error
reads, as follows:
The trial Court' [sic] failure to follow procedure and the rules
of Court prevented [appellant] from properly preparing and
presenting his case, and thus [appellant] was prevented from
fully presenting his case to lift Holloway's immunity.
{¶ 76} In its decision, the trial court found that Dr. Holloway was entitled to
immunity pursuant to R.C. 2743.02(F) and 9.86 and that the court of common pleas
therefore lacked jurisdiction over any civil actions appellant had against Dr. Holloway. It
appears that appellant's eighteenth assignment of error relates in some way to that part of
the trial court's decision.
{¶ 77} As we have noted in our discussion of appellant's tenth assignment of error,
however, App.R. 12(A)(2) authorizes this court to disregard an assignment of error if the
party raising it fails to identify in the record the error on which the assignment of error is
based or fails to argue the assignment separately in the brief as required under App.R.
16(A). We overrule appellant's eighteenth assignment of error challenging the court's
ruling concerning Dr. Holloway's immunity based on appellant's failure to (1) adequately
support the assignment of error with a cogent argument; (2) specifically identify in the
record the basis of the assignment of error; and (3) include any citation of legal authority
in support of the assignment.
III. Conclusion
{¶ 78} For the foregoing reasons, we overrule appellant's first, tenth, eleventh,
twelfth, thirteenth, fourteenth, seventeenth, eighteenth, and nineteenth assignments of
error and find appellant's remaining assignments of error to be moot. The judgment of
the Court of Claims of Ohio is hereby affirmed.
Judgment affirmed.
SADLER, P.J., and O'GRADY, J., concur.
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