Edge v. Fairview Hosp. , 2011 Ohio 2148 ( 2011 )

[Cite as Edge v. Fairview Hosp., 2011-Ohio-2148.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95215
EMILY EDGE
PLAINTIFF-APPELLANT
vs.
FAIRVIEW HOSPITAL, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-670975
BEFORE: E. Gallagher, J., Boyle, P.J., and Jones, J.
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RELEASED AND JOURNALIZED: May 5, 2011
ATTORNEY FOR APPELLANT
Susan E. Petersen
Petersen & Petersen
428 South Street
Chardon, Ohio 44024
ATTORNEYS FOR APPELLEES
Joseph E. Herbert
Douglas G. Leak
Roetzel & Andress, L.P.A
1375 East Ninth Street
Suite 900
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, J.:
{¶ 1} Emily Edge (“Edge”) appeals from the decisions of the trial court during a jury
trial that ultimately resulted in a defense verdict. Edge argues that the trial court abused its
discretion by excluding evidence from her treating medical specialist, when it did not allow
her to argue admitted witness testimony in closing argument, and in failing to strike
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prospective jurors for cause. For the following reasons, we affirm the decision of the trial
court.
{¶ 2} On Sunday, September 23, 2007, emergency medical services (“EMS”)
transported Edge to the Fairview Hospital Emergency Room after she fell at home and landed
on her buttocks. Upon her arrival at the hospital, emergency room physician Dr. James Mark
examined and evaluated Edge, who complained of severe back pain. Dr. Mark ordered an
x-ray of Edge’s lumbar spine. Because no radiologist was on site reading films in the
afternoon on a Sunday, Dr. Mark read the x-ray and noted in the emergency room chart
“negative,” meaning there was no finding of an acute injury. Dr. Mark diagnosed Edge
with an acute back strain, discharged her, and instructed her to follow-up with her primary
care physician at MetroHealth Medical Center (“MetroHealth”). On the following Monday,
September 24, 2007, Dr. John Saks, a radiologist, read the film and put his interpretation in a
report, listing no fracture or suspicion of fracture.
{¶ 3} On September 27, 2007, Edge attempted to schedule an appointment with her
regular doctor at MetroHealth. No appointments were available, however, so Edge
presented herself at MetroHealth’s urgent care center where she saw Dr. David Jones. Dr.
Jones did not request additional imaging and diagnosed Edge’s pain as musculoskeletal and
prescribed conservative management and pain medication.
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{¶ 4} On October 2, 2007, Edge called EMS after the pain in her back was so severe
she could not get out of her chair. Ultimately, Edge ended up turning EMS away and did not
follow-up with her doctors until October 11, 2007. On that date, Edge went to MetroHealth
and saw Dr. Marton Lemyre for a scheduled appointment. Edge told Dr. Lemyre about her
continued pain and he ordered x-rays. Dr. Lemyre interpreted the plain film the next
morning and advised Edge, through her daughter Darlene Thurau, that the films showed a
compression fracture of L-1 and that Edge needed to return to MetroHealth for further
imaging.
{¶ 5} Edge returned to MetroHealth on October 16, 2007 for a CT scan, which
showed the fragments of bone from the fracture entering the spinal canal. Two days later,
Edge began complaining of numbness in her legs and her daughters, Diane Ward and Darlene
Thurau, took her to MetroHealth’s emergency room where she was admitted immediately.
MetroHealth staff performed an MRI and referred Edge to a neurosurgeon.
{¶ 6} During this time, Edge’s daughter Darlene Thurau went to Fairview Hospital to
retrieve a copy of the plain films from September 23, and Thurau then delivered the plain
films to neurosurgeon Dr. Margaret Verrees at an evaluation with the doctor on October 20,
2007. Darlene Thurau performed those acts on her own initiative, not at the request of any of
the above medical professionals. During their meeting on October 20, Dr. Verrees discussed
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Edge’s spinal fracture and the resulting surgery she would have to perform. At the end of the
meeting, Edge’s daughter presented Dr. Verrees with the September 23 plain films and asked
the doctor if the spinal fracture was present in the films. Dr. Verrees reviewed the films and
documented her interpretation as follows:
“Imaging: Reviewed, interpreted and applied to the clinical situation by me: Plain films
of L-spine from OSH from 9/25/07 show L1 compression fracture with 40-50% loss of
height, significant osteoporosis.
“CT of T-L spine from 10/16 shows L1 with 90% loss of height with with [sic]
encroachment of bone fragments on spinal canal.
“MRI shows L1 90% loss of height with canal encroachment.”
1
{¶ 7} On October 22, 2007, Dr. Verrees performed surgery on Edge. Edge suffered
serious medical complications after the surgery and was hospitalized for months. On
September 19, 2008, Edge filed the instant medical malpractice action against Fairview
Hospital, Dr. Saks, and the Cleveland Clinic Foundation. On November 24, 2008, Edge
amended her complaint to add co-defendants Dr. Mark, Emergency Professional Services, Inc.,
Rajiv Philip, M.D., Dr. Jones, and MetroHealth. Edge alleged that the defendants failed to
Although Dr. Verrees’s report lists the x-rays as being captured September 25, 2007, Edge
1
had no x-rays taken that day. Dr. Verrees incorrectly listed the date as September 25, 2007, instead
of September 23, 2007. The parties believe that Dr. Verrees’s use of the abbreviation “OSH” was
short for “outside hospital.” For purposes of clarity, this court will refer to the September 23, 2007
x-rays by that date.
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timely diagnose and treat her L1 compression fracture and thus, caused her to undergo a spinal
fusion and to suffer physical and mental impairments and other related damages.
{¶ 8} Trial began on April 26, 2010. On day two of trial, Edge voluntarily
2
dismissed co-defendants Dr. Mark, Emergency Professional Services, Inc., Dr. Jones, and
MetroHealth. Trial continued against only Dr. Saks, Fairview Hospital, and the Cleveland
Clinic Foundation (“defendants-appellees”). On May 5, 2010, the jury returned a defense
verdict. Edge timely appealed to this court, raising the five assignments of error contained in
the appendix to this opinion.
{¶ 9} In her first assignment of error, Edge argues the trial court erred when it refused
to admit Dr. Verrees’s medical report in which she reviewed and interpreted Edge’s September
23, 2007 plain films. This assignment of error is broken up into three sub-parts, each
challenging the court’s decision on separate evidentiary grounds.
{¶ 10} In her brief, Edge correctly states that the pivotal issue at trial was whether the
jury believed that Edge’s fracture existed on the Fairview Hospital plain film taken September
23, 2007. In addition to the testimony of Edge’s radiology and neurosurgery expert, Edge
attempted to get into evidence Dr. Verrees’s October 20, 2007 medical report as quoted above;
Edge dismissed defendant Rajid Philip, M.D. without prejudice prior to trial.
2
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specifically, the key sentence, “Plain films of L-spine, from OSH from 9/25/07 show L1
compression fracture with 40-50% loss of height, significant osteoporosis.” However, on
April 19, 2010, the defendants-appellees filed a motion in limine to exclude any evidence,
testimony or reference related to Dr. Verrees’s interpretation of the September 23 plain films.
Defendants argued that Dr. Verrees’s interpretation of the plain films constituted inadmissible
hearsay pursuant to Evid.R. 802. Edge opposed this motion, arguing that Dr. Verrees’s note
was admissible under the business record exception to the hearsay rule as set forth in Evid.R.
803(6), as well as the admission of a party-opponent exception under Evid.R. 801(D)(2). On
April 27, 2010, the trial court granted the defendants’ motion in a journal entry as follows:
“Defendant Fairview Hospital’s Motion in Limine to exclude any evidence, testimony
or reference related to Dr. Verrees’s interpretation of the 9-25-07 plain films is granted
to the extent that proper examination of the proper witness may allow the admission of
such testimony.”
3
{¶ 11} During the course of the trial, Edge repeatedly attempted to get the key sentence
from Dr. Verrees’s report into evidence. However, the trial court consistently took the
position that it was inadmissible hearsay. As such, the record went back to the jury with the
key sentence redacted.
{¶ 12} The admission of evidence lies within the broad discretion of the trial court.
The docket improperly reflects the trial court’s April 23, 2010 journal entry because of an
3
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Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 239, 2005-Ohio-4787, 834 N.E.2d 323.
A reviewing court will uphold an evidentiary decision absent an abuse of discretion that has
affected the substantial rights of the adverse party or is inconsistent with substantial justice.
Id. Deutsche Bank Natl. Trust Co. v. Gardner, Cuyahoga App. No. 92916, 2010-Ohio-663.
{¶ 13} It is with this standard of review in mind that we now examine Edge’s first
sub-assignment of error: “The trial court’s exclusion of Dr. Verrees’s report was in violation
of Ohio Rule of Evidence 803(6) and Eighth District precedent.” In response,
defendants-appellees argue that Dr. Verrees’s notation was made at the request of Edge’s
daughters, rather than in the normal course of business, i.e., for the purpose of medical
diagnoses or treatment. We find this assigned error to lack merit.
{¶ 14} Hearsay evidence is defined as a “statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Evid.R. 801(C). Hearsay evidence is inadmissible at trial absent a
recognized exception as set forth in Evid.R. 803. In the instant case, both parties admit that
Dr. Verrees’s statements concerning her interpretation of the September 23, 2007 plain films
constitute hearsay statements. Instead, Edge argues that the business records exception of
apparent clerical error. A review of the trial court’s hand-written entry is quoted above.
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Evid.R. 803(6) applies. The rule defines a business record as:
“A memorandum, report, record or data compilation, in any form, of acts, events, or
conditions made at or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make the memorandum, report,
record or data compilation * * *.”
{¶ 15} Ohio courts have readily acknowledged that Evid.R. 803(6) requires additional
elements of authentication. Lambert v. Goodyear Tire & Rubber Co. (1992), 79 Ohio
App.3d 15, 606 N.E.2d 983. The proponent of the evidence must show, or the parties must
stipulate, that (1) the records were made at or near the time of the event, (2) the records were
kept in the ordinary course of business, and (3) the records were made by a person with
knowledge. Id., Evid.R. 901. Additionally, Ohio courts have also held that when a party
desires to make an authenticity stipulation solely for Evid.R. 901 purposes and not for Evid.R.
803(6) purposes, the party must explicitly bring to the court’s attention the limited nature of
the stipulation. Lambert, supra; see, also, Smith v. Dillard’s Dept. Stores, Inc., Cuyahoga
App. No. 75787, 2000-Ohio-2689; Ruth v. Moncrief, M.D., Montgomery App. No. 18479,
2001-Ohio-1709.
{¶ 16} In the present case, defendants-appellees stipulated to the authenticity of “any
of the medical records/therapy records obtained in the course of discovery.” Trial brief,
page 7. What is conspicuously absent from that stipulation is a reservation that its stipulation
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related solely to the Evid.R. 901 aspect of authenticity. In accordance with Ohio law, we
believe that the defendants-appellees’ stipulation to the authenticity of the medical records
constituted a waiver of the foundational requirements of Evid.R. 803(6). Lambert, supra,
Smith, supra, Ruth, supra. Therefore, defendants-appellees’ persuasive argument that Dr.
Verrees’s interpretation of the September 23, 2007 plain films constitutes inadmissible hearsay
because it was not acquired during the regular course of business, cannot be considered.
Additionally, as it relates to Edge’s first sub-assignment of error, defendants-appellees fail to
oppose the error on any other grounds.
{¶ 17} Nonetheless, even if we were to determine that the trial court erred in not
admitting Dr. Verrees’s key sentence, on this specific argument made by Edge, we cannot say
that the trial court abused its discretion. As stated above, a trial court abuses its discretion
in admitting or excluding evidence only if that decision affects the substantial rights of the
party. Deutsche, supra. We cannot say that the trier of fact would have made a different
decision. O’Brien v. Angley (1980), 63 Ohio St.2d 159, 407 N.E.2d 490.
{¶ 18} In the present case, Edge cannot demonstrate that the jury’s verdict would have
been any different had the trial court allowed her to present any evidence of Dr. Verrees’s
interpretation of the September 23, 2007 plain films. Notwithstanding Edge’s own radiology
and neurosurgery expert, Dr. Mitchell Supler, who testified that the compression fracture
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existed in the September 23, 2007 plain films, Edge also presented Dr. Verrees’s interpretation
of the plain films to the jury in one form or another through the testimony of several witnesses
as follows:
1. Edge’s daughter, Ward, testified that she learned from Dr. Verrees that
after Dr. Verrees looked at the September 23, 2007 plain films, she saw a
compression fracture on those films.
2. Edge testified that Dr. Verrees looked at the plain films of September 23,
2007 and informed her that there was a fracture on the films and that Dr. Verrees did
not understand how it was missed.
3. During the cross-examination of defendants-appellants’ expert, Dr. Patrick
William McCormick (“Dr. McCormick”), Edge’s counsel inquired about Dr. Verrees’s
interpretation of the September 23, 2007 films and confirmed that Dr. McCormick
disagreed with Dr. Verrees’s interpretation; and
4. Edge’s examination of defendant-appellees’ expert, Dr. Steven Deutch
(“Dr. Deutch”), during which Edge’s counsel read Dr. Verrees’s key sentence into
evidence: “Image reviewed and interpreted and applied to the clinical situation by [Dr.
Verrees]. Plain films of L spine from OSH from 9/25/07 show L1 compression
fracture.” Dr. Deutch discussed Dr. Verrees’s interpretation and stated that he
disagreed.
{¶ 19} Additionally, and as stated above, Edge’s own expert, Dr. Supler, testified that
the compression fracture existed on September 23, 2007 and that Dr. Saks breached the
standard of care in failing to diagnose it as such. Accordingly, the evidence contested by
Edge was presented to the jury during trial. Therefore, we cannot say that any error made as
to this specific portion of Edge’s appeal affected Edge’s substantial rights.
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{¶ 20} In her second sub-assignment of error, Edge argues “[t]he trial court’s exclusion
of Dr. Verrees[’s] report was in violation of Ohio Rule of Evidence 703 and Ohio law.”
Specifically, Edge claims that a line of questioning elicited from her expert Dr. Supler, in
which he comments on Dr. Verrees’s interpretation of the September 23, 2007 plain films,
should have been admitted as part of the basis for his conclusions as permitted by Evid.R. 703.
This argument is unpersuasive.
{¶ 21} Evid.R. 703 provides as follows: “[t]he facts or data in the particular case upon
which an expert bases an opinion or inference may be those perceived by him or admitted into
evidence.” See, also, State v. Jones (1984), 9 Ohio St.3d 123, 459 N.E.2d 526.
{¶ 22} In the present case, the trial court granted the defendants-appellees’ motion in
limine and accordingly, any evidence pertaining to Dr. Verrees’s interpretation of the
September 23, 2007 plain films was ruled inadmissible. Therefore, the trial court acted
correctly and within the bounds of Evid.R. 703 when it struck a line of testimony from Edge’s
expert, Dr. Supler, in which he discussed Dr. Verrees’s interpretation as support for his
conclusion. The trial court properly determined that Dr. Supler could not use as a basis for
his conclusion, nor could he testify to, Dr. Verrees’s note, which the trial court held to be
inadmissible hearsay.
{¶ 23} Moreover, although Dr. Supler was not permitted to comment about Dr.
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Verrees’s interpretation of the September 23, 2007 plain films, he did testify about his own
interpretation of the same plain films:
“Q: Is the L1 vertebra on the film of 9-23-07 fractured?
“* * *
“A: The x-ray shows an abnormality of L1 which is consistent with a fracture, yes.”
{¶ 24} Consequently, Dr. Supler supported his expert conclusion on proximate cause
by referring to his own interpretation that the compression fracture existed on the September
23, 2007 plain films. Thus, not only did the trial court act correctly in prohibiting Dr. Supler
from testifying about matters outside of the record, this ruling could not have substantially
affected Edge’s rights. Accordingly, this portion of Edge’s appeal is overruled.
{¶ 25} In her third sub-assignment of error and her third assignment of error, Edge
argues the trial court’s exclusion of Dr. Verrees’s report violated Evid.R. 801(D)(2). In
particular, Edge claims that Dr. Verrees’s statement was an admission by a party-opponent and
therefore, the statement, and testimonial references to the statement, should have been
admitted pursuant to Evid.R. 801(D)(2). We disagree with Edge’s arguments; in the interest
of judicial economy, this court will address these arguments contemporaneously.
{¶ 26} Evid.R. 801(D)(2) provides as follows:
“A statement is not hearsay if:
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“* * *
“(2) Admission by party-opponent. The statement is offered against a party and is (a)
the party’s own statement, in either an individual or a representative capacity, or (b) a
statement of which the party has manifested an adoption or belief in its truth, or (c) a
statement by a person authorized by the party to make a statement concerning the
subject, or (d) a statement by the party’s agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the relationship,
or (e) a statement by a co-conspirator of a party during the course and in furtherance of
the conspiracy upon independent proof of the conspiracy.”
{¶ 27} In both portions of her brief addressing this error, Edge fails to identify which
clause of Evid.R. 801(D)(2) she finds applicable to Dr. Verrees’s statements. Even without
properly identifying the applicable portion of the rule, we find that none of them apply.
Edge’s intention of offering Dr. Verrees’s interpretation of the September 23, 2007 plain
films, which is clear from the record, was to establish that her compression fracture existed in
those plain films and that defendants-appellees breached their standard of care in failing to
correctly interpret the same films interpreted by Dr. Verrees. That specific argument can
only factually be applied to the defendants-appellees, none of whom had any party affiliation
with Dr. Verrees. More specifically, Dr. Verrees’s statements were not offered against the
party who had made them — Dr. Verrees or her employer, MetroHealth.
{¶ 28} Additionally, Edge’s claim that Dr. Verrees’s interpretation of the September
23, 2007 plain films was somehow an admission by MetroHealth that its employees or agents
15
were negligent when Edge presented to the emergency room on September 27, 2007, lacks
credibility. Edge’s allegations against MetroHealth, before they were dismissed, related to
Edge’s clinical presentation to MetroHealth’s emergency room on September 27, 2007 and
whether further testing and/or work-up was warranted. Edge’s claims against MetroHealth
had nothing to do with Dr. Verrees’s interpretation of the September 23, 2007 plain films and
thus, could not logically be used as a party admission for what occurred on September 27,
2007 at MetroHealth.
{¶ 29} Moreover, on day two of her trial, Edge voluntarily dismissed all defendants but
for Dr. Saks, the Cleveland Clinic Foundation, and Fairview Hospital. Accordingly, Dr.
Verrees’s statements, even if arguably considered an admission by a party-opponent, would
not be admissible against the remaining defendants-appellees from that point on. The Ohio
Supreme Court addressed this issue and ruled as follows:
“When a mistrial has been declared with respect to one of two co-defendants in a civil
case, but not as to the second co-defendant, so that the jury is charged with determining
only the liability of the second co-defendant, out-of-court statements made by the first
co-defendant may not be admitted in evidence as an exception to the hearsay rule,
pursuant to Evid.R. 801(D)(2).”
Mastran v. Urichich (1988), 37 Ohio St.3d 44, 523 N.E.2d 509, syllabus.
{¶ 30} Based on the foregoing, the trial court correctly prohibited Edge from using Dr.
Verrees’s statements as out-of-court statements. Edge’s first and third assignments of error
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are overruled.
{¶ 31} In her second assignment of error, Edge argues the trial court erred when it
failed to allow her to re-argue testimonial evidence during her closing argument. This
assignment of error lacks merit.
{¶ 32} It is widely accepted that great latitude is afforded counsel in closing argument
to the jury. State v. Champion (1924), 109 Ohio St. 281, 142 N.E. 141. See, also, State v.
Woodards (1966), 6 Ohio St.2d 14, 215 N.E.2d 568. Included within the bounds of
permissible argument are references to the uncontradicted nature of the evidence presented by
the advocate. State v. Ferguson (1983), 5 Ohio St.3d 160, 450 N.E.2d 265, Champion, supra.
However, the assessment of whether these bounds have been exceeded is a discretionary
function to be performed by the trial court. Pang v. Minch (1990), 53 Ohio St.3d 186, 559
N.E.2d 1313. Such determination will not be reversed on appeal absent an abuse of
discretion. Pang, supra.
{¶ 33} As referred to above, during the videotape deposition of Dr. Deutch,
defendants-appellees’ radiology expert, Edge read into evidence Dr. Verrees’s key sentence
and the parties discussed its implications. Specifically, on cross-examination, Dr. Deutch
admitted that the measurements taken of Edge’s September 23, 2007 plain films, when applied
to a mathematical formula, were close to what is considered to be a fracture. Edge attempted
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to re-argue this testimony during her closing argument but was prohibited by the trial court.
Edge claims the trial court’s prohibition constituted an error. We disagree.
{¶ 34} Prior to trial, the court ruled on defendants-appellees’ motion in limine thereby
excluding “any evidence, testimony or reference” related to Dr. Verrees’s interpretation of the
September 23, 2007 plain films. However, despite the ruling, Dr. Deutch’s trial video
testimony on this subject was mistakenly played to the jury. On this issue, the trial court was
well within the bounds of its gatekeeping function when it prohibited Edge from arguing Dr.
Deutch’s testimony to the jury during closing arguments. Moreover, Edge knew that Dr.
Verrees’s key sentence was a prohibited line of questioning as is evident from her direct
examination of several of her witnesses. Thus, Edge’s second assignment of error is
overruled.
{¶ 35} In her fourth assignment of error, Edge argues the trial court erred when it
failed to strike two prospective jurors for cause pursuant to R.C. 2313.42 and 2313.43. We
find this argument unpersuasive.
{¶ 36} In Hall v. Banc One Mgt. Corp., 114 Ohio St.3d 484, 2007-Ohio-4640, 873
N.E.2d 290, the Ohio Supreme Court distinguished the standard of review for “principal
challenges” pursuant to R.C. 2313.42(A)-(I) and “favor challenges,” pursuant to R.C.
2313.42(J). The principal challenges to prospective jurors incorporated in R.C.
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2313.42(A)-(I) establish a conclusive presumption of disqualification if found valid and
precludes the exercise of judicial discretion to seat that prospective juror. Id. R.C.
2313.42(J), however, requires the trial court to make a subjective determination about the
prospective juror’s fairness and impartiality and accordingly, requires the exercise of judicial
discretion. Id.; see, also, Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301.
{¶ 37} In the present case, Edge argues that Edward DeWindt should have been
dismissed on the basis that he could not be fair and impartial pursuant to R.C. 2313.42(J), a
favor challenge. Whereas, Edge claims that Brian Carruthers should have been dismissed as
a juror pursuant to R.C. 2313.42(E), a principal challenge. Since Edge’s assigned errors
require different standards of review, they will be addressed separately.
Challenge of Prospective Juror Mr. DeWindt
{¶ 38} R.C. 2313.42(J) provides that the following constitutes good cause for
challenging a prospective juror: “That he discloses by his answers that he cannot be a fair and
impartial juror or will not follow the law as given to him by the court.” A prospective juror
who has been challenged pursuant to R.C. 2313.42(J) should be excused only if the trial court
has any doubt as to the juror being entirely unbiased. Hinkle v. Cleveland Clinic, 159 Ohio
App.3d 351, 2004-Ohio-6853, 823 N.E.2d 945. Because the trial court has the opportunity to
observe the demeanor of the juror and evaluate the sincerity of the answers to questions, the
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trial court’s decision to not dismiss a juror is given considerable significance in the appellate
review of its decision. Id.; Berk, supra.
{¶ 39} In this case, although Mr. DeWindt was personally acquainted with counsel for
MetroHealth, he stated that this would not be a factor in his ability to be a fair and impartial
juror. He referenced his answers to the jury questionnaire in which he responded that he
could be impartial and make a judgment on the evidence. Lastly, he stated that he took his
duty seriously and that both as a rule of law and civic responsibility he believed he could be
fair and impartial. The trial court concluded that Mr. DeWindt could remain impartial and
denied Edge’s challenge for cause. After reviewing the voir dire transcript, we cannot say
that the trial court abused its discretion in denying Edge’s challenge for cause. Moreover,
Edge exercised a peremptory challenge and removed him from the jury.
Challenge of Prospective Juror Mr. Carruthers
{¶ 40} R.C. 2313.42(E) constitutes a principal challenge to a prospective juror and
requires the dismissal of a juror if it is established: “That he is the employer, the employee
or the spouse, parent, son or daughter of the employer or employee, counselor, agent, steward,
or attorney of either party.”
{¶ 41} In the instant case, Edge claims that since Mr. Carruthers’s wife, a physician
employed by University Hospitals who enjoyed privileges at Fairview Hospital, those
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privileges equated her to being an agent of Fairview Hospital, and, therefore, made R.C.
2313.42(E) applicable. The Sixth District Appellate Court rejected this argument in Tisdale
v. Toledo Surgical Specialists, Inc., Lucas App. No. L-07-1300, 2008-Ohio-6539.
{¶ 42} In Tisdale, a prospective juror was a nurse anesthetist that worked at the
defendant hospital for 30 years, but was not an employee of the hospital. The plaintiff in
Tisdale argued that the juror’s working at the defendant hospital was tantamount to being an
employee or agent of the hospital, and therefore, she should have been excused pursuant to
R.C. 2313.42(E). The Tisdale court rejected plaintiff’s position and held that although the
juror worked at the hospital for 30 years, “she was not an employee, agent or steward of the
hospital.” Id.{¶ 43} Similarly, the fact that Mr. Carruthers’s wife had privileges at Fairview Hospital
did not equate her to being either an employee or an agent for purposes of R.C. 2313.42(E).
Edge offered no proof during the voir dire questioning of Mr. Carruthers that his wife was
either an employee or an agent of Fairview Hospital. Accordingly, the trial court did not err
in refusing to excuse Mr. Carruthers for cause.
{¶ 44} Edge’s fourth assignment of error is overruled.
{¶ 45} In her fifth and final assignment of error, Edge argues that the cumulative effect
of the trial court’s errors was prejudicial and denied her a fair trial. We find this assignment
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of error to lack merit.
{¶ 46} In State v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256, the Ohio
Supreme Court recognized the doctrine of cumulative error. Pursuant to this doctrine, a
conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant
of the constitutional right to a fair trial even though each of numerous instances of trial court
error does not individually constitute cause for reversal. State v. Garner (1995), 74 Ohio
St.3d 49, 656 N.E.2d 623. This Court found the extension of the cumulative error doctrine to
civil cases is warranted where the court is confronted with several errors, which either are
harmless individually or have marginally prejudicial effects, but combine to require a new
trial. Dawson v. Cleveland Metro. Gen. Hosp. (Nov. 20, 1986), Cuyahoga App. Nos. 51052
and 51779.
{¶ 47} This doctrine is not applicable to the present case as we do not find multiple
instances of harmless error. State v. Webb, 70 Ohio St.3d 325, 1994-Ohio-425, 638 N.E.2d
1023; Garner, supra; Dawson, supra. Accordingly, Edge’s fifth and final assignment of error
is overruled.
{¶ 48} Based on the foregoing, the judgment of the trial court is affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR
APPENDIX
Assignments of Error:
“I. The trial court erred to the substantial prejudice of Plaintiff-Appellant in refusing
to admit a critical portion of Plaintiff-Appellant’s medical record of her treating
neurosurgeon regarding her review and interpretation of the x-ray at issue.
“II. The trial court erred to the substantial prejudice of Plaintiff-Appellant in
prohibiting her from presenting argument as to admitted evidence during closing
argument.
“III. The trial court erred to the substantial prejudice of Plaintiff-Appellant in
refusing to allow her to present evidence of the statements made by a party employee
physician Dr. Margaret Verrees pursuant to Ohio Rule of Evidence 801(D)(2).
“IV. The trial court abused its discretion and erred as a matter of law by failing to
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strike prospective jurors for cause pursuant to R.C. 2313.42 and 2313.43.
“V. The cumulative effect of the trial court’s errors was prejudicial and denied
Plaintiff-Appellant a fair trial.”