Casares v. Mercy St. Vincent Med. Ctr. ( 2020 )

[Cite as Casares v. Mercy St. Vincent Med. Ctr., 2020-Ohio-1651.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
David Casares Court of Appeals No. L-19-1043
Appellant Trial Court No. CI0201502090
v.
Mercy St. Vincent Medical Center, et al. DECISION AND JUDGMENT
Appellees Decided: April 24, 2020
*****
Gary W. Osborne, Jack S. Leizerman and Stephen A. Skiver,
for appellant.
Douglas G. Leak and Steven J. Hupp, for appellee James Lewis, M.D.
Beth A. Wittmann, John S. Wasung and David T. Henderson,
for appellee Fulton County Health Center.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas from a jury verdict in favor of appellees. For the reasons set forth below, this court
affirms the judgment of the trial court.
{¶ 2} On April 3, 2015, plaintiff-appellant David Casares, filed a complaint against
defendant-nonappellee Mercy St. Vincent Medical Center and defendants-appellees James
Lewis, M.D. (“Dr. Lewis”) and Fulton County Health Center (“FCHC”), arising from
emergency medical care he received five years earlier. The underlying facts in this
medical malpractice litigation were previously reviewed by this court and will not be
repeated here. Casares v. Mercy St. Vincent Med. Ctr., 6th Dist. Lucas No. L-15-1313,
2016-Ohio-5542.
{¶ 3} The seven-day trial of this matter commenced on January 28, 2019, with the
voir dire of 27 prospective jurors. The trial court previously ruled that each party would
receive three peremptory challenges pursuant to Civ.R. 47(C). During voir dire a total of
two prospective jurors were challenged for “good cause” by appellant. The first
challenged juror was excused by the trial court, with no objections, but pursuant to R.C.
2313.14(A)(4) after further examination. The second challenged prospective juror was
number nine, Donald Hayward (“Juror 9”), who was not excused for good cause after the
defendants objected and after further examination. Appellant used his first peremptory
challenge to remove Juror 9. To seat a jury of eight and four alternates, appellant used all
three of his peremptory challenges on prospective jurors, as did each defendant, and
appellant used his two peremptory challenges on prospective alternate jurors, as did each
defendant.
{¶ 4} On February 7, 2019, the jury returned a verdict in favor of defendants-
appellees and against appellant, and the trial court’s judgment entry on jury verdict was
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journalized on February 13, 2019. Appellant then filed his notice of appeal setting forth
two assignments of error.
I. The trial court abused its discretion by granting each defendant
three peremptory challenges when their interests and defense were
essentially the same and not antagonistic.
II. The trial court abused its discretion when it failed to strike juror
number nine for cause.
{¶ 5} It was within the trial court’s discretion to address the challenges for cause
prior to the peremptory challenges. Civ.R. 47(B). We will address appellant’s second
assignment of error first.
I. Challenging a Potential Juror for Cause
{¶ 6} Appellate review of the trial court’s determination of whether a prospective
juror should be disqualified for cause is for an abuse of discretion. Berk v. Matthews, 53
Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). Abuse of discretion “‘connotes more than
an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary
or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When
applying the abuse of discretion standard, we are not free to substitute our judgment for
that of the trial court. Berk at 169.
{¶ 7} In support of his second assignment of error, appellant argues the trial court
abused its discretion when it failed to strike prospective Juror 9 for cause. Citing former
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R.C. 2313.42(J) and 2313.43, appellant argues Juror 9’s answers during voir dire required
the trial court to have even the slightest doubt as to his ability to be fair, impartial, and
entirely unbiased. Appellant argues that Juror 9 questioned his own ability to be
completely unbiased when he admitted coming from a family with many “medical
people” in it and growing up hearing about the importance of malpractice insurance.
Appellant argues Juror 9 further admitted he would not want him on a jury in a medical
malpractice case because he gives the impression of bias towards medical personnel.
Appellant concludes he was prejudiced because Juror 9 was not rehabilitated to the point
of eliminating all vestiges of his declared bias: “Realistically, there can be no true
rehabilitation (changing of a person’s bias) that occurs over a span of a few minutes, and
it borders on fantasy to believe otherwise.”
{¶ 8} In response, Dr. Lewis argues the trial court did not abuse its discretion
because Juror 9, “an engineer and not a medical professional,” repeatedly and
unequivocally stated as a juror he would be fair, impartial and follow the law and never
stated he was biased. Rather, “[Juror 9] admitted that someone else might have ‘the
impression’ that he would be biased based upon his family’s medical background, [but]
he, himself, would not be biased.” Dr. Lewis further argues the trial court did not err
because it first heard oral arguments pertaining to appellant’s good cause challenge to
Juror 9 and made specific findings supported by the record.
{¶ 9} In response, FCHC also argues the trial court did not abuse its discretion.
FCHC argues where the trial court was satisfied with Juror 9’s responses during voir dire,
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R.C. 2313.17(B)(9) was not violated. The trial court observed Juror 9’s demeanor during
voir dire and had the opportunity to evaluate his credibility when responding to questions.
FCHC further argues Juror 9 consistently reiterated on seven separate occasions, despite
appellant’s efforts to derail, that he could be a fair and impartial juror and would follow
the law as given to him by the court.
{¶ 10} R.C. 2313.17(B) sets forth a list of “good causes for challenge to any
person called as a juror”:
(1) That the person has been convicted of a crime that by law renders
the person disqualified to serve on a jury;
(2) That the person has an interest in the cause;
(3) That the person has an action pending between the person and
either party;
(4) That the person formerly was a juror in the same cause;
(5) That the person 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;
(6) That the person is subpoenaed in good faith as a witness in the
cause;
(7) That the person is akin by consanguinity or affinity within the
fourth degree to either party or to the attorney of either party;
5.
(8) That the person or the person’s spouse, parent, son, or daughter is
a party to another action then pending in any court in which an attorney in
the cause then on trial is an attorney, either for or against any such party to
another such action;
(9) That the person discloses by the person’s answers that the person
cannot be a fair and impartial juror or will not follow the law as given to the
person by the court.
{¶ 11} Each of the foregoing nine challenges “shall be considered as a principal
challenge, and its validity tried by the court.” R.C. 2313.17(C). R.C. 2313.17 replaced
former R.C. 2313.42 and 2313.43, which were repealed effective May 22, 2012, pursuant
to Substitute House Bill No. 268 of Ohio’s 129th General Assembly. See State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 94; see also State v.
Phillips, 3d Dist. Wyandot No. 16-13-09, 2014-Ohio-3670, ¶ 82; see also State v.
Harrison, 2015-Ohio-1419, 31 N.E.3d 220, ¶ 32 (3d Dist.).
{¶ 12} Identical to R.C. 2313.17(C), former R.C. 2313.42 stated, “Each challenge
listed in this section shall be considered as a principal challenge, and its validity tried by
the court.” Hall v. Banc One Mgt. Corp., 114 Ohio St.3d 484, 2007-Ohio-4640, 873
N.E.2d 290, ¶ 22. The Ohio Supreme Court interpreted “principal challenges” to be the
enumerated “good cause” reasons to challenge a prospective juror listed under former
R.C. 2313.42(A) through (I), now R.C. 2313.17(B)(1) through (8). Id. at ¶ 28. A
“principal challenge” to a prospective juror means that if a court finds the prospective
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juror’s disqualification under former R.C. 2313.42(A) through (I), now R.C.
2313.17(B)(1) through (8), to be valid, then there is a conclusive presumption of the
prospective juror’s disqualification, and the trial court must dismiss the prospective juror.
Id. at syllabus. As a result, the prospective juror may not be seated through rehabilitation
or the trial court’s exercise of discretion, even if the prospective juror pledges to be fair.
Id.
{¶ 13} In contrast to a “principal challenge” the Ohio Supreme Court found that a
“challenge to the favor” permitted a party to assert a challenge when no “principal
challenge” exists, subject to an examination for the purpose of determining whether the
potential juror can be impartial. Id. at ¶ 29.
{¶ 14} In affirming the distinction between a “principal challenge” and “a
challenge to the favor,” the Ohio Supreme Court declared former R.C. 2313.42(J), now
R.C. 2313.17(B)(9), to be “a challenge to the favor” because it “requires the court to
make a subjective determination about a potential juror’s fairness and impartiality and
therefore requires the exercise of judicial discretion.” Id. at ¶ 1, 38, citing Berk, 53 Ohio
St.3d 161, 559 N.E.2d 1301, at syllabus.
{¶ 15} The language of former R.C. 2313.42(J) is identical to R.C. 2313.17(B)(9),
which is its replacement. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at
¶ 94. “The following are good causes for challenge to any person called as a 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.” Hall at ¶ 21, quoting former R.C.
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2313.42(J). The Ohio Supreme Court found that former R.C. 2313.42(J), now R.C.
2313.17(B)(9), was a misplaced “principal challenge” because it was neither part of
common law nor included in an earlier version of the statute. Id. at ¶ 37.
{¶ 16} We find that in response to appellant’s “good cause” challenge to Juror 9,
after examination by the trial court, the trial court did not find the prospective juror was
disqualified pursuant to R.C. 2313.17(B)(1) through (8). R.C. 2313.17(C). We further
find that appellant’s challenge to Juror 9 pursuant to R.C. 2313.17(B)(9) was subject to
the trial court’s exercise of discretion. After a review of the transcript of voir dire
proceedings, we find Juror 9 was sufficiently rehabilitated during their questioning, and
the trial court’s exercise of discretion was not abused. Jackson v. Sunforest OB-GYN
Assoc., Inc., 6th Dist. Lucas No. L-06-1354, 2008-Ohio-480, ¶ 48.
{¶ 17} Appellant also argues the trial court should have struck Juror 9 for raising
doubt as to his being entirely unbiased pursuant to former R.C. 2313.43. R.C.
2313.17(D) is the replacement for former R.C. 2313.43. Maxwell at ¶ 94. R.C.
2313.17(D) states:
any petit juror may be challenged on suspicion of prejudice against
or partiality for either party, or for want of a competent knowledge of the
English language, or other cause that may render the juror at the time an
unsuitable juror. The validity of the challenge shall be determined by the
court and be sustained if the court has any doubt as to the juror’s being
entirely unbiased.
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{¶ 18} The transcript of the voir dire proceedings is in the record. Juror 9
introduced himself as a “retired engineer” with “[y]ears of college and no degree.”
Prospective jurors were asked about their “leanings.”
Q: So is there anyone here that even just a little bit might be leaning
towards the plaintiff or towards the defendant? I see you nodding sir, is
that yes or [are] you just listening?
A: Yes.
Q: You are leaning one way or the other?
A: Yes.
Q: Which way are you leaning, sir?
A: I tend to come from a background with a lot of medical people in
it. And my grandfather was a doctor, my mother was a nurse, my aunts
were all nurses, my uncles were doctors or something. So I grew up
hearing about medical malpractice insurance and the significant effect that
it has on the cost of health insurance for everybody. So I question whether,
you know, I could be completely unbiased. I mean I will certainly try to be
unbiased.
Q: Sure. Thank you very much for sharing. I appreciate it. * * *
And sir, for yours it sounds like it’s actually kind of a family thing that you
have been raised with, would that be accurate?
A: Yes.
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Q: Would you say that is kind of like a family value or something
that has been part of your life basically since you were a child?
A: Yes.
Q: So no matter – I mean it’s something that you believe you don’t
come to opinions lightly, correct?
A: That’s correct
Q: Okay. So no matter who would ask you if you could set that
aside, it would be your belief that you couldn’t set that aside because it’s so
deeply ingrained?
A: No, I wouldn’t necessarily say that.
Q: Okay. And I don’t mean to put words in your mouth.
A: As I said, I think I can try to be unbiased in this particular case.
In a similar case I think I can be unbiased.
Q: Okay. And one thing that I want to kind of ask about because I
want to make sure we’re clear is the try, you know, we’re all going to try,
and just like I would try to give that cherry pie, you know, a good, fair
competition, if I’m already inclined to not believe that that at cherry pie is
going to be as good, then I wouldn’t be a good judge for that case. So do
you believe that you would be a good judge for this case?
A: I could be a judge.
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Q: So a good judge for one side maybe and not a good judge for the
other side?
A: I didn’t say that. I think I could be a reasonable judge.
Q: Sorry, I didn’t mean to cut you off. Did you have something
else?
A: I may not be the best. I think I could be unbiased.
Q: If you were the plaintiff in this case would you want you as a
juror on this case?
A: Probably not.
Q: Okay. Why not?
A: Because I give the impression that I would be biased towards
medical personnel and particularly medical malpractice.
Q: Sure. Thank you. And I appreciate you being honest. I know
it’s not easy to talk in front of all these people, especially with me trying to
understand exactly all you’re saying, so I appreciate that. Thank you.
Anybody else? * * *.
{¶ 19} We find that Juror 9 immediately contradicted any initial “leaning” towards
“medical people.” We further find that Juror 9 directly and consistently replied that he
could, in fact, be an unbiased juror. He underwent further direct examination regarding
his potential bias.
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Q: Now we heard plaintiff’s counsel asking the questions you
grew up in a medical family. I have to ask you two very straight-forward,
simple questions. If his Honor instructs you as a matter of law certain
facts, certain – not facts – certain ways to address this case. And that you
are to determine whether the injury was proximately caused by the
negligence, will you follow those jury instructions?
A: Yes.
Q: Okay. When you take an oath as a juror, you swear to be
unbiased, to be fair to both sides ad fair and impartial. In this case can
you be fair and impartial or not, just tell us?
A: Yes.
Q: All right. And you think you can follow the law and treat both
sides fairly?
A: Yes.
{¶ 20} After the trial court dismissed two jurors pursuant to R.C. 2313.14(A)(4),
appellant then challenged Juror 9 for “good cause,” and a bench discussion occurred.
Appellant argued Juror 9 flipped when he “declared his bias and of course afterwards he
said he could be fair and impartial, but then he said that he would not want him on the
jury if he was a plaintiff. I mean we got all these jurors, there has to be some doubt as to
whether he’s entirely unbiased and under the statute he should be released.” FCHC
responded that Juror 9 “specifically said he would be a reasonable judge in this case. He
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said you don’t have to be the best and no one is required to be the best.” The trial court
recalled, “I think he said in response to [Dr. Lewis’ voir dire] he would follow the
instruction of law, he could be fair and impartial. He did say that if he was the plaintiff
would you want me for a juror and he said not, because it may give the impression of
bias, not that he was biased, but it may give the impression of bias.” When the issue was
narrowed to the distinction between Juror 9’s response regarding the perception of bias
versus whether he had bias, the trial court concluded, “Because his exact words were
[‘]give the impression of bias.[’] I think he was – I mean I think he was fairly
rehabilitated here by [Dr. Lewis’ voir dire] questions. I’m going to overrule the objection
or overrule the challenge for cause to [Juror 9].” There were no further challenges for
cause by any party.
{¶ 21} We find that although appellant believed Juror 9 could never truly shed his
bias, the record supports the trial court’s obvious satisfaction with Juror 9’s responses
that his bias, if any, would not substantially impair the performance of his juror duties.
State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 107. Despite
any factual contradiction between Juror 9’s initial responses and his subsequent
responses, the record shows the trial court resolved those questions of fact and did not
abuse its discretion. Id. at ¶ 110. Since the trial court resolved the questions of fact to its
satisfaction, we will not substitute our judgment, and Juror 9 need not be removed for
cause. Grundy v. Dhillon, 120 Ohio St.3d 415, 2008-Ohio-6324, 900 N.E.2d 153, ¶ 52.
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{¶ 22} We reviewed the record and find the trial court did not abuse its discretion,
and the trial court’s attitude was not unreasonable, arbitrary or unconscionable, when it
denied appellant’s motion to disqualify for good cause Juror 9.
{¶ 23} Appellant’s second assignment of error is not well-taken.
II. Peremptory Challenges of Potential Jurors
{¶ 24} Appellate review of a trial court’s determination of the scope of voir dire is
for an abuse of discretion. State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776
N.E.2d 1061, ¶ 31, holding modified by State v. Downour, 126 Ohio St.3d 508, 2010-
Ohio-4503, 935 N.E.2d 828.
{¶ 25} In support of his first assignment of error, appellant argues the trial court
abused its discretion when it allowed the defendants a combined total of six peremptory
challenges of prospective jurors while plaintiff was allowed only three. Appellant argues
that a medical malpractice case “poses a greater risk of jurors having strong feelings that
predispose them to biases against these cases” because the overwhelming number of
verdicts are for defendants. Appellant argues that in order for appellant “to get a fair
trial,” not only should the trial court have treated both defendants as one and limited them
to a total of three peremptory challenges between them, but the trial court should also
have allowed appellant’s challenge for good cause of Juror 9 so that appellant could have
used a peremptory challenge on another, unidentified, prospective juror. Appellant
further argues the trial court misapplied Civ.R. 47(C), which does not require the interests
of the defendants to be identical in all respects. Appellant urges this court to find that
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“absent a showing of antagonistic interests, peremptory challenges should be limited to
the combined defendants.”
{¶ 26} In response, Dr. Lewis argues the trial court did not abuse its discretion
when it followed Civ.R. 47(C) and LeFort v. Century 21-Maitland Realty Co., 32 Ohio
St.3d 121, 512 N.E.2d 640 (1987). Dr. Lewis argues the law is clear that in order for the
trial court to order Dr. Lewis and FCHC to a combined total of three peremptory
challenges, their interests or defenses must be identical, such as whether they are
represented by the same attorney, filed joint answers and pleadings, and asserted the
same defenses that “stand or fall together.” Dr. Lewis further argues his interests are not
identical to FCHC where a jury could have found one defendant liable and not the other
because, among other factors, appellant’s claim against Dr. Lewis was medical
negligence while appellant’s claim against FCHC was agency by estoppel, and the jury
received separate jury interrogatories on them. Dr. Lewis argues appellant was not
prejudiced by the trial court’s decision, and the jury that was ultimately empanelled was
fair and impartial.
{¶ 27} In response, FCHC also argues the trial court did not abuse its discretion.
FCHC argues Civ.R. 47(C) is clear that FCHC and Dr. Lewis are not “essentially the
same” where “the defendants proceeded separately throughout the litigation through
separate counsel, and asserted defenses that do not necessarily stand or fall together.”
FCHC argues: “Importantly, [FCHC] asserted unique defenses that, if proved, would
absolve it from liability, potentially to the detriment of Dr. Lewis.” FCHC argues the
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jury “could find against Dr. Lewis and not against FCHC], depending on their
interpretation of the evidence presented and application of the law.” FCHC argues
appellant never requested the trial court grant it more peremptory challenges. FCHC
further argues that any trial court error in failing to dismiss Juror 9 was harmless because
appellant was not prejudiced where the jurors who sat were not shown to be prejudiced or
challenged for good cause.
{¶ 28} Appellant filed his motion to limit peremptory challenges on January 9,
2019, and argued that FCHC should not independently receive three peremptory
challenges because Civ.R. 47(C) authorized treating FCHC as “essentially the same” as
Dr. Lewis because their interests were identical. Appellant further argued, “Unless the
underlying claim of negligence is proven against defendant Lewis, there can be no
liability against defendant [FCHC], who is along for the ride only under the theory of
vicarious liability.” FCHC opposed the motion, citing Civ.R. 47(C) and the LeFort
factors affirming its entitlement to three peremptory challenges of its own.
{¶ 29} In its January 28, 2019 journalized judgment entry, the trial court stated:
Subjudice, the Court is not persuaded that Defendants’ interests are
“essentially the same,” nor does it find that their defenses stand or fall
together. Contrary to Plaintiff’s suggestion that FCHC is merely “along for
the ride” with Dr. Lewis, the record is quite clear that Defendants have
employed and maintained separate counsel and have separately participated
in this litigation since its inception in 2012. Although both Defendants
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stand to benefit from a verdict in Dr. Lewis’ favor, there is clearly no
reciprocal benefit to Lewis in the event FCHC prevails. It is undisputed
that Dr. Lewis was acting as an independent contractor when he rendered
treatment to Plaintiff at FCHC, so Ohio law does not require the fact finder
to find FCHC liable in the event it determines that Dr. Lewis’ alleged
negligence proximately caused Plaintiff’s injuries. Significantly, there has
already been an appellate determination in this matter that a factual
question exists as to FCHC’s potential liability under an ostensible agency
theory should Dr. Lewis not prevail on the claim against him. Accordingly,
it cannot be fairly said that Defendants’ defenses stand or fall together. The
Court finds that each Defendant is entitled to its full allotment of three
peremptory challenges. (Footnote omitted.)
{¶ 30} The law on peremptory challenges in civil litigation is found in Civ.R.
47(C), which states:
In addition to challenges for cause provided by law, each party
peremptorily may challenge three prospective jurors. If the interests of
multiple litigants are essentially the same, ‘each party’ shall mean ‘each
side.’ * * * A prospective juror peremptorily challenged by either party
shall be excused.
{¶ 31} This court previously determined that where the interests of multiple
defendant parties are essentially different or antagonistic, then they are entitled to the full
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number of peremptory challenges. Bernal v. Lindholm, 133 Ohio App.3d 163, 175, 727
N.E.2d 145 (6th Dist.1999), citing LeFort, 32 Ohio St.3d at 125, 512 N.E.2d 640 (relying
on language from former Civ.R. 47(B), now 47(C)). It is well established that each of
the defendants must have “identical interests * * * to be considered as one party.” Id. at
176; Nieves v. Kietlinski, 22 Ohio St.2d 139, 258 N.E.2d 454 (1970), paragraph one of
the syllabus. This court applied a number of factors before concluding the interests of
each defendant were not identical: (1) whether the defendants employed the same
attorney to represent them, (2) whether each defendant filed separate answers and
defenses to the complaint, (3) whether the defendants filed separate pleadings or
motions, (4) whether each defendant could attempt to introduce separate evidence to
prove that its conduct did not constitute the causes of action alleged in the complaint,
(5) whether a jury could have found one defendant liable and not another (the so-called
whether “the defenses asserted did not necessarily stand or fall together,” and
(6) whether the plaintiff was prejudiced by the trial court’s decision granting three
peremptory challenges to each defendant. Bernal at 175-176. Civil trials are not
mandated to have an equal number of peremptory challenges for each side. Id. at 176.
{¶ 32} This court previously held that a jury could find FCHC independently
liable under the doctrine of agency by estoppel for the negligent acts of Dr. Lewis, an
independent contractor. Casares, 6th Dist. Lucas No. L-15-1313, 2016-Ohio-5542, at
¶ 22.
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{¶ 33} We find that during voir dire, appellant used his first peremptory challenge
to remove Juror 9 without first objecting on the record that doing so would cause him
prejudice. Failure to object when there was an opportunity to do so waives all but plain
error. LeFort at 123-124. We do not find the existence of plain error that is necessary to
prevent a manifest miscarriage of justice. Id. at 124.
{¶ 34} Appellant was not prejudiced because the trial court’s decision to deny
appellant’s challenge of Juror 9 for “good cause” did not force appellant to exhaust his
peremptory challenges since he still had two more available to him prior to seating the
jury. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 87. “Thus,
‘[i]f the trial court erroneously overrules a challenge for cause, the error is prejudicial
only if the accused eliminates the challenged venireman with a peremptory challenge and
exhausts his peremptory challenges before the full jury is seated.’” (Emphasis in
original.) Id., quoting State v. Tyler, 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990).
{¶ 35} This court has previously found no prejudice when an appellant used
peremptory challenges after challenges for good cause were denied, and no abuse of
discretion by the trial court was found. Jackson, 6th Dist. Lucas No. L-06-1354, 2008-
Ohio-480, at ¶ 49-51. The real question for a reviewing court on the issue of prejudice
and the use of peremptory challenges is whether substantial justice has been done, which
we answer in the affirmative in this case. Grundy, 120 Ohio St.3d 415, 2008-Ohio-6324,
900 N.E.2d 153, at ¶ 33.
19.
{¶ 36} We reviewed the record and find the trial court did not abuse its discretion,
and the trial court’s attitude was not unreasonable, arbitrary or unconscionable, when it
denied appellant’s motion to limit the total number of peremptory challenges between
both appellees.
{¶ 37} Appellant’s first assignment of error is not well-taken.
III. Conclusion
{¶ 38} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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