McLeod v. Mt. Sinai Medical Center , 166 Ohio App. 3d 647 ( 2006 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] {¶ 1} Plaintiff-appellant and cross-appellee, Mark A. McLeod ("plaintiff or "McLeod"), guardian of the estate of Walter Hollins, initiates this appeal to reinstate the original jury verdict and award in this medical malpractice lawsuit. After a thorough review of the record and the arguments of the parties, we ultimately reverse the trial court's order granting a new trial and remand the matter for consideration of remittitur of damages and prejudgment interest.

{¶ 2} This medical malpractice action stems from the events surrounding the birth of Walter Hollins ("Hollins"). On January 29, 1987, Hollins was born via Caesarean section at the former Mt. Sinai Hospital in Cleveland. Hollins, an intrauterine growth retarded ("IUGR") baby, was born with the lifelong debilitating conditions of cerebral palsy and severe retardation. At the time of Hollins's birth, a Caesarean section was ordered because of fetal distress. Once the procedure was ordered, it took approximately two hours to deliver baby Hollins. The record also indicates that Hollins experienced some degree of asphyxia at birth.

{¶ 3} In 1998, plaintiff filed suit alleging medically negligent prenatal and postnatal care resulting in Hollins's condition. The complaint was specifically brought against Dr. Ronald Jordan, the physician who performed the Caesarean section, and his employer, Northeast Ohio Neighborhood Health Services, Inc. The complaint also included codefendant Mt. Sinai Hospital, the facility where the Caesarean section took place. In addition, the complaint included a claim of spoliation of medical records.

{¶ 4} The case was originally assigned to the regular common pleas docket but was eventually reassigned to a visiting judge. A jury trial began on May 4, 2004, with causation of Hollins's infirmities at the core of the contested issues. While plaintiff maintained that Hollins's condition was a direct result of medical malpractice, the defense attributed causation to placental insufficiency throughout Hollins's development in utero and through no fault of medical treatment.

{¶ 5} On May 24, 2004, the jury returned a verdict for the plaintiff and entered an award of $30 million — $15 million in economic damages and $15 million in noneconomic damages.

{¶ 6} In response, the defense filed motions for judgment notwithstanding the verdict ("JNOV"), for a new trial or, in the alternative, for remittitur. In August 2004, the trial court granted defendants' motion for a new trial. On September 8, 2004, plaintiff filed an affidavit of disqualification of the visiting judge, followed by a Civ.R. 60(B) motion for relief from order. The visiting judge subsequently recused himself.

{¶ 7} On September 20, 2004, a hearing was held before a newly assigned common pleas judge on plaintiffs Civ.R. 60(B) motion for relief. Prior to a ruling, plaintiff filed an appeal challenging the granting of a new trial. Cross-appeals were also filed. This court remanded the matter for a ruling on the pending Civ.R. 60(B) motion for relief. On November 19, 2004, the lower court granted plaintiffs motion for relief and ordered the jury verdict and award reinstated.

{¶ 8} Defendants subsequently filed notices of appeal from the granting of plaintiffs Civ.R. 60(B) motion for relief. All three appeals have been consolidated and will be disposed of by this opinion.¹

{¶ 9} There are two main issues in this appeal: (1) should the lower court have granted plaintiffs Civ.R. 60(B) motion for relief, and, if not, (2) should the trial court's order for a new trial be upheld? The remaining issues to be addressed include (1) Mt. Sinai's cross-appeal of the trial court's denial of their motions for directed verdict and JNOV, (2) the directed verdict against plaintiffs claims of spoliation and/or punitive damages, and (3) plaintiffs motion for prejudgment interest. We will address each issue accordingly.

THE GRANTING OF PLAINTIFF'S RULE 60(B) MOTION {¶ 10} Civ.R. 60(B) reads:

{¶ 11} "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; * * * or (5) any other reason justifying relief from the judgment."

{¶ 12} To prevail on a motion under Civ.R. 60(B), the movant must demonstrate that (1) the party has a meritorious defense or claim to present if relief is granted, (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order, or proceeding was entered or taken. GTEAutomatic Elec. v. ARC Industries (1976),47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus.

{¶ 13} In granting the Civ.R. 60(B) motion for relief, the lower court articulated its fundamental disagreement with the trial court's granting of a new trial. The lower court argued that the trial court improperly substituted its opinion for the findings of the jury in ordering a new trial. Therefore, the lower court overruled the order for a new trial by granting plaintiffs Civ.R. 60(B) motion for relief. Ordinarily "a motion for relief from judgment under Civ.R. 60(B) is discretionary with the trial court; and, in the absence of a clear showing of abuse of discretion, the trial court's decision should not be disturbed on appeal." Wiley v. Natl. Garages,Inc. (1984), 22 Ohio App.3d 57, 22 OBR 153, 488 N.E.2d 915.

{¶ 14} However, this court has further held that a Civ.R. 60(B) motion may not be used as a substitute for a direct appeal. Manigault v. Ford Motor Co. (1999), 134 Ohio App.3d 402, 731 N.E.2d 236, citing Doe v.Trumbull Cty. Children Servs. Bd. (1986),28 Ohio St.3d 128, 28 OBR 225, 502 N.E.2d 605; Natl. Amusements, Inc. v.Springdale (1990), 53 Ohio St.3d 60, 63, 558 N.E.2d 1178;Justice v. Lutheran Social Servs. of Cent. Ohio (1992), 79 Ohio App.3d 439, 442, 607 N.E.2d 537. "Civ.R. 60(B) is not a viable means to attack legal errors made by a trial court; rather, it permits a court to grant relief when the factual circumstances relating to a judgment are shown to be materially different from the circumstances at the time of the judgment. See, Kay v. Marc Glassman, Inc. (Feb. 1, 1995), Summit App. No. 16726 [1995 WL 39393], unreported * * *. Civ.R. 60(B) relief * * * thus cannot be used to challenge the correctness of the trial court's decision on the merits."Anderson v. Garrick (Oct. 12, 1995), Cuyahoga App. No. 68244, 1995 WL 601096.

{¶ 15} Our review now becomes de novo: "Although the trial court's ruling on a Civ.R. 60(B) motion is usually subject to an abuse of discretion standard of review, we conclude that overruling a Civ. R. 60(B) motion for the reason that it is improperly used as a substitute for appeal presents an issue of law." Ford Motor Credit Co. v. Cunningham, Montgomery App. No. 20341, 2004-Ohio-6226, 2004 WL 2659177.

{¶ 16} We find plaintiffs Civ.R. 60(B) motion for relief in this case to be an improper attempt at an appeal. A comparison of the arguments raised by plaintiff in opposition to the motion for a new trial and those made in support of the motion for 60(B) relief shows that they are nearly identical. This illustrates that a direct appeal was the appropriate forum to reassert plaintiffs contentions, rather than a motion for relief. Furthermore, the lower court's granting of Civ.R. 60(B) relief was based upon a determination that the order for a new trial was incorrect on the merits. The opinion and order granting Civ.R. 60(B) relief is completely void of any citation to extraordinary circumstances that would justify the granting of Civ.R. 60(B) relief. We, therefore, vacate the granting of plaintiffs Civ.R. 60(B) motion.

THE GRANTING OF THE DEFENSE'S MOTION FOR A NEW TRIAL {¶ 17} With the lower court's order for relief vacated, we now turn to the trial court's order for a new trial, which stated:

{¶ 18} "Civil Rule 59(A) permits the granting of a new trial upon various grounds, including the following, which do apply in this case:

{¶ 19} "Irregularity in the proceedings * * * by which an aggrieved party was prevented from having a fair trial.

{¶ 20} "Misconduct of the jury or prevailing party.

{¶ 21} "Accident or surprise which ordinarily prudence could not have guarded against.

{¶ 22} "Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice.

{¶ 23} "Error of law occurring at the trial and brought to the attention of the trial court by the party making the application.

{¶ 24} "In addition, a new trial may also be granted in the sound discretion of the court for good cause shown.

{¶ 25} "The Court believes that the major grounds for relief set forth by Defendants are (1) the award of excessive damages given under the influence of passion and prejudice, (2) the misconduct of Plaintiffs counsel throughout the trial, and (3) irregularity in the proceedings which prevented a fair trial."

{¶ 26} Through its journal entry, the trial court attempts to explain its reasons for granting a new trial, finding that the award was excessive and due to a passion-influenced jury, that plaintiffs trial attorney displayed continuous misconduct throughout the trial, and that there was irregularity in the proceedings due to the court's handling of a newspaper article that potentially could have influenced the jury.

{¶ 27} A reviewing court may reverse a trial court if it abused its discretion in ordering a new trial.Antal v. Olde Worlde Products (1984),9 Ohio St.3d 144, 145, 9 OBR 392, 459 N.E.2d 223. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481,450 N.E.2d 1140. The high abuse-of-discretion standard defers to the trial court because the trial court's ruling may require an evaluation of witness credibility that is not apparent from the trial transcript and record. Schlundt v. Wank (Apr. 17, 1997), Cuyahoga App. No. 70978, 1997 WL 186830. However, so long as the verdict is supported by substantial, competent, credible evidence, the jury verdict is presumed to be correct and the trial court must refrain from granting a new trial. Id.

{¶ 28} This court finds that the jury verdict in this case was supported by substantial, competent, credible evidence; thus, we find error in the trial court's decision to order a new trial. The defense did not contest liability in this appeal, focusing instead on the amount of damages awarded. No assignment of error was raised with respect to liability on cross-appeal. In proving economic damages, plaintiff presented expert testimony giving differing estimates of health care that could be calculated to a range of total damages. The figure for noneconomic damages is also debatable. Thus, while the damage award may be the subject of debate, the record substantially supports plaintiffs argument that the trial court abused its discretion in granting a new trial by impairing the traditional function of the jury, substituting its own opinion in place of the jury, and traveling outside of the record to substitute its own opinions when it could find no proper support in the record.

{¶ 29} The trial court cites to irregularities in the proceedings in justifying its ruling; however, the flaws cited by the trial court in making its determination do not support the order of a new trial. While the trial court engaged in an ex parte discussion with defense counsel about a Plain Dealer newspaper article and engaged in ex parte communications with the jury, these irregularities were not even objected to by the plaintiff. To grant a new trial on this basis would be to reward a claimed error that was initiated by defense counsel. Moreover, there is no reasonable basis to conclude that these irregularities had a prejudicial effect on the outcome of the trial.

{¶ 30} The trial court also claimed that the conduct by plaintiffs counsel was improper and inflammatory and thus warranted a new trial. There is nothing that prohibits counsel from being zealous in their representation. Further, trial counsel should be accorded wide latitude in opening and closing arguments. Presley v. Hammack, Jefferson App. No. 02 JE 28, 2003-Ohio-3280, 2003 WL 21448228. Here, defense counsel did not even object to the claimed improper comments in plaintiffs closing. In addition, defense counsel made its own questionable comments in the proceedings, including personal attacks.

{¶ 31} Only "``[w]here gross and abusive conduct occurs, is the trial court bound, sua sponte, to correct the prejudicial effect of counsel's misconduct.'" (Emphasis omitted.) Pesek v. Univ. Neurologists Assn., Inc. (2000), 87 Ohio St.3d 495, 501, 721 N.E.2d 1011, quotingSnyder v. Stanford (1968), 15 Ohio St.2d 31, 37,44 O.O.2d 18, 238 N.E.2d 563. Moreover, counsel's behavior has to be of such a reprehensible and heinous nature that it constitutes prejudice before a court can reverse a judgment because of the behavior. Hunt v. Crossroads Psych. Psychological Ctr. (Dec. 6, 2001), Cuyahoga App. No. 79120, 2001 WL 1558574, citing Kubiszak v. Rini'sSupermarket (1991), 77 Ohio App.3d 679, 688, 603 N.E.2d 308.

{¶ 32} In this case, while the remarks by counsel may have been questionable, they were not so outrageous as to warrant a new trial. Again, there was sufficient evidence to support the jury's verdict. Much of the evidence was not rebutted. Further, there is no challenge in this appeal to the jury's finding of liability. Under these circumstances, we find it to be an abuse of discretion to grant a new trial.

{¶ 33} It does appear, however, that the jury's damages award is subject to remittitur. Granting a remittitur is different from granting a new trial. When a damages award is manifestly excessive, but not the result of passion or prejudice, a court has the inherent authority to remit the award to an amount supported by the weight of the evidence. Wightman v. Consol. Rail Corp. (1999),86 Ohio St.3d 431, 444, 715 N.E.2d 546. Four criteria are necessary for a court to order a remittitur: "(1) unliquidated damages are assessed by a jury, (2) the verdict is not influenced by passion or prejudice, (3) the award is excessive, and (4) the plaintiff agrees to the reduction in damages." Dardinger v. AnthemBlue Cross Blue Shield, 98 Ohio St.3d 77,2002-Ohio-7113, 781 N.E.2d 121, ¶ 184, citing Chester Park Co. v. Schulte (1929), 120 Ohio St. 273, 166 N.E. 186, paragraph three of the syllabus. Remittitur plays an important role in judicial economy by encouraging an end to litigation rather than a new trial. While an appellate court has the power to order a remittitur, the trial court is in the best position to determine whether a damages award is excessive. Moskovitzv. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 654-655,635 N.E.2d 331. If the prevailing party refuses to accept the remittitur, then the court must order a new trial. Burke v.Athens (1997), 123 Ohio App.3d 98, 102, 703 N.E.2d 804.

{¶ 34} In this case, the record reflects that expert testimony was introduced that was based on "assumptions" and went beyond the calculations provided in the expert reports. Plaintiff does not contest that the maximum amount of economic damages stipulated and admitted into evidence was $12,637,339. Defense counsel raises several objections to the amount of the economic-damages award. It also appears that the jury's award of noneconomic damages was influenced by the amount of the economic award, both awards being $15,000,000. Accordingly, we remand the matter to the trial court for consideration of the motion for remittitur.

{¶ 35} The dissenting opinion takes exception with our ruling on this assignment of error. While it agrees that granting a new trial is not warranted by the cited irregularities, the dissent argues that the trial court's order should be affirmed because of the excessive damage award and plaintiffs attorney's misconduct. While we agree that plaintiffs attorney does not appear in the transcript to be the most likeable person, we do not find that his conduct rises to the level to justify the granting of a new trial.

{¶ 36} In the end, though, the jury — the body that our system of justice entrusts as the finder of fact — heard all the evidence and arguments and found the defendants professionally negligent. We find nothing in the record that would lead us to hold that finding to be a product of passion or prejudice.

{¶ 37} As to the dissent's concern of excessive damages, any such concern will be best addressed in this court's remand for remittitur. Again, liability was not the focus of the defense's appeal before this court. Their arguments were specific to the amount of damages awarded. Therefore, we find that any concern as to excessive damages will be adequately addressed through remittitur.

MT. SINAI'S CROSS-APPEAL {¶ 38} Mt. Sinai was named a codefendant in this action because of alleged negligence by the hospital's employees and/or agents. Dr. Hatoum, the agent specified in this appeal, was an independent-contractor anesthesiologist on staff at Mt. Sinai the day of Hollins's birth. The jury ultimately found Mt. Sinai liable to plaintiff. Mt. Sinai now cross-appeals the denial of its motions for directed verdict and JNOV, arguing that Dr. Hatoum was an independent contractor, and thus the hospital cannot be rendered vicariously liable.

{¶ 39} "The applicable standard of review to appellate challenges to the overruling of motions for judgment notwithstanding the verdict is identical to that applicable to motions for a directed verdict." Posin v. ABC Motor CourtHotel (1976), 45 Ohio St.2d 271, 74 O.O.2d 427,344 N.E.2d 334; McKenney v. Hillside Dairy Co. (1996),109 Ohio App.3d 164, 176, 671 N.E.2d 1291. Such review is de novo.Goodyear Tire Rubber v. Aetna Cas. Sur.Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835.

{¶ 40} A motion for judgment notwithstanding the verdict tests the legal sufficiency of the evidence. Brooks v. Brost Foundry Co. (May 3, 1991), Cuyahoga App. No. 58065, 1991 WL 69341. "'A review of the trial court's denial of appellant's motion for a directed verdict and motion for judgment notwithstanding the verdict requires a preliminary analysis of the components of the action * * *.'Shore, Shirley Co. v. Kelley (1988),40 Ohio App.3d 10, 13, 531 N.E.2d 333, 337." Star Bank Natl. Assn.v. Cirrocumulus Ltd. Partnership (1997),121 Ohio App.3d 731, 742-743, 700 N.E.2d 918, citing McKenney,109 Ohio App.3d at 176, 671 N.E.2d 1291; Pariseau v. Wedge Products,Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511.

{¶ 41} A motion for judgment notwithstanding the verdict, as well as for a directed verdict, should be denied if there is substantial evidence upon which reasonable minds could come to different conclusions on the essential elements of the claim. Posin, supra, at 275, 74 O.O.2d 427, 344 N.E.2d 334. Conversely, the motion should be granted where the evidence is legally insufficient to support the verdict. Id.

{¶ 42} In Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 539 N.E.2d 1114, the court wrote: "The test for granting a directed verdict or judgment n.o.v. is whether the movant is entitled to judgment as a matter of law when the evidence is construed most strongly in favor of the non-movant." Id. at 172, 539 N.E.2d 1114.

{¶ 43} Regardless of claims made concerning Dr. Hatoum, it is clear that Mt. Sinai's motions were properly denied. In general, an employer is vicariously liable for the torts of its employees. Clark v. SouthviewHosp. (1994), 68 Ohio St.3d 435, 628 N.E.2d 46. In its case against Mt. Sinai, plaintiff cites negligence on the part of the nursing staff and other staff members, apart from Dr. Hatoum, that resulted in plaintiffs injuries. Furthermore, in finding Mt. Sinai liable, the jury gave the following answer to the pertinent interrogatory:

{¶ 44} "Mt. Sinai staff did not expedite an urgent C-section, did not properly monitor the fetus during a critical time. As a result of the delay neurological damage occurred."

{¶ 45} This finding clearly demonstrates that the issue of Mt. Sinai's liability includes its employees and that reasonable minds can come to differing conclusions as to their liability. Thus, Mt. Sinai should not have been dismissed from this litigation pursuant to either a directed verdict or JNOV.

{¶ 46} As to Mt. Sinai's liability for the actions of Dr. Hatoum, the law of vicarious liability controls. The traditional test for determining a hospital's vicarious liability in this situation is stated in Clark, supra:

{¶ 47} "A hospital may be held liable under the doctrine of agency by estoppel for the negligence of independent medical practitioners practicing in the hospital if it holds itself out to the public as a provider of medical services and in the absence of notice or knowledge to the contrary, the patient looks to the hospital, as opposed to the individual practitioner, to provide competent medical care. * * * Unless the patient merely viewed the hospital as the situs where her physician would treat her, she had a right to assume and expect that the treatment was being rendered through hospital employees and that any negligence associated therewith would render the hospital liable. Id., 68 Ohio St.3d at 444-445,628 N.E.2d 46.

{¶ 48} In considering the doctrine of agency by estoppel as applied to hospitals, the "critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems * * *." Id. at 439, 628 N.E.2d 46.

{¶ 49} Mt. Sinai's appeal emphasizes that the plaintiff did not specifically name Dr. Hatoum in his amended complaint, nor was he joined after the trial court's entry requiring the joinder of necessary parties under Civ.R. 19. The Ohio Supreme Court has recently held that because agency by estoppel is a derivative claim of vicarious liability, there can be no viable claim against a hospital for agency by estoppel based on the alleged negligence of an independent-contractor physician as to whom the statute of limitations has expired.Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,833 N.E.2d 712. Mt. Sinai now argues that Comer requires this court to sustain its appeal. We disagree.

{¶ 50} Credible arguments were presented by both parties as to whether plaintiff triggered the doctrine of agency by estoppel by looking to the hospital for treatment. Since reasonable minds could still differ as to a conclusion, it is the duty of the court to send the issue to the jury.Fraysure v. A Best Prods. Co., Cuyahoga App. No. 83017, 2003-Ohio-6882, 2003 WL 22971024. Mt. Sinai's motions for directed verdict and JNOV were properly denied; therefore, we affirm the trial court on this issue.

SPOLIATION AND/OR PUNITIVE DAMAGES {¶ 51} At the close of plaintiffs case, the trial court ruled in favor of the defense on plaintiffs motion for directed verdict on the claim of spoliation, which involved missing medical records. A motion for directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion, and that conclusion is adverse to such party. Civ.R. 50(A)(4);Crawford v. Halkovics (1982), 1 Ohio St.3d 184,1 OBR 213, 438 N.E.2d 890; The Limited Stores, Inc. v. Pan Am.World Airways, Inc. (1992), 65 Ohio St.3d 66,600 N.E.2d 1027.

{¶ 52} A directed verdict is appropriate where the party opposing it has failed to adduce any evidence on the essential elements of his claim. Cooper v. Grace BaptistChurch (1992), 81 Ohio App.3d 728, 734, 612 N.E.2d 357. The issue to be determined involves a test of the legal sufficiency of the evidence to allow the case to proceed to the jury, and it constitutes a question of law, not one of fact. Hargrove v.Tanner (1990), 66 Ohio App.3d 693, 695, 586 N.E.2d 141;Vosgerichian v. Mancini Shah Assoc. (Feb. 29, 1996), Cuyahoga App. Nos. 68931 and 68943, 1996 WL 86684. Accordingly, the courts are testing the legal sufficiency of the evidence rather than its weight or the credibility of the witnesses. Ruta v. Breckenridge-Remy Co. (1982),69 Ohio St.2d 66, 68-69, 23 O.O.3d 115, 430 N.E.2d 935.

{¶ 53} Since a directed verdict presents a question of law, an appellate court conducts a de novo review of the lower's court judgment. Howell v. Dayton Power Light Co. (1995), 102 Ohio App.3d 6, 13, 656 N.E.2d 957;Keeton v. Telemedia Co. of S. Ohio (1994),98 Ohio App.3d 405, 409, 648 N.E.2d 856.

{¶ 54} The spoliation claim alleged misconduct regarding certain missing medical records. "[T]he elements of a claim for interference with or destruction of evidence are (1) pending or probable litigation involving the plaintiff, (2) knowledge by the defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiffs case, (4) disruption of the plaintiffs case, and (5) damages proximately caused by the defendant's acts * * *." Smith v. Howard Johnson Co. (1993), 67 Ohio St.3d 28, 29, 615 N.E.2d 1037.

{¶ 55} Plaintiff has offered no evidence that any of the records at issue were missing because of "willful destruction * * * designed to disrupt the plaintiffs case." Plaintiffs argument is based on innuendo, claiming that the records were missing "without explanation." Nowhere in plaintiffs argument is there any evidence of willful destruction by the defense. Furthermore, the records at issue were of Hollins's birth in 1987, 11 years before a suit was ever filed. Mt. Sinai Medical Center has since closed, which event clearly had a negative effect on any record keeping. Plaintiff cannot maintain this claim, and we affirm the trial court's directed verdict.

PREJUDGMENT INTEREST {¶ 56} Finally, when the trial court granted the motion for a new trial, plaintiffs motion for prejudgment interest was held to be moot. In reversing the order for new trial, we now also reverse the ruling finding the motion for prejudgment interest to be moot. As we remand this matter for consideration of remittitur, we also direct the trial court to make appropriate determinations in consideration of plaintiffs motion for prejudgment interest.

{¶ 57} This court hereby vacates the lower court's granting of plaintiffs Civ.R. 60(B) motion for relief. We further affirm the trial court's denials of Mt. Sinai's motions for directed verdict and judgment notwithstanding the verdict, and affirm the trial court's directed verdict in favor of the defense on the claim of spoliation. However, we reverse the trial court's order for a new trial and remand the matter for consideration of the motion for remittitur of damages and plaintiffs motion for prejudgment interest.

Judgment affirmed in part, vacated in part, reversed in part, and cause remanded.

GALLAGHER, J., concurs.

KARPINSKI, J., concurs in part and dissents in part.

¹ See Appendix for the specific assignments of error cited in the appeal and cross-appeals.