Fehrenbach v. O'Malley

[Cite as Fehrenbach v. O'Malley, 2011-Ohio-5481.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TARA N. FEHRENBACH, : APPEAL NO. C-100730
TRIAL NO. A-9701756
GINA D. FEHRENBACH, :
O P I N I O N.
and :
THOMAS J. FEHRENBACH, :
Plaintiffs-Appellants, :
vs. :
KATHRYN O’MALLEY, M.D., :
and :
SUBURBAN PEDIATRIC :
ASSOCIATES, INC.,
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 28, 2011
John H. Metz, for Plaintiffs-Appellants,
Lindhorst & Dreidame, Michael F. Lyon, and Bradley D. McPeek, for Defendants-
Appellees.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Presiding Judge.
{¶1} Plaintiffs-appellants Tara, Gina, and Thomas Fehrenbach, filed a
medical malpractice action against defendants-appellees Kathryn O’Malley, M.D.,
and her employer, Suburban Pediatric Associates, Inc., (collectively, where
appropriate, “Dr. O’Malley”). A jury returned a verdict in favor of Dr. O’Malley. The
Fehrenbachs have filed a timely appeal. We find no merit in their six assignments of
error, and we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} On October 1, 1990, 14-month-old Tara woke with a temperature of
105.2 degrees. She vomited, and her mother, Gina, found her to be “lethargic.” Gina
made an appointment to take Tara to see her pediatrician, Dr. O’Malley, at Suburban
Pediatric Associates, that afternoon.
{¶3} Tara had had a history of ear infections and her parents had
scheduled surgery to correct her ear problems. Dr. O’Malley examined Tara and
concluded that she had a severe double ear infection. She prescribed an oral
antibiotic and Tylenol.
{¶4} That night, Tara was cranky and slept poorly. Gina noticed that she
would not lie on her back. Gina took Tara back to Dr. O’Malley’s office the following
morning. She told the doctor that Tara’s fever had not been lower than 104 degrees,
that she was still vomiting, and that she was “very lethargic.” Dr. O’Malley examined
her and found that Tara was still suffering from ear infections. She told Gina to
continue with the antibiotic and Tylenol, and to give Tara fluids to prevent
dehydration.
{¶5} On the morning of October 3, Tara showed some improvement. Her
temperature was lower, and she was able to sit up for a short time and eat a little.
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Gina felt encouraged and left Tara with her mother-in-law while she went to work for
a short time.
{¶6} Tara took a turn for the worse that afternoon. Her fever spiked and
her grandmother had difficulty arousing her from sleep. Gina came home and found
Tara to be extremely lethargic. She held Tara most of the afternoon and Tara
pressed her head into Gina’s arm.
{¶7} That night, Thomas returned from an out-of-town trip. He thought
that Tara looked worse than she had when he had left on October 1. He insisted that
they call the doctor’s office. The on-call physician at Suburban Pediatrics told them
to take Tara to the hospital immediately. They took her to the emergency room at
Children’s Hospital Medical Center.
{¶8} A lumbar puncture revealed that Tara had bacterial meningitis. Her
spinal fluid revealed over 1 million colonies of a particularly virulent, antibiotic-
resistant bacterium that was virtually unknown in Cincinnati at the time. Tara was
given intravenous antibiotics and remained hospitalized for over a month.
{¶9} While she was hospitalized, Tara suffered numerous complications.
She developed hydrocephalus, a condition in which her body’s ability to drain
cerebral fluid was compromised. The doctors placed a shunt into her head to drain
the fluid down to her abdomen. Tara will have to have a shunt for the rest of her life.
{¶10} The doctors agreed that Tara had survived the meningitis against the
odds. She did not develop any cognitive impairment, and she was a college student
with a high grade-point average at the time of the trial. Nevertheless, she has had
multiple brain surgeries to remedy complications from the shunt and other issues
that resulted from the meningitis. She also had to have surgery to remedy chronic
back pain. She will have to be monitored for the rest of her life to make sure that the
shunt does not malfunction. If it does, and she becomes lethargic and/or suffers a
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severe headache, she must be able to get to a medical facility capable of conducting
brain surgery within four hours or she could die.
{¶11} Seven years after Tara’s illness, Tara, through her parents, sued Dr.
O’Malley and her employer, Suburban Pediatrics, for medical malpractice. Her
parents also filed a loss-of-consortium claim. Following a trial, a jury returned a
verdict in favor of O’Malley. The trial court denied the Fehrenbachs’ motion for a
new trial or for judgment notwithstanding the verdict. The Fehrenbachs filed a
timely appeal from the trial court’s judgment.
{¶12} We reversed the trial court’s judgment on several grounds, most
notably, pervasive misconduct by Dr. O’Malley’s counsel. Fehrenbach v. O’Malley,
164 Ohio App.3d 80, 2005-Ohio-5554, 841 N.E.2d 350 (“Fehrenbach I”). We
remanded the case for a new trial on both the medical-malpractice claim and the
parental loss-of-consortium claim. Id. at ¶103.
{¶13} The case was again tried to a jury. The Fehrenbachs presented expert
testimony that Dr. O’Malley had deviated from the standard of care by failing to
diagnose and treat for meningitis, and that earlier treatment would have prevented
the bacteria in Tara’s blood from infecting her brain or would have attacked the
meningitis in time to prevent hydrocephalus and the other complications that Tara
had suffered.
{¶14} O’Malley presented expert testimony showing that Tara had a rare,
aggressive strain of bacteria that did not emerge as meningitis until the afternoon of
October 3, when she took a turn for the worse. O’Malley’s experts testified that Tara
did not have meningitis when she saw Dr. O’Malley on October 1 and 2, and that
given the non-specific symptoms that Tara had presented with on October 1 and 2, a
diagnosis of ear infections was reasonable.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} After the jury returned a verdict in favor of Dr. O’Malley, the
Fehrenbachs filed motions for judgment notwithstanding the verdict (“JNOV”) and
for a new trial. The trial court denied both motions. This appeal followed.
II. Conduct of Defense Counsel
{¶16} In their first assignment of error, the Fehrenbachs contend that the
trial court erred in overruling their motions for JNOV and for a new trial. They
argue that defense counsel made numerous improper remarks in front of the jury
designed to arouse passion or prejudice and that defense counsel’s misconduct again
required a new trial. This assignment of error is not well taken.
{¶17} We review a decision to grant or deny a motion for JNOV de novo. A
JNOV is proper if, upon viewing the evidence in a light most favorable to the
nonmoving party, reasonable minds could come to but one conclusion in favor of the
moving party. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d
512, 2002-Ohio-2842, 769 N.E.2d 835, ¶3-4; Blair v. McDonagh, 177 Ohio App.3d
262, 2008-Ohio-3698, ¶44. But where substantial evidence upon which reasonable
minds could reach different conclusions exists to support the nonmoving party’s side
of the case, the court must deny the motion. Osler v. Lorain (1986), 28 Ohio St.3d
345, 347, 504 N.E.2d 19; Blair, supra, at ¶44. We review a ruling on a motion for a
new trial under an abuse-of-discretion standard. Eysoldt v. Go Daddy.com, Inc., 1st
Dist. Nos. C-100528 and C-100529, 2011-Ohio-2359, ¶18; Blair, supra, at ¶44.
{¶18} A trial atmosphere tainted with passion and prejudice is grounds for
reversal. Wynn v. Gilbert, 1st Dist. No. C-060457, 2007-Ohio-2798, ¶34. Remarks
or arguments that are not supported by the evidence and are designed to arouse
passion or prejudice to the extent that there is a substantial likelihood that the jury
may be misled are improper. Roetenberger v. Christ Hosp., 163 Ohio App.3d 555,
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2005-Ohio-5205, 839 N.E.2d 441, ¶9; Furnier v. Drury, 163 Ohio App.3d 793, 2004-
Ohio-7362, 840 N.E.2d 1082, ¶10. Counsel must refrain from unwarranted attacks
on opposing counsel, the opposing party, and the witnesses. Roetenberger, supra, at
¶9; Furnier, supra, at ¶10.
{¶19} The trial court has a duty to see that counsel’s statements stay within
proper limits and to prohibit counsel from creating an atmosphere of passion and
prejudice. Roetenberger, supra, at ¶9; Furnier, supra, at ¶10. It should not permit
abusive conduct, and it has a duty to intervene sua sponte to correct the prejudicial
effect of misconduct. Pesak v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495,
2000-Ohio-483, 501, 721 N.E.2d 1011; Fehrenbach I, supra, at ¶23; Roetenberger,
supra, at ¶9. But a trial court’s duty to intervene does not apply where counsel’s
arguments are based on the evidence. Wynn, supra, at ¶34.
{¶20} In Fehrenbach I, we held that defense counsel’s comments “were
offensive and prejudicial to the plaintiffs and to the integrity of the judicial system.”
We went on to state that defense counsel’s comments “went far beyond the wide
latitude provided to counsel in opening statement and closing argument.” Id. at ¶26.
In fact, we decided a series of cases involving the same defense counsel and ordered
new trials based on that counsel’s misconduct. See, e.g, Thamann v. Bartish, 167
Ohio App.3d 620, 2006-Ohio-3346, 856 N.E.2d 301, ¶5-47; Roetenberger, supra, at
¶4-12; Furnier, supra, at ¶6-13.
{¶21} Our review of the record in this case showed that nothing that
occurred in this trial rose to the level of the misconduct that had occurred in the
previous one. On the contrary, defense counsel was restrained and took a new
approach to the trial. Instead of attacking the Fehrenbachs, their attorney and their
experts, counsel stated that “the bad guy” in this case was meningitis and that no one
else, particularly Dr. O’Malley, had done anything wrong. The incidents that the
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Fehrenbachs cite as evidence of misconduct are simply not that egregious, and the
record shows that counsel’s arguments were generally based upon the evidence. We
find no misconduct by defense counsel that was prejudicial in the context of the
overall trial.
{¶22} Further, contrary to the Fehrenbachs’ assertions otherwise, the trial
judge kept a tight rein on the trial. In overruling the Fehrenbachs’ motions for JNOV
and for a new trial on the basis of misconduct by defense counsel, the court stated
that “[t]his Court’s recollection of the conduct of defense counsel is totally
inconsistent with that set forth in the memorandum supporting plaintiff’s motion.
Defense counsel’s conduct was well within the appropriate parameters of
representing his client.”
{¶23} Where the record supports a trial court’s finding that counsel’s
conduct did not affect the outcome of the trial, an order denying a new trial is not an
abuse of discretion. Merkl v. Siebert, 1st Dist. Nos. C-080973 and C-081033, 2009-
Ohio-5473, ¶26. “[A]ppellate courts should defer to trial judges, who witnessed the
trial firsthand and relied upon more than a cold record to justify a decision.” Harris
v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, 876 N.E.2d 1201, ¶36;
Merkl, supra, at ¶36.
{¶24} We cannot hold as a matter of law that the verdict in this case was the
product of passion and prejudice due to counsel’s misconduct. Therefore, the trial
court did not err in overruling the Fehrenbachs’ motion for JNOV. Further, the
court’s decision to overrule the motion for a new trial was not so arbitrary,
unreasonable or unconscionable as to connote an abuse of discretion. See
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218, 450 N.E.2d 1140; Cincinnati
v. Harrison, 1st Dist. No. C-090702, 2010-Ohio-3430, ¶7. Therefore, the trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
did not err in overruling the Fehrenbachs’ motion for a new trial, and we overrule
their first assignment of error.
III. Alteration of Medical Records
{¶25} In their second assignment of error, the Fehrenbachs contend that the
trial court erred in granting Dr. O’Malley’s motion for a directed verdict and in
denying their motion for a directed verdict on their claims for alteration of medical
records. They argue that the evidence was undisputed that Dr. O’Malley had altered
Tara’s medical records, and that the question of whether the doctor had altered the
records to avoid liability was, at least, a question of fact for the jury. This assignment
of error is not well taken.
{¶26} The standard for granting a directed verdict is the same as for
granting JNOV. Mantua Mfg. Co. v. Commerce Exchange Bank, 75 Ohio St.3d 1, 4,
1996-Ohio-187, 661 N.E.2d 161; Lally v. Mukkada, 1st Dist. No. C-100602, 2011-
Ohio-3681, ¶5. We review the trial court’s decision de novo. Eysoldt, supra, at ¶18.
The trial court should grant the motion if, after construing the evidence most
strongly in favor of the nonmoving party, it finds that reasonable minds could come
to but one conclusion on any determinative issue and that conclusion is adverse to
the nonmoving party. Civ.R. 50(A); Mantua Mfg., supra, at 4.
{¶27} All parties agree that Dr. O’Malley added information to Tara’s
medical records regarding her temperature, the diagnosis, the medicine prescribed
and an instruction to call if Tara’s symptoms worsened. Dr. O’Malley contended that
she added the information because her partner had brought the incomplete chart to
her attention. She also gave other, inconsistent explanations at various times.
{¶28} In Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 1994-Ohio-
324, 635 N.E.2d 331, the Ohio Supreme Court stated that “[a]n intentional
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OHIO FIRST DISTRICT COURT OF APPEALS
alteration, falsification or destruction of medical records by a doctor, to avoid
liability for his or her medical negligence, is sufficient to show actual malice, and
punitive damages may be awarded whether or not the act of altering, falsifying or
destroying records directly causes compensable harm.” Id., paragraph one of the
syllabus. Thus, a plaintiff can bring a Moskovitz claim for a presumption of malice.
{¶29} In Moskovitz, the doctor had “whited-out” incriminating portions of
his original office chart, added exculpatory language, made copies of the new chart,
and destroyed the original chart. Fisher v. Von Loveren, 1st Dist. No. C-070228,
2008-Ohio-4115, ¶37. In this case, the notes that were added later to the medical
records were accurate. Thus, as the trial court found, the Fehrenbachs could not
show malice. See Fisher, supra, at ¶38; Wachtman v. Meijer, Inc., 10th Dist. No.
03AP-948, 2004-Ohio-6440, ¶26-29.
{¶30} A plaintiff can also bring an independent tort claim for spoliation of
evidence. See Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 29, 1993-Ohio-229,
615 N.E.2d 1037. On remand, the trial court allowed the Fehrenbachs to amend their
complaint to present the claim, as we had suggested in the previous appeal. See
Fehrenbach I, supra, at ¶45-46.
{¶31} But one of the elements of the claim is willful destruction of evidence
by the defendant designed to disrupt the plaintiff’s case. Smith, supra, at 29; Hope v.
Lake Cty. Bd. of Commrs., 11th Dist. No. 2008-L-173, 2009-Ohio-5895, ¶72. Ohio
courts have declined to extend spoliation claims beyond the destruction of physical
evidence. Hope, supra, at ¶72; Williams v. Continental Express Co., 3rd Dist. No. 17-
08-10, 2008-Ohio-5312; Wachtman, supra, at ¶24-25. Because the Fehrenbachs
failed to prove an essential element of the tort, the trial court did not err in granting a
directed verdict on that claim. Therefore, we overrule their second assignment of
error.
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IV. Expert Testimony/Discovery
{¶32} In their third assignment of error, the Fehrenbachs contend that the
trial court erred in allowing defense experts to give new, undisclosed opinions at
trial. They argue that their testimony went well beyond the topics that Dr. O’Malley
had originally stated in discovery and beyond their deposition testimony. This
assignment of error is not well taken.
{¶33} Civ.R. 26(E) requires each party to seasonably supplement the subject
matter of its experts’ expected testimony. But this rule does not require a party to
give notice as to every nuance of an expert’s opinion. Hofmeier v. Cincinnati Inst. of
Plastic & Reconstructive Surgery, Inc., 1st Dist. No. C-000274, 2002-Ohio-188, ¶4.
The decision whether to exclude discovery testimony as a sanction for a violation of
Civ.R. 26(E) lies within the trial court’s discretion. The key element of the analysis is
the existence of prejudice resulting from the noncompliance. Savage v. Correlated
Health Serv., Ltd., 64 Ohio St.3d 42, 47, 1992-Ohio-6, 591 N.E.2d 1216; Huffman v.
Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 84-85, 482 N.E.2d 1248; Hofmeier,
supra, at ¶5.
{¶34} The Fehrenbachs failed to object to some of the testimony about
which they now complain, and they, therefore, waived any error. See Stores Realty
Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43, 322 N.E.2d 629; Chomczynski v. Cinna
Scientific, Inc., 1st Dist. No. C-010170, 2002-Ohio-4605, ¶21. Further, this case “did
not involve a situation where a party was completely surprised by an expert’s
testimony at trial or where the subject matter of the expert’s testimony was revealed
for the first time at trial and the opposing party had no reason to anticipate it.”
Hofmeier, supra, at ¶6. The trial court held that the Fehrenbachs were not
prejudiced because they were aware of the experts’ testimony from the previous trial.
Under the circumstances, we cannot hold that the trial court’s decision was so
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OHIO FIRST DISTRICT COURT OF APPEALS
arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See
Blakemore, supra, at 218; Hofmeier, supra, at ¶8. Consequently, we overrule the
Fehrenbachs’ third assignment of error.
V. Basis of Expert Testimony
{¶35} In their fourth assignment of error, the Fehrenbachs contend that the
trial court erred in allowing the defense expert witnesses to use undisclosed medical
literature to support their opinions. Specifically, they argue that Dr. Elias Chalhub
referred to “several large studies” that supported his opinion. They argue that that
testimony was improper under the rules of evidence, and that those studies were not
disclosed in discovery as required by Civ.R. 26(E). This assignment of error is not
well taken.
{¶36} Previously, Evid.R. 706 had provided that learned treatises could only
be used on cross-examination to impeach a witness. In 2006, that rule was repealed
and Evid.R. 803(18) was enacted. The new rule allows for a learned-treatise
exception to the hearsay rule. State v. Henry, 11th Dist. No. 2007-L-142, 2009-
Ohio-1138, ¶88-89.
{¶37} Even before those amendments, courts had allowed general
references to literature in the expert’s field. The Ohio Supreme Court has stated,
“There is a difference between a witness’s referring to specific statements in
professional literature as substantive evidence and an expert witness’s referring to
the literature as being part of the basis for that expert’s opinion. While the former
reference would be inadmissible hearsay, numerous courts in Ohio have held that the
latter reference is admissible. We agree with the decisions in those cases.” Beard v.
Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶24
(emphasis in original).
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{¶38} Further, this court has stated, “References to studies by other experts
in a particular field, however, do not automatically make the expert’s testimony
tainted by a learned treatise. It is well established that experts derive much of their
expertise from reading or studying the written works of others in their field;
therefore, the mere acknowledgement of those studies does not necessarily bring into
play the learned-treatise barrier.” Suida v. Howard, 1st Dist. Nos. C-000656 and C-
000687, 2002-Ohio-2292, ¶15.
{¶39} As to the argument that O’Malley failed to disclose these studies as a
basis for her expert’s testimony, the record shows that Chalhub had referred to those
studies in his deposition. Further, the reference to the studies was tangential to the
main point of his testimony. Finally, other experts had testified regarding the same
subject matter, although they didn’t refer to the studies. The trial court has broad
discretion in the admission of evidence, including expert testimony. Terry v.
Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶16; Blair, supra, at
¶28. Under the circumstances, we cannot hold that the trial court abused its
discretion in allowing the testimony into evidence, and we overrule the Fehrenbachs'
fourth assignment of error.
VI. Jury Misconduct
{¶40} In their fifth assignment of error, the Fehrenbachs contend that the
trial court erred in denying their motion for a new trial on the basis of jury
misconduct. They argue that a juror conducted outside research and ignored the
trial court’s instructions. This assignment of error is not well taken.
{¶41} Under the aliunde rule, a jury’s verdict may not be impeached by
evidence from a member of the jury unless a foundation is laid by evidence aliunde.
Evidence aliunde is extraneous, independent evidence of alleged misconduct based
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on the firsthand knowledge of someone who is not a juror. Evid.R. 606(B); State v.
Schiebel (1990), 55 Ohio St.3d 71, 75, 564 N.E.2d 54; Bentley v. Kremchek, 1st Dist.
No. C-040721, 2005-Ohio-3038, ¶3; Wittman v. Akron, 9th Dist. No. 21375, 2003-
Ohio-5617, ¶6. Consequently, one juror’s affidavit alleging the misconduct of
another juror cannot be used to impeach a verdict. Schiebel, supra, at 75; State v.
Doan (Sept. 29, 1995), 1st Dist. No. C-940330. The purpose of the rule is to protect
the finality of verdicts and to ensure that jurors are insulated from harassment by
defeated parties. Schiebel, supra, at 75.
{¶42} The parties in this case had stipulated that Children’s Hospital’s
treatment of Tara “was appropriate” and the court had instructed the jury to accept
that stipulation. The court had also given standard instructions that the jury should
not consider outside evidence.
{¶43} The Fehrenbachs presented the affidavit of juror number one, in
which he expressed a number of concerns regarding juror number five. He stated,
“During the time we, the jury, were together in this trial, Juror #5 raised issues that
the court instructed us were not to be considered. For example, whether Children’s
Hospital was liable, whether Children’s should have tapped Tara’s head sooner,
whether certain medications should not have been given. He voiced his opinion even
after the verdict that he did not know why the parties did not go after Children’s
since in his opinion they were at fault.
{¶44} “Juror #5 also made a number of very specific statements about the
medications, particularly, ‘Dexameth[a]sone.’ He made comments that the drug was
not appropriate and referenced the * * * [Material Safety Data Sheet] as to
Dexamethasone. None of this was offered in evidence before us the jury during trial.
These comments clearly originated from some source other than the evidence
presented during trial.
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{¶45} “Based upon my observations and comments of Juror #5, I can only
reasonably conclude that he probably did research about this case outside of the
courtroom.
{¶46} “I recall that the court had specifically instructed each member of the
jury to refrain from doing any personal research outside of the courtroom during the
pendency of the trial.”
{¶47} In overruling the Fehrenbachs’ motion for a new trial, the court
indicated that the statement in the affidavit concluding that juror number five
“probably did research about this case outside the courtroom is conjecture at best.”
We agree. It went on to state the rule that “some competent evidence extraneous and
independent and from another source is an absolute requirement.” It held that the
aliunde rule applied, and said that it would not “invade the sanctity of the jury
process in this case even though it was short of perfect.”
{¶48} We agree with the trial court’s reasoning. The Fehrenbachs
presented no evidence aliunde of juror misconduct. Their argument rests entirely on
the affidavit of another juror, which cannot be used to impeach the verdict. We note
that we do not consider counsel’s arguments about what he heard from jurors
because those arguments were not evidence.
{¶49} The Fehrenbachs’ reliance on Doan v. Brigano (C.A.6, 2001), 237
F.3d 722 is misplaced. In that case, the United States Court of Appeals for the Sixth
Circuit held that the application of the aliunde rule in Evid.R. 606(B) violated the
defendant’s Sixth Amendment right to a fair trial, which includes the fundamental
rights of confrontation and cross-examination. Id. at 730-731.
{¶50} We believe that this case is a narrow one, and we do not find it to be
dispositive. First, it not binding on this court. Second, it is a criminal case in which
the court relied on separate constitutional grounds for its decision. Finally, it
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involved an out-of-court juror experiment. The juror reported her findings like an
expert witness, yet she had not been subject to cross-examination or the rules of
evidence. Id. at 733.
{¶51} In Doan, the Sixth Circuit Court of Appeals acknowledged the
important policy considerations underlying Evid.R. 606(B). Id. at 733, quoting
Tanner v. United States (1987), 483 U.S. 107, 119-121, 107 S.Ct. 2739. It also stated
in a later case that no “constitutional impediment to enforcing” the aliunde rule
exists. Hoffner v. Bradshaw (C.A.6, 2010), 622 F.3d 487, 501.
{¶52} The Fehrenbachs also imply that the trial court’s decision not to give
an instruction on “subsequent harm” somehow contributed to the misconduct.
They had requested that the court instruct the jury, “If one who has suffered personal
injuries by reason of another’s negligence exercises reasonable care in obtaining the
services of a competent physician or surgeon, and such injuries are thereafter
aggravated by the negligence, mistake or lack of skill of such physician or surgeon,
such aggravation is a proximate result of the negligence of the original tortfeasor,
and he is liable therefore.”
{¶53} But the record shows that the court and the parties discussed the
instructions as a whole and agreed to the instructions that were given to the jury,
which did not include the “subsequent harm” instruction. The Fehrenbachs did not
object to the instructions as given, and later acknowledged that they had agreed to
the instruction telling the jury about the stipulation regarding Children’s Hospital.
Consequently, the Fehrenbachs waived any objection. Civ.R. 51(A); Joiner v. Simon,
1st Dist. No. C-050718, 2007-Ohio-425, ¶62. Further, we cannot hold that the
court’s failure to give that instruction prejudiced the Fehrenbachs. As the trial court
noted, because the jury concluded that Dr. O’Malley was not negligent, the conduct
of Children’s Hospital was “immaterial.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶54} Under the circumstances, we cannot hold that the trial court abused
its discretion in overruling the Fehrenbachs’ motion for a new trial on the basis of
juror misconduct. See Bentley, supra, at ¶7. Therefore, we overrule the
Fehrenbachs’ fifth assignment of error.
VII. Motion for Costs and Expenses
{¶55} Finally, in their sixth assignment of error, the Fehrenbachs contend
that the trial court erred in overruling their motion for costs and expenses related to
the first trial. They argue that R.C. 2323.51 empowered the court to sanction defense
counsel. This assignment of error is not well taken.
{¶56} We find some appeal to this argument given defense counsel’s
misconduct in the previous trial. Nevertheless, the trial court correctly denied the
motion because it was not timely filed. The applicable version of R.C. 2323.51(B)(1)
provides that “at any time prior to the commencement of a trial in a civil action or
within twenty-one days after the entry of judgment in a civil action * * *, the court
may award court costs, reasonable attorney fees, and other reasonable expenses
incurred in connection with the civil action or appeal to any party to the civil action
or appeal who was adversely affected by frivolous conduct.”
{¶57} The Ohio Supreme Court has construed the word “judgment” as used
in the statute to mean a final appealable order. Soler v. Evans, 94 Ohio St.3d 432,
436, 2002-Ohio-1246, 763 N.E.2d 1169; Kudukis v. Mascinskas, 8th Dist. No. 85373,
2005-Ohio-2465, ¶10. Therefore, an aggrieved party may file a motion for sanctions
within 21 days of a final judgment. Soler, supra, at paragraph one of the syllabus.
{¶58} Consequently, the Fehrenbachs had 21 days after the entity of
judgment following the first trial in which to file their motion. While the legislature
sought to provide a remedy for those harmed by frivolous conduct, it manifested its
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OHIO FIRST DISTRICT COURT OF APPEALS
intent “that there be a cutoff time for this sanction to be imposed.” Id. at 436. To
give effect to the legislative intent behind the statute, the time frame within which a
motion for sanctions must be filed “cannot be perpetual.” Rogers v. Goodyear Tire
& Rubber Co., 3rd Dist. No. 14-09-26, 2010-Ohio-194, ¶13; Baker v. AK Steel Corp.,
12th Dist. No. CA2005-07-188, 2006-Ohio-3895, ¶25. Consequently, we overrule
the Fehrenbachs’ sixth assignment of error.
VIII. Summary
{¶59} In sum, we hold that the trial court did not err in overruling the
Fehrenbachs’ motions for JNOV and for a new trial. They received a fair trial, and
we find no reason to overturn the jury’s verdict. We overrule all six of the
Fehrenbachs’ assignments of error, and we affirm the trial court’s judgment.
Judgment affirmed.
H ILDEBRANDT and S UNDERMANN , JJ., concur.
Please Note:
The court has recorded its own entry this date.
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