Fehrenbach v. O'Malley, 2011 Ohio 5481

Tara Fehrenbach, then 14 months old, presented with fever and ear infections treated by Dr. O’Malley at Suburban Pediatric Associates in Oct. 1990.
Tara developed bacterial meningitis with a virulent, antibiotic-resistant strain and required extended hospitalization and multiple brain surgeries.
She survived but suffered hydrocephalus and lifelong shunt-dependent complications; she would require ongoing medical monitoring and potential brain surgery within four hours if shunt fails.
Seven years after the illness, Tara's parents sued Dr. O’Malley and Suburban Pediatrics for medical malpractice and a loss-of-consortium claim.
A jury initially returned a verdict for O’Malley; the trial court denied JNOV and a new trial, and the Fehrenbachs appealed.
This court previously reversed for pervasive misconduct by defense counsel and remanded for a new trial; after retrial, the jury again found for O’Malley, leading to the present affirmance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the court err in denying JNOV/new trial for defense-counsel misconduct?	Fehrenbach argues misconduct tainted the trial and required reversal.	O’Malley contends conduct was restrained and not prejudicial; no abuse of discretion.	No reversible error; no prejudicial misconduct found.
Was there error in granting directed verdict on alteration of medical records?	Fehrenbach asserts malice in altering Tara’s records; jury should decide.	O’Malley claims notes added were accurate and no malice shown.	Directed verdict upheld; no evidence of willful, malicious spoliation.
Did trial court err by allowing new undisclosed expert opinions at trial?	Fehrenbach claims undisclosed opinions prejudiced them.	O’Malley asserts Civ.R. 26(E) supplementation and no prejudice; discretion to admit.	No abuse of discretion; no prejudice shown.
Did use of undisclosed medical literature by experts exceed permissible scope?	Fehrenbach argues improper reliance on undisclosed studies.	O’Malley contends literature is admissible as basis for opinion.	No abuse of discretion; references to studies permissible.
Was there juror misconduct proven under the aliunde rule to justify a new trial?	Fehrenbach asserts juror conducted outside research influencing verdict.	O’Malley argues no admissible aliunde evidence; juror affidavits insufficient.	No reversible error; aliunde evidence insufficient to impeach verdict.

Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512 (2002) (governs standard for JNOV and deference to trial court rulings)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard in trial rulings)
Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139 (2007) (abuse of discretion and appellate deference to trial judge)
Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237 (2005) (summary of admissibility of literature to support expert opinions)
Terry v. Caputo, 115 Ohio St.3d 351 (2007) (trial court broad discretion in evidentiary rulings regarding expert testimony)
Soler v. Evans, 94 Ohio St.3d 432 (2002) (statutory interpretation of final judgment for sanctions timing (R.C. 2323.51))
Merkl v. Siebert, 2009-Ohio-5473 (2009) (appellate standard for abuse of discretion in trial rulings)