2019 Ohio 4072
Ohio Ct. App.2019Background
- Kimberly Herceg (administratrix) sued Dr. Barry Lifson for medical malpractice (wrong antibiotic) alleging it caused Elizabeth Herceg to become septic and die; claims included wrongful death (R.C. 2125.02) and survival damages.
- Jury found Lifson negligent and that negligence proximately caused the decedent’s death.
- Jury awarded $56,434.27: $38,245.06 medical expenses; $3,189.21 funeral; $15,000 loss of services; $0 loss of society; $0 beneficiaries’ mental anguish; $0 decedent pain and suffering.
- Appellant moved for a new trial on damages (challenging the zero awards), asked the court to clarify the wrongful-death instruction (to confirm plaintiff and her sister were next of kin), and sought permission to suggest a verdict amount to the jury.
- Trial court denied those requests; the court of appeals affirmed, finding no abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying new trial for $0 awards (decedent pain; beneficiaries’ loss of society/mental anguish) | Zero awards inconsistent with undisputed evidence (pain, family distress) and with award of medical expenses; therefore new trial required | Jury could credit evidence that pain/suffering came from comorbidities or surgery, and the beneficiaries’ damages were suitably compensated by the services award | Affirmed — no abuse of discretion: conflicting causation evidence and jury credibility determinations support $0 awards |
| Whether court erred by refusing to clarify wrongful-death instruction (define next of kin / confirm plaintiffs’ status) | Jury may have misunderstood who qualifies as next of kin; clarification needed because $0 awards suggest confusion | Instruction tracked R.C. 2125.02 and Ohio Jury Instructions; defining next of kin was unnecessary and within court’s discretion | Affirmed — no abuse of discretion; instruction was proper and jury’s verdict reflects its evaluation of evidence |
| Whether trial court erred by denying plaintiff leave to suggest a monetary amount for non‑economic damages in closing | Grossnickle and related authority permit counsel to illustrate non‑economic damages with a daily/ratio suggestion; plaintiff sought court permission to do so | Trial court has broad discretion to allow or refuse such argument; permitting it is not a right | Affirmed — trial court discretion not abused in denying permission to suggest a dollar figure |
Key Cases Cited
- Perry v. Eagle-Picher Indus., Inc., 52 Ohio St.3d 168 (Ohio 1990) (survival action permits recovery for decedent’s pre-death pain, suffering, and expenses)
- Eastley v. Volkman, 132 Ohio St.3d 328 (Ohio 2012) (standard for manifest-weight review and deference to factfinder credibility determinations)
- Schiebel v. [State], 55 Ohio St.3d 71 (Ohio 1990) (trial-court discretion on new-trial motions reviewed for abuse of discretion)
- Ramage v. Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97 (Ohio 1992) (surviving spouse, children, and parents are rebuttably presumed to have suffered wrongful-death damages)
- Grossnickle v. Germantown, 3 Ohio St.2d 96 (Ohio 1965) (counsel may suggest a daily amount × duration to illustrate pain-and-suffering if court instructs jury that suggestion is not evidence)
- Bailey v. Allberry, 88 Ohio App.3d 432 (Ohio Ct. App.) (standards for setting aside verdict as inadequate or against manifest weight)
- Musokovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (Ohio 1994) (assessment of damages lies primarily with the trier of fact)
- Drehmer v. Fylak, 163 Ohio App.3d 248 (Ohio Ct. App.) (medical-expense award without pain-and-suffering award is not per se contrary to law)