Striff v. Luke Med. Practitioners, Inc., 2010 Ohio 6261

Plaintiff-appellant Carole Striff, administrator of the estate, sues multiple physicians and clinics for wrongful death alleging medical malpractice in treating Jeffrey Striff from 2003 to 2006.
Decedent died of a massive heart attack in February 2007; autopsy showed coronary artery disease; plaintiff claims failure to diagnose/follow up on cardiac risk given family history.
Defendants contend care followed standard of care; decedent was noncompliant with follow-up testing and lifestyle recommendations.
Partial discovery, expert depositions, and motions in limine occurred; Dr. Martin’s summary judgment was granted October 28, 2009; five-day jury trial held Nov 17–23, 2009.
Jury returned unanimous verdicts for all defendants, finding decedent 100% contributorily negligent; judgment entered November 30, 2009; motion for new trial denied.
Appellant appeals on eleven assignments of error, many overlapping, with various evidentiary, instructional, and procedural challenges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Finality of summary judgment on liability for Dr. Martin	Martin summary judgment not final appealable claim.	Civ.R. 54(B) plus RC 2505.02 satisfied; res judicata bars further litigation due to no genuine issue of material fact.	Final and appealable; res judicata bars further challenge; assignment overruled.
Peremptory challenges allocation	Defendants treated as a single side; Appellant denied intelligent use of challenges.	Each defendant is a separate party with three challenges; three-drug grouping appropriate.	No reversible error; assignment overruled; no prejudice shown.
Discharge of ill juror and mistrial	Replacement of Juror #1 prejudiced Appellant.	Alternate replacement within discretion; no abuse of discretion.	No abuse; assignment overruled.
Admission/exclusion of evidence (lipid twin, Harris opinions, collateral source)	Twin lipid data and undisclosed Harris opinions were improperly admitted/excluded; collateral source issues.	Trial court properly weighed relevance, prejudice, and disclosure rules; cross-examination permitted to assess bias.	No reversible error; assignments overruled.
Contributory/comparative negligence instructions	Issue of patient contributory fault should not be submitted in this case.	Ohio law supports submission of contributory fault with percentage allocation when appropriate.	Instructions and interrogatories properly given; assignment overruled.

Whitaker-Merrell Co. v. Geupel Co., Whitaker-Merrell Co. v. Geupel Co., 29 Ohio St.2d 184 (1972) (54(B) finality interplay with finality requirements)
LeFort v. Century 21-Maitland Realty Co., LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 512 N.E.2d 640 (1987) (separate defendants entitled to peremptory challenges)
Bernal v. Lindholm, Bernal v. Lindholm, 133 Ohio App.3d 163, 727 N.E.2d 145 (1999) (criteria for multiple parties separate defenses; peremptory challenges)
Gable v. Gates Mills, Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719 (2004) (relevance and balancing under Evid.R. 403; admissibility)
Pryor v. Webber, Pryor v. Webber, 23 Ohio St.2d 104, 213 N.E.2d 235 (1970) (collateral source rule context)
Viox v. Weinberg, Viox v. Weinberg, 169 Ohio App.3d 79, 2006-Ohio-5075 (2006) (contributory fault in medical malpractice cases; apportionment)
Hicks v. Westinghouse Materials Co., Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95, 1997-Ohio-227 (1997) (three peremptory challenges; side concept)
Pang v. Minch, Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990) (discretion in arguments of counsel; trial court deference)
State v. Greer, State v. Greer, 39 Ohio St.3d 236, 530 N.E.2d 382 (1988) (peremptory challenges; substantive right but procedural limit)
Beard v. Meridia Huron Hosp., Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787 (2005) (abuse of discretion standard for evidentiary rulings)