VICTORIA DANIELS, ET AL. v. NORTHCOAST ANESTHESIA PROVIDERS, INC., ET AL.
No. 105125
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 6, 2018
2018-Ohio-3562
JOURNAL ENTRY AND OPINION
EN BANC
PLAINTIFFS-APPELLEES
vs.
DEFENDANTS-APPELLANTS
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-11-764060
BEFORE: En Banc Court
RELEASED AND JOURNALIZED: September 6, 2018
ATTORNEYS FOR APPELLANTS
William A. Meadows
Reminger Co., L.P.A.
1400 Midland Building
101 West Prospect Avenue
Cleveland, OH 44115
David H. Krause
Reminger Co., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, OH 43215
Douglas G. Leak
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway, Suite 100
Akron, OH 44333
ATTORNEYS FOR APPELLEES
Christopher M. Mellino
Meghan C. Lewallen
Mellino Law Firm, L.L.C.
19704 Center Ridge Road
Rocky River, OH 44116
Paul W. Flowers
Louis E. Grube
Paul W. Flowers Co., L.P.A.
Terminal Tower, Suite 1910
50 Public Square
Cleveland, OH 44113
{¶1} Pursuant to
Do alleged errors in a civil appeal need to be individually examined for whether sufficient prejudice justifies a reversal, or can the appellate court simply invoke the “cumulative error doctrine” at some point after more than one mistaken ruling has been identified?
THE EN BANC DECISION:
{¶2} An extended discussion of the issue certified for en banc review is unnecessary in this case. Richlin rejected the claim that the cumulative effect of a number of minor errors at trial prejudiced a party:
An error committed by the court in its charge to the jury is either prejudicial or it is not. There is no legal way to add up the separate effects of such claims so that taken together they may be considered as affecting prejudicially the rights of a contending party. Each claim of error must be considered as standing or falling on its own facts unassociated with others on different subjects.
{¶3} The rationale stated in Richlin — that there is no legal way to “add up the separate effects” of various trial errors — predated the Ohio Supreme Court‘s application of the cumulative error doctrine and can no longer be considered valid. “Under the doctrine of cumulative error, ‘a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial-court error does not individually constitute cause for reversal.‘” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 321, quoting State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223.2
{¶4} While the Ohio Supreme Court has only applied the cumulative error doctrine in the criminal context, this court has applied the cumulative error doctrine in an unbroken, 30-year line of civil appeals. See, e.g., O‘Malley v. O‘Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-5238, ¶ 95; Edge v. Fairview Hosp., 8th Dist. Cuyahoga No. 95215, 2011-Ohio-2148, ¶ 46; Dawson v. Cleveland Metro. Gen. Hosp., 8th Dist. Cuyahoga Nos. 51052 and 51779, 1986 Ohio App. LEXIS 9169 (Nov. 20, 1986). Other Ohio appellate districts also apply the cumulative error doctrine to civil cases. See, e.g., Bigler v. Personal Serv. Ins. Co., 7th Dist. Belmont No. 12 BE 10, 2014-Ohio-1467, ¶ 175-176; Katz v. Enzer, 29 Ohio App.3d 118, 124, 504 N.E.2d 427 (1st Dist.1985).
{¶5} We are aware that some appellate districts do not apply the cumulative error doctrine to civil cases. See, e.g., Wolf v. Rothstein, 2016-Ohio-5441, 61 N.E.3d 1, ¶ 96 (2d Dist.); J.P. v. T.H., 9th Dist. Lorain No. 14CA010715, 2016-Ohio-243, ¶ 35; Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No. 12AP-999, 2013-Ohio-5140, ¶ 124; Lambert v. Wilkinson, 11th Dist. Ashtabula No. 2007-A-0032, 2008-Ohio-2915, ¶ 110. These appellate districts are not, however, emphatic in rejecting the cumulative error doctrine in the civil context because they note that the doctrine is not “typically” or “generally” applicable. See, e.g., Stanley, supra, at ¶ 124 (“the cumulative error doctrine is not typically employed in civil cases“); Lambert, supra (“the cumulative error doctrine is generally not applicable in civil cases.“). In addition, two other appellate districts have not explicitly endorsed the application of the cumulative error doctrine in civil cases, but have rejected assignments of error on the assumption that it applied without actually deciding so. See, e.g., State, Dept. of Natural Resources v. Mark L. Knapke Revocable Living Trust, 2015-Ohio-470, 28 N.E.3d 667, ¶ 57 (3d Dist.) (assuming without finding that cumulative error applies in civil cases); McQueen v. Goldey, 20 Ohio App.3d 41, 50, 484 N.E.2d 712 (12th Dist.1984) (“Without addressing the relative merits of the cumulative error concept, we conclude that even if we were to accept and apply the concept to a civil case, the accumulation of harmless errors in the case at bar did not constitute prejudicial error.“).
{¶6} The difference of opinion among appellate districts gives us no reason to depart from more recent precedent in this appellate district. We have not cited Richlin as support for rejecting the application of the cumulative error doctrine in civil cases for over 50 years. See Nicholas v. Yellow Cab Co., 116 Ohio App. 402, 412, 180 N.E.2d 279 (8th Dist.1962) (“Any error shown upon the record must stand or fall on its own merits and is not aided by the accumulative effect of other claims of error. The court has recently passed on this question in the case of Richlin v. Gooding Amusement Co., Inc., 113 Ohio App. 99.“). We hold that the cumulative error doctrine can be applied to civil appeals. Richlin and Nicholas are overruled to the extent that they are inconsistent with this opinion.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, MARY J. BOYLE, FRANK D. CELEBREZZE, JR., EILEEN A. GALLAGHER, A.J., EILEEN T. GALLAGHER, SEAN C. GALLAGHER, LARRY A. JONES, SR., KATHLEEN ANN KEOUGH, MARY EILEEN KILBANE, and ANITA LASTER MAYS, JJ., CONCUR
TIM McCORMACK, J., RECUSED
THE DECISION OF THE MERIT PANEL:
MELODY J. STEWART, J.:
{¶7} As plaintiff-appellee Victoria Daniels was about to have surgery, the defendant-appellant-anesthesiologists Zoard Vasarhelyi, M.D. and Rostyslav Koziy, M.D., approved the placement of a transdermal patch on her to prevent postoperative nausea. Daniels appeared to have an allergic reaction to the patch and went into anaphylactic shock. She stopped breathing and experienced low blood oxygen for close to 30 minutes, causing her to suffer brain damage. Alleging that the active ingredient in the transdermal patch was part of the same family of drugs to which she had previously disclosed a serious allergic reaction,
{¶8} The ten assignments of error on appeal contest various pretrial and trial rulings by the court, as well as an award of prejudgment interest. We conclude that the court abused its discretion by admitting Daniels‘s summary of the medical records evidence to go to the jury; that the court abused its discretion by not giving the “bad results” instruction to the jury; and that the court abused its discretion by allowing Daniels‘s demonstrative boards to be considered by the jury. We further find that the cumulative effect of these errors deprived Vasarhelyi and Koziy of a fair trial. The assignments of error relating to the limitation on closing argument and prejudgment interest are moot.
I. Hearsay
{¶9} The first assignment of error is that the court abused its discretion by admitting into evidence, and sending to the jury for its deliberations, a learned treatise in violation of
{¶10} The basis of Daniels‘s claims against Vasarhelyi and Koziy was that prior to surgery, she disclosed an allergy to an asthma medication called Atrovent. She maintained that the antinausea patch placed on her prior to surgery contained a drug called Scopolamine and that Scopolamine and Atrovent belong to the same family of drugs known as “belladonna alkaloids.” She maintained that the allergic reaction to Scopolamine could have been prevented had Vasarhelyi and Koziy cross-checked the drug using, among other resources, an online service called Lexi-Comp that provides drug information such as dosing, warnings, and precautions.
{¶11} Daniels‘s expert testified at trial that there were a variety of resources that doctors and nurses could consult about drugs, including Lexi-Comp. The expert identified plaintiff‘s exhibit No. 26 as a printout from Lexi-Comp titled “Belladonna Alkaloid Allergy.” The printout contained a list of “associated drugs” including Scopolamine. According to Daniels‘s expert, the printout showed that Scopolomine “could potentially crossreact in that category.” The expert said that the Lexi-Comp entry “instructs to avoid scopolamine, which was in the patch; it talks about Atrovent * * * .” The expert then identified a second printout from Lexi-Comp, plaintiff‘s exhibit No. 26B, titled, “Reported Allergy: Patient Management Considerations.” The expert testified that the printout stated: “In general, when a previous severe reaction has occurred, repeated exposure to the initial agent and related compounds should be avoided. * * * Per the manufacturer‘s labeling, use is normally contraindicated in patients with prior allergic reactions.”
{¶12} “Hearsay” is defined as “a statement, other than one made by the declarant
{¶13} Daniels stated at trial that she laid a foundation for exhibit No. 26B as a learned treatise and told the court that the exhibit should not be allowed into evidence.
Despite Daniels agreeing that exhibit No. 26B should be withdrawn, the court inexplicably submitted it to the jury. This was an error. With Daniels having conceded that the document was a learned treatise, the court violated
{¶14} Daniels sought the admission of exhibit No. 26 by arguing that it was admissible as a resource available to physicians, presumably under
{¶15} Lexi-Comp appears to be similar to the Physician‘s Desk Reference (“PDR“)4 in that it can be consulted to ascertain potential drug cross-reactivity. Several courts have refused to admit the PDR and similar materials into evidence under rules similar to
recommendations“); Kahanek v. Rogers, 12 S.W.3d 501, 504 (Tex. App. 1999) (PDR inadmissible under market reports exception because the publication “goes beyond objective information to items on which learned professionals could disagree in good faith“); In re Richardson-Merrell, Inc. Bendectin Prods. Liab. Litigation, 624 F.Supp. 1212, 1232 (S.D. Ohio 1985) (PDR did not fall within the commercial publications exception of
{¶16} Despite these courts refusing to allow materials like the PDR into evidence under their equivalent of
{¶17} Daniels‘s expert testified without contradiction that physicians rely on materials like Lexi-Comp and the PDR. Exhibit No. 26 listed Scopolamine as an “associated” drug under the heading “belladonna alkaloid allergy.” That factual assertion has not been challenged as false or misleading. In fact, it may have been largely cumulative given the number of witnesses who agreed that Scopolamine was contraindicated for patients who were hypersensitive to Atrovent or other belladonna alkaloids. While the court may not have expressly indicated that it was allowing exhibit No. 26 into evidence under
II. Closing Argument
{¶18} The second assignment of error complains that the court erred by prohibiting Vasarhelyi and Koziy‘s counsel from referencing in closing argument a July 2004 emergency room treatment that predated the events leading to this case. This assigned error is rendered moot based on our decision to reverse and remand the case. See
III. FDA Adverse Event Reporting System
{¶19} Vasarhelyi and Koziy filed a motion in limine to bar Daniels from using at trial a Food and Drug Administration (“FDA“) adverse event report, identified at trial as plaintiff‘s exhibit No. 12. They maintained that the FDA report, which reported 471 cases of adverse events caused by Scopolamine use, did not include Daniels‘s case as an “event” and was not probative on the issue of whether they breached the standard of care. The court denied the motion in limine subject to revision at trial. The court allowed questioning on the adverse event report over objection by Vasarhelyi and Koziy, but it did not allow the report to be admitted into evidence.
{¶20} “Courts have broad discretion in ruling on the admissibility of evidence, and the granting of a motion in limine rests within the sound discretion of the trial court.” Bennett v. Admr., Ohio Bur. of Workers’ Comp., 134 Ohio St.3d 329, 2012-Ohio-5639, 982 N.E.2d 666, ¶ 52. In this context, admissibility is predicated on relevancy; that is, does the evidence have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{¶21} “Federal regulations require drug manufacturers to report ‘[a]ny adverse event associated with the use of a
{¶22} The fact that an adverse event report specifically does not establish a causal relationship between a drug and an event does not mean that the report had no probative value. “A lack of statistically significant data does not mean that medical experts have no reliable basis for inferring a causal link between a drug and adverse events.” Id. at 40. An adverse event might be considered significant depending on a variety of factors like the “strength of the association,” the “temporal relationship of product use and the event,” and the “seriousness of the event relative to the disease being treated.” Id. at 41.
{¶23} We agree that the court did not abuse its discretion by denying the motion in limine. It was conceivable, in the pretrial motion stage, that Daniels could establish a basis for admission of the adverse event report at trial. As it happened, she did not — none of the factors that might have shown causation or significance were mentioned at trial. Daniels‘s expert testified that the FDA monitors the use of drugs to ensure that adverse drug reactions are reported. The expert said that the FDA collects the data to both inform drug manufacturers that the drug might pose a danger and “to communicate to the healthcare providers not to administer that drug if they see a pattern of potentially danger [sic] with a drug.” Daniels then asked the expert to identify the adverse event report, which the expert described as “the first page of the FDA website for adverse event reporting.” With respect to Scopolamine, the expert identified a section of the adverse effect report, “which you can see is about an inch thick,” listing adverse events from the drug.
{¶24} This testimony did not take into account how many of the 471 reported instances actually involved a direct reaction to Scopolamine as opposed to some other cause. This tenuous connection created the possibility that the jury would give undue weight to the adverse event report, particularly when the report contained just one relevant instance of anaphylactic shock associated with the usage of Scopolamine. The report was properly excluded from evidence because its prejudicial effect substantially outweighed its probative value. That the report was later excluded from the evidence does not mean that the court erred by denying the motion in limine and allowing testimony on the report subject to exclusion.
IV. Summary of Medical Records
{¶25} Daniels offered the report of a nurse who summarized Daniels‘s medical records. Vasarhelyi and Koziy filed a motion in limine to exclude the nurse from testifying on grounds that the summary of medical records went beyond what was allowed under
{¶26} “The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.”
{¶27}
{¶28} Some Ohio cases state the proposition that “for a summary to be admissible, the documents on which it was based must be admitted or offered into evidence or their absence explained.” Eysoldt v. Imaging, 194 Ohio App.3d 630, 2011-Ohio-2359, 957 N.E.2d 780, ¶ 34 (1st Dist.); Hornsby v. Gosser, 12th Dist. Warren No. CA2013-12-134, 2015-Ohio-162, ¶ 14.
{¶29} These cases appear to confuse admissibility under
{¶30} To be sure, a summary of voluminous evidence is not automatically admissible — the evidence on which the summary is based must itself meet all criteria for admissibility. United States v. Johnson, 594 F.2d 1253, 1256 (9th Cir.1979) (“Commentators and other courts have agreed that Rule 1006 requires that the proponent of the summary establish that the underlying documents are admissible in evidence.“); United States v. Scales, 594 F.2d 558, 562 (6th Cir.1979) (“If the records themselves could have been admitted to show what their contents did not include, there appears to be no reason why Rule 1006 would not apply to a summary of their contents.“). There is no question that the medical records on which the summary in this case was based were admissible as medical records under the
{¶31} We find the federal authority persuasive — there is no requirement
{¶32} The court in this case abused its discretion, however, by admitting into evidence a summary of medical records that contained the opinions of the person summarizing the evidence.
{¶33} To be admissible under
{¶34} The summary offered by Daniels was not an accurate representation of her medical records. In fact, the summary was more in the nature of an annotation than a summary. The nurse provided explanations for medical terms, procedures and devices, and she included numerous “exhibits” not contained in the medical records that depicted body parts, medical equipment, and illustrations of medical procedures. These annotations went beyond what the documents themselves contained and were thus impermissible embellishment.
{¶35} At various points the nurse offered her own “notes” to highlight the content of certain records. For example, she made the following notation regarding a nursing note: “(NOTE: this note was timed as 0800 [8:00 AM] although it was part of the note written at 1300 [1:00 PM].)” By doing so, the nurse went beyond what the record stated. In another example, the nurse commented on the amount of Fentanyl administered to Daniels before her surgery:
At 7:35 AM, Ms. Daniels received Ancef 1 gm IV (antibiotic), Versed 2 mg, and Fentanyl 100 mg. (Fentanyl is a very potent narcotic analgesic. A dose of 100 mcg [or 0.1 mg] of Fentanyl is the equivalent of about 10 mg of Morphine. 100 mg would be an enormous dose of Fentanyl.)
{¶36} The nurse injected her own opinions into the summary. When summarizing a record that showed Daniels‘s oxygen saturation level as “hovering in the 40s,” the nurse included a parenthetical stating that “[n]ormal oxygen saturation is usually 95% or above; 40% is extremely low.” When summarizing a postoperative record showing the amount of urine drained from Daniels, the nurse parenthetically stated that “This is a massive amount of urine.” When summarizing a postoperative record of Daniels‘s weight, the nurse stated, “(Ms. Daniels weighed 163 pounds on the day of her laparoscopy. This would mean that in two days, Ms. Daniels gained 88 pounds!)”
{¶37} In going beyond summarizing the medical records themselves, the nurse offered additional information that was prejudicial to Vasarhelyi and Koziy. The nurse italicized nearly every portion of the summary in which the records showed that Daniels disclosed an allergy to Atrovent
{¶38} None of this was admissible under
{¶39} Daniels implicitly concedes prejudice by stating that she offered the nurse as a witness on pain and suffering, presumably meaning that the commentary in the summary was designed to portray the medical records in a light most favorable to that end. But by doing so, the nurse went well beyond what is acceptable for a summary of voluminous evidence under
{¶40} Daniels maintains that any error in admitting the summary was harmless because the court also sent the actual medical records for comparison purposes. Because the summary was allowed as substantive evidence in lieu of the actual medical records, the jury in all likelihood considered the summary to the exclusion of the actual medical records. Would there be any doubt that if the court admitted both the novel War and Peace and the Cliff Notes version of that novel into evidence, the jury would read the Cliff Notes? Daniels even conceded in arguing for the admission of the summary that the medical records consisted of “thousands of pages of medical records” and that “[t]o ask a juror to examine and fully understand a set of such complicated medical records is virtually an impossible task[.]” We have no confidence that the jury, with a 30-page summary of the medical records and the actual medical records numbering in the “thousands,” actually compared the summary against the medical records. The court‘s error in admitting the summary of the medical records was prejudicial.
V. Jury Instructions
{¶41} The court, over objection, gave the jury an “eggshell skull” instruction, telling the jury that “if you find that Victoria Daniels had a predisposition that made her more susceptible to injury” the defendants were nevertheless liable for her actual injuries and damages. Vasarhelyi and Koziy argue that the court gave this instruction in error because neither party suggested that Daniels suffered any greater injury due to her frailty or that a person of greater strength would have been injured less under the circumstances.
{¶42} The “eggshell skull” or “thin skull” doctrine evolved in the context of preexisting injuries to provide that if a
{¶43} A tortfeasor is fully liable for any damages resulting from its wrongful act even if the victim had a preexisting condition that made the consequences of the wrongful act more severe for him than they would have been for a person without the condition. Meyers v. Wal-Mart Stores, E., Inc., 257 F.3d 625, 632 (6th Cir. 2001); Figueroa-Torres v. Toledo-Davila, 232 F.3d 270, 275-276 (1st Cir. 2000); Jordan v. Atchison, Topeka & Santa Fe Ry. Co., 934 F.2d 225, 228-229 (9th Cir. 1991). While it is a truism that the tortfeasor “takes his victim as he finds him,” Binns v. Fredendall, 32 Ohio St.3d 244, 246, 513 N.E.2d 278 (1987), the eggshell skull rule states only that the tortfeasor may not escape or reduce liability because the victim‘s preexisting condition made the victim more susceptible of injury from the tortfeasor‘s conduct.
{¶44} Our review of the record satisfies us that there was sufficient evidence to support the court‘s decision to give the eggshell skull instruction. Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 22. Daniels offered the testimony of a medical doctor specializing in physical medicine and rehabilitation who testified that Daniels suffered from migraine headaches before suffering hypoxia (oxygen deficiency) as a result of going into anaphylactic shock. The expert testified that those migraines “are much more common since she had the brain injury.” The physician also testified that Daniels suffered from depression prior to going into anaphylactic shock and that “if you already have problems with depression and anxiety, having hypoxic brain injury makes it that much worse.”
{¶45} Vasarhelyi and Koziy next argue that the court erred by refusing to give a “bad result” jury instruction. That instruction states that “‘[t]he fact that a doctor‘s treatment did not bring about a cure does not by itself prove that the doctor was negligent.‘” Hinkle v. Cleveland Clinic Found., 159 Ohio App.3d 351, 2004-Ohio-6853, 823 N.E.2d 945, ¶ 86 (8th Dist.), quoting Ohio Jury Instructions 331.01(6).
{¶46} The “bad result” or “no guarantee” instruction recognizes that unsatisfactory results from treatment or care alone do not determine whether the defendant was negligent in treating the plaintiff. In other words, a bad outcome alone does not determine whether the applicable standard of care has been met. The instruction thus recognizes a fundamental precept of tort law that the mere occurrence of an injury or accident, in and of itself, does not mean that the injury was the result of negligence. Laughlin v. Cleveland, 168 Ohio St. 576, 577, 156 N.E.2d 827 (1959), paragraph two of the syllabus.
{¶47} Daniels argues that a “bad results” instruction was unwarranted because she did not plead a cause of action against Vasarhelyi and Koziy for breach of personal satisfaction of contract, breach of express warranty, or lack of informed consent. This argument misapprehends the nature of the “bad results” jury instruction. The issue at trial was whether Vasarhelyi and Koziy breached the applicable standard of care. The instruction would have made it clear that the mere fact that there was a bad result in Daniels‘s treatment
{¶48} Jury instructions “must be given when they are correct, pertinent, and timely presented.” State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995), citing Cincinnati v. Epperson, 20 Ohio St.2d 59, 253 N.E.2d 785 (1969), paragraph one of the syllabus. Because medical malpractice cannot be based solely on the fact that the plaintiff suffered an adverse result, there was no reason for the court to refuse the requested instruction. The court erred by doing so.
VI. News Video
{¶49} Less than one month after the anaphylactic reaction, one of the nondefendant doctors who participated in reviving Daniels was interviewed in a local television newscast. That video apparently showed Daniels, and Vasarhelyi and Koziy wished to introduce a clip of the video, without accompanying audio, to counter Daniels‘s use of photographs to depict the condition of her body in the weeks following her going into shock. Daniels filed a motion in limine to exclude the video on grounds that Vasarhelyi and Koziy did not timely produce the video in discovery, that the video was hearsay, and that it was unduly prejudicial because it made a nonparty doctor to the case look like “a hero.” The court found the motion in limine moot,6 excluded the video, and it was proffered into evidence.
{¶50} Daniels argues that Vasarhelyi and Koziy did not properly authenticate or verify the trustworthiness of the video. If the court excluded the proffered video for want of authentication, this writer is of the opinion that the court erred by doing so. Authentication is merely a means of proving that something is what its proponent claims it to be. See
{¶51} To support her motion in limine, Daniels cited State v. Mays, 108 Ohio App.3d 598, 671 N.E.2d 553, 568 (8th Dist.1995), for the proposition that newscasts are unreliable hearsay and should be excluded from evidence. Mays is not on point. Mays, a medical doctor, was found guilty of fraudulently billing county welfare agencies for oral surgeries he did not perform. Mays wanted to introduce into evidence excerpts from a series of television news stories relating to welfare fraud that aired three years after his crimes
{¶52} In this case, the newscast would be played with no audio, so it would not have contained any statements offered for the truth of the matter asserted. The newscast was being offered as demonstrative evidence for the very limited purpose of rebutting photographs that Daniels planned to introduce for the purpose of showing her condition in the weeks following anaphylaxis. There was nothing confusing about the video or its purpose.
{¶53} Daniels also maintained that Vasarhelyi and Koziy waited too long to inform her that they intended to use the newscast — offering it only five days before trial and six days after the court‘s deadline for motions in limine. The trial court may have properly excluded the video for this reason, however, we need not address this aspect of the issue based on the decision to reverse the case. There is no majority decision reached on the resolution of this assignment of error.
VII. Life Care Plan
{¶54} Daniels offered the testimony of a nurse who prepared a life care plan as part of Daniels‘s claim for future monetary damages. Although the nurse reduced her calculation of future damages to its present value, Vasarhelyi and Koziy maintain that Daniels had to provide expert testimony to reduce the monetary damage to present day value. They maintain that the nurse had not been identified as an expert as required by Loc.R. 21.1, so the reduction could not have been made to a requisite degree of certainty and would be the product of speculation.
{¶55} “In Ohio, a plaintiff is entitled to an award of damages to compensate him for losses which he is reasonably certain to incur in the future.” Galayda v. Lake Hosp. Sys., 71 Ohio St.3d 421, 425, 644 N.E.2d 298 (1994). Those future damages are often set forth in what is called a “life care plan.” The typical life care plan details the life-time costs of all future medical care resulting from the tortfeasor‘s acts that is reasonably certain to occur in the future. But as with all future damages, the cost of a life care plan must be reduced to present value of those actual damages. Id.
{¶56} “Expert testimony is not required to entitle a plaintiff to recover future earnings.” Sahrbacker v. Lucerne Prods., Inc., 52 Ohio St.3d 179, 179, 556 N.E.2d 497 (1990).
{¶57} Vasarhelyi and Koziy acknowledge Sahrbacker, but claim that it is distinguishable from this case and does not prevent us from finding that expert testimony is required to reduce to present value any future award. They maintain that Sahrbacker addressed a contract claim that, unlike the medical malpractice claim in this case, did not require the jury to establish damages to a reasonable degree of medical certainty. Their attempt to distinguish Sahrbacker fails — courts have long-held that “[i]n order for a plaintiff to recover lost profits in a breach of contract action, the amount of the lost profits, as well as their existence, must be demonstrated with reasonable certainty.” Gahanna v. Eastgate Properties, Inc., 36 Ohio St.3d 65, 66, 521 N.E.2d 814 (1988). See also Gateway Consultants Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 8 (damages in a breach of contract action must be shown
{¶58} Vasarhelyi and Koziy also argue that the court abused its discretion by refusing to bar Daniels from offering the nurse as an expert because Daniels did not timely identify the nurse as an expert witness under Loc.R. 21.1. We need not address this issue in light of our disposition of the case.
{¶59} Finally, Vasarhelyi and Koziy maintain that the court erred by allowing the jury to view a copy of the life care plan during its deliberations. They maintain that the life care plan was prejudicially cumulative and repetitive to the nurse‘s testimony. We reject this assertion because the life care plan consisted of charts that were admitted into evidence after the nurse discussed the life care plan during her testimony. Vasarhelyi and Koziy did not offer their own cost estimate of a life care plan for Daniels, nor did they cross-examine the nurse on the substance of her calculations. We thus have no basis for finding that the jury was unfairly influenced by the court‘s decision to admit the life care plan into evidence and allow it to go the jury room during deliberations.
VIII. Demonstrative Boards
{¶60} One of Daniels‘s experts testified with the aid of a demonstrative chart titled “Harms and Losses.” The chart described 30 different “limitations” caused by the alleged malpractice, such as “migraines, headaches, accompanied by loss of vision.” Next to the particular limitation was a checkmark indicating whether the particular limitation was “Frequent” or “Always.” Over objection, the court admitted the chart into evidence and allowed it to go the jury. Vasarhelyi and Koziy complain that by allowing the chart to go to the jury, the court influenced the jury by allowing it to place more emphasis on what was repetitive to the expert‘s trial testimony.
{¶61} There is a distinction between summaries of evidence allowed by
{¶62} Unlike summaries of evidence allowed by
{¶63} Daniels argues that the chart was a pedagogical device authorized by
{¶64} Daniels acknowledges that some courts have declined to treat pedagogical devices as evidence, but cites several federal courts that have allowed pedagogical devices to go into evidence for the jury‘s consideration. See, e.g., Bray, 139 F.3d 1104 at 1111-1112; United States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir. 1987). While we acknowledge those cases, we see no basis for departing from established Ohio precedent on the matter. The court erred by allowing the “harms and losses” chart to go to the jury, and it compounded the error by failing to give a limiting instruction.
IX. Prejudgment Interest
{¶65} Vasarhelyi and Koziy offer a ninth assignment of error relating to the imposition of prejudgment interest. However, the errors we have found are sufficient for us to turn to the tenth assigned error and the claim of cumulative error, rendering any ruling on prejudgment interest moot. See
X. Cumulative Error
{¶66} “Under the doctrine of cumulative error, ‘a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial-court error does not individually constitute cause for reversal.‘” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 321, quoting State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. As the en banc court holds, the cumulative error doctrine applies in civil cases. Ante, at ¶ 6.
{¶67} In reviewing the assignments of error, we have identified several trial errors that, standing alone, might not support reversal. Cumulatively, however, those errors are numerous enough that we conclude that Vasarhelyi and Koziy did not receive a fair trial. We therefore vacate the judgment and reverse and remand for a new trial.
XI. Conclusion
{¶68} The fourth, fifth, eighth, and tenth assignments of error are sustained. The second and ninth assignments of error are moot. The remaining assignments of error are overruled.
{¶69} Judgment reversed and remanded.
It is ordered that appellants recover of appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MELODY J. STEWART, JUDGE
EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION);
KATHLEEN ANN KEOUGH, P.J., DISSENTS IN PART AND CONCURS IN JUDGMENT ONLY IN PART (WITH SEPARATE OPINION)
EILEEN T. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
{¶70} I concur in judgment only with the majority‘s decision to vacate the judgment and remand for a new trial based on
{¶71} In this case, the trial court permitted counsel for Daniels to submit to the jury a medical history report prepared by Jane Heron, R.N. As stated by the lead opinion, however, the medical history summary improperly contained annotations that expressed Heron‘s personal opinions and the various conclusions or inferences she made upon reviewing Daniels‘s medical records. Thus, the summary was not an accurate representation of Daniels‘s medical records, and the trial court erred by admitting the document under
{¶72} Furthermore, I cannot say the introduction of the medical history summary was harmless. Given the competing theories of the parties in this case, the prejudicial impact of the opinion-based commentary in the summary was significant. Without question, Daniels‘s medical history, including her previous interaction with belladonna alkaloids, was relevant to the jury‘s assessment of liability in this medical malpractice case. Because the summary was clearly designed to support Daniels‘s claims while simultaneously invoking sympathy, I am unable to conclude that the erroneous admission of the summary “[did] not affect the substantial rights of the complaining party.” O‘Brien v. Angley, 63 Ohio St.2d 159, 407 N.E.2d 490 (1980);
{¶73} Accordingly, I would vacate the judgment exclusively on the grounds set forth in the appellant‘s fourth assignment of error. I would further find that the remaining assignments of error are moot. I recognize that the unaddressed challenges to the trial court‘s evidentiary rulings “may or may not be at issue [on remand].” Nance v. Akron City Hosp., 9th Dist. Summit No. 20112, 2001 Ohio App. LEXIS 2278, 11 (May 23, 2001). However, I am equally cognizant that those issues “may be resolved upon different arguments or supplemental evidence.” Id. Therefore, the resolution of the remaining assignments of error would be advisory in nature, and would not resolve a live controversy. See Ramadan v. Metrohealth Med. Ctr., 8th Dist. Cuyahoga No. 93981, 2011-Ohio-67, ¶ 94, citing
{¶74} I am sympathetic to the significant and permanent injuries sustained by Daniels in this matter. To be clear, resolution of the assignments of error is predicated solely on legal precedent, and should not be interpreted as a position on the merits of Daniels‘s allegations. Regardless of the facts before this court, however, protection of the fundamental and substantial right to a fair trial is paramount. Accordingly, I would sustain appellants’ fourth assignment of error, vacate the judgment of the common pleas court, and remand this case for a new trial.
KATHLEEN ANN KEOUGH, P.J., CONCURRING IN JUDGMENT ONLY IN PART; DISSENTING IN PART:
{¶75} I disagree that it is unnecessary to address the defendants’ late disclosure of their intent to use the video in the sixth assignment of error, and would find the late disclosure to be a proper basis to exclude the newscast. If defendants had timely disclosed their intent to use the video, Daniels could have called the “hero” doctor as a witness to point out how egregious defendants’ errors were. Furthermore, defendants apparently engaged in a pattern of late disclosure — their expert offered new opinions at trial without first disclosing those opinions to Daniels.