Monroe v. YoussefMonroe v. Youssef
OPINION
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 07 CV 2107.
Judgment: Affirmed.
Laurel A. Matthews, Matthews & Assoc. Co., LPA, 4471 Buckeye Lane, Dayton, OH 45440 (For Plaintiffs-Appellants).
Marshall D. Buck, Comstock, Springer & Wilson, 100 Federal Plaza East, Suite 926, Youngstown, OH 44503-1811 (For Defendants-Appellees).
THOMAS R. WRIGHT, J.
{¶1} Appellants, Charles and Joan Monroe, appeal from the judgment of the Trumbull County Court of Common Pleas denying their motions for a new trial, for judgment notwithstanding the verdict (“JNOV“), and for leave to amend their complaint to add spoliation claims. Appellants do not take issue with the trial court‘s decision
{¶2} Fifty-five-year-old Charles had a history of extensive smoking, severe sleep apnea, and chronic severe low back pain. On October 1, 2006, he complained of chest pains and went to the emergency room at Trumbull Memorial Hospital (“TMH“). He underwent triple bypass surgery on October 11, 2006, and was discharged on October 16, 2006. The next day, Charles suffered a stroke at home.
{¶3} In 2007, Charles and his wife, Joan Monroe, filed a complaint for medical negligence against defendant Mona Youssef, M.D. (“Dr. Youssef“), and appellees, Forum Health, d.b.a. TMH, Andrei Gursky, M.D. (“Dr. Gursky“), and Pyongsoon Yoon, M.D., c/o The Yoon Group (“Dr. Yoon“), and the Yoon Group, Heart Lung & Vascular Specialists.1 Appellants’ complaint alleged that medical negligence proximately caused pain, suffering, and permanent injury to Charles, and included claims for lost wages and future earning capacity, as well as other economic and non-economic injury. Appellants alleged that as a direct and proximate result of the negligence, they incurred significant hospital and medical expenses. Also, Joan alleged she lost the services, companionship, and consortium of her husband. Appellees filed separate answers denying any negligence.
{¶4} Following extensive discovery, a jury trial commenced in November 2008. The evidence revealed that when Charles first came to the emergency room at TMH on October 1, 2006 complaining of chest pain, his cardiac enzymes were tested and it was
{¶5} Subsequent to the catheterization, Dr. Youssef ordered a transthoracic echocardiogram (“TTE“), also known as a “bubble study,” due to elevated pressures in the right side of Charles’ heart. Dr. Youssef was concerned that a “shunt,” a channel of blood flow through a hole, might be causing those elevated pressures. Dr. Youssef was satisfied that the results of the TTE were negative.
{¶6} Pursuant to Dr. Youssef‘s referral, Dr. Gursky, a cardiac surgeon with The Yoon Group, met with appellants on October 9, 2006. Following the consultation, Dr. Gursky spoke with Dr. Yoon, chief of cardiothoracic surgery at TMH, and together they decided that Charles should have surgery on October 11, 2006. Physician testimony revealed that the farther one gets from the date of the last dose of Plavix, the less risk there is of bleeding as a result of surgery, and that the traditional wait time between the patient‘s discontinuation of Plavix is 5-7 days. Dr. Gursky waited 48 hours for the Plavix to wear off before operating. Dr. Gursky testified that he advised Charles that because
{¶7} At the beginning of the surgery, Dr. Rickie Monroe (“Dr. Monroe“), an anesthesiologist with TMH, placed a probe in Charles’ esophagus to allow the other doctors to perform an intra-operative transesophageal electrocardiogram (“TEE“). The doctors in the operating room observed a small, left to right jet, or flow of blood, through a one millimeter patent foramen ovale (“PFO“), which is a type of atrial septum defect (“ASD“). An ASD enables blood flow between the left and right atria of the heart via the interatrial septum. Dr. Yoon and Dr. Gursky believed this PFO was an insignificant finding and determined the planned operation should not be changed. According to Dr. Yoon, 25 percent of the general population has a PFO and lives without incident or knowledge of it.
{¶8} Dr. Gursky proceeded to perform triple coronary artery bypass surgery on Charles. Later in the day, Charles developed bleeding complications, requiring a second procedure. Appellants’ own cardiothoracic surgery expert, Dr. Andrew Wechsler (“Dr. Wechsler“), testified that the bypass surgery was done “adequately,” that Dr. Gursky “did the right thing” by performing the second procedure, and that Dr. Gursky “did a good job” in the second procedure.
{¶9} On October 16, 2006, Charles was discharged from TMH. The next day, Charles suffered a stroke at home and returned to the emergency room at TMH. Appellants’ cardiology expert, Dr. Steven Anton (“Dr. Anton“), testified that Charles’ stroke was caused by a “paradoxical emboli,” i.e., something unexpected, not usual.
{¶10} On October 19, 2006, eight days after Charles’ bypass surgery, Dr. Gursky dictated his operative report. Dr. Gursky‘s report indicated that he intended to wait 72 hours after the discontinuation of Plavix before performing the bypass surgery. However, he only waited slightly less than 48 hours, the time that elapsed between his initial consultation with Charles on October 9, 2006, and the date of the surgery, October 11, 2006. Further, contrary to the observations of Dr. Yoon, Dr. Monroe, and Dr. Gursky himself during Charles’ bypass surgery, Dr. Gursky‘s report also indicated that when the PFO was discovered, there was “no shunt.” Nearly two years later, in November, 2008, Charles had a full TEE study and an MRI at the Cleveland Clinic. Both of those studies showed that he had two holes in his heart. Charles was scheduled for surgery to repair those holes.
{¶11} During trial, appellants’ experts, Dr. Anton, Dr. Wechsler, and Dr. John Conomy, a neurologist whose practice involves the treatment of stroke victims, testified that in their opinions, appellees were negligent in some manner in their treatment of Charles and that those negligent failures caused his stroke. However, our discussion of the physician testimony will be limited solely to the portions that are germane to our analysis of the issues set forth in appellants’ assignments of error.
{¶12} Dr. Anton testified that Charles had significant, severe stenosis that required surgery “sooner than later” and that if surgery had not been performed, it could have lead to a fatal event. Dr. Wechsler testified that Charles’ heart catheterization demonstrated a “severe disease of his coronary arteries” and that “he did have a critical
{¶13} After the conclusion of the proceedings on November 21, 2008, the court took a 10-day recess for the Thanksgiving holiday. The court reconvened on December 1, 2008. On that day, appellees called Dr. Yoon on direct examination as their last witness. Appellants were not present that day due to Charles’ admission to the Cleveland Clinic for his previously scheduled surgery to repair the holes in his heart. Dr. Yoon testified regarding Exhibit E, a magnified still photograph of Charles’ left main coronary artery that had been reproduced from a DVD of Charles’ cardiac catheterization that was performed by Dr. Youssef on October 9, 2006. Dr. Yoon testified that in his own “guesstimate,” without the aid of special measuring instruments, he believed that Exhibit E showed a 90-95% stenosis at the origin of Charles’ left main coronary artery.
{¶14} Appellants objected to the admission of Exhibit E and moved to strike Dr. Yoon‘s testimony regarding Exhibit E. The basis of appellants’ objection and motion to strike was that Exhibit E was allegedly a false and misleading depiction of Charles’ left main artery because Dr. Yoon‘s testimony regarding the degree of stenosis was contradictory to the testimony of the other experts. Appellants further alleged that Exhibit E had never been produced in discovery. Appellants also argued that Dr. Yoon was not qualified to deliver an expert opinion. Moreover, appellants contended that Exhibit E was not properly authenticated by someone from the TMH catheterization lab, and that it did not contain proper information identifying it as depicting Charles’ anatomy, i.e. name, date, time taken, medical record number, image number, or any other information regarding its source.
{¶15} In response to appellants’ motion to strike, the court ordered Dr. Yoon to obtain the disk of Charles’ cardiac catheterization study from TMH during a recess in order to show the court where the photograph was taken from on TMH‘s disk. The court requested the disk to verify that the anatomy shown on Exhibit E was identical to the anatomy shown on Charles’ cardiac catheterization performed by Dr. Youssef.
{¶16} While the court was in recess, an administrator with TMH, Judy Zalar (“Zalar“), brought the disk into the courtroom, subsequently labeled as Court‘s Exhibit 1, along with a TMH computer capable of opening the disc. Zalar testified that she approached Janile Housel (“Housel“), the catheterization lab technician at TMH, gave her Charles’ date of birth and medical record number, and stood right beside Housel while Housel retrieved the video of Charles’ heart catheterization from TMH‘s computer. Furthermore, Zalar presented to the trial court a form signed by the nursing vice
{¶17} The court then conducted an in camera inspection. Dr. Yoon was given an opportunity to review Court‘s Exhibit 1. Dr. Yoon testified that he reproduced the actual picture labeled as Exhibit E from the TMH computer, which is the same computer that produced Court‘s Exhibit 1. Specifically, Dr. Yoon testified as follows:
{¶18} “THE COURT: All right. Now, Dr. Yoon, you‘ve seen that disk that they‘ve brought in, is that correct?
{¶19} “DR. YOON: Yes, I have.
{¶20} “THE COURT: And were you able to reproduce the actual picture that‘s been labeled –
{¶21} “ATTORNEY BUCK (Appellees’ counsel): E, Exhibit E.
{¶22} “THE COURT: - - Exhibit E from that disk?
{¶23} “DR. YOON: Not from the particular disk but from the computer at the hospital, which is the same disk.
{¶24} “THE COURT: But you were able to reproduce that?
{¶25} “DR. YOON: Correct.
{¶26} “THE COURT: And, Mr. Buck, that is the same or you gave a copy of that disk to Ms. Matthews in discovery, is that correct?
{¶27} “ATTORNEY BUCK: Yes, we did, Your Honor.
{¶28} ” * * *
{¶29} “THE COURT: Okay. The motion to strike is denied. I believe that there is a sufficient foundation above and beyond the foundation that was laid in court in front of [the] jury, which I think is sufficient, and that would be that a photograph is an accurate depiction of what Dr. Yoon retrieved from the records of Charles Monroe. Now, so I made my ruling. This will be Court‘s Exhibit 1 to show further authenticity relative to Defense Exhibit E.”
{¶30} The copy of the disk that appellees’ counsel gave to appellants’ counsel was introduced into evidence as Plaintiff‘s Exhibit 72 at appellants’ counsel‘s own request.
{¶31} As will be discussed further below, although it is not a matter of record, it is noted in the trial court‘s judgment entry and explained by appellants in their merit brief that on December 2, 2008, during a bench conference that took place shortly after the close of the evidence, appellants advanced an oral motion to amend their complaint to include claims for spoliation of evidence and punitive damages. Appellants’ motion was denied.
{¶32} After charging the jury, the trial judge announced that he was required to attend a judicial conference for the next three or four days, and appointed a magistrate to preside over jury deliberations in his absence with the consent of both parties’ counsel. The jury returned verdicts in favor of appellees. While the jury found that Dr. Gursky was negligent, it concluded that his negligence did not directly or proximately cause injury or damage to Charles. The court entered judgment on the verdict on December 8, 2008.
{¶33} Thereafter, appellants filed motions for a new trial and for JNOV. In a judgment entry dated February 6, 2009, the court denied those motions and also denied appellants’ oral motion for leave to amend their complaint pursuant to
{¶34} Appellants raise the following assignments of error for our review:
{¶35} “[1.] A. The trial court committed prejudicial error when it admitted a digitally altered photograph (JPEG Image) demonstrating 90-95% stenosis at the origin of the left main coronary artery into evidence, on the last day of trial, that had not been produced in discovery, and allowed defendant-appellee Yoon to falsely represent to the jury that it was an accurate depiction that he had taken directly from plaintiff-appellant Charles Monroe‘s cardiac catheterization study on the hospital‘s computer system.
{¶36} “B. The trial court committed prejudicial error when it admitted the DVD disc into evidence that it caused to be made on the last day of trial, which was never viewed by the jury in the course of trial, upon the false representation by appellee‘s counsel that appellants had previously been given an identical DVD in discovery, after defendant Yoon had expressly admitted that when he viewed the DVD he was unable to locate the image depicted in defendants’ Exhibit ‘E’ on it and the jury was subsequently permitted to view the DVD during their deliberations.
{¶37} “C. Appellants motion for new trial with additional claims for spoliation and punitive damages against defendants Yoon and TMH and motion for reconsideration of
{¶38} “D. The trial court‘s refusal to grant the plaintiffs’ leave pursuant to
{¶39} “[2.] The trial court‘s failure to timely instruct the jury to disregard appellee‘s counsel‘s accusations of fraud and tampering with evidence against appellants’ attorney and her expert witness and issue a curative instruction; its decision to give the jury a week‘s vacation and then admit highly prejudicial new evidence and expert testimony against appellants on the last day of trial; and the last minute verbal stipulation worked by the court leaving a magistrate to preside over jury deliberations in order to attend a judicial seminar were an abuse of discretion and introduced substantive and procedural irregularity into the proceedings such that appellants were prevented from having a fair trial.”
{¶40} Under parts A and B of their first assignment of error, appellants argue that the trial court erred in admitting into evidence Exhibit E and Dr. Yoon‘s testimony that was reliant upon Exhibit E. They further argue that the trial court abused its discretion in admitting into evidence the disk identified as Court‘s Exhibit 1.
{¶41} Specifically, in their brief, appellant‘s pose the following litany of arguments. Appellants claim Exhibit E was never produced in discovery; that Exhibit E
{¶42} The decision to admit or exclude evidence is within the sound discretion of the trial court and will not be reversed on appeal unless there was an abuse of discretion. Kent v. Atkinson, 11th Dist. No. 2010-P-0084, 2011-Ohio-6204, ¶42. With respect to photographic evidence, under
{¶43} First, in the instant case, appellant did not file a motion requesting the trial court to compel appellees to provide discovery of trial preparation materials nor did they make any attempt to establish good cause why appellees’ trial preparation materials should have been disclosed.
{¶44} Second, while appellants claim Exhibit E was not properly authenticated, and therefore inadmissible for the reasons outlined above, this court disagrees that authentication by Dr. Yoon was even necessary based on the evidence that had already been admitted and that was properly before the trial court.
{¶45} As stated, while the court was in recess, TMH administrator Zalar brought the disk into the courtroom, subsequently labeled as Court‘s Exhibit 1, along with a computer capable of opening the disk. Zalar testified she was present throughout the retrieval of the data and verified that the information contained on Court‘s Exhibit 1 was
{¶46} Appellants argue that Court‘s Exhibit 1 and Plaintiff‘s Exhibit 72 are different because Plaintiff‘s Exhibit 72 does not contain the same graphics and identifying information as Court‘s Exhibit 1 and the disk on TMH‘s computer. However, the presence or absence of identifying material on the disks is not the salient issue. What is clear from the record before the trial court is that the contents of Court‘s Exhibit 1 and Plaintiff‘s Exhibit 72 were the same. They both contained moving images of Charles’ original heart catheterization that was taken at TMH on October 9, 2006. Based on this conclusion, we need not address appellants’ argument regarding whether or not Exhibit E falls under the business records rule set forth in
{¶47} Regarding appellants’ claim that Dr. Yoon was not identified as an expert or qualified to testify as one, we disagree. First, appellants filed interrogatories directed to the Yoon Group, Heart, Lung & Vascular Specialists. Interrogatory No. 10 requested that appellees identify all experts they intended to have testify at trial. Appellees
{¶48} Furthermore, appellants clearly had knowledge of Dr. Yoon‘s involvement in this case because he was a named defendant. Although appellants took Dr. Yoon‘s deposition prior to trial, they did not ask him whether he thought Charles, in particular, had critical stenosis or ask his opinion as to the percentage of stenosis, but rather, posed a hypothetical. Moreover, while Dr. Yoon‘s “guesstimate” at trial of the amount of Charles’ stenosis was above what the other experts and physician testimony revealed, the net effect was consistent, i.e., that Charles had severe stenosis. Therefore, appellants should not have been surprised that Dr. Yoon was called as an expert, or by his testimony regarding the level of Charles’ stenosis.
{¶49} Additionally, treating physicians in malpractice cases are permitted to render expert opinions at trial. Moore v. Grandview Hosp., 25 Ohio St.3d 194, 196-198 (1986); Datchuk v. Pollard, 11th Dist. No. 99-T-0049, 2000 Ohio App. LEXIS 3544, *8-10 (Aug. 4, 2000). “[C]ourts have used
{¶50} Appellants were clearly aware that Dr. Yoon was one of Charles’ treating physicians and that he had been identified as an expert during discovery. Through Dr. Yoon‘s deposition and trial testimony, appellants were aware of the subject of his expertise. Appellants also had the opportunity during his pretrial deposition to discern the general nature of his trial testimony. Accordingly, Dr. Yoon was properly permitted to give opinion testimony based on his personal observations and perceptions. Williams, supra, at *8; Gannet, supra, at 52.
{¶51} Next, we turn to appellants’ argument that Exhibit E and Dr. Yoon‘s testimony regarding Exhibit E was false. Appellants contend that no other experts who testified in the case ever suggested that Charles had 90-95% stenosis in his left main coronary artery, or that a pre-surgery TEE and/or an MRI were too dangerous and that there was no time to do either study. Appellants claim that the undisputed evidence and testimony of all the experts for both sides was that there was no critical stenosis or need for emergency surgery. Appellants also rest their argument on the fact that the November 24, 2008 catheterization study conducted at the Cleveland Clinic showed only mild stenosis.
{¶52} As previously outlined in the recitation of facts, every physician involved in the case, whether testifying as an expert or as a physician involved in the care of Charles, testified that Charles had severe coronary artery stenosis that required urgent surgical intervention. Appellants’ suggestion to the contrary is wholly unsupported by
{¶53} Under part C of their first assignment of error, appellants allege their motion for a new trial with additional claims for spoliation and punitive damages against appellees should have been granted. Appellants contend that the trial court erred in ruling that they failed to meet the factors set forth in Sheen v. Kubiak, 131 Ohio St. 52, paragraph three of the syllabus (1936), which addresses the factors constituting newly-discovered evidence under
{¶54}
{¶55} “(1) the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeach or contradict the former evidence.”
{¶56} We review a trial court‘s judgment on a
{¶57} As explained in Beechler, when an appellate court is reviewing a pure issue of law, “the mere fact that the reviewing court would decide the issue differently is enough to find error (Of course, not all errors are reversible. Some are harmless; others
{¶58} It appears from their motion for a new trial that appellants seek to use the 2008 Cleveland Clinic study to impeach or contradict Dr. Yoon‘s opinion testimony regarding Exhibit E, which was based on the 2006 TMH catheterization. Per Sheen, supra, impeaching or contradicting trial testimony is not permitted grounds for a new trial, and appellants cannot be granted a new trial on the basis of newly discovered evidence.
{¶59} Regarding this issue, we note that attached to appellants’ motion for a new trial, inter alia, are the affidavits of Dr. Anton, Dr. Wechsler, and Dr. Gaetano Paone, a cardiac surgeon. All three affidavits appear to be identical, other than the affiants’ personal information, and make the same statements nearly verbatim regarding their summarization and opinion of the evidence. All three physicians stated that they viewed the 2006 TMH catheterization study, the 2008 Cleveland Clinic catheterization study, and compared the two studies. All three physicians maintained that they reviewed the portion of Dr. Yoon‘s testimony regarding Exhibit E. However, all three acknowledge they never actually viewed Exhibit E. Finally, all three were of the following opinion:
{¶60} “If the photograph at issue really does demonstrate a 90-95% stenosis in a left main coronary artery, to a reasonable degree of medical probability, the photograph is from someone else‘s heart as opposed to Charles Monroe‘s.” In the next paragraph of their affidavits, they each state that the “catheterization done last month in Cleveland clearly demonstrates2 that Mr. Monroe‘s left main coronary artery is without significant stenosis.”
{¶61} Thus, the only thing appellants show through those affidavits is that Dr. Yoon‘s testimony regarding Exhibit E, which relied upon the 2006 TMH cardiac catheterization study, was contradictory to their experts’ newly acquired study performed in November, 2008, more than two years after the study and photograph described by Dr. Yoon.
{¶62} During that two-year time frame, Charles underwent revascularization of his coronary arteries at TMH, had a stroke, and received medication therapy. The new study merely showed that Charles’ heart was healthier in 2008 than it was when he first went to TMH in 2006. None of the affidavits or other submissions attached to appellants’ motion for a new trial state that such a significant improvement in the degree of stenosis over a two year time frame was odd, unexpected, impossible, or would otherwise mean that the Cleveland Clinic Study constituted “new evidence” as to the condition of Charles’ heart at the time of surgery.
{¶63} Furthermore, all three affiants stated in their affidavits that “if” Exhibit E really does represent a 90-95% stenosis, as opposed to their opinions that the stenosis was 75-85%, Exhibit E cannot be a still photograph from Charles’ 2006 catheterization.
{¶64} In addition, Dr. Yoon testified about Charles’ 90-95% stenosis on December 1, 2008, over a week after the Cleveland Clinic‘s November 24, 2008 study. Thus, the Cleveland Clinic catheterization study was available during the trial and prior to appellants’ opportunity to cross-examine Dr. Yoon. Appellants offered no explanation why they could not have obtained, with due diligence, the Cleveland Clinic study prior to Dr. Yoon‘s cross-examination. Also, as previously noted, appellants could have asked the court for a continuance in order to have enough time to formulate a thorough cross-examination of Dr. Yoon. Moreover, appellants do not argue that the 2008 Cleveland Clinic catheterization study has the potential to change the result of the case if a new trial would be granted.
{¶65} Part C of appellants’ first assignment of error is without merit. The trial court did not err in denying appellants’ motion for a new trial based on newly-discovered evidence.
{¶66} Under part D of their first assignment of error, appellants argue the trial court abused its discretion in failing to grant them leave to amend their complaint pursuant to
{¶67}
{¶68} As stated, the basis of appellants’ motion to amend their complaint was spoliation of evidence. “Spoliation” means “the intentional destruction, mutilation, alteration, or concealment of evidence, usu[ally] a document.” Black‘s Law Dictionary, (8 Ed.Rev.2004) 1437. To establish a claim for spoliation of evidence, appellants would have been required to prove the following: “(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable,
{¶69} Appellants allege that a spoliation claim arose during the cross-examination of Dr. Yoon, appellants’ first witness in their case in chief, regarding misstatements and omissions in Dr. Gursky‘s operative dictations. Appellants assert that during the dictation of the operative note, Dr. Gursky intended to deceive the reader and cover up his negligent conduct in: (1) operating before the 72 hours he claimed in his report, after which Charles suffered a hemorrhage; and (2) hiding the fact that he failed to repair a shunt in Charles’ heart after observing it on the TEE by dictating that there was “no shunt” after he learned of Charles’ post-operative stroke. Appellants argue that based on this evidence alone, they were entitled to amend their pleadings, and that by the same analysis, they were entitled to amend their pleadings with respect to Exhibit E, which was introduced into evidence on the last day of trial.
{¶70} As previously noted, appellants explain in their merit brief that their counsel advanced an oral motion to amend their complaint at a bench conference on December 2, 2008 to include claims for spoliation of evidence and punitive damages. Although the precise timing of appellants’ motion is not clear from either the record or from the description contained in appellants’ brief, the motion was apparently made on December 2, 2008, after the close of evidence and on the same day that closing arguments were delivered and the jury was charged. According to appellants, their counsel thought the bench conference was on the record. However, for some reason, that motion does not appear in the transcript of proceedings and is not a matter of
{¶71} As this court has previously stated:
{¶72} “An appealing party has an obligation to exemplify his or her asserted errors by reference to the record. City of Niles v. Yeager, 11th Dist. No. 2004-T-0004, 2004 Ohio 6698, at P9. This obligation is met when a party files the pertinent transcript, a narrative statement of the evidence as provided by
{¶73} In this case, because appellants did not file a transcript of the December 2, 2008 bench conference or an acceptable alternative under either
{¶74} Alternatively, our review of the pretrial deposition testimony taken by appellants reveals that the information allegedly supporting their claim for spoliation was available to them prior to trial. On that point, first, appellants take issue with the fact that Dr. Gursky dictated in his operative report that he intended to wait 72 hours after discontinuation of Plavix prior to operating on Charles, when in fact, he waited only slightly less than 48 hours. We note that during Dr. Gursky‘s deposition, taken on November 13, 2007, one year prior to trial, appellants’ counsel questioned him at length
{¶75} Appellants also take issue with the fact that Dr. Gursky‘s operative report, dictated eight days after Charles’ bypass surgery and after Charles returned to the emergency room having suffered a stroke, indicates that there was “no shunt” when, in fact, a shunt was observed by every physician present during Charles’ surgery. Again, we note that Dr. Yoon testified in his deposition, taken on February 21, 2008, nine months prior to trial, that all three doctors who were in the operating room during Charles’ surgery, i.e., Dr. Gursky, Dr. Yoon himself, and Dr. Monroe, the anesthesiologist, saw the PFO in Charles’ atrial septum and the “jet,” or shunting of blood flow, through the PFO. Thus, it is clear from the record that appellants knew many months before trial that Dr. Gursky‘s operative report contained information that apparently contradicted what was unequivocally observed during Charles’ surgery.
{¶76} Based on the foregoing, it is abundantly clear that appellants possessed the necessary information to bring a motion to amend their complaint well before trial. As recited above, we recognize that a trial court has discretion to liberally allow for the amendment of pleadings when there is prima facie support for the new matters to be pleaded. However, appellants’ decision to wait until the trial had essentially concluded to bring their motion when, in fact, they had notice many months prior to trial of the facts and evidence allegedly supporting their spoliation claim constitutes “undue delay.” Mitchell, supra, at ¶75; Turner, supra, at 99.
{¶77} Finally, we turn to appellants’ last argument that they should have been allowed to amend their pleadings regarding Exhibit E, which was introduced on the last day of trial. Appellants argue that Exhibit E constitutes highly prejudicial, false evidence that was not what appellees’ purported it to be, i.e., a depiction of Charles’ heart. Appellants further contend that Exhibit E had been digitally altered and magnified so that Dr. Yoon could simply “eyeball” his measurement of the level of stenosis without measuring instruments, thus introducing a “new expert opinion” as to the proximate cause of Charles’ injuries which contradicted the testimony of the other experts. This court previously addressed the issue of Exhibit E at length in its discussion under parts A, B, and C of this assignment of error. Accordingly, there is no need to further address this argument. Suffice it to say, it has no merit.
{¶78} The trial court did not abuse its discretion in denying appellants’ motion for leave to amend their complaint. Part D of appellants’ first assignment of error is without merit and is overruled.
{¶79} In their second assignment of error, appellants contend the trial court abused its discretion in failing to grant their motion for new trial pursuant to
{¶80} Appellants allege the court failed to timely instruct the jury to disregard appellees’ counsel‘s accusations of fraud and tampering with evidence against appellants’ attorney and one of appellants’ expert witnesses, and to issue a curative
{¶81} Specifically, appellants argue that a new trial should have been granted due to appellees’ counsel‘s inquiry regarding alleged alterations on a document that appellants’ counsel presented as evidence during the testimony of Dr. Anton. Apparently, appellees’ attorney thought a handwritten note on the document was in Dr. Gursky‘s handwriting and that appellants’ attorney attempted to hide the note with yellow tape. Appellants’ counsel admitted that she marked the exhibit, made a handwritten note on the document herself, and put a piece of correction tape over the note before giving it to Dr. Anton. The trial court gave a curative instruction to the jury that the cross-examination of Dr. Anton by appellees’ counsel pertaining to the handwritten message on the document and the resulting comments were to be stricken from their consideration as evidence. All counsel agreed to the stipulation. Accordingly, we fail to see how the trial court abused its discretion in the handling of this matter.
{¶82} Regarding the week-long recess, the record reveals that Dr. Youssef‘s counsel had a previously-planned family vacation during the Thanksgiving holiday, which he brought to the court‘s attention prior to trial. During the trial and after discussing the matter with all counsel, the judge addressed the jury and stated that everyone was in agreement to have a week-long recess during Thanksgiving. Appellants’ counsel consented to the recess and did not object.
{¶83} The failure to object at the trial court level constitutes a waiver of the issue on appeal. Galmish v. Cicchini, 90 Ohio St.3d 22, 32 (2000). Furthermore, contrary to appellants’ assertions that the jurors’ memories of the case would fade due to the recess, the trial judge allowed the jurors to take notes during the trial in order to refresh their recollections, if necessary. Thus, we do not see how the recess constituted error or prejudiced appellants’ case.
{¶84} With respect to the magistrate presiding over jury deliberations, appellants allege there was no written consent.
{¶85} Appellants’ second assignment of error is without merit.
{¶86} For the foregoing reasons, appellants’ assignments of error are not well-taken. The judgment of the Trumbull County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.