2004 Ohio 404 | Ohio Ct. App. | 2004
{¶ 2} In 1999, appellant, Teresa Parusel, consulted with appellee, James Ewry, M.D., concerning a suspicious lump in her breast. Appellee examined appellant and concluded that the lump was a benign cyst. When a subsequent mammogram appeared normal, appellee advised appellant to continue monthly self-examinations and repeat the mammogram in a year.
{¶ 3} A second mammogram 16 months later suggested breast cancer. A biopsy confirmed the presence of cancer. In September 2000, appellee underwent a mastectomy and was subsequently treated with radiation and chemotherapy. Six months after completing this treatment, however, cancer reappeared in other parts of her body. This metastatic cancer, appellant's medical expert testified, will eventually be terminal.
{¶ 4} On November 3, 2000, appellant sued appellee, alleging that he failed to timely diagnose and treat her breast cancer.1 The delay, appellant asserted, substantially reduced her chances for survival and her life expectancy. The matter eventually proceeded to trial, following which a jury returned a verdict in favor appellee. In a special interrogatory, the jury found that appellee was not negligent in his treatment of appellant. The trial court entered the judgment on the verdict and this appeal followed. Appellant sets forth the following five assignments of error:
{¶ 5} "Assignment of Error No. 1
{¶ 6} "The Common Pleas Court of Lucas County, Ohio erred to the substantial prejudice of Plaintiff-Appellant Teresa Parusel by overruling Plaintiff-Appellant's challenge for cause of a potential juror whose spouse was on the board of directors of Defendant-Appellee's physician practice group, and another potential juror whose son was in fact, at that time, a patient of Dr. Ewry.
{¶ 7} "Assignment of Error No. 2
{¶ 8} "The Common Pleas Court of Lucas County, Ohio erred to the substantial prejudice of Plaintiff-Appellant Teresa Parusel by excusing juror number three for cause midway through trial, on grounds that she could not remain fair and impartial towards the Defendant; despite the fact that Defendant-Appellee's case had not yet begun, and the juror had not yet heard any evidence in defense.
{¶ 9} "Assignment of Error No. 3
{¶ 10} "The Common Pleas Court of Lucas County, Ohio erred to the substantial prejudice of Plaintiff-Appellant Teresa Parusel by refusing to allow Plaintiff-Appellant's counsel to discuss proposed answers to the juror interrogatories during closing arguments.
{¶ 11} "Assignment of Error No. 4.
{¶ 12} "The Common Pleas Court of Lucas County, Ohio erred to the substantial prejudice of Plaintiff-Appellant Teresa Parusel by improperly instructing the jury on a `loss of chance' theory of recovery.
{¶ 13} "Assignment of Error No. 5
{¶ 14} "The Common Pleas Court of Lucas County, Ohio erred to the substantial prejudice of Plaintiff-Appellant Teresa Parusel by improperly instructing the jury on comparative negligence, despite the absence of any expert testimony or other evidence of a causal connection between Plaintiff-Appellant's conduct and her terminal prognosis."
{¶ 16} Appellant challenged both prospective jurors for cause, arguing that Thomas B. was a spouse of appellee's employer and that Melvin B.'s relationship to appellee's practice made him unlikely to be a fair and impartial juror. The trial court rejected both challenges, forcing appellant to utilize two of his four peremptory challenges on these juror prospects. Appellant, citing McGarry v. Horlacher,
{¶ 17} Although the parties agree that the standard of review of a trial court's decision on a juror challenged for cause is abuse of discretion, we do not agree that this is a wholly correct statement of the law.
{¶ 18} Juror challenges are controlled by two statutes: R.C.
{¶ 19} "The following are good causes for challenge to any person called as a juror:
{¶ 20} "(A) That he has been convicted of a crime which by law renders him disqualified to serve on a jury;
{¶ 21} "(B) That he has an interest in the cause;
{¶ 22} "(C) That he has an action pending between him and either party;
{¶ 23} "(D) That he formerly was a juror in the same cause;
{¶ 24} "(E) That he is the employer, the employee, or the spouse, parent, son, or daughter of the employer or employee, counselor, agent, steward, or attorney of either party;
{¶ 25} "(F) That he is subpoenaed in good faith as a witness in the cause;
{¶ 26} "(G) That he is akin by consanguinity or affinity within the fourth degree, to either party, or to the attorney of either party;
{¶ 27} "(H) That he or his spouse, parent, son, or daughter is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against him;
{¶ 28} "(I) That he, not being a regular juror of the term, has already served as a talesman in the trial of any cause, in any court of record in the county within the preceding twelve months;
{¶ 29} "(J) That he discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as given to him by the court.
{¶ 30} "Each challenge listed in this section shall be considered as a principal challenged, and its validity tried by the court."
{¶ 31} R.C.
{¶ 32} "In addition to the causes listed under section
{¶ 33} The origins of these statutes date to English Common Law. See State v. Sims (1969),
{¶ 34} "To safeguard this right and to define in a measure what shall constitute an impartial jury in the trial of civil cases, the general assembly has enacted Sections 11437 [now R.C.
{¶ 35} At odds with all of this is the syllabus rule of Berkv. Matthews (1990),
{¶ 36} We view those cases which apply Berk beyond application to section (J) of R.C.
{¶ 37} R.C.
{¶ 38} In the present matter, prospective juror Thomas B. testified that his wife sat on the board of Promedica Health Systems. Appellant argued that, since appellee was a member of a practice which was part of Promedica, Thomas B. was, therefore, a "* * * spouse * * * of the employer * * * of [a] party" as proscribed by R.C.
{¶ 39} If Thomas B.'s wife did sit on a board which exercised employer prerogatives with respect to appellee directly or indirectly, then the challenge should be sustained. However, when the statute states that the validity of the challenge is to be tried to the court, this necessarily implies that the proponent of the challenge must present evidence to carry the burden of proof of the "principle challenge" to be established.
{¶ 40} There was no evidence presented at trial that appellee or his practice was affiliated in any way with Promedica. Presumably, the arguments of appellee's counsel on the motion might be considered some sort of admission of a relationship, but even that was insufficient to establish an employer/employee relationship.
{¶ 41} Both parties refer to a deposition in which appellee purportedly testified to a link to Promedica, but this deposition was never filed with the court. We are, therefore, unable to ascertain the degree to which this testimony established an employer/employee relationship between prospective juror Thomas B.'s wife's board membership and appellee's practice. In sum, although appellant made the link between the juror and Promedica, she failed to make a link between Promedica and this appellee. Consequently, there was a lack of competent, credible evidence to establish a challenge for good cause under R.C.
{¶ 42} Concerning juror Melvin B., the physician/patient relationship is not one of those enumerated in R.C.
{¶ 43} Accordingly, appellant's first assignment of error is not well-taken.
{¶ 45} "THE COURT: Ms. [M.], have a seat. You mentioned something, Ms. [M.] We're here in chambers, and I have just the attorneys, but we're making a record because it's always a very serious matter, jury selection. You made a comment to [the bailiff] which concerns me because we're trying to find —
{¶ 46} "JUROR NO. 3: Yes.
{¶ 47} "THE COURT: Fair and impartial jurors here. And you seem to have a problem.
{¶ 48} "JUROR NO. 3: Right.
{¶ 49} "THE COURT: What is that?
{¶ 50} "JUROR NO. 3: Uh, first of all, uh, his client is very evasive on the stand And I know that being that I've worked with doctors, you know, for years. And secondly, I can't be impartial. I can't do it.
{¶ 51} "My brother — my 35-year-old brother died on my birthday this year of cardiomyopathy, and I just cannot — I — with the two — you know, with the combination of because I can understand his evasiveness, and I was fine with that. You know. That was no problem.
{¶ 52} "But, you know, when she said what her husband died of and I can understand her pain of his sudden death of not being sick, you know. My brother died in his sleep. Just gone, you know. So —
{¶ 53} "THE COURT: So you're saying this has all come up since the testimony was just started, not something that you thought of at the time you were being questioned?
{¶ 54} "JUROR NO. 3: No. No. Like I said, I mean, I understood his client's behavior. And like I said, I was going to go with that. You know. But then as, you know, when he asked, you know, about her husband, and what he died of —
{¶ 55} "THE COURT: Okay. Let me ask, Ms. [M.], you haven't spoken to any one of the other jurors about your concerns?
{¶ 56} "JUROR NO. 3: Huh-uh, no."
{¶ 57} Eventually, over appellant's objection, the court excused Denise M. from the panel and substituted an alternate juror. In explaining its decision, the court stated that it was concerned with a mistrial should Juror 3 continue as a member of the jury. On appeal, appellant contends this ruling was erroneous.
{¶ 58} As discussed above, the trial court's rulings on the fairness and impartiality of jurors is discretionary, as are the court's rulings concerning the overall conduct of the trial.Marr v. Mercy Hosp. (May 22, 1998), Lucas App. No. L-97-1160. Although appellant argued then and argues now that the juror's feelings were indicative of nothing more than the typical thought processes of jurors during trial, he did nothing to rehabilitate Juror 3. No matter how convoluted the logic, what remained was the juror's statement that she could not be impartial. Uncontroverted, this position would certainly draw into question the fairness of the proceedings. Consequently, we cannot find that the trial court's decision to excuse Juror 3 was unreasonable, arbitrary, or unconscionable. Accordingly, appellant's second assignment of error is not well-taken.
{¶ 60} "Now there are some interrogatories. Your Honor, may I discuss interrogatories with the jury? Whatever your practice is.
{¶ 61} "THE COURT: Yes. They'll get that from me.
{¶ 62} "[APPELLANT'S COUNSEL]: You'll discuss them.
{¶ 63} "THE COURT: At the appropriate time, yes.
{¶ 64} "[APPELLANT'S COUNSEL]: Thank you very much."
{¶ 65} Later, during appellee's summation, counsel for appellant objected to appellee's discussion of special interrogatories:
{¶ 66} "And the Court's going to instruct you through jury interrogatories what to do if Dr. Ewry is less than 50 percent negligent in this matter. The Court is also going to give you jury instructions on loss of chance recovery. And I struggle with this.
{¶ 67} "[APPELLANT'S COUNSEL]: I'm going to object. Your Honor.
{¶ 68} "THE COURT: Overruled.
{¶ 69} "[APPELLANT'S COUNSEL]: May I approach the bench?
{¶ 70} "THE COURT: Yes.
{¶ 71} "(The following discussion was held at the bench.)
{¶ 72} "[APPELLANT'S COUNSEL]: I apparently misunderstood. When I asked you, I thought we were not allowed to discuss the interrogatories with the jury. You were going to do it then.
{¶ 73} "THE COURT: Right.
{¶ 74} "[APPELLEE'S COUNSEL]: I'm not talking about interrogatories, Your Honor.
{¶ 75} "THE COURT: Do not discuss the interrogatories, no."
{¶ 76} During appellee's final close, the court again sustained an objection to further discussion of interrogatories.
{¶ 77} On appeal, appellant contends that the court's denial to the parties of an opportunity to argue the special interrogatories during closing constitutes error.
{¶ 78} Appellant cites no specific authority in support of this error. Rather, she suggests that since, in general, the purpose of closing arguments is to aid the jury in applying the law to the facts and, since the jury interrogatory is an accepted method of expressing the jury's findings, argumentation to the interrogatories should be allowed.
{¶ 79} Appellee responds that since both sides were equally denied the opportunity to argue to the interrogatories, no harm resulted even if the court's ruling was erroneous. Civ.R. 61. Moreover, since the jury found no negligence on appellee's part, any error relating to the unutilized interrogatories was harmless. Id. Additionally, if there was error, it was invited. See State ex rel. Klein v. Carroll,
{¶ 80} Each of appellee's arguments has merit. Accordingly, appellant's third assignment of error is not well-taken.
{¶ 82} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Costs to appellant.
Judgment affirmed.
Knepper, Pietrykowski and Singer, J., concur.
