Wolf v. Rothstein

• Decision Date: 19 August 2016
• Docket Number: No. 26859.,26859.
• Citation: 61 N.E.3d 1
• Parties: Judah WOLF, et al., Plaintiffs–Appellants v. Lawrence B. ROTHSTEIN, M.D., et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

61 N.E.3d 1

Judah WOLF, et al., Plaintiffs–Appellants

v.Lawrence B. ROTHSTEIN, M.D., et al., Defendants–Appellees.

No. 26859.

Court of Appeals of Ohio, Second District, Montgomery County.

Aug. 19, 2016.

Gary J. Leppla, Philip J. Leppla, Dayton, OH, for plaintiffs-appellants.

David Lockemeyer, Joshua Debra, Loveland, OH, for defendant-appellee-Riverview Health Institute.

Robert Snyder, Susan Blasik–Miller, Dayton, OH, for defendant-appellee-North American Laserscopic Spine Institute.

OPINION

WELBAUM, J.

{¶ 1} This case is before the court on the appeal of Plaintiffs–Appellants, Judah Wolf and Malka Wolf, from a jury verdict in favor of Defendants–Appellees, Riverview Health Institute, LLC (“Riverview”) and North American Laserscopic Spine Institute (“NALSI”).¹ In support of their appeal, the Wolfs contend that the trial court erred in submitting 39 written jury interrogatories and by revising the instructions for the interrogatories, which caused jury confusion and prevented a fair trial. In addition, the Wolfs contend that Riverview prejudicially displayed a medical device that was not in evidence during closing argument, and that NALSI improperly displayed jury interrogatories to the jury during closing argument.

{¶ 2} The Wolfs further contend that the trial court erred in refusing to allow them to examine defense witnesses about medical board action taken against the doctor who performed the medical procedure that is the subject of this medical malpractice action, in limiting cross-examination about the relationship between that doctor and Appellees, and in allowing defense counsel to improperly lead the testimony of expert witnesses. Finally, the Wolfs contend that, for all the above reasons, the trial court erred in failing to grant their motions for a new trial and for relief from judgment.

{¶ 3} We conclude that no prejudicial error occurred in the trial court. The trial court did not err in submitting interrogatories to the jury and in constructing a “roadmap” for the jury. Instead, the court's efforts aided the jury in resolving the case. In addition, the court did not err in refusing to allow Appellants to examine witnesses about a doctor's alleged prior medical malpractice and proceedings before the Ohio State Medical Board. This evidence was both irrelevant and unduly prejudicial.

{¶ 4} Furthermore, the trial court did not abuse its discretion in limiting evidence about the relationships between Appellees, and in permitting Appellees to ask some leading questions. Finally, even though Appellees' counsel committed misconduct in displaying an object to the jury that had not been admitted into evidence, no material prejudice occurred. Accordingly, for the reasons stated below, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 5} At the outset, we note that the Wolfs failed to submit a complete transcript of the trial proceedings. Instead, they submitted a partial transcript, which includes only the following items: (1) the testimony of defense expert, Erich Richter, M.D.; (2) the testimony of defense expert, Robert Biscup, M.D.; (3) the testimony of Ethan Fallang, C.E.O. of Riverview; (4) the closing arguments of the parties; and (5) parts of the proceedings on April 28, 2014, April 30, 2014, and May 1, 2014, relating to the jury instructions and the verdict.

{¶ 6} An appellant's duty to provide a transcript for appellate review is well-established. See, e.g., Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). “This is necessarily so because an appellant bears the burden of showing error by reference.” (Citation omitted.) Id.

{¶ 7} For purposes of background information only, we note that the Wolfs filed a medical malpractice complaint in April 2010 against Dr. Lawrence Rothstein, NALSI, Riverview, and various John and Jane Does. The Wolfs alleged in the complaint that, as the result of persistent neck pain, Judah began investigating treatment options in mid–2008. The Wolfs were Florida residents. Judah's search included the internet, where he discovered Defendants, who held themselves out as providing care for persons with spine injuries.

{¶ 8} After contacting Defendants, Judah provided an MRI report of July 14, 2008 regarding his cervical pain and symptoms, and cervical laserscopic surgery was scheduled in Dayton, Ohio, for January 29, 2009. When Judah arrived in Dayton on January 26, 2009, he discussed back problems, and an additional procedure (for enduroscopic laser lumbar spine surgery) was scheduled for January 28, 2009.

{¶ 9} Judah alleged in the complaint that he developed symptoms after the back surgery, including weakness in both legs, loss of muscle tone, hip pain, inability to control and walk properly with his right foot, numbness, and foot drop. Dr. Rothstein performed a second lumbar procedure on April 7, 2009, but indicated that he might not be able to fix the foot drop.

Subsequently, Judah underwent further surgeries in Florida in an attempt to address his problems.

{¶ 10} In the complaint, the Wolfs alleged that Dr. Rothstein had breached the appropriate standard of care, which resulted in permanent injury, including foot drop. They further alleged that Judah was not properly informed of the risks of the surgery, and that the surgery was performed in the absence of diagnostic testing and in reliance on an outdated MRI report. In addition, the Wolfs alleged that the surgery performed on January 28, 2009, was neither appropriate nor necessary. The complaint also contained a fraud claim, based on Defendants' failure to properly investigate and diagnose, and based on the performance of surgery, itself. A loss of consortium claim was also included, for Malka.

{¶ 11} The case was stayed in June 2010, due to Dr. Rothstein's bankruptcy, but was reactivated in February 2011. In August 2012, a motion to consolidate this case with other pending cases against Dr. Rothstein was denied. Subsequently, in December 2013, NALSI filed a motion for summary judgment, based on its contention that no agency relationship existed between NALSI and Dr. Rothstein, nor was there any basis for agency by estoppel. In January 2014, Riverview also filed a motion for summary judgment, based on the same grounds. However, the trial court denied the motions for summary judgment on April 2, 2014.

{¶ 12} Prior to trial, the parties also filed memoranda regarding the admission of testimony regarding other medical malpractice cases brought against the Defendants, including Dr. Rothstein, and any reference to prior or subsequent Ohio State Medical Board proceedings against Dr. Rothstein.² No entry discussing these matters appears in the record, but the trial court did not permit this evidence at trial.

{¶ 13} A jury was empaneled on April 17, 2014, and the case was then tried to the jury, which found in favor of Rothstein, Riverview, and NALSI, and against the Wolfs, on May 1, 2014. After the verdict forms and interrogatories were filed, the Wolfs filed motions for new trial and for relief from judgment on May 15, 2014. The trial judge did not rule on these motions before leaving office, and in May 2015, another judge was assigned to preside over the case and conclude proceedings. Because judgment had never been properly entered, the assigned judge filed a judgment entry granting judgment to Defendants on June 3, 2015. The Wolfs then renewed their motions for new trial and for relief from judgment.

{¶ 14} On September 9, 2015, after reviewing the digital video recording of the entire trial, the assigned judge denied the motions for new trial and for relief from judgment. The Wolfs now appeal from the judgment in favor of Defendants–Appellees.

II. Alleged Error in Allowing Submission of Interrogatories

{¶ 15} The Wolfs' First Assignment of Error states that:

The Trial Court Erred, as a Matter of Law, When It Permitted the Submission of 39 Written Jury Interrogatories, over Objection by Plaintiffs/Appellants, Including Indecipherable and Repeatedly Revised Instructions Causing Confusion for the Jury and Preempting a Fair Trial.

{¶ 16} Under this assignment of error, the Wolfs contend that irregularities in the interrogatories, and the number and form of the interrogatories, resulted in confusion that deprived them of a fair trial. In contrast, NALSI and Riverview argue that the interrogatories, themselves, were not confusing or legally objectionable, and that the trial court acted properly in providing the jury with a “roadmap” for answering the interrogatories.

{¶ 17} Civ.R. 49(B) provides that:

The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. Counsel shall submit the proposed interrogatories to the court and to opposing counsel at such time. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. The interrogatories may be directed to one or more determinative issues whether issues of fact or mixed issues of fact and law.

{¶ 18} “ ‘The purpose of an interrogatory is to “test the jury's thinking in resolving an ultimate issue so as not to conflict with its verdict.” ’ ” Moretz v. Muakkassa, 137 Ohio St.3d 171, 2013-Ohio-4656, 998 N.E.2d 479, ¶ 79, quoting Freeman v. Norfolk & W. Ry. Co., 69 Ohio St.3d 611, 613, 635 N.E.2d 310 (1994). The Supreme Court of Ohio has held that the requirement of submitting interrogatories upon request “is mandatory, but the further requirement of the rule that ‘the interrogatories shall be submitted to the jury in the form that the court approves' reposes discretion in the trial court to review and approve the appropriateness and content of proposed interrogatories.” Ragone v. Vitali & Beltrami, Jr., Inc., 42 Ohio St.2d 161, 327 N.E.2d 645 (1975), paragraph one of the...