Curtin & Associates hopes that you and your family enjoyed the holidays and extends warm wishes for a safe and prosperous 2008.
Enough Is Enough! – Misconduct Of Counsel;
Granting Of A New Trial
Harris v. Mt. Sinai Med. Ctr., (2007) 116 Ohio St.3d 139
In Harris, the Ohio Supreme Court reviewed a case wherein a $30,000,000 jury verdict had been rendered in favor of the plaintiff in a medical malpractice case. The lower court had found that the conduct of counsel had justified the granting of a new trial and the Ohio Supreme Court reviewed several instances of the described misconduct of counsel for the plaintiff. In paragraph 9 of its opinion, the Court stated the following:
“The court described counsel’s conduct as ‘discourteous’ and ‘theatrical,’ including ‘constant interruption of opposing counsel without bothering to object and obtain a ruling’ so that he could ‘convey to the jury his own idea of what the witness should be saying, thus testifying for the witness, rather than making a genuine and valid objection to the question.’ These interruptions, for example, included statements such as ‘This is all made up,’ and ‘where did he come up with that, Judge?’ and were asserted with no accompanying objection.”
Counsel for the plaintiff also repeatedly referred to a spoliation-of-evidence claim that actually had been dismissed, as against the defendants, by virtue of a directed verdict motion in favor of the defendants. Regardless, counsel for the plaintiff repeatedly referred to an alleged cover-up during the course of his closing statement.
The Ohio Supreme Court agreed with the trial court’s decision that the conduct for counsel for the plaintiff justified the granting of a motion for a new trial and reviewed the standard associated with same in paragraphs 36 and 38 of its opinion wherein the Court stated the following:
“Here, Mt. Sinai, Northeast, and Dr. Jordan asserted that the jury verdict was excessive and given under the influence of passion or prejudice pursuant to Civ. R. 59(A)(4), and, in conformity with Civ. R. 59(A)(2), that misconduct by McLeod’s counsel tainted the verdict. The important consideration for trial judges considering a motion on either of these bases is the evidence establishing grounds for a new trial, not the evidence supporting the jury’s verdict. Thus, where competent, credible evidence exists to support the trial court’s finding of an excessive verdict given under passion or prejudice or misconduct of counsel, the order granting a new trial is not an abuse of discretion and should remain undisturbed. ... In situations such as this one, appellate courts should defer to trial judges, who witnessed the trial firsthand and relied upon more than a cold record to justify a decision.
...
Competent, credible evidence, as illustrated above, also supports the granting of a new trial on the basis of misconduct of a prevailing party. ... ‘The determination of whether alleged misconduct of counsel was sufficient to taint the verdict with passion or prejudice ordinarily lies within the sound discretion of the trial court.’ (citation omitted) In exercising this discretion, trial courts have a ‘duty in the executive control of the trial to see that counsel do not create an atmosphere which is surcharged with passion or prejudice and in which the fair and impartial administration of justice cannot be accomplished.’ (citations omitted) This duty includes ordering a new trial when misconduct of counsel affected the outcome, and we find sufficient evidence to support the trial court’s decision in that regard.”
The Ohio Supreme Court upheld the trial court’s decision granting a new trial based, in part, upon the misconduct of counsel.
Expert Witness Testimony Required To Establish Proximate Cause
Lasley v. Nguyen, (2007) 172 Ohio App.3d 741
Many plaintiffs attempt to circumvent the need to produce expert witness testimony by arguing that the individual plaintiff is competent to testify as to cause and effect in the instance of a soft tissue injury. The Second District Court of Appeals had an opportunity to review and reject the foregoing assertion in a case involving an individual who was involved in a motor vehicle accident, claimed soft tissue injuries, but evidence was adduced that plaintiff had a 12 year history of neck and back problems, identical to the injuries being claimed in the present case. The plaintiff did not present any expert witness and the trial court granted a directed verdict in favor of the defendant against the plaintiff.
The Court of Appeals summarized the argument advanced by the plaintiff and reviewed the standard associated with instances wherein an expert witness is or is not required in order to establish causation in paragraphs 13, 19 and 20 of its opinion wherein the Court stated the following:
“Lasley further argues that she was competent to testify regarding her injuries and the treatment she subsequently received and that the automobile accident with Nguyen was the proximate cause of the injuries she claims to have suffered. Thus, she concludes that no expert testimony was required with respect to the element of proximate cause. We disagree.
...
Lasley argues that she was ‘clearly qualified to testify herself’ regarding the nature and extent of her injuries. Thus, she contends that no expert testimony was required because her claimed injury is something within the knowledge of an average juror. In support of her position, Lasley cites numerous cases that all stand for the same proposition, namely that where the causal connection between an injury and its specific modality involve questions which are matters of common knowledge, expert medical testimony is unnecessary. White Motor Corp. v. Moore (1976) 48 Ohio St.2d 156, 2 O.O.3d 338, 357 N.E.2d 1069. Conversely, where an issue in a case involves a question of scientific inquiry which is not within the knowledge of lay witnesses or members of the jury, expert testimony is required to furnish the answers. Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205, 46 O.O. 93, 101 N.E.2d 897.”
...
While we agree that in some instances the causal nexus between an accident and the alleged injury is so clear as to obviate the need for expert testimony in a personal-injury claim, such is not the case here. In all the cases cited by Lasley that support her assertion that expert testimony is not required to demonstrate proximate causation if the subject matter is within common knowledge of a layperson, there is only one factor that caused the injury in each case. In the instant case, evidence was adduced that established Lasley’s long and storied history of neck and back injuries dating from 1992 through October 2004.”
The Court upheld the trial court’s granting of a motion for a directed verdict and reaffirms the necessity of expert medical testimony unless the subject matter of proximate cause is a “matter of common knowledge.”
Wedding Liability – Duty Of Care For Reception Hall Where
The Groom’s Brother Assaulted Several Wedding Guests
McGrane v. Lighthouse Inn (2007) 173 Ohio App.3d 113
In McGrane, the Sixth District Court of Appeals reviewed a trial court’s decision finding against the plaintiff and in favor of a wedding hall that had served as the cite of a reception. During the course of the reception, the groom’s brother became intoxicated resulting in multiple fistfights during the course of the reception and several of those incidents resulted in a lawsuit being filed against the Lighthouse Inn. The trial court found in favor of the Lighthouse Inn after a trial to the bench and the Sixth District Court of Appeals reviewed the standard of legal liability in its syllabus and indicated the following:
“1. In general civil cases, where the plaintiff’s burden of proof at trial is by a preponderance of the evidence, a court of appeals will not reverse a trial court judgment if the judgment is supported by some competent, credible evidence going to all the essential elements of the case.
2. Reception hall did not owe a duty to wedding guests to warn or protect them from injury caused by the intentional violent acts of other guests who were served alcohol at hall, in action against hall after guests were assaulted by groom’s brother, who was allegedly intoxicated and had been served alcohol at reception hall, where there were no past incidents of violence at reception hall, there was no evidence conclusively establishing that the groom’s brother was intoxicated, and no one put reception hall employees on notice of the inappropriate behavior of groom’s brother.
3. A business owner has a duty to warn or protect its business invitees from criminal acts of third parties when the business owner knows or should know that there is a substantial risk of harm to its invitees on the premises in the possession and control of the business owner.”
Based upon the Court of Appeals’ ruling, the decision of the trial court finding in favor of the defendant was affirmed.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at www.curtinlawfirm.com. For your convenience, we will post these cases on our website in the “Newsletter” link.
The information contained in this Newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Curtin & Associates hopes that you and your family enjoyed the holidays and extends warm wishes for a safe and prosperous 2008.
Enough Is Enough! – Misconduct Of Counsel;
Granting Of A New Trial
Harris v. Mt. Sinai Med. Ctr., (2007) 116 Ohio St.3d 139
In Harris, the Ohio Supreme Court reviewed a case wherein a $30,000,000 jury verdict had been rendered in favor of the plaintiff in a medical malpractice case. The lower court had found that the conduct of counsel had justified the granting of a new trial and the Ohio Supreme Court reviewed several instances of the described misconduct of counsel for the plaintiff. In paragraph 9 of its opinion, the Court stated the following:
“The court described counsel’s conduct as ‘discourteous’ and ‘theatrical,’ including ‘constant interruption of opposing counsel without bothering to object and obtain a ruling’ so that he could ‘convey to the jury his own idea of what the witness should be saying, thus testifying for the witness, rather than making a genuine and valid objection to the question.’ These interruptions, for example, included statements such as ‘This is all made up,’ and ‘where did he come up with that, Judge?’ and were asserted with no accompanying objection.”
Counsel for the plaintiff also repeatedly referred to a spoliation-of-evidence claim that actually had been dismissed, as against the defendants, by virtue of a directed verdict motion in favor of the defendants. Regardless, counsel for the plaintiff repeatedly referred to an alleged cover-up during the course of his closing statement.
The Ohio Supreme Court agreed with the trial court’s decision that the conduct for counsel for the plaintiff justified the granting of a motion for a new trial and reviewed the standard associated with same in paragraphs 36 and 38 of its opinion wherein the Court stated the following:
“Here, Mt. Sinai, Northeast, and Dr. Jordan asserted that the jury verdict was excessive and given under the influence of passion or prejudice pursuant to Civ. R. 59(A)(4), and, in conformity with Civ. R. 59(A)(2), that misconduct by McLeod’s counsel tainted the verdict. The important consideration for trial judges considering a motion on either of these bases is the evidence establishing grounds for a new trial, not the evidence supporting the jury’s verdict. Thus, where competent, credible evidence exists to support the trial court’s finding of an excessive verdict given under passion or prejudice or misconduct of counsel, the order granting a new trial is not an abuse of discretion and should remain undisturbed. ... In situations such as this one, appellate courts should defer to trial judges, who witnessed the trial firsthand and relied upon more than a cold record to justify a decision.
...
Competent, credible evidence, as illustrated above, also supports the granting of a new trial on the basis of misconduct of a prevailing party. ... ‘The determination of whether alleged misconduct of counsel was sufficient to taint the verdict with passion or prejudice ordinarily lies within the sound discretion of the trial court.’ (citation omitted) In exercising this discretion, trial courts have a ‘duty in the executive control of the trial to see that counsel do not create an atmosphere which is surcharged with passion or prejudice and in which the fair and impartial administration of justice cannot be accomplished.’ (citations omitted) This duty includes ordering a new trial when misconduct of counsel affected the outcome, and we find sufficient evidence to support the trial court’s decision in that regard.”
The Ohio Supreme Court upheld the trial court’s decision granting a new trial based, in part, upon the misconduct of counsel.
Expert Witness Testimony Required To Establish Proximate Cause
Lasley v. Nguyen, (2007) 172 Ohio App.3d 741
Many plaintiffs attempt to circumvent the need to produce expert witness testimony by arguing that the individual plaintiff is competent to testify as to cause and effect in the instance of a soft tissue injury. The Second District Court of Appeals had an opportunity to review and reject the foregoing assertion in a case involving an individual who was involved in a motor vehicle accident, claimed soft tissue injuries, but evidence was adduced that plaintiff had a 12 year history of neck and back problems, identical to the injuries being claimed in the present case. The plaintiff did not present any expert witness and the trial court granted a directed verdict in favor of the defendant against the plaintiff.
The Court of Appeals summarized the argument advanced by the plaintiff and reviewed the standard associated with instances wherein an expert witness is or is not required in order to establish causation in paragraphs 13, 19 and 20 of its opinion wherein the Court stated the following:
“Lasley further argues that she was competent to testify regarding her injuries and the treatment she subsequently received and that the automobile accident with Nguyen was the proximate cause of the injuries she claims to have suffered. Thus, she concludes that no expert testimony was required with respect to the element of proximate cause. We disagree.
...
Lasley argues that she was ‘clearly qualified to testify herself’ regarding the nature and extent of her injuries. Thus, she contends that no expert testimony was required because her claimed injury is something within the knowledge of an average juror. In support of her position, Lasley cites numerous cases that all stand for the same proposition, namely that where the causal connection between an injury and its specific modality involve questions which are matters of common knowledge, expert medical testimony is unnecessary. White Motor Corp. v. Moore (1976) 48 Ohio St.2d 156, 2 O.O.3d 338, 357 N.E.2d 1069. Conversely, where an issue in a case involves a question of scientific inquiry which is not within the knowledge of lay witnesses or members of the jury, expert testimony is required to furnish the answers. Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205, 46 O.O. 93, 101 N.E.2d 897.”
...
While we agree that in some instances the causal nexus between an accident and the alleged injury is so clear as to obviate the need for expert testimony in a personal-injury claim, such is not the case here. In all the cases cited by Lasley that support her assertion that expert testimony is not required to demonstrate proximate causation if the subject matter is within common knowledge of a layperson, there is only one factor that caused the injury in each case. In the instant case, evidence was adduced that established Lasley’s long and storied history of neck and back injuries dating from 1992 through October 2004.”
The Court upheld the trial court’s granting of a motion for a directed verdict and reaffirms the necessity of expert medical testimony unless the subject matter of proximate cause is a “matter of common knowledge.”
Wedding Liability – Duty Of Care For Reception Hall Where
The Groom’s Brother Assaulted Several Wedding Guests
McGrane v. Lighthouse Inn (2007) 173 Ohio App.3d 113
In McGrane, the Sixth District Court of Appeals reviewed a trial court’s decision finding against the plaintiff and in favor of a wedding hall that had served as the cite of a reception. During the course of the reception, the groom’s brother became intoxicated resulting in multiple fistfights during the course of the reception and several of those incidents resulted in a lawsuit being filed against the Lighthouse Inn. The trial court found in favor of the Lighthouse Inn after a trial to the bench and the Sixth District Court of Appeals reviewed the standard of legal liability in its syllabus and indicated the following:
“1. In general civil cases, where the plaintiff’s burden of proof at trial is by a preponderance of the evidence, a court of appeals will not reverse a trial court judgment if the judgment is supported by some competent, credible evidence going to all the essential elements of the case.
2. Reception hall did not owe a duty to wedding guests to warn or protect them from injury caused by the intentional violent acts of other guests who were served alcohol at hall, in action against hall after guests were assaulted by groom’s brother, who was allegedly intoxicated and had been served alcohol at reception hall, where there were no past incidents of violence at reception hall, there was no evidence conclusively establishing that the groom’s brother was intoxicated, and no one put reception hall employees on notice of the inappropriate behavior of groom’s brother.
3. A business owner has a duty to warn or protect its business invitees from criminal acts of third parties when the business owner knows or should know that there is a substantial risk of harm to its invitees on the premises in the possession and control of the business owner.”
Based upon the Court of Appeals’ ruling, the decision of the trial court finding in favor of the defendant was affirmed.
Curtin & Associates will continue to electronically transmit cases of interest to the insurance industry. Please visit our website at www.curtinlawfirm.com. For your convenience, we will post these cases on our website in the “Newsletter” link.
The information contained in this Newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.