[Cite as Pratt v. Easton Technical Prods., Inc., 2015-Ohio-3180.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


RICK PRATT                                              :           JUDGES:
                                                        :           Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                            :           Hon. Patricia A. Delaney, J.
                                                        :           Hon. Craig R. Baldwin, J.
-vs-                                                    :
                                                        :
EASTON TECHNICAL PRODUCTS, INC                          :           Case No. 2014CA00144
                                                        :
        Defendant - Appellant                           :           OPINION



CHARACTER OF PROCEEDING:                                            Appeal from the Stark County Court
                                                                    of Common Pleas, Case No. 2011
                                                                    CV 02511



JUDGMENT:                                                           Affirmed



DATE OF JUDGMENT:                                                   August 3, 2015



APPEARANCES:

For Plaintiff-Appellee                                              For Defendant-Appellant

TIMOTHY H. HANNA                                                    CHRISTINA J. MARSHALL
Leiby Hanna Rasnick Towne Evanchan                                  JONATHAN M. MENUEZ
Palmisano & Hobson, LLC                                             DANIEL A. LEISTER
388 South Main Street, Suite 402                                    3600 Erieview Tower
Akron, OH 44311                                                     Sutter O'Connell Co.
                                                                    1301 East 9th Street
                                                                    Cleveland, OH 44114
Stark County, Case No. 2014CA00144                                                       2



Delaney, J.

       {¶1}   Defendant-Appellant Easton Technical Products, Inc. appeals from two

July 3, 2014 Judgment Entries entered by the Stark County Court of Common Pleas.

Plaintiff-Appellee is Rick Pratt.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   In 2009, Plaintiff-Appellee Rick Pratt was injured during a failed attempt to

launch a Beman ICS 400 arrow, which was designed and manufactured by Defendant-

Appellant Easton Technical Products, Inc. ("Easton"). Pratt was injured when the arrow

broke during launch and became partially embedded in his hand.

       {¶3}   On or about August 8, 2011, Pratt filed a complaint against Easton under

the Ohio Product Liability Act, codified at R.C. 2307.71, et seq. Pratt filed an amended

complaint on February 17, 2012. In his amended complaint, Pratt alleged a defective

design claim, an inadequate warnings claim, a warranty claim, and a manufacturing

defect claim. After the trial court granted summary judgment in favor of Easton on all of

the claims except the manufacturing defect claim, the matter proceeded to a jury trial.

The jury trial commenced on June 10, 2013.

       {¶4}   On June 17, 2013, the jury returned with a verdict in favor of Pratt and

against Easton. The jury awarded Pratt $246,283.58 in economic damages and

$750,000.00 in noneconomic damages, for a total award of $996,283.58. The trial court

memorialized the verdict via Judgment Entry filed June 21, 2013. On June 27, 2013, the

trial court filed a Judgment Entry vacating its June 21, 2013 Judgment Entry except for

the jury’s determination in favor of Pratt. The trial court found Easton was entitled to a
Stark County, Case No. 2014CA00144                                                      3


post-verdict set-off and scheduled an evidentiary hearing for July 31, 2013. The trial

court stated a final verdict would be entered upon determination of a set-off amount.

      {¶5}   On July 3, 2013, Pratt filed a Motion to Tax Costs, a Motion for Attorney

Fees and Litigation Expenses, and a Motion for Prejudgment Interest.

      {¶6}   Thereafter, on July 5, 2013, Easton filed a Motion for Judgment

Notwithstanding the Verdict as well as a Motion for New Trial. Both motions were

overruled pursuant to Judgment Entries filed on July 3, 2014. On the same date, the

trial court filed a Judgment Entry determining Pratt’s compensatory damages for

medical care, treatment and rehabilitation services should be reduced by $21,131.52

due to insurance payments and other adjustments. The trial court ordered the final

verdict be reduced accordingly for a total verdict in the amount of $975,152.06.

      {¶7}   On August 1, 2014, Easton filed a Notice of Appeal from the trial court’s

July 3, 2014 Judgment Entry overruling it’s Motion for Judgment Notwithstanding the

Verdict, and the July 3, 2014 Judgment Entry overruling it’s Motion for New Trial. Pratt

filed a Notice of Cross Appeal on August 4, 2014.

      {¶8}   On August 4, 2014, Pratt filed a Motion to Dismiss Appeal or in the

Alternative to Remand, arguing there was no final appealable order because the trial

court had not ruled on the motions that were filed on July 3, 2014. Via Judgment Entry

filed on September 2, 2014, this Court remanded the matter to the trial court to rule on

all of the pending motions.

      {¶9}   On September 9, 2014, Pratt filed a Withdrawal of Plaintiff’s Motion for

Attorney Fees and Litigation Expenses. Via Judgment Entry filed September 12, 2014,

the trial court granted, in part, and denied, in part, Pratt’s Motion to Tax Costs. On
Stark County, Case No. 2014CA00144                                                    4


September 29, 2014, the trial court issued an order denying the Motion for Prejudgment

Interest. The trial court filed an Addendum to the Judgment Entry regarding costs on

September 30, 2014. In the Addendum, the trial court stated it had failed to address the

issue of court costs in its September 12, 2014 Judgment Entry, and assessed costs to

Easton. The case sub judice was then returned to our active docket.

      {¶10} Pratt filed a Notice of Dismissal of Cross Appeal on January 21, 2015.

                             ASSIGNMENTS OF ERROR

      {¶11} Easton raises four assignments of error on appeal:

      {¶12} I.      THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE

ERROR BY REFUSING TO INSTRUCT THE JURY AS REQUESTED BY EASTON ON

THE AFFIRMATIVE DEFENSE OF CONTRIBUTORY FAULT.

      {¶13} II.     THE TRIAL COURT ABUSED ITS DISCRETION TO THE

SUBSTANTIAL PREJUDICE OF EASTON BY ADMITTING PREMATURE REBUTTAL

OPINIONS BY PLAINTIFF’S EXPERT THAT LACKED A PROPER BASIS AND

SHIFTED THE BURDEN OF PROOF TO THE DEFENSE.

      {¶14} III.    THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT

GRANTING EASTON’S MOTION FOR JUDGMENT NOTWITHSTANDING THE

VERDICT AND MOTION FOR A NEW TRIAL.

      {¶15} IV.     WHEN MULTIPLE TRIAL COURT ERRORS CREATE AN

ENVIRONMENT IN WHICH THE JURY IS REPEATEDLY EXPOSED TO AN

OVERWHELMING         VOLUME      OF   IRRELEVANT       AND    HIGHLY     PREJUDICIAL

EVIDENCE, THE FAILURE TO GRANT THE AGGRIEVED PARTY’S TIMELY FILED

MOTION FOR NEW TRIAL IS AN ABUSE OF DISCRETION.
Stark County, Case No. 2014CA00144                                                     5


                             MOTION TO DISMISS APPEAL

       {¶16} Before addressing the merits of Easton’s arguments, we note Pratt filed a

Motion to Dismiss for Lack of Jurisdiction on March 27, 2015. In the motion, Pratt

argued there was no final and appealable order because Easton had not filed an appeal

from the September 30, 2014 final order that was filed after our remand. As stated

above, this Court remanded the matter to the trial court to rule on pending motions

including a Motion for Prejudgment Interest pursuant to App.R. 4(B)(2).

       {¶17} App.R. 4(B)(2) provides, in relevant part:

                      After the trial court has ruled on the post-judgment filing on

              remand, any party who wishes to appeal from the trial court's

              orders or judgments on remand shall do so in the following manner:

              (i) by moving to amend a previously filed notice of appeal or cross-

              appeal under App.R. 3(F), for which leave shall be granted if sought

              within thirty days of the entry of the last of the trial court's

              judgments or orders on remand and if sought after thirty days of the

              entry, the motion may be granted at the discretion of the appellate

              court; or (ii) by filing a new notice of appeal in the trial court in

              accordance with App.R. 3 and 4(A). In the latter case, any new

              appeal shall be consolidated with the original appeal under App.R.

              3(B).

       {¶18} Easton has not appealed from the entries issued after remand. We find

Easton’s appeal, which was stayed while the pending motions were ruled on, is now

properly before this Court. Pratt's Motion to Dismiss is denied.
Stark County, Case No. 2014CA00144                                                         6


                                                  I.

       {¶19} In its first assignment of error, Easton argues the trial court erred by failing

to instruct the jury on the affirmative defense of contributory fault.

       {¶20} The giving of jury instructions is within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion. Pettit v.

Hughes, 177 Ohio App.3d 344, 2008-Ohio-3780, 894 N.E.2d 738 (5th Dist). In order to

find an abuse of discretion, we must determine that the trial court's decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Jury instructions

must be reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792

(1988). Whether the jury instructions correctly state the law is a question of law, which

we review de novo. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 575 N.E.2d 828

(1991).

       {¶21} Easton argues it requested the trial give its proposed jury instruction on

contributory fault to the jury. Easton contends it requested the following instruction:

       The Defendant claims that the Plaintiff was negligent. The Plaintiff was

       negligent if he failed to use the care for his own safety which a reasonably

       careful person would use under the same or similar circumstance.

       {¶22} According to Easton, such request was included in the proposed jury

instructions e-mailed to the Magistrate, with a copy to opposing counsel, pursuant to the

trial court’s Case Management and Trial Court Order of February 1, 2012. Easton

argues Pratt was contributorily negligent by failing to perform Easton’s field test of the

arrow that involved a visual inspection, a flex test, and a twist test.
Stark County, Case No. 2014CA00144                                                          7


       {¶23} However, the emailed version of the proposed jury instruction is not part of

the record. Moreover, Easton filed Proposed Jury Instructions on June 17, 2013 but

Easton's proposed jury instructions did not request an instruction on contributory

negligence. Finally, the record establishes Easton never raised the issue when the trial

court requested comments on the jury instructions.

       {¶24} Civ.R. 51, provides:

              (A) Instructions; error; record

                     At the close of the evidence or at such earlier time during the

              trial as the court reasonably directs, any party may file written

              requests that the court instruct the jury on the law as set forth in the

              requests. * * *

                     On appeal, a party may not assign as error the giving or the

              failure to give any instruction unless the party objects before the

              jury retires to consider its verdict, stating specifically the matter

              objected to and the grounds of the objection. Opportunity shall be

              given to make the objection out of the hearing of the jury.

       {¶25} It is well-established that a party may not assign as error on appeal “the

giving or the failure to give any instruction unless the party objects before the jury retires

to consider its verdict, stating specifically the matter objected to and the grounds of the

objection.” Civ.R. 51(A). See also Galmish v. Cicchini , 90 Ohio St.3d 22, 32, 2000-

Ohio-7, 734 N.E.2d 782. Moreover, it is well-settled that failure to object at the trial court

level to a complained of error results in a waiver of that error on appeal. Id.
Stark County, Case No. 2014CA00144                                                          8


      {¶26} Easton did not object to the jury instructions and therefore argues the trial

court committed plain error. However, we find the plain error doctrine is usually only

applied in the criminal context where a defendant's failure to object to an allegedly

erroneous jury instruction affects the defendant's substantial rights. See Crim.R. 52(B).

      {¶27} As noted by this Court in Kell v. Russo, 5th Dist. Stark No. 2011 CA

00082, 2012-Ohio-1286 at paragraphs 30-31:

                     In appeals of civil cases, the plain error doctrine is not

             favored and may be applied only in the extremely rare case

             involving exceptional circumstances where error, to which no

             objection was made at the trial court, seriously affects the basic

             fairness, integrity, or public reputation of the judicial process,

             thereby challenging the legitimacy of the underlying judicial process

             itself.” Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d

             1099, at paragraph one of the syllabus.

                     In Goldfuss, the Court explained that the doctrine shall only

             be applied in extremely unusual circumstances where the error

             complained of, if left uncorrected, would have a material adverse

             effect on the character of and public confidence in judicial

             proceedings. Id. at 121, 679 N.E.2d 1099. The Court concluded

             that the public's confidence is rarely upset merely by forcing civil

             litigants to live with the errors they themselves or the attorney

             chosen by them committed at trial. Id. at 121–122, 679 N.E.2d

             1099.
Stark County, Case No. 2014CA00144                                                              9

          {¶28} This Court, in Kell, held a plain error review of jury instructions was not

warranted. Upon review of the record, we find no indication of plain error in the instant

case. Assuming, arguendo, the trial court should have instructed the jury on contributory

negligence, any error does not rise to the level expressed in Goldfuss, supra.

          {¶29} Based on the foregoing, Easton's first assignment of error is overruled.

                                                       II.

          {¶30} In its second assignment of error, Easton asserts the trial court erred in

permitting Pratt’s liability expert, Daniel Greene, to refute the opinions of Easton’s

expert, Joseph Rakow Ph.D., during Pratt’s case in chief. Easton submits the trial court

erred in allowing this premature rebuttal testimony.

          {¶31} R.C. 2315.01 states, in relevant part, as follows:

                           (A) When the jury is sworn, unless for special reasons the

                  court otherwise directs, the trial shall proceed in the following order

                  except as provided in section 2315.021 of the Revised Code:

                           (1) The plaintiff concisely shall state the plaintiff's claim, and

                  briefly may state the plaintiff's evidence to sustain it.

                           (2) The defendant briefly shall state the defendant's defense,

                  and briefly may state the defendant's evidence in support of it.

                           (3) The party who would be defeated if no evidence were

                  offered on either side, first, shall produce that party's evidence, and

                  the adverse party shall then produce the adverse party's evidence.




1
    R.C. 2315.02 concerns jury views in civil cases.
Stark County, Case No. 2014CA00144                                                       10


                     (4) The parties then shall be confined to rebutting evidence,

              unless the court for good reasons and in the furtherance of justice,

              permits them to offer evidence in their original cases * * *

       {¶32} In Nickey v. Brown, 7 Ohio App.3d 32, 35, 454 N.E.2d 177 (9th Dist.1982),

the court explained rebuttal evidence “is that which is given to explain, repel, counteract,

or disprove facts given in evidence by the adverse party. It is that evidence which has

become relevant or important only as an effect of some evidence introduced by the

other side.” Id., quoting 31 Corpus Juris Secundum, Evidence, Section 2, at 818. A

party may rebut evidence adverse to the party’s side, but such evidence must be

introduced by the opposing party first. Weimer v. Anzevino, 122 Ohio App.3d 720, 702

N.E.2d 940 (7th Dist). “[I]n the absence of a good reason to the contrary, it is reversible

error for a trial court to fail to follow trial procedure as provided in R.C. 2315.01.”

Polasky v. Stampler, 30 Ohio App.2d 15, 19, 281 N.E.2d 191 (1st Dist.1971).

       {¶33} In the case sub judice, Pratt’s expert, Daniel Greene, was called during

Pratt’s case in chief. Prior to Greene’s testimony, Pratt’s counsel stated he was “not

going to get into specifics about Dr. Rakow’s opinion.” Trial Transcript, Vol. 4 at 8.

Easton’s counsel then stated, “[w]ith regard to Joe Rakow’s opinions and what I

consider to be rebuttal opinions, obviously we’ll try and object from our chair and merely

say rebuttal so that we don’t have to have so many sidebars.” Trial Transcript, Vol. 4 at

9. In response, the trial court stated:

                     THE COURT:           Yeah, I know and giving more thought to

              that, it’s not uncommon for experts to have reviewed each other’s

              reports at the time their original discovery depositions were taken
Stark County, Case No. 2014CA00144                                                  11


             and to be able to render opinions on that in this case, and I don’t

             know why it happened, but usually all discovery reports are

             exchanged before the actual depositions.

                    I may be kind of revisiting some things but I don’t - - and I

             have the prerogative of doing that.      So if Dr. Rakow’s report is

             something that Mr. Greene reviewed in developing his opinions, I’m

             thinking that’s fair game for his testimony, and I realize that that

             may be revisiting my issues on rebuttal, but it doesn’t do you any

             harm if Dr. Rakow never takes that stand.

Trial Transcript, Vol. 4 at 9-10. (Emphasis added).

      {¶34} Thereafter, during direct examination, Greene was questioned, over

objection, about Dr. Rakow’s report. For example, the following testimony was adduced:

                    Q: Mr. Greene, you had an opportunity to review after your

             first deposition was taken Dr. Rakow’s report and then his

             deposition; is that correct?

                    A: That is correct.

                    Q: Mr. Greene, do you have an opinion, within the realm of

             reasonable engineering probability, as to whether or not Dr.

             Rakow’s opinion that is impossible for an unobstructed arrow to fail

             is not based upon a generally accepted engineering principle?

                    MR. MENUEZ:        Objection, facts not in the evidence and

             misstates the opinion.

                    THE COURT: Note your objection. Overruled, go ahead.
Stark County, Case No. 2014CA00144                                                         12


                           THE WITNESS:    Dr. Rakow’s opinion that it is impossible

                 for an arrow to fail is not supported by the information in the Boeing

                 report.

Trial Transcript, Vol. 4 at 38-39.

        {¶35} As another example, Greene was permitted to testify, over objection, that

he disagreed with Dr. Rakow’s opinion in not testing arrows from the same

manufacturing lot. Greene also was permitted to testify, over objection, that he had

criticisms of Dr. Rakow’s “failure to videotape the tests of more than one plane to verify

the true angle and degree of deformation.” Trial Transcript, Vol. 4 at 48. At the time the

questions were asked of Greene, Dr. Rakow had not testified. Dr. Rakow did, however,

testify later.

        {¶36} We disagree with Easton and find the trial court did have “good reason” for

allowing Pratt to present "rebuttal testimony" in this manner. The record reflects Greene

issued two reports, one on January 31, 2012, and another on May 1, 2012. Greene

was then deposed on June 4, 2012. Dr. Rakow issued his report in the fall of 2012. A

second deposition of Greene was conducted on June 5, 2013, relative to a subsequent

report he authored after reviewing Dr. Rakow’s report. We find Greene’s testimony

regarding Dr. Rakow was proper as Greene reviewed Dr. Rakow’s report in forming his

ultimate opinions in this case.

        {¶37} In addition, Greene testified on June 11, a Tuesday.          If the trial court

required counsel to present testimony in order of the witnesses, Greene would have had

to wait until the following Monday or Tuesday before testifying in rebuttal. Greene is

from Atlanta, Georgia. A delay in testifying would have required him to stay longer in
Stark County, Case No. 2014CA00144                                                        13


Stark County for a week, or make a return trip, either option would create unnecessary

costs and inconvenience.

       {¶38} We do not believe Easton was substantially prejudiced by such opinion

testimony and its ability to fairly defend itself was not compromised. Although the trial

court stated Easton would not be harmed if Dr. Rakow did not take the stand, we

believe, when the trial court’s statement is read in its full context, the trial court simply

misspoke. We think the trial court likely meant to say if Dr. Rakow did take the stand,

Easton would not be harmed. Dr. Rakow’s subsequent testimony provided Easton with

an opportunity to lessen, if not negate, the impact of Greene’s asserted "premature

rebuttal" testimony.

       {¶39} Easton’s second assignment of error is overruled.

                                                III.

       {¶40} In its third assignment of error, Easton contends the trial court erred in

overruling its Motion for New Trial pursuant to Civ.R. 59 and Motion for Judgment

Notwithstanding the Verdict.

       {¶41} In its Motion for New Trial, Easton argued it was entitled to a new trial

pursuant to Civ.R. 59(A)(1), irregularity of proceedings, and (2), misconduct of

prevailing party. The granting of a Civ.R. 59(A) motion for new trial is generally left to a

trial court's sound discretion and the decision will not be reserved absent an abuse of

that discretion. State Farm Mut. Auto. Ins. Co. v. Williams, 5th Dist. Licking No. 13–CA–

04, 2013–Ohio–3884, at ¶ 22. An abuse of discretion connotes more than an error of

law or judgment; rather, it implies that the trial court's attitude was unreasonable,
Stark County, Case No. 2014CA00144                                                         14

unconscionable, or arbitrary. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).

       {¶42} Easton asserts it is entitled to a new trial, in part, because Pratt improperly

introduced other similar incidents, or “OSI”, evidence. Prior to trial, on December 20,

2012, Easton filed a Motion in Limine, seeking to exclude any mention of allegedly

“similar incidents.” The trial court granted such motion.

       {¶43} During opening statements, Pratt’s counsel indicated after Pratt’s

discussions with Easton broke down, Easton “goes into full litigation mode and contacts

counsel that has represented them in the past in an exploded arrow case and is

currently representing them… in an exploded arrow case.” Trial Transcript, Vol. 2 at 30.

Easton objected. The trial court asked Pratt’s counsel why he would say “exploded

arrow case” and counsel responded Easton hired Dr. Rakow in other cases. The trial

court informed Pratt’s counsel he “can’t go into the specifics and say exploded arrow.

That’s prejudicial to them.” Trial Transcript, Vol. 2 at 32. The trial court also told counsel

he could say Easton hired Dr. Rakow, but could not “go into every different type of

case.” Trial Transcript, Vol. 2 at 32. The trial court indicated it would give a curative

instruction, and directed Pratt’s counsel not to refer to any other type of case. The trial

court then instructed the jury to disregard any “reference to any other incident involving

an arrow failure in any other incident.” Trial Transcript, Vol. 2 at 37. Immediately

thereafter, Pratt’s counsel informed the jury Dr. Rakow had testified in more than one

other case concerning a defective arrow.

       {¶44} Subsequently, during cross-examination of Kenny Giles, Easton’s design

engineer, Pratt’s counsel asked him how many cases he had been involved in
Stark County, Case No. 2014CA00144                                                    15


concerning a failure of an Easton arrow. Easton’s counsel objected and the trial court

overruled the objection. Pratt’s counsel then asked Giles how many cases he had been

involved in regarding “the failure of an Easton arrow similar to what’s going on here?”

Trial Transcript, Vol. 5 at 189. Easton’s counsel again objected and the trial court

overruled the objection. When Pratt’s counsel asked Giles “how any times has your

deposition been taken in a case such as this?”, Easton’s counsel objected to the second

half of the question and the trial court sustained the objection “as to the way the

question was formed.” Trial Transcript, Vol. 5 at 191.

      {¶45} Subsequently, Pratt’s counsel asked Dr. Rakow if he had previously been

an expert in an arrow case. After he indicated he had, Pratt’s counsel responded “[a]nd

one of those cases was Bird versus Easton.” Trial Transcript, Vol. 6 at 230. Easton’s

counsel then objected and moved for a mistrial. The following discussion took place on

the record during a bench conference:

                      MR. HANNA: I am connecting up his relationship with the

             Defense Counsel, and he has testified for the Defense Counsel on

             numerous cases for the relationship between these guys and him.

                      MR. MENUEZ: He was told not to prior to the beginning of

             trial.

                      THE COURT: I did say - - I said that a number of times he

             has testified for counsel is relevant but not particularly in another

             case involving an arrow. Has he testified as an expert witness on

             behalf of Defendants before is fine.        Has he testified before on
Stark County, Case No. 2014CA00144                                                     16


              behalf of the counsel that retained him before is fine. But to go into

              specifics about specific cases involving arrow is off limits.

                      MR. HANNA: I’m not going to go into the specifics of the

              case.

                      MR. CONLEY: You already did.

                      MR. HANNA: I just said the name.

                      THE COURT: You named a case.

                      MR. HANNA: Well, because he hasn’t disclosed all of the

              cases he’s been involved in with these guys. I know that and I can

              prove that.

                      THE COURT: Well, you want to separately voir dire him on

              that then because this is not going to happen in the presence of the

              Jury, because we’re bordering on OSI and I have specifically ruled

              on that.

Trial Transcript, Vol. 6 at 231-232.

       {¶46} Pratt’s counsel indicated to the trial court Dr. Rakow had testified in three

cases for Easton and Easton’s counsel objected because Pratt’s counsel was holding

up three fingers in front of the jury. Pratt’s counsel denied doing so.

       {¶47} The trial court explained it held the way it did regarding other similar acts

evidence because “it was my understanding after discussion with all counsel that Mr.

Hanna could not produce the evidence at this time necessary for a separate hearing

that would qualify for other similar incident evidence in this particular case. The reason
Stark County, Case No. 2014CA00144                                                       17


why it’s inappropriate to ask about other failed arrows in this context is Rule 403, which

is evidence that would serve to confuse the jury.” Trial Transcript, Vol. 6 at 238.

       {¶48} Prior to denying Easton’s request for a mistrial, the trial court stated:

                     THE COURT:        The problem is you keep - - prefaced your

              comments by have you ever been an expert in an arrow case

              before, which raises the inference that there has been other

              litigation about failed arrow cases with respect to this particular

              arrow. Whether or not you said the specific arrow, we had this

              discussion, and even the case cite which cites Easton as a

              Defendant. And I can’t even remember if we went on - - I mean the

              primary business of Easton is the manufacture of arrows I believe is

              what my understanding is.

                     I do not have a problem with questioning, you know, have

              you testified as a, you know, engineer or behalf of the Defendant’s

              in the past, or have you testified for Mr. Menuez or Mr. Conley in

              the past, but to suggest that he’s testified in cases involving Easton

              arrows when that raises the inference that there is other failed

              arrows out there only serves to confuse the jurors.

Trial Transcript, Vol. 6 at 242-243.

       {¶49} The trial court denied the request for a mistrial, but found Pratt’s counsel

in contempt and fined him $250.00. The jury was instructed to disregard the questioning

about other arrow cases and informed counsel had been fined.
Stark County, Case No. 2014CA00144                                                                   18


        {¶50} Although we agree the introduction of OSI evidence was improper, we find

any error in the admission of such evidence did not warrant the granting of a new trial.

In its July 3, 2014 Judgment Entry denying Easton’s Motion for New Trial, the trial court

found the jury knew the Boeing Report2 was conducted due the “the large number of

arrow failures in the field, not just the ICS Hunter 400 arrows” and the jury, on such

basis, could have concluded other failed arrow cases had been filed against Easton.

Easton presented the testimony of the author of the Boeing Report. While Easton

disagrees with the trial court’s proffered rationale that the jury could have concluded

other failed arrow cases had been filed against Easton based upon the Boeing Report,

we find the trial court’s rationale was not unreasonable, unconscionable, or arbitrary.

Furthermore, upon review of the entire transcript of this matter, we find the few

references to OSI evidence was harmless in light of the tremendous volume of

testimony heard over the weeklong trial. Accordingly, we find the trial court did not

abuse its discretion in denying Easton’s Motion for New Trial.

        {¶51} Easton also argues the trial court erred in overruling its Motion for

Judgment Not Withstanding the Verdict.

        {¶52} “A motion for judgment notwithstanding the verdict is used to determine

only one issue, i.e., whether the evidence is totally insufficient to support the verdict.”

Krauss v. Streamo, 5th Dist. Stark No. 2001 CA00341, 2002–Ohio–4715, paragraph 14.

See also, McLeod v. Mt. Sinai Medical Center, 166 Ohio App.3d 647, 853 N.E.2d 1235

(8th Dist.2006), reversed on other grounds, 116 Ohio St.3d 139, 876 N.E.2d 1201

(2007). Neither the weight of the evidence nor the credibility of the witnesses is a proper

2
  Easton contacted Boeing in 2002, and asked Boeing to investigate arrow failures. Over a four year
period, Boeing tested 12,000 arrows and prepared a report. Plaintiff’s Exhibits 6 and 7, which concerned
the report, were not admitted at trial.
Stark County, Case No. 2014CA00144                                                      19

consideration for the court. Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271,

275, 344 N.E.2d 334 (1976). See also, Civ.R. 50(B); and Osler v. Lorain, 28 Ohio St.3d

345, 347, 504 N.E.2d 19 (1986). In other words, if there is evidence to support the

nonmoving party's side so that reasonable minds could reach different conclusions, the

court may not usurp the jury's function and the motion must be denied. Osler, supra.

      {¶53} Appellate review of a ruling on a motion for judgment notwithstanding the

verdict is de novo. Midwest Energy Consultants, L.L.C. v. Utility Pipeline, Ltd., 5th Dist.

Stark No. 2006CA00048, 2006–Ohio–6232.

      {¶54} Upon review of the evidence presented at trial, we find there is sufficient

evidence to support Pratt’s side so that reasonable minds could not come to only one

conclusion adverse to Pratt. Accordingly, we find the trial court did not err in denying

Easton’s motion for judgment notwithstanding the verdict.

      {¶55} Easton’s third assignment of error is overruled.

                                               IV.

      {¶56} In its fourth assignment of error, Easton maintains multiple trial errors

created an environment in which the jury was repeatedly exposed to an overwhelming

volume of irrelevant and highly prejudicial evidence and, for such reasons; the trial court

erred in denying its Motion for New Trial. We disagree.

      {¶57} Having found no error in the first, second and third assignments of error,

we overrule Easton’s fourth assignment of error.
Stark County, Case No. 2014CA00144                                              20


                                      CONCLUSION

       {¶58} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.


By: Delaney, J.

Hoffman, P.J., and

Baldwin, J., concurs in part and dissents in part.
Stark County, Case No. 2014CA00144                                                      21

Baldwin, J., concurring in part and dissenting in part
      {¶59} While I concur with the majority’s analysis and disposition of appellant’s

first assignment of error, I respectfully disagree with the majority’s analysis and

disposition of appellant’s second, third and fourth assignments of error.

      {¶60} With respect to appellant’s second assignment of error, I concur with

appellant that the trial court did not provide a “good reason” for allowing appellee to

present rebuttal testimony in the manner that it did. Appellee’s expert rebutted matters

that were not yet in evidence. The end result was that Rakow was discredited before he

ever took the stand and the veracity of his opinions was attacked.          I believe that

appellant was substantially prejudiced by such rebuttal testimony and that its ability to

fairly defend itself was compromised. I note the trial court had stated that appellant

would not be harmed if Rakow did not take the stand. He did, indeed, take the stand.

On such basis, I would sustain appellant’s second assignment of error.

      {¶61} With respect to its third assignment of error, appellant contends that the

trial court erred in overruling its Motion for New Trial pursuant to Civ.R. 59 and Motion

for Judgment.

      {¶62} I believe that the improper introduction of OSI evidence warranted the

granting of a new trial.   The majority notes that the trial court, in its July 3, 2014

Judgment Entry denying appellant’s Motion for New Trial, found that the jury knew that

the Boeing Report was conducted due the “the large number of arrow failures in the

field, not just the ICS Hunter 400 arrows” and that the jury, on such basis, could have

concluded that other failed arrow cases had been filed against appellant. However,

there is no indication that the Boeing report stated that appellant had actually been sued

in the past for incidents related to the arrow that the subject of this case. Moreover, the
Stark County, Case No. 2014CA00144                                                       22


Boeing report concerned arrows other than the ICS Hunter 400 arrows. I would find that

the trial court abused its discretion in denying appellant’s Motion for New Trial based on

the numerous instances of counsel misconduct that deprived appellant of a fair trial.

         {¶63} Appellant, in its third assignment of error, also argues that the trial court

erred in overruling its Motion for Judgment Notwithstanding the Verdict. However, based

on my analysis of appellant’s second assignment of error and my belief that the trial

court should have granted a new trial due to misconduct, I would find this argument to

be moot. See, for example, Burnworth v. Ohio Bell Tel. Co., 5th Dist. Stark No. CA-

9066, 1993 WL 289846 and Sun Ins. v. Edwards, 97 Ohio App.3d 239, 243, 646 N.E.2d

535 (1st Dist. 1994) (“Because our disposition of the first assignment of error requires a

new trial in this case, we need not address plaintiff's third assignment of error, that the

trial court erred by overruling plaintiff's motion for judgment notwithstanding the verdict

or for a new trial. See App.R. 12(A)(1)(c).”)

         {¶64} Based on the foregoing, I would sustain appellant’s third assignment of

error.

         {¶65} As noted by the majority, appellant, in its fourth assignment of error,

argues that multiple trial errors created an environment in which the jury was repeatedly

exposed to an overwhelming volume of irrelevant and highly prejudicial evidence and

that, for such reason, the trial court erred in denying its Motion for New Trial.

         {¶66} Based on my analysis of appellant’s second and third assignments of

error, I would sustain appellant’s fourth assignment of error. I believe that cumulative

errors warrant the granting of a new trial.
Stark County, Case No. 2014CA00144                                               23


      {¶67} Accordingly, based on the foregoing, I would reverse the judgment of the

Stark County Court of Common Pleas and remand this matter for further proceedings.




                                      HON. CRAIG R. BALDWIN
[Cite as Pratt v. Easton Technical Prods., Inc., 2015-Ohio-3180.]
