[Cite as Striff v. Luke Med. Practitioners, Inc., 2010-Ohio-6261.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY


CAROLE E. STRIFF, ADMR.,
INDIVIDUALLY AND AS ADMR. OF THE
ESTATE OF JEFFREY A. STRIFF,
DECEASED,                                                            CASE NO. 1-10-15

        PLAINTIFF-APPELLANT,

        v.

LUKE MEDICAL PRACTITIONERS,                                          OPINION
INC., ET AL.,

        DEFENDANTS-APPELLEES.


                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CV2008-0189

                                       Judgment Affirmed

                           Date of Decision: December 20, 2010


APPEARANCES:

        Robert W. Kerpsack for Appellant

        James F. Nooney for Appellees, Luke Medical Practitioners, Inc.,
                 Jay M. Martin, M.D. and Melisa C. Bodkin, C.N.P.

        Michael P. Murphy for Appellees, Pandora Family Physicians, Inc.,
                 and Steven K. McCullough, D.O.

        Donald J. Moracz for Appellees, Horstman & Klir, M.D., Inc.
Case No. 1-10-15


WILLAMOWSKI, P.J.,

       {¶1} Plaintiff-Appellant, Carole E. Striff (“Appellant”), individually and

as Administrator of the Estate of Jeffrey Striff, deceased (“Mr. Striff” or “the

decedent”), appeals the judgment of the Allen County Court of Common Pleas in

favor of Defendants-Appellees.       Appellant claims that there were numerous

irregularities and errors pertaining to the jury trial in which Appellant was seeking

compensatory damages for the wrongful death of her husband, caused by the

alleged medical malpractice of Defendants-Appellees: Steven K. McCullough,

D.O (“Dr. McCullough”), Wesley A. Klir, M.D., Inc. (“Dr. Klir”), Jay M. Martin,

M.D. (“Dr. Martin”), Melisa C. Bodkin, C.N.P. (“Nurse Bodkin”), and their

employers. For the reasons set forth below, the judgment is affirmed.

       {¶2} Mr. Striff received medical treatment from Appellees beginning in

early 2003 through December 2006. In February 2007, Mr. Striff, age 43, had a

fatal heart attack. The autopsy showed that he suffered from coronary artery

disease. Appellant claims that Appellees failed to appropriately diagnose and/or

follow-up on Mr. Striff's cardiac condition, especially in light of his family history

of cardiac disease. Mr. Striff's identical twin brother had several heart attacks and

was diagnosed with heart disease when he was in his early thirties. Mr. Striff's

mother was also diagnosed with heart disease at an early age and had by-pass

surgery.



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       {¶3} Appellees deny any wrong-doing and contend that they followed the

appropriate standard of care for the treatment they provided Mr. Striff. They

maintain that Mr. Striff was completely responsible for his medical condition due

to his life-style choices and, more importantly, his failure to follow through with

the recommendations and follow-up treatments ordered by Appellees. Mr. Striff

was overweight, smoked a pack of cigarettes a day, and drank several alcoholic

beverages every day. Mr. Striff also failed to obtain a lipid profile to measure his

cholesterol and did not see a cardiologist, as he was instructed to do on many

occasions.

                       Treatment with Dr. McCullough, D.O.
                       and Pandora Family Physicians, Inc.

       {¶4} In February 2003, Mr. Striff visited Dr. McCullough for the first

time with complaints of fatigue, upper chest heaviness, and a racing heart, after

being seen in the emergency room the previous day. Dr. McCullough ordered a

cardiac work-up, including: (1) EKG; (2) stress test; (3) echocardiogram; (4) a

fasting lipid profile to check cholesterol levels; (5) referral to a cardiologist, Dr.

Kingsley; and (6) a follow-up appointment the next month. Dr. McCullough

completed a consultation letter to the cardiologist and an appointment was

scheduled for Mr. Striff with Dr. Kinglsey on April 8, 2003. The results of the

EKG, stress test, and echocardiogram were within normal ranges and were

negative for myocardial infarction or cardiac disease. Mr. Striff did not have his


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Case No. 1-10-15


lipid profiles done and he did not show up for his appointment with the

cardiologist or for his follow-up appointment with Dr. McCullough.

      {¶5} Mr. Striff next saw Dr. McCullough in December 2003 to have a

lesion removed from his face. He visited Dr. McCullough four more times in July,

August, and September 2004 with complaints of muscle spasms and upper and

lower back pain. Mr. Striff had no cardiac complaints at any of these visits, and

Mr. Striff never saw a cardiologist or obtained a lipid profile as directed by Dr.

McCullough, who continued to remind him to do so. September 7, 2004 was the

last time Dr. McCullough treated Mr. Striff.

                      Treatment with Nurse Bodkin, C.N.P.,
                      Dr. Martin, and Luke Medical Center

      {¶6} Nurse Bodkin was a Certified Nurse Practitioner at Luke Medical

Center who saw Mr. Striff on one occasion, on May 22, 2006, when he came to

the center as a new patient. Mr. Striff complained of having panic attacks, leg

cramps, and left shoulder/neck/arm pain as well as back pain. Mr. Striff wanted to

try some medication for anxiety and panic attacks, supposedly due to new VFW

public speaking responsibilities. In the paperwork he completed at Luke Medical

Center, he represented his cardiovascular history to be negative for high blood

pressure, heart disease, heart murmur, angina, chest pain, and rheumatic fever,

although he did acknowledge that he had a family history of heart disease.




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       {¶7} Nurse Bodkin wanted to do an EKG but testified that Mr. Striff did

not want one because he believed his pain was all in his neck and shoulder due to

a previous work injury. X-rays were done which showed a disc problem which

could have been the cause of the left shoulder and arm pain. In any case, Nurse

Bodkin ordered complete blood work testing, including a lipid profile to check his

cholesterol, and encouraged him to obtain further screenings to evaluate his risk

for possible cardiovascular disease due to his family history. She ordered a copy

of his medical records in order to review them with him at his follow-up

appointment in June. Mr. Striff never had the blood work done, never came back

for the follow-up appointment, and never saw Nurse Bodkin again.

       {¶8} Mrs. Striff, however, called the clinic on behalf of her husband on

June 20, 2006, to request a refill on one of the prescriptions issued by Nurse

Bodkin. Nurse Bodkin was not there at the time so Dr. Martin, her “collaborating

physician,” initialed his approval of the refill on the telephone message request.

                              Treatment with Dr. Klir

       {¶9} On August 22, 2006, Mr. Striff presented to Dr. Klir for a DOT

physical for the renewal of his commercial driver’s license (“CDL”). Mr. Striff

drove a truck for BP delivering propane to customers.           He had no cardiac

complaints or symptoms at this time and he represented that his health history was

negative, except for back pain. Dr. Klir examined Mr. Striff and found that he met



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Case No. 1-10-15


all the requirements necessary to qualify him for certification for his CDL. Dr.

Klir’s assessment notes from the visit stated: “follow-up for CAD [coronary

artery disease], check cholesterol, tobacco abuse – advised cessation, and DOT

physical.”

      {¶10} Mr. Striff again saw Dr. Klir on September 15, 2006, experiencing

flu-like symptoms. He was diagnosed with sinusitis, placed on antibiotics, and

again advised to get his lipid testing done and to stop smoking. Mr. Striff saw Dr.

Klir one more time, on December 18, 2006, complaining of a mole on the buttock

and probable hemorrhoids.

      {¶11} On February 7, 2007, Mr. Striff collapsed and died of a massive

heart attack while making a fuel delivery in the cold. On February 4, 2008,

Appellant filed a complaint seeking compensatory damages for the wrongful death

of her husband, proximately caused by the alleged medical malpractice of

Appellees.

      {¶12} Extensive discovery was conducted, experts were deposed, and

numerous motions in limine were filed and ruled upon. Dr. Martin filed a motion

for summary judgment, which was granted on October 28, 2009. A five-day jury

trial was held with the remaining defendants November 17-23, 2009.

      {¶13} During the proceedings, Appellant moved for a new trial based upon

the allotment of peremptory challenges; she moved for a mistrial after opening



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statements and again after a juror was dismissed due to illness; and she moved for

a directed verdict on the issue of contributory negligence. The trial court denied

all of the above motions.

      {¶14} On November 23, 2009, the jury returned unanimous verdicts in

favor of all Appellees and found the decedent to be 100% negligent. The trial

court entered judgment in favor of Appellees on November 30, 2009.

      {¶15} Appellant then filed a motion for a new trial, which was denied on

December 31, 2009. Appellant now brings this appeal, raising the following

eleven assignments of error for our review.

                             First Assignment of Error

      The trial court erred to the prejudice of [Appellant] in granting
      summary judgment on the issue of liability in favor of Appellee
      [Dr. Martin].

                            Second Assignment of Error

      The trial court committed reversible error in providing six
      peremptory challenges to each side, thereby precluding
      Appellant’s intelligent use of her peremptory challenges.


                            Third Assignment of Error

      The trial court committed reversible error in denying
      Appellant’s motion for a mistrial following the opening
      statement of [Dr. Klir].




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                        Fourth Assignment of Error

      The trial court committed reversible error in excluding evidence
      of the lipid profile results of the decedent’s identical twin
      brother.

                         Fifth Assignment of Error

      The trial court committed reversible error in excluding evidence
      of Dr. Harris’ opinions not expressly disclosed during his
      discovery deposition.

                        Sixth Assignment of Error

      The trial court committed reversible error in admitting evidence
      of the Decedent’s collateral workers’ compensation claim.


                       Seventh Assignment of Error

      The trial court committed reversible error in admitting the
      expert testimony of cardiologist Steven Yakubov, M.D., that
      Appellees met the requisite standard of care.

                        Eighth Assignment of Error

      The trial court committed reversible error discharging Juror #1
      and in denying Appellant’s motion for a mistrial.

                        Ninth Assignment of Error

      The trial court committed reversible error in denying
      Appellant’s motions for directed verdict on the issue of the
      decedent’s contributory negligence.

                        Tenth Assignment of Error

      The trial court committed reversible error in instructing and
      submitting to the jury the issue of the decedent’s comparative
      negligence.


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                          Eleventh Assignment of Error

       The trial court committed reversible error in denying
       Appellant’s motion for a new trial.

       {¶16} Several of Appellant’s assignments of error contain overlapping

issues of fact and law. Therefore, we elect to address some of the assignments of

error together and out of order.

                             First Assignment of Error

       {¶17} Several months prior to trial, Dr. Martin moved for summary

judgment asserting that Appellant could not produce any evidence that Dr. Martin

was vicariously liable for the actions of Nurse Practitioner Bodkin. On October

28, 2009, the trial court granted summary judgment as to the claims against Dr.

Martin, with the express finding pursuant to Civ.R. 54(B) that “there was no just

reason for delay.”

       {¶18} As part of this appeal, filed on January 27, 2010, Appellant included

Assignment of Error I, arguing that the trial court erred in granting Dr. Martin’s

motion for summary judgment.          Dr. Martin filed a motion to dismiss this

assignment of error because it was not filed within 30 days of the trial court’s final

appealable order and, therefore, was untimely pursuant to App.R. 4(A).

       {¶19} Ohio Rule of Civil Procedure 54(B) addresses judgments upon

multiple claims or involving multiple parties:



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        When more than one claim for relief is presented in an action
        whether as a claim, counterclaim, cross-claim, or third-party
        claim, and whether arising out of the same or separate
        transactions, or when multiple parties are involved, the court
        may enter final judgment as to one or more but fewer than all of
        the claims or parties only upon an express determination that
        there is no just reason for delay. ***

(Emphasis added.) Id. The Civil Rule 54(B) language of a finding that there is

“no just reason for delay” can be used to make a grant of summary judgment a

final appealable order even when there are other outstanding claims against other

parties left in the case. Whitaker-Merrell Co. v. Geupel Co. (1972), 29 Ohio St.2d

184,280 N.E.2d 922, at the syllabus; Lillie v. Meachem, 3d Dist. No. 1-09-09,

2009-Ohio-4934, ¶8. However, an order of a court will be a final, appealable

order only if it meets the requirements of both Civ.R. 54(B), if applicable, and

R.C. 2505.02. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86,

541 N.E.2d 64, at the syllabus.

       {¶20} Appellant claims that the decision granting summary judgment in

favor of Dr. Martin did not meet the requirements of R.C. 2505.02(B)(1), and was

not a final appealable order. R.C. 2505.02(B) states that “[a]n order is a final

order that may be reviewed, affirmed, modified, or reversed, with or without

retrial, when it is one of the following: (1) An order that affects a substantial right

in an action that in effect determines the action and prevents a judgment; ***.

Appellant argues that there were unresolved allegations and claims in the



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complaint pertaining to Dr. Martin that prevented the decision from being a final

appealable order.

       {¶21} We disagree. The trial court specifically determined that, in addition

to failing to present evidence to rebut the affidavit of Dr. Martin, there was not

“anything in the evidentiary material submitted with this record that raises a

genuine issue of material fact as to any of the allegations in the complaint against

defendant Dr. Martin.” (Oct. 28, 2009, Civ.R. 56 J.E., emphasis added.) All of

the allegations in the complaint were dismissed against Dr. Martin in their entirety,

leaving no claims or issues left to be litigated against this party.

       {¶22} Therefore, having met the requirements of both R.C. 2505.02 and

Civ.R. 54(B), the October 28, 2009 judgment entry granting summary judgment

was a final appealable order concerning all of the claims against Dr. Martin. The

doctrine of res judicata bars further litigation of issues that were raised previously

or could have been raised previously. See National Amusements, Inc. v. City of

Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178. See also, App.R.

4(B)(2)(5). Because Appellant failed to file a timely appeal addressing the issues

concerning Dr. Martin’s summary judgment, the issues raised in the first

assignment of error are barred by res judicata. Dr. Martin’s motion is granted and

Appellant’s first assignment of error is overruled.




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                                  Second Assignment of Error

        {¶23} The trial court ordered that Appellant would receive four peremptory

challenges1 during jury selection and that Appellees collectively would receive six

peremptory challenges (two for each defending medical professional). Appellant

asserts that the trial court should have considered the three defending parties as a

single “side” and limited them to only three peremptory challenges in total.

Appellant maintains that the trial court abused its discretion by adopting a jury

selection process that “prevented Appellant from exercising her peremptory

challenges judiciously and intelligently.” (Appellant’s Br., p. 8.)

        {¶24} In a civil case, each party is permitted to peremptorily challenge

three jurors without reason pursuant to Civ.R. 47(C) as long as the challenge is not

based on race or gender. Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95,

1997-Ohio-227, 676 N.E.2d 872. Civil Rule 47(C) states, “[i]n addition to

challenges for cause provided by law, each party peremptorily may challenge three

prospective jurors. If the interests of multiple litigants are essentially the same,

‘each party’ shall mean ‘each side.’”                  Multiple parties who file a common

pleading, rely upon a singular statement of facts, and employ the same attorney to

represent them may properly be considered a single party for the purposes of



1
  In her appellate brief, Appellant states that she was granted six peremptory challenges; Appellees claim
she was granted four. The trial court’s November 12, 2009 judgment entry states that Appellant would
have four peremptory challenges.


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determining the proper number of peremptory challenges. See Nieves v. Kietlinski

(1970), 22 Ohio St.2d 139, 258 N.E.2d 454. However, in cases where each

defendant files separate replies and defenses; each is represented by its own

counsel; each attempts to prove that its conduct was not negligent; and, the

individual defenses asserted do not necessarily stand or fall together, then each

individual defendant is entitled to three peremptory challenges. LeFort v. Century

21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 125, 512 N.E.2d 640; Bernal

v. Lindholm (1999), 133 Ohio App.3d 163, 727 N.E.2d 145.

      {¶25} The facts pertaining to the individual defendants in this case meet all

the criteria set forth in LeFort demonstrating that each defendant was a separate

party. Each respective defendant was represented by separate counsel and filed

separate pleadings and motions. Each defendant could prove he or she was not

negligent independently of the other. Therefore, each of the separate defendants

should have been entitled to three peremptory challenges. Instead, the trial court

gave each defendant only two peremptory challenges and gave Appellant an

additional peremptory challenge although not required to do so by the rule. We

fail to see where Appellant has suffered any prejudice.




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        {¶26} Furthermore, Appellant’s arguments claiming that the trial court’s

assignment of peremptory challenges was a “structural error”2 requiring reversal

without a showing of prejudice does not have any merit. The Ohio Supreme Court

has held that while the right to peremptory challenges has become a substantive

right, the rules governing the allowable number of peremptory challenges is a

matter of procedure.           State v. Greer (1988), 39 Ohio St.3d 236, 244-246, 530

N.E.2d 382.

        There is, of course, no federal or state constitutional
        requirement that peremptory challenges be provided within a
        trial. However, such right, once provided by a state's legislature,
        is a valuable statutory incident to the right of trial by jury. ***
        Thus, once provided by the General Assembly, the peremptory
        challenge has become a crucial substantive right. The same
        cannot be stated with regard to the number of peremptory
        challenges allowed.

(Internal citations omitted; emphasis added.) Id.3                   The rule reasonably limiting

the number of times when the right to a peremptory challenge may be exercised is



2
  A structural error refers to those extremely rare errors that affect the very framework within which the
trial proceeds and are predominately applicable to the rights of a defendant in a criminal trial, such as in
Arizona v. Fulminante (1991), 499 U.S. 279, 306-312, 111 S.Ct. 1246, 113 L.Ed.2d 302, as cited and relied
upon by Appellant. See State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶9 (stating
that in Fulminante, the “United States Supreme Court denominated the two types of constitutional errors
that may occur in the course of a criminal proceeding - ‘trial errors,’ which are reviewable for harmless
error, and ‘structural errors,’ which are per se cause for reversal.” Emphasis added.) The United States
Supreme Court and Ohio courts have found structural errors warranting reversal in only a very limited
number of cases. See, e.g., Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (the
defendant was completely denied counsel); Tumey v. Ohio (1927), 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed.
749 (the trial judge was biased); Vasquez v. Hillery (1986), 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598
(racial discrimination took place in grand jury selection); Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct.
2210, 81 L.Ed.2d 31 (the defendant was denied a public trial).
3
  Although the Ohio Supreme Court was discussing the peremptory challenges provided under Criminal
Rule 24 in this case, we find the reasoning is also relevant concerning the Rules of Civil Procedure.


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Case No. 1-10-15


a matter of judicial economy. Id.

       {¶27} Furthermore, we are unable to review the record concerning the

vague claims that the selection process somehow precluded Appellant from the

“intelligent and judicious” use of her peremptory challenges because Appellant

failed to provide a transcript of the jury voir dire pursuant to App.R. 9(B). “When

portions of the transcript necessary for resolution of assigned errors are omitted

from the record, the reviewing court has nothing to pass upon and thus, as to those

assigned errors, the court has no choice but to presume the validity of the lower

court's proceedings, and affirm.” Knapp v. Edwards Laboratories (1980), 61 Ohio

St.2d 197, 199, 400 N.E.2d 384. Finding Appellant’s arguments to be completely

without merit, the second assignment of error is overruled.

                            Eighth Assignment of Error

       {¶28} Appellant’s eighth assignment of error also involves the jury panel.

Appellant claims that the trial court committed reversible error when it discharged

a juror who had become ill with flu-like symptoms and replaced him with an

alternate juror. Without citing any legal authority in support of her position,

Appellant maintains that she “was prejudiced by the unreasonable, arbitrary, and

unconscionable method by which the trial court discharged the juror.”

(Appellant’s Brief, p. 17.) Appellant did not provide any explanation as to how

she was prejudiced by the trial court’s dismissal of a sick juror.



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       {¶29} Civ.R. 47(D) states in pertinent part as follows: “Alternate jurors in

the order in which they are called shall replace jurors who, prior to the time the

jury retires to consider its verdict, become or are found to be unable or disqualified

to perform their duties.” It is within a trial judge’s sound discretion to remove a

juror and replace him or her with an alternate juror whenever facts are presented

that would convince the trial judge that the juror's ability to perform his duty is

impaired. Hoffman v. D'Angelo, 3d Dist. No. 13-03-07, 2003-Ohio-4046, ¶5; R.C.

2945.29. An abuse of discretion implies that the court's attitude was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

218, 450 N.E.2d 1140. “A decision is unreasonable if there is no sound reasoning

process that would support that decision.” AAAA Enterprises, Inc. v. River Place

Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161, 553

N.E.2d 597.

       {¶30} Shortly after the noon recess on the fourth day of trial, Juror #1

informed the trial court he was ill and was about to throw up. The trial court asked

him if he was able to continue and he responded that he was not. The trial court

did not want to expose the other jurors to potential illness and was also faced with

balancing a trial calendar that had medical experts scheduled for testimony that

afternoon, so Juror #1 was excused and replaced with the first alternate.




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      {¶31} There were several sound reasons to support the trial court’s

decision to replace a sick juror. We do not find that the trial court abused its

discretion when it replaced Juror #1 with an alternate juror and denied Appellant’s

motion for a mistrial. The eighth assignment of error is overruled.

                            Third Assignment of Error

      {¶32} Appellant claims that the misconduct of Appellees’ attorneys during

opening arguments, along with repeated inflammatory comments throughout the

trial, were designed to arouse the jury’s passion and prejudice and constituted

prejudicial error. Appellant complains that Appellees developed erroneous and

prejudicial “good doctor” themes, attempted to engender sympathy, and argued to

the jury that the Appellees’ professional reputations were on trial in this medical

malpractice action.

      {¶33} Attorneys are given wide latitude in making oral arguments to the

jury. Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph two

of the syllabus. Determining whether the bounds of permissible argument have

been exceeded is a discretionary function to be performed by the trial court.

Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 501, 2000-Ohio-483,

721 N.E.2d 1011, quoting Pang.        The trial court's determination will not be

reversed absent an abuse of discretion. Id.




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       {¶34} However, remarks or arguments not supported by the evidence and

that are designed to arouse passion or prejudice to the extent that there is a

substantial likelihood that the jury may be misled are improper. Roetenberger v.

Christ Hosp., 163 Ohio App.3d 555, 2005-Ohio-5205, 839 N.E.2d 441, ¶9;

Thamann v. Bartish, 167 Ohio App.3d 620, 2006-Ohio-3346, 856 N.E.2d 301, ¶7.

Abusive comments directed at opposing parties, counsel, or witnesses should not

be permitted. Pesek, 87 Ohio St.3d at 501. The dispositive question is whether

the verdict was rendered on the evidence or was influenced by improper remarks

of counsel. Id. at 502.

       {¶35} A thorough review of the trial transcript does not disclose any

arguments or remarks by Appellees’ counsel that went beyond the bounds of

appropriate advocacy or that were not supported by the evidence. There was no

commentary or behavior by Appellees’ attorneys that bore any resemblance to the

inappropriate and egregious behavior warranting a mistrial, as in the cases cited by

Appellant.

       {¶36} Furthermore, the trial court properly instructed the jury that the

attorneys’ statements did not constitute evidence:

       The evidence does not include any statement of counsel made
       during the trial unless such statement was an admission which
       the court instructed you to accept. The opening statements and
       closing arguments of counsel are designed to assist you. They
       are not evidence.



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(Trial Tr. p. 845.) When a trial court properly instructs the jury that the attorneys’

statements throughout the trial are not evidence, such an instruction defuses the

possibility that any alleged improper statements made by counsel during trial will

have a prejudicial impact. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,

900 N.E.2d 565, ¶211; Brokamp v. Mercy Hosp. Anderson (1999), 132 Ohio

App.3d 850, 868, 726 N.E.2d 598. Juries are presumed to follow the instructions

that they are given and this presumption rebuts any suggestion that improper

prejudice arose from statements made by counsel throughout a trial. Pang, 53

Ohio St.3d at 195.

       {¶37} The remarks by Appellees’ attorneys were not unduly prejudicial

and the jury was instructed that the attorneys’ statements throughout the trial were

not evidence.     The trial court did not abuse its discretion when it denied

Appellant’s motion for a mistrial.       Appellant’s third assignment of error is

overruled.

                Fourth, Fifth, Sixth and Seventh Assignments of Error

       {¶38} In these four assignments of error, Appellant submits that the trial

court erred in admitting and in excluding evidence. In order for an appellate court

to reverse a trial court’s decision regarding the admissibility of evidence, an abuse

of discretion must be demonstrated. Beard v. Meridia Huron Hosp., 106 Ohio

St.3d 237, 239, 2005-Ohio-4787, 834 N.E.2d 323, ¶20. As stated above, the term



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“abuse of discretion” implies that the court’s attitude in deciding the evidentiary

issue was unreasonable, arbitrary, or unconscionable. Blakemore, supra.

       {¶39} And, even where an abuse of discretion occurs, a trial court’s

improper evidentiary ruling constitutes reversible error only when the error affects

the substantial rights of the adverse party or the ruling is inconsistent with

substantial justice. Beard at ¶35, citing O’Brien v. Angley (1980), 63 Ohio St.2d

159, 164-165, 407 N.E.2d 490. In determining whether an evidentiary ruling is

inconsistent with substantial justice, a reviewing court must weigh the prejudicial

effect of those errors and also determine whether, if those errors had not occurred,

the jury would have probably made the same decision. Id., quoting Hallworth v.

Republic Steel Corp. (1950), 153 Ohio St. 349, 91 N.E.2d 690, paragraph three of

the syllabus.

       {¶40} In the fourth assignment of error, Appellant asserts that the trial

court erred when it ordered the exclusion of the lipid profiles of Mr. Striff’s

identical twin brother. Appellant claims that such evidence was relevant because

Appellant’s medical experts testified in their depositions that the lipid profiles of

the twin brother would be strong predictors of the decedent’s own lipid profiles,

which were never obtained.

       {¶41} Evidence Rule 401 defines relevant evidence as “evidence having

any tendency to make the existence of any fact that is of consequence to the



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determination of the action more probable or less probable than it would be

without the evidence.” Evidence that is not relevant is not admissible. Evid.R.

402; Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d

1049, ¶32. Evidence may also be excluded if its probative value is substantially

outweighed by the danger of confusing the issues or misleading the jury. Evid.R.

403; Gable, supra.

       {¶42} Mr. Striff’s twin brother was not a party to the litigation, his lipid

levels were not the subject of the lawsuit, and his medical history was not at issue.

In ruling upon Appellees’ motion in limine to exclude the twin’s lipid profile, the

trial court noted that no expert stated that the standard of care of any of the

defendants required them to obtain the lipid profile of Mr. Striff’s twin. The trial

court determined that “[t]here are too many questions regarding the twin’s lipid

levels, such as: when the twin’s lipid levels were obtained in relation to [Mr.

Striff’s] death, the twin’s diet, exercise habits, work habits, social habits and

smoking and drinking habits, that would need to be addressed to see if it was

reliable to compare to [Mr. Striff], whose levels are not known.” (Nov. 17, 2009

J.E., p.2.) Even Appellant’s medical expert, Dr. Harris, acknowledged that he

could not state that their lipid profiles would have been identical because they

were not exposed to identical environments.




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        {¶43} The trial court allowed Appellant’s expert to testify about Mr.

Striff’s family history, the fact that his twin’s cholesterol level was “quite high,”

and that the twin’s cholesterol levels came down significantly when he was placed

on a statin drug. The trial court only excluded the twin brother’s specific lipid test

result numbers, finding that they were not relevant and would be confusing.

        {¶44} Based on the above, we do not find that the trial court’s decision was

an abuse of discretion. Appellant’s fourth assignment of error is overruled.

        {¶45} The fifth assignment of error concerns the exclusion of Appellant’s

cardiology expert’s opinions that were not expressly disclosed during his

discovery deposition. When Appellees deposed Dr. Harris in July of 2009, he was

unable to provide answers4 to many of the questions that Appellees asked, such as:

what a reasonable cardiologist might have done if Mr. Striff had consulted one;

whether an angiogram would have been positive; what type of treatment a

reasonable cardiologist might have ordered; and how certain procedures might

have increased the percentages of probability of Mr. Striff’s survival if they had

been performed. In November of 2009, Appellant filed a “Disclosure of Trial

Witnesses,” stating that Dr. Harris was planning to testify about all of the above


4
  Dr. Harris disclosed that he had been consulted for the sole purpose of determining whether Mr. Striff’s
sudden cardiac death was work-related. His only review of the records was in the context of his report to
the Bureau of Workers Compensation. He testified that he was not told until the morning of the discovery
deposition that he would be asked to render opinions on other subjects and opine as to whether a heart
catheterization would have been helpful. During his deposition, he repeatedly stated he was not
comfortable answering the questions posed until he had an opportunity to review the records in the context
of this case and to give the matter further consideration.


                                                  -22-
Case No. 1-10-15


matters, including how a reasonable cardiologist would have treated Mr. Striff and

that if Mr. Striff had undergone such treatment, there was a greater than 90%

probability he would have survived and enjoyed a normal life expectancy.

      {¶46} Appellees sought to exclude this new testimony in order to prevent

unfair surprise, citing this Court’s recent decision in Geesaman v. St. Rita’s Med.

Ctr., 183 Ohio App.3d 555, 2009-Ohio-3931, 917 N.E.2d 867, ¶¶55-62

(discussing how, pursuant to Civ.R. 26(B)(5), a litigant is entitled to know an

opposing expert's opinion on a matter as well as the basis for that opinion so that

counsel may make adequate trial preparations.) Appellees complained they had

not had the opportunity to explore the basis for the purported new opinions that

Dr. Harris was planning to offer at trial that were not disclosed at the time of his

deposition. Appellant countered that there was no surprise because Dr. Harris

later reviewed the information and Appellant had timely disclosed his opinions.

      {¶47} In ruling on Appellees’ motions in limine, the trial court stated that,

“after reviewing [Dr.] Harris’ deposition and the previous disclosures made by

plaintiff, it is hard to decipher whether Harris was just ill prepared for his

deposition or was really unable to render opinions with the information available.”

(Nov. 17, 2009 J.E., p. 3.) The trial court then thoroughly analyzed the deposition

and the law and held that the motion in limine was granted in part and denied in

part, specifying that Dr. Harris could testify concerning certain matters, he could



                                       -23-
Case No. 1-10-15


not testify as to a few specific areas not previously disclosed, and that he could

offer his opinion as to other matters, providing they were based on a proper

foundation.

       {¶48} The trial court made a great effort to follow the law and be fair to all

of the parties involved. Furthermore, at trial, Dr. Harris did testify to the matters

that he had not previously disclosed at his deposition, over the repeated objections

of the Appellees. The trial court noted the objections for the record, but overruled

them and allowed the doctor to testify. We do not find that the trial court’s

decision was in any way unreasonable, arbitrary or unconscionable. Appellant’s

fifth assignment of error is overruled.

       {¶49} Appellant’s sixth assignment of error also involves Dr. Harris’

testimony.    Appellant complains that the trial court erred when it permitted

Appellees to cross-examine Dr. Harris about the fact that he had originally been

retained in connection with a workers’ compensation claim arising from Mr.

Striff’s death. Appellant contends that this was in violation of the trial court’s

own order precluding references to Appellant’s collateral sources of recovery as

well as a violation of Ohio’s collateral source rule, as stated in Pryor v. Webber

(1970), 23 Ohio St.2d 104, 213 N.E.2d 235.

       {¶50} The collateral source rule generally pertains to evidence concerning

damages. The purpose of the collateral source rule is to prevent juries from



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Case No. 1-10-15


learning about a plaintiff’s receipt of benefits from a source unrelated to the

tortfeasor because the plaintiff’s receipt of benefits from sources other than the

wrongdoer is deemed irrelevant and immaterial as to the issue of damages owed

by the tortfeasor. Id. This case is completely distinguishable from Pryor in that

there was no testimony that Mr. Striff ever received any collateral benefits or

workers’ compensation benefits.      The cross-examination went directly to the

weight and credibility of Dr. Harris’ opinions. Appellees questioned Dr. Harris

concerning his initial confusion as to his role in the case and as to why he was now

offering definitive opinions about issues that he was unable to testify to in his

deposition. (See fn. 4.)

       {¶51} Appellees were entitled to question Dr. Harris as to his bias and

credibility. Finding no error warranting a new trial, Appellant’s sixth assignment

of error is overruled.

       {¶52} In the seventh assignment of error, Appellant asserts that the trial

court erred in admitting the testimony of Appellee’s expert witness, Dr. Steven

Yakabov, stating that Appellees had met the requisite standard of care. Appellant

maintains that Dr. Yakabov, a cardiologist, was not qualified to render an expert

opinion on the standard of care of primary care physicians or providers, such as

Appellees.




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Case No. 1-10-15


       {¶53} Dr. Yakabov testified that he was board-certified in internal

medicine and cardiology.       He further testified that he worked at Riverside

Methodist Hospital as an interventional cardiologist but that he also taught internal

medicine and family practice residents that rotate on the cardiology service. Dr.

Yakubov also testified that more than 75% of his time was devoted to the active

clinical practice of medicine. Following the above testimony, Dr. Yakubov was

asked whether the defendant medical providers, in their cardiology work-up of Mr.

Striff, met the applicable standard of care. The trial court overruled Appellant’s

objections when Dr. Yakubov responded in the affirmative.

       {¶54} A trial court has discretion to determine whether a witness is

competent to testify as an expert and the trial court's decision will not be reversed

absent a clear showing that the court abused its discretion. Celmer v. Rodgers,

114 Ohio St.3d 221, 2007-Ohio-3697, 871 N.E.2d 557, ¶19. An expert need not

specialize in the field about which he testifies so long as it is shown that the fields

of expertise overlap. Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d

155, 158, 383 N.E.2d 564; Barbee v. Finerty (1995), 100 Ohio App.3d 466, 472,

654 N.E.2d 364.

       {¶55} Dr. Yakubov was a physician who advised and taught primary care

and family physicians on how to assess and properly manage cardiac patients.

That certainly demonstrates an overlapping knowledge of the standard of care for



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Case No. 1-10-15


both types of practices. We do not find that the trial court abused its discretion in

allowing Dr. Yakubov’s testimony. Appellant’s seventh assignment of error is

overruled.

                       Ninth and Tenth Assignments of Error

       {¶56} The ninth and tenth assignments of error both concern the issue of

the decedent’s contributory fault. Appellant claims that the trial court committed

reversible error in denying her motion for directed verdict on this matter and that

the court also committed reversible error in instructing the jury on the issue of

comparative negligence.

       {¶57} Ohio law recognizes the defense of contributory negligence in

medical malpractice cases. Viox v. Weinberg, 169 Ohio App. 3d 79, 2006-Ohio-

5075, 861 N.E.2d 909, ¶13; Lambert v. Shearer (1992), 84 Ohio App.3d 266, 284,

616 N.E.2d 965; OJI-CV 417.11. Disregarding a doctor's orders can be patient

negligence. See, e.g., Sorina v. Armstrong (1988), 51 Ohio App.3d 113, 116, 554

N.E.2d 943. See, also, BP Exploration & Oil Co. v. Maintenance Services, Inc.

(C.A.6, 2002), 313 F.3d 936, 944-45 (quoting Geiselman v. Scott (1874), 25 Ohio

St. 86, stating “[a] surgeon assumes to exercise the ordinary care and skill of his

profession, and is liable for injuries resulting from his failure to do so; yet if his

patient neglects to obey the reasonable instructions of the surgeon, and thereby

contributes to the injury complained of, he can not recover for such injury.”)



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Case No. 1-10-15


Furthermore, the failure to provide an accurate patient history may preclude a

finding of negligence on the part of a treating physician. See Seley v. G.D. Searle

& Co. (1981), 67 Ohio St.2d 192, 208-209, 423 N.E.2d 831, 842-843. A plaintiff's

contributory fault can serve to diminish recovery under modern comparative

negligence principles when such negligence is contemporaneous with the

malpractice of the physician. Lambert, 84 Ohio App.3d at 284. The contributory

negligence of the patient must have been an active and efficient contributing cause

of the injury that is the basis of the patient's claim. Viox at ¶13.

       {¶58} In the ninth assignment of error, Appellant contends that the trial

court erred as a matter of law in denying her motion for a directed verdict on

Appellees’ affirmative defense concerning the issue of the decedent’s contributory

fault. Civ.R. 50(A)(4) provides that a directed verdict is properly granted when

“the trial court, after construing the evidence most strongly in favor of the party

against whom the motion is directed, finds that upon any determinative issue

reasonable minds could come to but one conclusion upon the evidence submitted

and that conclusion is adverse to such party ***.” In considering a motion for a

directed verdict, a court does not weigh the evidence or test the credibility of the

witnesses. Becker v. Lake County Memorial Hosp. West (1990), 53 Ohio St.3d

202, 206, 560 N.E.2d 165. A court of appeals reviews the trial court’s ruling on a




                                          -28-
Case No. 1-10-15


motion for directed verdict de novo. Goodyear Tire & Rubber Co. v. Aetna Cas.

& Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶4.

       {¶59} Appellant claims that there was no evidence that established that the

decedent’s alleged non-compliance in failing to quit smoking, to see a

cardiologist, and to obtain his lipid profiles contributed to his fatal heart attack.

Appellant argues that the decedent’s alleged non-compliance was not an “active

and efficient” contributing cause of his death and was not contemporaneous with

the alleged malpractice of the defendant physicians. Appellant submits:

       [i]n this regard, it was uncontroverted that each of the defendant
       medical providers continued to treat the decedent after ordering
       him to quit smoking, see a cardiologist, and/or obtain his lipid
       profiles. Indeed, it was uncontroverted that none of the
       defendant medical providers terminated decedent as a patient. It
       was further uncontroverted that each of the defendant medical
       providers continued to treat the decedent despite his alleged
       non-compliance; thereby accepting decedent “as he was.”

(Appellant’s Br., p. 19-20.)

       {¶60} Appellant appears to argue that Mr. Striff’s own negligence is

negated because Appellees continued to treat Mr. Striff after he failed to follow

their medical advice.    Appellant has not provided any legal support for the

proposition    that a medical professional must terminate the doctor-patient

relationship with a noncompliant patient or risk being liable for potential

malpractice claims. The situation cited by Appellant in Lambert is distinguishable




                                        -29-
Case No. 1-10-15


from the facts in this case. We do not find any merit or any basis in the law for

this assertion.

       {¶61} During the trial, Appellees presented evidence demonstrating that

Mr. Striff was non-compliant and repeatedly failed to follow medical advice. Mr.

Striff’s medical records, submitted into evidence by Appellant, were peppered

with missed appointments for follow-up care; with evidence of his continued

failure to quit smoking; and with multiple failures to follow simple physician

orders, such as seeing a cardiologist and obtaining a lipid profile to check his

cholesterol. Even Appellant’s expert, Dr. Payne, testified that the failure of Mr.

Striff to have his cholesterol checked probably led to an increased risk for an

adverse cardiac event.

       {¶62} A motion for a directed verdict must be denied if there is substantial,

competent evidence supporting the position of the parties opposing the motion so

that reasonable minds might reach different conclusions based upon the evidence.

Apel v. Katz (1998), 83 Ohio St.3d 11, 1998-Ohio-420, 697 N.E.2d 600. This

court finds that the record contained the requisite evidence to support the trial

court's denial of Appellant’s motion for a directed verdict. The ninth assignment

of error is overruled.

       {¶63} In the tenth assignment of error, Appellant challenges the trial

court’s comparative negligence jury instruction and submitted interrogatories



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Case No. 1-10-15


concerning Mr. Striff’s contributory fault. The jury was given four verdict forms5

and eleven interrogatories. Three of the interrogatories pertained to whether Mr.

Striff was negligent; whether his negligence was the proximate cause of his

injury/damages; and, if so, what percentage of negligence was attributable to Mr.

Striff and what percentage of negligence was attributable to the other defendants

that may have been found negligent. The jury found that none of the Defendants-

Appellees were negligent in any way, and that 100% of the negligence that

directly and proximately caused the death of Mr. Striff was attributable to the

decedent.

        {¶64} Appellant asserts that “no Ohio statute, court rule, or court decision

authorizes a patient’s contributory negligence to be ‘compared’ with the medical

negligence of a physician in order to reduce a compensatory damages award in a

medical malpractice action” and that the negligence of a patient and the negligence

of a physician are incapable of comparison.                        (Appellant’s Br. pp. 20-21.)

Appellant’s assertion is not correct. See, e.g., Viox, supra; Lambert, supra; R.C.

2315.32 et. seq. Ohio law has long held that, if properly proven, the issue of the




5
  One verdict form allowed the jury to find in favor of the Plaintiff-Appellant; the other three were to be
used to find in favor of each of the three Defendants-Appellees. The jury returned the three verdicts in
favor of each of the three Defendants-Appellees.


                                                  -31-
Case No. 1-10-15


patient’s contributory negligence must be presented to the jury.                            Robison &

Weaver v. Gary (1876), 28 Ohio St.241, 1 W.L.B. 339. Furthermore, the issue of

comparative fault is no longer pertinent in this case as the jury found that the

defendants had no liability, and that Mr. Striff was 100% at fault.

          {¶65} The Ohio Jury Instructions pertaining to Medical Negligence, OJI-

CV 417.11, discuss patience negligence and “comparative negligence/contributory

fault.”     Where there is comparative negligence/contributory fault in medical

negligence, the instructions reference OJI-CV Chapter 403, containing the exact

same interrogatories concerning patient negligence that were utilized by the trial

court in this case.

          {¶66} The contributory fault of the plaintiff may be asserted as an

affirmative defense to a tort claim. R.C. 2315.32; Viox. Further, R.C. 2315.33

explains the “[e]ffect of contributory fault on right to recover,” stating that the

contributory fault of a person does not bar that person from recovering damages,

but only if the contributory fault of the plaintiff was not greater than the combined

tortious conduct of all other persons.6 Id. “If contributory fault is asserted and

established as an affirmative defense *** the jury in a jury action shall return a




6
  If the contributory fault of the plaintiff is not greater than the combined tortious conduct of all other
persons from whom the plaintiff seeks recovery in this action and of all other persons from whom the
plaintiff does not seek recovery in this actions, then the court shall diminish any compensatory damages
recovered by the plaintiff by an amount that is proportionately equal to the percentage of tortious conduct
of the plaintiff as determined pursuant to R.C. 2315.34. R.C.2315.33.


                                                  -32-
Case No. 1-10-15


general verdict accompanied by answers to interrogatories, that shall specify the

following: *** (D) The percentage of tortious conduct attributable to all persons

as determined pursuant to section 2307.23 of the Revised Code.” R.C. 2315.34.

       {¶67} A strong presumption exists in favor of the propriety of jury

instructions. Burns v. Prudential Securities, Inc., 167 Ohio App.3d 809, 2006-

Ohio-3550, 857 N.E.2d 621, ¶41; Arthur Young & Co. v. Kelly (1993), 88 Ohio

App.3d 343, 350, 623 N.E.2d 1303.          Generally, the trial court should give

requested jury instructions “if they are correct statements of the law applicable to

the facts in the case.” Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585,

591, 575 N.E.2d 828. Instructions that, in their totality, are sufficiently clear to

permit the jury to understand the relevant law will not be the cause of a reversal

upon appeal. Burns, 2006-Ohio-3550, at ¶41; Schnipke v. Safe-Turf Installation

Group, LLC., 3d Dist. No. 1-10-07, 2010-Ohio-4173, ¶30. Whether the jury

instructions correctly state the law is a question of law, which we review de novo.

Murphy, 61 Ohio St.3d at 591, 575 N.E.2d 828.

       {¶68} We find that the trial court’s jury instructions, along with the verdict

forms and interrogatories submitted to the jury, were a correct statement of the law

and were applicable to the facts in evidence in this case. Therefore, Appellant’s




                                        -33-
Case No. 1-10-15


tenth assignment of error is overruled.

                              Eleventh Assignment of Error

       {¶69} In the final assignment of error, Appellant claims that she was

entitled to a new trial pursuant to several grounds set forth in Civ.R. 59(A)

because she demonstrated that there were:          irregularity in the proceedings;

misconduct by the prevailing parties; a judgment not sustained by the weight of

the evidence; multiple errors of law; and other good causes for a new trial. She

contends that the trial court unreasonably, arbitrarily, and unconscionably denied

the motion for a new trial.

       {¶70} The decision as to whether or not to grant a motion for a new trial is

within the sound discretion of the trial court and will not be disturbed absent an

abuse of that discretion. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-

Ohio-5587, 876 N.E.2d 1201, ¶35. “Courts will find such an abuse only in the

rare instance where a decision is so grossly violative of fact and logic that it

demonstrates a perverse will, a defiance of judgment, undue passion, or extreme

bias.” Brooks v. Wilson (1994), 98 Ohio App.3d 301, 648 N.E.2d 552, citing

Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 482 N.E.2d 1248.

       {¶71} Most of the arguments which were the basis for Appellant’s motion

for a new trial were the same issues that have been addressed in this appeal.

Based upon our resolution of the issues raised in the previous ten assignments of



                                          -34-
Case No. 1-10-15


error, we do not find any error in the trial court’s denial of a new trial based upon

excusing the sick juror, the admission and exclusion of evidence, testimony by

expert witnesses, opening and closing statements by counsel, jury selection, jury

instructions, and the denial of a directed verdict based upon the decedent’s

contributory negligence.

       {¶72} One issue raised in the motion for new trial that was not raised on

appeal is that the judgment was not sustained by the weight of the evidence,

pursuant to Civ.R. 59(A)(6). The review of a trial court’s decision as to whether

or not to set aside a jury verdict as being against the weight of the evidence is

subject to the same abuse-of-discretion standard as for other grounds for a new

trial; an appellate court does not directly view whether the decision was against

the weight of the evidence. Mannion v. Sandel, 91 Ohio St.3d 318, 322, 2001-

Ohio-47, 744 N.E.2d 759; Walker v. Summa Health Sys., 9th Dist. No. 23727,

2008-Ohio-1465, ¶11. A trial court must not interfere with a verdict unless it is

clear that the jury has reached a seriously erroneous result. Bland v. Graves

(1993), 85 Ohio App.3d 644, 651, 620 N.E.2d 920. The trial court is only to

determine whether the jury’s verdict constituted a manifest injustice and whether

the verdict was against the manifest weight of the evidence. Rohde v. Farmer

(1970), 23 Ohio St.2d 82, 262 N.E.2d 685. Where a verdict is supported by

competent and apparently credible evidence, a motion for a new trial will be



                                        -35-
Case No. 1-10-15


denied. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 652-53, 1994-Ohio-

324, 635 N.E.2d 331; Verbon v. Pennese (1982), 7 Ohio App.3d 182, 183, 454

N.E.2d 976.

       {¶73} We do not find that the trial court abused its discretion in its

determination that the jury’s decision did not constitute a manifest injustice and in

finding that the jury’s verdicts were all supported by competent, substantial and

credible evidence.    Accordingly, Appellant’s eleventh assignment of error is

overruled.

       {¶74} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ROGERS and **GALLAGHER, J.J., concur.

** Sean C. Gallagher, sitting by Assignment from the 8th District Court of
Appeals

/jlr




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