[Cite as Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224.]




  PARRISH, ADMR., APPELLEE, v. JONES ET AL.; SKOCIK ET AL., APPELLANTS.
         [Cite as Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224.]
Directed verdict—Civ.R. 50—Trial court should exercise great caution in
        sustaining a motion for a directed verdict on the opening statement of
        counsel—Although a trial court is not required to consider allegations
        contained in the pleadings when ruling on a motion for directed verdict
        made on the opening statement of an opponent, the pleadings may be used
        by the court in liberally construing the opening statement in favor of the
        party against whom the motion is made—A trial court may grant a motion
        for directed verdict made at the close of a party’s opening statement only
        when that statement indicates that the party will be unable to sustain its
        cause of action or defense at trial.
   (No. 2012-0623—Submitted March 12, 2013—Decided December 4, 2013.)
       CERTIFIED by the Court of Appeals for Ross County, No. 11CA3238,
                                     2012-Ohio-1145.
                                ____________________
                               SYLLABUS OF THE COURT
1. “A trial court should exercise great caution in sustaining a motion for a
        directed verdict on the opening statement of counsel.” Brinkmoeller v.
        Wilson, 41 Ohio St.2d 223, 325 N.E.2d 233 (1975), syllabus.
2. Although a trial court is not required to consider allegations contained in the
        pleadings when ruling on a motion for directed verdict made on the
        opening statement of an opponent, the pleadings may be used by the court
        in liberally construing the opening statement in favor of the party against
        whom the motion is made.
                             SUPREME COURT OF OHIO




3. A trial court may grant a motion for directed verdict made at the close of a
       party’s opening statement only when that statement indicates that the party
       will be unable to sustain its cause of action or defense at trial.
                               __________________
       LANZINGER, J.
       {¶ 1} We accepted this certified conflict to determine whether a trial
court must consider the allegations set forth in the pleadings in addition to the
opening statement when ruling on a motion for directed verdict made at the close
of an opponent’s opening statement. We hold that although a trial court is not
required to consider allegations contained in the pleadings when ruling on a
motion for directed verdict made on the opening statement of an opponent, the
pleadings may be used by the court in liberally construing the opening statement
in favor of the party against whom the motion is made. We affirm the judgment
of the court of appeals that reversed the granting of a directed verdict, albeit on
different grounds.
                                      I. Facts
       {¶ 2} In 2005, appellee, Sandy Parrish (“Parrish”), the administrator of
the estate of Karen Parrish, filed wrongful-death and survival actions in the Ross
County Court of Common Pleas arising from the allegedly negligent care and
death of Karen Parrish. Parrish alleged that on December 30, 2004, Karen was
admitted to the Adena Regional Medical Center under the care of Michael Jones,
D.O. Parrish further alleged that Dr. Jones had diagnosed Karen with an acute
peripheral-nerve disorder. Karen was then transferred to a rehabilitation center,
and during her stay there, appellant Christopher J. Skocik, D.O., was assigned to
provide her medical care.
       {¶ 3} In the complaint, Parrish alleged that the medical staff treating
Karen had administered treatment negligently and, specifically, that they had
failed to prescribe anticoagulation therapy; that they had failed to properly treat,




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                                   January Term, 2013




diagnose, and monitor her; and that they had failed to timely respond with
medical intervention. Parrish alleged that as a direct and proximate result of the
negligence, Karen had suffered a premature death after experiencing
cardiopulmonary arrest and hypoxia due to pulmonary emboli with saddle
embolus and deep-vein thrombosis.
        {¶ 4} Parrish’s complaint originally named as defendants Dr. Jones,
Adena Regional Medical Center Corporation, Chillicothe Nursing and
Rehabilitation Center, L.L.C., and several John or Jane Does.1 In July 2006, the
trial court granted Parrish leave to add appellants, Skocik and Family Medicine of
Chillicothe, Inc. (“the Skocik defendants”), as new party defendants.
        {¶ 5} The case proceeded to a jury trial in January 2011. At the close of
Parrish’s opening statement, the Skocik defendants moved for directed verdict
pursuant to Civ.R. 50, contending that Parrish had failed to meet the burden of
establishing a case of medical malpractice against them because he had failed to
set forth in his opening statement a standard of care, deviation from that standard,
and causation.
        {¶ 6} Parrish’s counsel had argued that the codefendant, Dr. Jones,
would present expert testimony critical of Dr. Skocik: “Doctor Jones, through his
attorneys, have hired a medical expert, Doctor Writ[e]sel who I had mentioned,
who will tell you that it was Doctor Skocik’s fault. That it was Doctor Skocik’s
fault for not ordering the proper D.V.T. prophylaxis in time. I’ll let Doctor
Skocik’s attorneys argue for Doctor Skocik about that.”
        {¶ 7} The trial court granted the motion for directed verdict and rendered
judgment in favor of the Skocik defendants. The trial proceeded with Jones as the
sole defendant, and the jury returned a verdict in favor of Jones.


1. The trial court granted summary judgment in favor of Chillicothe Nursing and Rehabilitation
Center, L.L.C., in October 2009. Parrish voluntarily dismissed Adena Regional Medical Center
Corporation as a defendant in October 2010.




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        {¶ 8} Parrish appealed and argued in part that the trial court had erred by
failing to consider the complaint, along with the opening statement, in ruling on
the motion for directed verdict. The Fourth District Court of Appeals reversed the
trial court’s decision. The court of appeals held that the trial court was required to
consider both the opening statement and the complaint before determining
whether a directed verdict was appropriate. The court of appeals remanded the
case for the trial court to revisit its ruling on the motion in light of the allegations
made in the complaint.
        {¶ 9} The Fourth District certified that its holding was in conflict with
the holding of the Tenth District Court of Appeals in Blankenship v. Kennard,
10th Dist. Franklin No. 92AP-415, 1993 WL 318825 (Aug. 17, 1993). We
determined that a conflict exists on the issue “ ‘[w]hether a trial court is required
to consider the allegations contained in the pleadings, along with the opening
statement, when ruling on a motion for a directed verdict made at the close of
opening statement.’ ” 132 Ohio St.3d 1421, 2012-Ohio-2729, 969 N.E.2d 270.
                                     II. Analysis
        {¶ 10} This case presents us with an opportunity to clarify the standard a
trial court should use in ruling on a motion for directed verdict made after an
opening statement. We hold that although the trial court is not required to
consider the pleadings when ruling on a Civ.R. 50(A)(1) motion, in liberally
construing the motion in favor of the opposing party, it may do so. We answer the
certified question in the negative. We hold further that a trial court may grant a
motion for directed verdict made at the close of a party’s opening statement only
when that statement indicates that the party will be unable to sustain its cause of
action or defense at trial.
A. Background of Civ.R. 50
        {¶ 11} To address the present issues, we must first place Civ.R. 50(A) in
its proper context among the civil rules that provide for the resolution of a case




                                           4
                                  January Term, 2013




before the case reaches the jury. Different rules allow the termination of a case at
different points in the litigation.
1. Civ.R. 12: Motions to Dismiss and for Judgment on the Pleadings
        {¶ 12} Civ.R. 12 provides for motions and pleadings to be made by a
defendant after receiving a complaint, and Civ.R. 12(B) provides for the filing of
a motion to dismiss based upon a failure to state a claim for relief:


                Every defense, in law or fact, to a claim for relief in any
        pleading * * * shall be asserted in the responsive pleading thereto
        if one is required, except that the following defenses may at the
        option of the pleader be made by motion: * * * (6) failure to state
        a claim upon which relief can be granted * * *. A motion making
        any of these defenses shall be made before pleading if a further
        pleading is permitted.


In addition to the Civ.R. 12(B)(6) pleading or motion, Civ.R. 12(C) provides for a
motion for judgment on the pleadings: “After the pleadings are closed but within
such time as not to delay the trial, any party may move for judgment on the
pleadings.” If a party has pled or moved to dismiss under Civ.R. 12(B)(6) or
moved for judgment on the pleadings under Civ.R. 12(C), Civ.R. 12(D) provides
that the pleading or motion “shall be heard and determined before trial on
application of any party.”
2. Civ.R. 56: Summary Judgment
        {¶ 13} Summary judgment pursuant to Civ.R. 56 is another method
available to a party seeking to avoid a trial and is used when the facts of a case are
allegedly undisputed. A motion for summary judgment is based on evidence
presented to the court and allows consideration of facts beyond the allegations
included in the pleadings:



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       Summary judgment shall be rendered forthwith if the pleadings,
       depositions, answers to interrogatories, written admissions,
       affidavits, transcripts of evidence, and written stipulations of fact,
       if any, timely filed in the action, show that there is no genuine
       issue as to any material fact and that the moving party is entitled to
       judgment as a matter of law. * * * A summary judgment shall not
       be rendered unless it appears from the evidence or stipulation, and
       only from the evidence or stipulation, that reasonable minds can
       come to but one conclusion and that conclusion is adverse to the
       party against whom the motion for summary judgment is made,
       that party being entitled to have the evidence or stipulation
       construed most strongly in the party’s favor.


Civ.R. 56(C).
3. Civ.R. 50: Directed Verdict
       {¶ 14} Once a jury has been convened and trial has started, a party may no
longer file a motion for judgment on the pleadings or for summary judgment.
That time has passed. But a motion for directed verdict may be possible. Civ.R.
50(A), which addresses a motion for directed verdict, reads in full:


                (1) When made. A motion for a directed verdict may be
       made on the opening statement of the opponent, at the close of the
       opponent’s evidence or at the close of all the evidence.
                (2) When not granted. A party who moves for a directed
       verdict at the close of the evidence offered by an opponent may
       offer evidence in the event that the motion is not granted, without
       having reserved the right so to do and to the same extent as if the




                                         6
                               January Term, 2013




       motion had not been made. A motion for a directed verdict which
       is not granted is not a waiver of trial by jury even though all parties
       to the action have moved for directed verdicts.
               (3) Grounds. A motion for a directed verdict shall state the
       specific grounds therefor.
               (4) When granted on the evidence. When a motion for a
       directed verdict has been properly made, and 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,
       the court shall sustain the motion and direct a verdict for the
       moving party as to that issue.
               (5) Jury assent unnecessary.       The order of the court
       granting a motion for a directed verdict is effective without any
       assent of the jury.


(Emphasis added.)
       {¶ 15} Thus, a motion for directed verdict can be made at three separate
points after the trial has commenced: after an opponent’s opening statement, at
the close of an opponent’s evidence, or at the close of all the evidence. Civ.R.
50(A)(1).
       {¶ 16} Motions for directed verdict are most commonly made after an
opponent’s case in chief or at the close of all evidence. Civ.R. 50(A)(4) sets forth
a standard for granting a motion for directed verdict made after evidence has been
submitted: “[A]fter construing the evidence most strongly in favor of the party
against whom the motion is directed, * * * reasonable minds could come to but
one conclusion upon the evidence submitted.” This standard corresponds to the



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standard established for summary judgment in Civ.R. 56, that “reasonable minds
can come to but one conclusion and that conclusion is adverse to the party against
whom the motion for summary judgment is made, that party being entitled to have
the evidence or stipulation construed most strongly in the party’s favor.”
        {¶ 17} Civ.R. 50(A) does not set forth a standard a trial court is to use in
determining the motion for directed verdict before evidence is produced. The
ultimate question before us in this case, then, is what standard the court must
apply in determining whether to grant a motion for directed verdict made at the
earliest possible point, i.e., after opening statement.
B. A trial court is not required to consider the pleadings in ruling on a
motion for directed verdict following an opening statement
        {¶ 18} In answering the question of the applicable standard, we first
address the conflict question certified in this case:      whether a trial court is
required to consider the allegations contained in the pleadings, along with the
opening statement, when ruling on a motion for a directed verdict made at the
close of opening statement. The Fourth District Court of Appeals answered that
question by stating that a trial court must consider the allegations contained in the
pleadings. 2012-Ohio-1145, ¶ 12-13. The Tenth District previously answered
that question by stating that a trial court should not consider the pleadings.
Blankenship v. Kennard, 10th Dist. Franklin No. 92AP-415, 1993 WL 318825.
        {¶ 19} The Skocik defendants agree with the Tenth District and assert that
Civ.R. 50, when it is construed in pari materia with Civ.R. 12, does not
contemplate consideration of the pleadings. They reason that a complaint that
fails to state a claim upon which relief may be granted would be dismissed before
trial begins and thus that every lawsuit proceeding to trial is presumed to be based
upon a complaint that states a claim for relief. But this assumes that any motion
that could have been made, would have been made—a dubious premise. Because
they presume that cases proceeding to trial have satisfied the burden under Civ.R.




                                           8
                                January Term, 2013




12 (even if the pleadings are unchallenged), the Skocik defendants argue that a
trial court must consider something different from those pleadings before it rules
on a motion for directed verdict made after opening statement.
         {¶ 20} In response, Parrish argues that because opening statements are not
evidence, we should continue to follow the common-law rule that a court must
consider the pleadings when ruling on an early motion for directed verdict. See
Vest v. Kramer, 158 Ohio St. 78, 107 N.E.2d 105 (1952).
         {¶ 21} As a technical matter, Civ.R. 50 does not mandate the court’s
consideration of the pleadings when a motion for directed verdict is made before
evidence is presented. Even though Civ.R. 50 does not set forth a standard,
reading the rule in pari materia with other civil rules, we conclude that a trial
court is not required to consider the pleadings when ruling on a directed-verdict
motion at this point in a trial. The timing of the directed-verdict motion is
important.    A Civ.R. 12(B) motion is made during the pleading stage and
accordingly focuses upon information contained within the pleadings. A motion
for summary judgment pursuant to Civ.R. 56 goes one step further and allows
consideration of various information gathered and presented to the court before
trial commences. A motion for directed verdict made at the conclusion of an
opponent’s opening statement focuses on what has been said during the opening
statement.    And motions for directed verdict following the presentation of
evidence focus on the evidence submitted to the court during trial.
         {¶ 22} The Ohio Jury Instructions explain the purpose of opening
statements by stating: “[C]ounsel will outline in an opening statement what they
expect their evidence will be. These opening statements are not evidence. They
are a preview of the claims of each party designed to help you follow the evidence
as it is presented.” Ohio Jury Instructions, CV Section 301.05(5) (Rev. Jan. 21,
2011).    Moreover, opening statements, aside from not being considered as
evidence, may also be waived by a party.



                                         9
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       {¶ 23} Because the civil rules distinguish motions for directed verdict
following opening statement pursuant to Civ.R. 50 from motions for judgment on
the pleadings pursuant to Civ.R. 12, it follows that each motion has a different
focus. We cannot hold that trial courts are required to consider the pleadings
when ruling on a motion for directed verdict following opening statement,
because the motion focuses on what was said during the opening statement, and
the trial court may be able to dispose of the motion solely upon the basis of the
statement and without consulting the pleadings. Thus, we hold that a trial court
that rules on such a motion is not required to consider the allegations contained in
the pleadings.
C.   A trial court may consider the pleadings in ruling on a motion for
directed verdict following an opening statement
       {¶ 24} Although a court is not required to consider the pleadings in ruling
on a motion for directed verdict made at the conclusion of an opponent’s opening
statement, this does not mean that a court is forbidden from considering the
pleadings in ruling on the motion. Indeed, we have previously held in a personal-
injury lawsuit alleging the negligence of a taxicab company that a “defendant’s
motion for a directed verdict, made after counsel for plaintiffs’ opening statement
in [the] case, should have been overruled, based upon the totality of facts asserted
in the opening statement plus the admissions in defendant’s answer.” (Emphasis
added.) Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 225, 325 N.E.2d 233 (1975).
Brinkmoeller thus allows a court to consider the pleadings.
       {¶ 25} The syllabus language of Brinkmoeller is pertinent to the issue
before us today:


                 A trial court should exercise great caution in sustaining a
       motion for a directed verdict on the opening statement of counsel;
       it must be clear that all the facts expected to be proved, and those




                                         10
                                January Term, 2013




       that have been stated, do not constitute a cause of action or a
       defense, and the statement must be liberally construed in favor of
       the party against whom the motion has been made.


(Emphases added.) Id. at syllabus. In Brinkmoeller, we offered two instructions
to trial courts considering these motions: (1) exercise great caution in sustaining
the motion and (2) liberally construe the opening statement in favor of the party
against whom the motion is made.
       {¶ 26} Because in Brinkmoeller we permitted the consideration of a
party’s answer, instructed courts to exercise great caution in granting motions for
directed verdict made at this stage, and mandated liberal construction of the
motion in favor of the opposing party, we hold that trial courts may consider the
pleadings in determining whether to grant a motion for directed verdict made after
an opening statement. The dissenting opinion in this case acknowledges that
Brinkmoeller allows a trial court to consider admissions made in a party’s answer,
but it also agrees with the Skocik defendants’ argument that allowing
consideration of the pleadings renders Civ.R. 50(A) meaningless. The Tenth
District adopted this reasoning in its opinion in the certified-conflict case,
Blankenship v. Kennard, 10th Dist. Franklin No. 92AP-415, 1993 WL 318825.
       {¶ 27} But we do not agree that Civ.R. 50(A) is rendered meaningless
when a trial court is permitted to consider the pleadings when ruling on a motion
for directed verdict after an opening statement. A motion for directed verdict may
be granted without referring to the pleadings when an assertion is made during
opening statement that indicates that the party will be unable to sustain its claim
or defense at trial. The assertion may occur, for example, when a plaintiff admits
an affirmative defense that bars the claim or states explicitly that a certain element
of the claim cannot be established.           While these types of assertions are
undoubtedly rare during opening statements, it is conceivable that they may be



                                         11
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made; and if they are made, Civ.R. 50(A) provides a mechanism by which the
opposing party may move for directed verdict.
       {¶ 28} The Skocik defendants argue that a “plaintiff should be required to
state with particularity during opening statement those facts intended to be proven
upon which the plaintiff’s claim is based, without the necessity of consulting the
complaint which may well contain only bare-bones allegations giving notice of
the claim.” We do not agree that this specificity is required during opening
statements.
       {¶ 29} Opening statements are not evidence; they serve merely as
previews of a party’s claims and are designed to help the jury follow the evidence
as it is presented later in the trial. Ohio Jury Instructions, CV Section 301.05(5).
Because opening statements function to prepare the jury for the presentation of
evidence during the later stages of the trial, it would be inappropriate to require
that parties state with particularity during opening statement all facts upon which
their claims or defenses are based or risk losing a case on directed verdict.
       {¶ 30} The dissent relies on R.C. 2315.01(A)(1) to conclude that a party
who chooses to make an opening statement must state a claim or defense in the
opening statement in order to avoid a directed verdict. This conclusion, however,
overlooks the discretionary nature of R.C. 2315.01, which provides that trials
shall proceed in the order set forth in that section “unless for special reasons the
court otherwise directs.” R.C. 2315.01(A)(1) thus does not even require that
parties make opening statements, let alone address all issues in an opening
statement. The dissent’s reading of the statute overlooks the nonevidentiary role
of opening statements and effectively takes away the discretion given to trial court
judges to deviate from the statute “for special reasons.”




                                         12
                                January Term, 2013




D. When a motion for directed verdict following an opening statement may
be granted
        {¶ 31} An opening statement need not discuss every element of a claim or
defense. But the question remains: What standard should a trial court follow
when a party has moved for directed verdict following an opening statement?
        {¶ 32} Brinkmoeller provides that before a motion for directed verdict
following an opening statement is granted, “it must be clear that all the facts
expected to be proved, and those that have been stated, do not constitute a cause
of action or a defense.” Id., 41 Ohio St.2d 223, 325 N.E.2d 233, syllabus. Only if
the opening statement shows that a party is completely unable to sustain a cause
of action should the court take the case away from the jury by directing a verdict.
A directed verdict was granted, for example, after a plaintiff in a products-liability
case conceded in opening statement that deicing equipment it claimed was
defective had not been activated prior to a plane crash. United States Aviation
Underwriters, Inc. v. B.F. Goodrich Co., 149 Ohio App.3d 569, 2002-Ohio-5429,
778 N.E.2d 122 (9th Dist.). The court of appeals affirmed the decision of the trial
court because the admission in the opening statement showed that the plaintiff
would not be able to prove the causation element of its claim. Id. at ¶ 20. Accord
King v. Joern, 4th Dist. Hocking No. 91 CA 03, 1992 WL 126196, *2 (May 21,
1992) (plaintiff admitted during opening statement that one of the defendants, a
realtor, had not been consulted until after the closing on the sale of the property
and thus could not have had a duty to disclose the condition of the property to the
plaintiff).
        {¶ 33} If, however, it is unclear from the opening statement whether the
party against whom the motion is made can proceed with its case, the court must
determine whether that party has otherwise set forth a cause of action or defense.
It is at this point that the court may choose to consult the pleadings to determine
whether “all the facts expected to be proved, and those that have been stated, do



                                         13
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not constitute a cause of action or a defense,” pursuant to Brinkmoeller. In short,
the court must give the party against whom the motion is made the benefit of the
doubt.
            {¶ 34} The language in Brinkmoeller calling for the liberal construction of
an opening statement indicates that motions for directed verdict made following
an opening statement will be granted only in rare instances. If the court considers
all information before it, such as the opening statement and the pleadings, and
finds that what the party has set forth constitutes a claim or defense, the court
should deny the motion; however, a party cannot sabotage its own case during
opening statement and expect to prevail against a motion for directed verdict.
            {¶ 35} In this case, when the Skocik defendants moved for directed
verdict, they argued that during his opening statement, Parrish had failed to cite
any deviation from a standard of care by Dr. Skocik and had not connected Dr.
Skocik to the alleged wrongdoing. Although Parrish may have failed to mention
certain elements of his claim against the Skocik defendants during the opening
statement, that failure in and of itself did not permit the trial court to grant a
directed verdict in their favor, because Parrish did not indicate an inability to
sustain his cause of action. Although Parrish’s counsel focused on Dr. Jones
during the opening statement, he had also sued the Skocik defendants, and Parrish
should have been permitted to present proof of the Skocik defendants’ negligence
at trial.
            {¶ 36} We disagree with the Fourth District’s determination that the trial
court was required to consider the pleadings, but because the opening statement
should have been construed liberally in favor of Parrish, we affirm the court of
appeals’ judgment that reversed the decision granting the motion for directed
verdict.




                                            14
                                January Term, 2013




                                 III. Conclusion
       {¶ 37} We resolve the certified conflict by holding that a trial court is not
required to consider the allegations contained in the pleadings along with the
opening statement when ruling on a Civ.R. 50(A) motion for directed verdict, but
that in liberally construing the opening statement in favor of the party against
whom a motion for directed verdict has been made, a trial court may consult the
pleadings.
       {¶ 38} Accordingly, we affirm the judgment of the court of appeals
reversing the trial court’s decision to grant the motion for directed verdict, and we
remand the case for proceedings consistent with this opinion.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, FRENCH, and O’NEILL, JJ., concur.
       O’DONNELL and KENNEDY, JJ., dissent.
                             ____________________
       KENNEDY, J., dissenting.
       {¶ 39} Respectfully, I dissent.        I believe that the majority’s holding
renders Civ.R. 50(A) virtually meaningless because it permits a trial court to grant
a directed verdict at the close of opening statement only if a party effectively
admits that the party cannot sustain a claim or defense. I would hold that a trial
court may grant a motion for a directed verdict if a party fails to set forth a
concise claim or defense in opening statement.
       {¶ 40} Civ.R. 50 does not articulate what a court must consider in
deciding whether to grant a motion for directed verdict made at the close of an
opening statement. However, R.C. 2315.01(A)(1) and (2) provide that at opening
statement, “[t]he plaintiff concisely shall state the plaintiff’s claim, and briefly
may state the plaintiff’s evidence to sustain it” and “[t]he defendant briefly shall
state the defendant’s defense, and briefly may state the defendant’s evidence in
support of it.” A statute and a civil rule, if complementary, must be construed in



                                         15
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pari materia. See Knittle v. Big Turtle II Condominium Unit Owners Assn., Inc.,
46 Ohio App.3d 59, 61, 545 N.E.2d 916 (11th Dist.1988). Construing Civ.R.
50(A) in pari materia with R.C. 2315.01(A)(1), I would hold that when a party
chooses to make an opening statement, the party must state a claim or defense in
the opening statement in order to avoid a directed verdict.
       {¶ 41} I agree also with the Tenth District Court of Appeals’ holding in
Blankenship v. Kennard, 10th Dist. Franklin No. 92AP-415, 1993 WL 318825
(Aug. 17, 1993). In Blankenship, the plaintiff’s opening statement failed to allege
any negligence on the part of one defendant. The plaintiff argued that the court
should incorporate the allegations in his pleadings into his opening statement by
reference.
       {¶ 42} The court rejected the plaintiff’s argument for two reasons. First,
the court stated that “[b]y the time the actual fact-finding process has begun, a
plaintiff should be able to make a statement in court which concisely states the
reason why a named defendant should be held liable. Simple fairness for those
who are being sued demands no less.” Id. at *2.
       {¶ 43} Second, the court held that adopting the plaintiff’s argument


       would render Civ.R. 50(A) meaningless for all practical purposes.
       The only time when a directed verdict could be granted at the close
       of opening statement would be when the complaint also failed to
       state a claim upon which relief could be granted. Presumably, in
       such circumstances, the complaint would already have been
       dismissed or summary judgment would have been granted long
       before trial. For Civ.R. 50 to be meaningful in allowing a directed
       verdict at the close of opening statement, the rule must
       contemplate a review of what was actually set forth in opening
       statement.




                                         16
                                 January Term, 2013




Id.
       {¶ 44} Finally, in Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 225, 325
N.E.2d 233 (1975), this court considered a plaintiff’s opening statement and
admissions by the defendant in determining whether to grant a motion for a
directed verdict at the close of an opening statement.
       {¶ 45} Therefore, I would hold that a trial court may grant a motion for a
directed verdict if a party fails to set forth a concise claim or defense in the party’s
opening statement. In determining whether a party has set forth a concise claim
or defense, the court may consider only the opening statement and any admissions
that were made in a party’s answer or pursuant to Civ.R. 36. In making that
analysis,


       [a] trial court should exercise great caution in sustaining a motion
       for a directed verdict on the opening statement of counsel; it must
       be clear that all the facts expected to be proved, and those that have
       been stated, do not constitute a cause of action or a defense, and
       the statement must be liberally construed in favor of the party
       against whom the motion has been made.


Brinkmoeller at syllabus.
            Stating a Medical-Malpractice Claim During Opening Statement
       {¶ 46} A plaintiff may avoid a directed verdict at the close of an opening
statement if he or she sets forth a prima facie case of medical malpractice in
opening statement. See Berlin v. Cleveland Clinic Found., 8th Dist. Cuyahoga
No. 85123, 2005-Ohio-4160, ¶ 56-58. A prima facie case of medical malpractice
requires a “showing that: (1) the physician deviated from the ordinary standard of
care exercised by other physicians, i.e. the physician was negligent and (2) such



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deviation was the proximate cause of the patient’s injury.” Egleston v. Fell, 6th
Dist. Lucas No. L-95-127, 1996 WL 50161, *2 (Feb. 9, 1996), citing Bruni v.
Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), paragraph one of the
syllabus.
                             Parrish’s Malpractice Case
         {¶ 47} While in large part the majority opinion sets forth the cogent facts,
in my view there are some important facts that have been omitted. First, Parrish
dismissed Dr. Skocik from the case. After Dr. Skocik was dismissed from the
case, Parrish deposed Dr. Jones’s expert witness, Dr. Writesel, who opined that
Dr. Skocik had “grossly mismanaged” Parrish’s care. Because of Dr. Writesel’s
testimony, Parrish amended his complaint to add Dr. Skocik as a defendant for a
second time.
         {¶ 48} Second, Dr. Skocik’s answer denied breaching any standard of
care, and there are no Civ.R. 36 admissions by Dr. Skocik in the record.
         {¶ 49} And finally, when discussing Dr. Skocik’s motion for a directed
verdict, the trial judge asked Dr. Jones’s counsel if he had “any words of
wisdom.” Counsel responded: “Judge I think this is an issue between the plaintiff
and the defendant. I don’t know that I have a dog in this hunt. I mean this—the
opening—the opening statement of the plaintiff is what their case is against
Doctor Skocik and against me.        I do not have a cross-claim against Doctor
Skocik.”
                            Parrish’s Opening Statement
         {¶ 50} The following are excerpts from Parrish’s opening statement at
trial:


                Let me get started. There’s two rules in medicine that
         every doctor in this case is going to agree on. That a doctor should
         never place his patient in unnecessary danger and two, a doctor




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should always attempt to do what is safest for his patient. If a
doctor violates these rules then he is responsible for the harm he
causes.
          ***
          We have sued Doctor Jones. We have sued Doctor Jones
because he has failed to meet the standard of care required of a
physician discharging a patient like Karen Parrish. Doctor Jones
was Karen’s attending physician.          He was her neurology
specialist—he was treating her Guillain-Barre Syndrome. He was
working with other consultants to assist him in making sure Karen
was kept safe. He was her discharging physician. He’s the one
who filled out the continuity of care and told the other facility what
to do until a doctor came and saw her. Doctor Jones will tell you
that he knew on the day he discharged her that Karen was still at
high risk for developing blood clots. He knew that Doctor Saad
had her on D.V.T. prophylaxis. Blood clot protection. Lovenox.
Doctor Jones will admit that Lovenox was the most effective
way—and all the doctors will admit this—that Lovenox was the
most effective way while Karen was still immobile, until she could
get that strength back to pump her calf muscles, Lovenox was the
most effective way of keeping those blood clots from forming. But
Doctor Jones failed to put Lovenox or D.V.T. prophylaxis onto his
continuity of care form.
          ***
          I had this case reviewed by a neurologist by the name of
Joe Campellone. He is a neurologist out of the Philadelphia area,
Jersey, who has a special interest in Guillain-Barre, he’s seen a lot
of it in his time and he’s looked at this case and he discharges



                                 19
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patients. * * * Doctor Campellone will tell you Lovenox needed
to be given to Karen as soon as she got within that twenty four
hour period, as soon as she got to the Chillicothe Rehab. Doctor
Campellone will tell you that in medical probability, more likely
than not, if Karen was on the Lovenox as she should have been, the
blood clots would not have formed and those blood clots would not
have traveled to her lung and she would not have died.
       Other experts will say the same thing. Doctor Skocik will
have two experts here. Doctor Cefalu, a geriatric expert, a person
who works in the nursing home setting and Doctor Wald, a
neurologist * * *. They will testify to the same thing, that Karen
was at a high risk for clots. She needed to be on Lovenox and it
was Doctor Jones’ responsibility to have her on the Lovenox. One
of Doctor Jones’ own experts, Doctor Writ[e]sel, will say the
same thing, that she needed to be on the Lovenox. Doctor Jones
didn’t do it. He chose not to do that. He chose to terminate the
Lovenox and hope something else would happen. When he didn’t
put the Lovenox or the D.V.T. prophylaxis on that, he chose not to
do what was safe and he put Karen Parrish in unnecessary harm.
Doctor Jones has refused to take responsibility for the harm he
caused and that is why we’re here. That’s why we’re here.
       ***
       * * * Doctor Jones, through his attorneys, have hired a
medical expert, Doctor Writ[e]sel who I had mentioned, who will
tell you that it was Doctor Skocik’s fault. That it was Doctor
Skocik’s fault for not ordering the proper D.V.T. prophylaxis in
time. I’ll let Doctor Skocik’s attorneys argue for Doctor Skocik
about that. But, there is a reason for continuity of care forms.




                                20
                                January Term, 2013




       That’s the communication bridge between one doctor to the next so
       that the patient doesn’t get lost.
               After all the evidence is presented on these issues, I believe
       you’ll find that Doctor Jones just forgot. I think he just forgot to
       put the D.V.T. prophylaxis in there. He ran a red light. Anyone
       can make a mistake, but when you make a mistake, it is wrong to
       try to evade your responsibility, that’s why we’re here. You have
       the power as a jury, after listening to the evidence, you have the
       power to hold Doctor Jones responsible for the harm he caused.


  Parrish Failed to Set Forth a Prima Facie Medical-Malpractice Claim Against
                       Dr. Skocik in the Opening Statement
       {¶ 51} At the close of Parrish’s opening statement, Dr. Skocik’s counsel
moved for a directed verdict. After a discussion between the judge and counsel,
and without giving Parrish’s counsel an opportunity to amend his opening
statement, the trial court granted Dr. Skocik’s motion for a directed verdict.
       {¶ 52} In his opening statement, Parrish’s counsel set forth a prima facie
case of medical malpractice against Dr. Jones. However, even construing the
facts in a light most favorable to Parrish, he did not set forth a prima facie claim
of malpractice against Dr. Skocik. Parrish did not claim that Dr. Skocik had
breached a standard of care regarding Karen Parrish’s care or that any breach of
care proximately caused her death. And Dr. Skocik made no admissions in his
answer or pursuant to Civ.R. 36 that would assist Parrish in making his medical-
malpractice case against Dr. Skocik.
       {¶ 53} Construing the facts in a light most favorable to Parrish, Parrish
merely asserted that Dr. Jones had an expert who would say that it was Dr.
Skocik’s fault and that Parrish would let Dr. Skocik’s lawyer argue for him.
However, Dr. Jones never filed a cross-claim against Dr. Skocik. Therefore, Dr.



                                            21
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Jones was not obligated to set forth a claim or defense against Dr. Skocik, and the
question whether Dr. Jones could or would establish a claim or defense against
Dr. Skocik was not relevant when the trial court was ruling on Dr. Skocik’s
motion for directed verdict at the close of Parrish’s opening statement.
       {¶ 54} Therefore, I would reverse the judgment of the court of appeals,
reinstate the judgment of the trial court granting Dr. Skocik’s motion for a
directed verdict, and remand the case for dismissal. Accordingly, I respectfully
dissent.
       O’DONNELL, J., concurs in the foregoing opinion.
                             ____________________
       Rourke & Blumenthal, L.L.P., Kenneth S. Blumenthal, and Jonathan R.
Stoudt, for appellee.
       Arnold, Todaro & Welch Co., L.P.A., Kevin W. Popham, and Gregory B.
Foliano, for appellants.
                           ________________________




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