[Cite as Hyams v. Cleveland Clinic Found., 2012-Ohio-3945.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 97439




                              JARED HYAMS, ET AL.
                                                          PLAINTIFFS-APPELLEES

                                                    vs.


          CLEVELAND CLINIC FOUNDATION, ET AL.

                                                          DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                     Case No. CV-636016

        BEFORE:            Boyle, P.J., Cooney, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                             August 30, 2012
ATTORNEYS FOR APPELLANTS

Anna M. Carulas
Ingrid Kinkopf-Zajac
Douglas G. Leak
Roetzel & Andress, LPA
One Cleveland Center, 9th Floor
1375 East Ninth Street
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEES

Christopher M. Mellino
Thomas D. Robenalt
Allen C. Tittle
Mellino Robenalt LLC
19704 Center Ridge Road
Rocky River, Ohio 44116
MARY J. BOYLE, P.J.:

       {¶1} Defendants-appellants, the Cleveland Clinic Foundation and Barbara

Wechsler (collectively “the Clinic”), appeal a jury verdict for plaintiffs-appellees, Jared

Hyams and his parents, Douglas and Linda Hyams (collectively “the Hyamses”), on their

medical malpractice action.    The gravamen of their appeal is that the Hyamses’ expert

witness, Dr. Robert Granacher, was not competent to testify at trial, and therefore the trial

court should have granted a directed verdict in their favor.          They further challenge

several evidentiary rulings. Finding no merit to the appeal, we affirm.

                               Procedural History and Facts

       {¶2} In April of 2005, Linda and Douglas Hyams took their son, Jared, who was

nine years old at the time, to the Cleveland Clinic after Jared had developed an

unexplained limp and unsteady gait. Jared was evaluated by pediatric neurologist Neil

Friedman, who thought that Jared presented with signs of a “conversion disorder.” A

conversion disorder is “a neuropsychiatric condition and that the symptom or deficit

cannot after appropriate investigation be fully explained by a general medical condition.”

 Swaiman, Ashwal, and Ferriero, Swaiman’s Pediatric Neurology: Principles and

Practice (4th Ed.2007). It is a psychological condition that is believed to be caused by

some traumatic experience or other difficulty in the person’s life.
      {¶3} Following outpatient physical therapy, Dr. Friedman ultimately referred

Jared to the day hospital program at the Cleveland Clinic Children’s Hospital for

Rehabilitation (“day hospital”) for treatment of conversion disorder and inability to walk.

 At the day hospital, Dr. Wechsler, a pediatric rehabilitation specialist, oversaw Jared’s

treatment.

       {¶4} Jared’s day hospital program included physical and occupational therapy

daily, multiple counseling sessions with a clinical social worker or psychologist, and

attendance at school and social interaction programs.      According to Dr. Wechsler’s

discharge summary, any efforts to “normalize [Jared’s] left foot posture” were

abandoned, however, when “the factitious nature of Jared’s ambulatory problems became

apparent.”   The day hospital   staff was committed to enforcing a consistent behavioral

plan, such that, according to Dr. Wechsler, “Jared is beginning to recognize that his

behaviors have consequences.”      Jared’s behavior plan at the day hospital      included

certain reinforcement measures, such as “[i]f he falls during walking he owes 5 sit ups per

fall; [i]f he touches the wall/chair/person while walking he owes 5 push ups.”

       {¶5} Jared was in the day hospital program from May 3, 2005 until May 31,

2005. Upon his discharge, staff members of the day hospital program visited Jared’s

school for his school re-entry meeting.    Their recommendations focused on the belief

that Jared “is seeking attention by manipulating the adults around him and falling into the

sick role and enjoying the attention he is receiving from this.” Consequently, the school

re-entry recommendations included, among others, the following:
      Jared should be treated as any other child and should receive the natural

      consequences of any other child for being tardy to class or uncooperative to

      perform his work. His gait is currently atypical and no focus should be

      placed on how he is walking in the school environment. He should not be

      assisted during walking with any hand holding. * * * It is important to treat

      him as a healthy young boy and not allow him to manipulate adults.

       {¶6} The Hyamses were also instructed to follow the same behavior plan used at

the day hospital    for Jared, focusing on the importance of not rewarding Jared with

attention or help when he failed to walk properly.         Likewise, the Hyamses were

instructed to specifically withhold privileges from Jared, such as eating at the table with

the family, if he did not walk properly.

       {¶7} Jared’s condition however continued to deteriorate. Finally, while being

seen by a psychiatrist unaffiliated with the Cleveland Clinic, a dystonia gene panel was

ordered and taken in April 2006. Through this blood test, it was discovered that Jared

does not have a conversion disorder, but instead, a rare genetic disorder — dystonia.

According to the Dystonia Foundation, dystonia is defined as a movement disorder that

causes muscles to contract and spasm involuntarily. The dystonia is what caused Jared’s

inability to walk and his steady physical deterioration.

       {¶8} The Hyamses subsequently filed the underlying medical malpractice suit

against the Clinic, Dr. Friedman, and Dr. Wechsler, alleging that Dr. Friedman was

negligent by failing to properly diagnose the dystonia and that, assuming Jared even had a
conversion disorder, Dr. Wechsler’s treatment plan was a “substandard treatment plan.”

They alleged that the treatment plan “psychologically traumatized, humiliated, and

isolated Jared.”    According to the Hyamses’ medical expert, Dr. Granacher, the

behavioral plan for Jared was punitive and not acceptable for a nine-year-old boy.        Dr.

Granacher further testified that the treatment plan caused “significant psychological

injuries” to Jared. Conversely, the Clinic’s expert testified that Jared’s treatment plan

was a reasonable and acceptable approach to the treatment of a conversion disorder.

The Clinic’s expert maintained that it was not a punitive plan and that Jared did not suffer

emotional or psychological injuries as a result of the plan.

       {¶9} The case proceeded to trial where the jury ultimately found that Dr. Friedman

was not negligent but that Dr. Wechsler was negligent in the following two areas: (1)

“negligent in creation and implementation of the behavior plan at the day hospital and

into the Hyams[es’] household”; and (2) “negligent in the creation and implementation of

the behavior plan into the school reentry recommendation.”          The jury then awarded

Jared $590,000 in past and future non-economic loss, the mother $200,000 in damages,

and the father $100,000 in damages.        The trial court subsequently reduced the total

award to the statutory cap of $500,000.

       {¶10} The Clinic appeals, raising the following five assignments of error:

       “[I.] The trial court abused its discretion in failing to strike the trial testimony of

plaintiffs-appellees’ expert Robert Granacher, M.D.
       “[II.] The trial court erred in failing to grant defendants-appellants’ motion for a

directed verdict.

       “[III.] The trial court abused its discretion in allowing plaintiffs-appellees to play

misleading bits and pieces of videotaped depositions.

       “[IV.] The trial court abused its discretion in allowing plaintiffs-appellees to play a

videotape of Jared Hyams.

       “[V.] The trial court abused its discretion in excluding relevant evidence pertaining

to an extramarital affair.”

                       Competency to Testify and Render an Opinion

       {¶11} In their first assignment of error, the Clinic argues that the trial court abused

its discretion in failing to strike the testimony of Dr. Granacher because he was neither

competent to testify under Evid.R. 601(D) nor qualified under Evid.R. 702(A). The

Clinic further argues that the trial court should have at least stricken that portion of Dr.

Granacher’s testimony relating to causation because it was based merely on speculation.

We disagree.

       A.      Evid.R. 601(D) and Waiver

       {¶12} The Clinic contends that the Hyamses failed to establish that Dr. Granacher

was qualified as an expert witness pursuant to the competency requirements of Evid.R.

601(D).     The rule provides that “[e]very person is competent to be a witness except:

      * * * A person giving expert testimony on the issue of liability in any claim
      asserted in any civil action against a physician, podiatrist, or hospital arising
      out of the diagnosis, care, or treatment of any person by a physician or
      podiatrist, unless the person testifying is licensed to practice medicine and
       surgery, osteopathic medicine and surgery, or podiatric medicine and surgery
       by the state medical board or by the licensing authority of any state, and
       unless the person devotes at least one-half of his or her professional time to
       the active clinical practice in his or her field of licensure, or to its instruction
       in an accredited school.

(Emphasis added.) Evid.R. 601(D).

       {¶13} The purpose of Evid.R. 601(D) is to discourage testimony regarding the

proper standard of care by a “professional witness” or a physician who is sequestered in

the laboratory and has no firsthand knowledge of the duty of care of patients.

Joyce-Couch v. DeSilva, 77 Ohio App.3d 278, 292, 602 N.E.2d 286 (12th Dist.1991).

The rule seeks to prevent “nonclinicians from testifying about the quality of clinical care.”

 Id., quoting Price v. Cleveland Clinic Found., 33 Ohio App.3d 301, 304, 515 N.E.2d 931

(8th Dist.1986). But Evid.R. 601(D) should not be “applied so narrowly that the right of

redress in a medical claim collapses under an undue burden.” Crosswhite v. Desai, 64

Ohio App.3d 170, 177, 580 N.E.2d 1119 (2d Dist.1989).

       {¶14} In reviewing the trial court’s decision to deny the Clinic’s motion to strike,

we afford deference to the trial court’s decision and may not reverse the decision unless

we find that the trial court abused its discretion.    Ruple v. Midwest Equip. Co., 8th Dist.

No. 95726, 2011-Ohio-2923, ¶ 5.           “As such, in order to have an abuse of discretion,

‘the result must be so palpably and grossly violative of fact or logic that it evidences not

the exercise of will but the perversity of will, not the exercise of judgment but the

defiance of judgment, not the exercise of reason but instead passion or bias.’” Vaught v.
Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, quoting Nakoff v.

Fairview Gen. Hosp., 75 Ohio St.3d 254, 662 N.E.2d 1 (1996), syllabus.

         {¶15} The Clinic argues that the Hyamses never asked Dr. Granacher on direct (1)

whether he was licensed, and (2) whether he devoted at least one-half of his professional

time to the active clinical practice of medicine.    According to the Clinic, Dr. Granacher

is in the business of being a professional witness — the very type of witness that

Evid.R. 601(D) is intended to exclude.          Because the Hyamses never elicited direct

answers to the dual competency requirements of Evid.R. 601(D), the Clinic argues that

the trial court was required to strike Dr. Granacher’s testimony.

         {¶16} The Clinic, however, never filed a motion in limine on these grounds.      Nor

did it raise the issue prior to cross-examining Dr. Granacher.           Instead, the Clinic

thoroughly cross-examined Dr. Granacher and then waited until Dr. Granacher had

finished testifying and returned home to Kentucky before raising the issue with the trial

court. At that point, the trial court found that the Clinic had waived the issue. We

agree.

         {¶17} Evid.R. 103(A)(1) requires that a party timely object when allegedly

inadmissible evidence is introduced at trial.    A timely objection is, typically, one made at

the time the error complained of occurred.       “The contemporaneous objection rule is a

fundamental principle which appellate courts cannot easily disregard.” Mallin v. Mallin,

44 Ohio App.3d 53, 54, 541 N.E.2d 116 (8th Dist.1988).                “The purposes of the

contemporaneous objection rule include allowing the questioner to correct his or her
mistake or inadvertence, as well as allowing the trial court to avoid error by taking

corrective action.”   (Citation omitted.) Williams v. Parker Hannifin Corp., 188 Ohio

App.3d 715, 2010-Ohio-1719, 936 N.E.2d 972, ¶ 15 (12th Dist.).

       {¶18} One’s failure to object to the use of evidence when the alleged error could

be remedied waives the issue.         Mallin at 54-55; State v. Girard, 9th Dist. No.

02CA0057-M, 2003-Ohio-7178, ¶ 28. Indeed, as this court has previously observed,

“[a] timely objection also permits the adverse party to take corrective action which would

eliminate any basis for complaint.” Mahone v. Sternweiler, 8th Dist. No. 52810, 1987

Ohio App. LEXIS 8981 (Oct. 1, 1987).

       {¶19} Here, in ruling on the motion to strike, the trial court specifically noted that

during Dr. Granacher’s direct testimony, the Clinic objected and a sidebar discussion was

had between counsel and the court.       At that time, however, no objection was made

regarding Dr. Granacher’s competency to testify as an expert pursuant to Evid.R. 601(D).

 Nor did the Clinic ever raise the issue before trial out of the presence of the jury.

While we recognize that a party is not required to file a motion in limine to raise a

specific evidentiary issue during trial, we find the timing of the Clinic’s objection in this

case to be fatal to its argument on appeal.

       {¶20} Notably, the Clinic did not raise any issue regarding Dr. Granacher’s

competency until after Dr. Granacher returned home to Kentucky.       Indeed, following the

Hyamses’ direct examination of Dr. Granacher, the Clinic thoroughly cross-examined

him, asking him several questions specific to Dr. Granacher’s practice and his
professional opinion.    We therefore agree with the trial court that the delay on the part of

the Clinic in raising the issue operated as a waiver under the specific facts of this case.

See Coe v. Young, 145 Ohio App.3d 499, 763 N.E.2d 652 (11th Dist.2001) (concurring

opinion) (where cross-examination has been engaged in prior to an objection to the direct

testimony, any objection to the direct testimony has been waived), citing Amie v. Gen.

Motors Corp., 69 Ohio App.2d 11, 14, 429 N.E.2d 1079 (8th Dist.1980) (a party waives

any objection to the introduction of testimony unless the objection is made with

reasonable promptness).

         {¶21} As for the Clinic’s repeated emphasis that the Hyamses failed to cure or

rehabilitate Dr. Granacher’s testimony despite having the opportunity to do so during

their case in chief, we find this argument lacks merit.   The trial court denied the Clinic’s

motion to strike Dr. Granacher’s testimony, thereby obviating the need for the Hyamses to

call Dr. Granacher back to the stand.

         {¶22} Moreover, contrary to the Clinic’s insinuation on appeal that Dr. Granacher

simply could not satisfy the dual competency requirements of Evid.R. 601(D), we find

that the record reflects otherwise.      Dr. Granacher’s testimony on both direct and

cross-examination detailed his board certification in psychiatry, his 35 years of work in

neuropsychiatry, and his current practice, which includes treating patients on a weekly

basis.    Additionally, the Hyamses filed an affidavit of Dr. Granacher in 2009 that

establishes he is licensed to practice medicine and that he devotes at least 50 percent of

his professional time to the active clinical practice of psychiatry.        Dr. Granacher’s
discovery deposition filed with the court also supports the conclusion that he meets the

dual competency requirements of Evid.R. 601(D).         Given this evidence, and the Clinic’s

untimely objection, we find that the trial court did not abuse its discretion in denying the

Clinic’s motion to strike Dr. Granacher’s testimony.      See generally Witzmann v. Adam,

2d Dist. No. 23352, 2011-Ohio-379 (even if plaintiff had not waived the issue of the

doctor’s competency under Evid.R. 601, appellate court likely would have overruled it

based on doctor’s testimony of his experience and background).

       B.     Application of Turner

       {¶23} The Clinic argues that this court’s decision in Turner v. Cleveland Clinic

Found., 8th Dist. No. 80949, 2002-Ohio-4790, is dispositive of the appeal and requires us

to reverse the trial court’s decision.   We disagree.

       {¶24} In Turner, the plaintiffs brought a medical malpractice action against the

hospital and surgeon, asserting a lack of informed consent claim.             The plaintiffs,

however, never obtained their own medical expert and sought to rely on the

defendant-surgeon for purposes of proving their case. Id. at ¶ 11.          In their case in

chief, the plaintiffs called the surgeon as if on cross-examination but failed to ask him any

questions regarding his qualifications or experience. Id. The plaintiffs further failed to

elicit any testimony from the defendant-surgeon regarding the recognized standard of care

about what risks of the surgery should have been disclosed.      Id. at ¶ 16. Consequently,

the trial court granted the hospital’s motion for a directed verdict, finding that plaintiffs

failed to qualify defendant-surgeon as an expert pursuant to Evid.R. 601(D), and that even
if qualified, plaintiffs failed to elicit any expert testimony from him regarding the

standard of care to prove their case.   Id.

       {¶25} On appeal, we affirmed the trial court’s granting of the motion for a directed

verdict, rejecting plaintiffs’ claim that no expert testimony was necessary to prove a claim

for lack of informed consent. Id. at ¶ 34-36.          Because the plaintiffs failed to present

any expert medical evidence as to the standard of care and that it was not met —

necessary elements to plaintiffs’ claim — the defendant hospital was entitled to judgment

as a matter of law. Id.     We further recognized that the plaintiffs had failed to establish

that defendant-surgeon was qualified to render expert testimony under Evid.R. 601(D) or

702.   Id. at ¶ 41, 43.

       {¶26} We find the facts of Turner completely distinguishable from this case.

Turner does not address whether a trial court acts within its discretion by denying a

motion to strike expert testimony when the movant failed to timely object to such

testimony. Nor does Turner stand for the proposition that an objection under Evid.R.

601(D) can never be waived.         Moreover, unlike the instant case where the record

contains evidence of Dr. Granacher satisfying the requirements of Evid.R. 601(D), there

was no equivalent evidence in Turner.         Indeed, the Turner court noted that, based on the

defendant-surgeon’s testimony that he was no longer employed by the Cleveland Clinic

Foundation coupled with the lack of any questioning by the plaintiffs’ counsel as to his

present employment, it was unclear whether the defendant-surgeon was even practicing

medicine at the time of trial.
        {¶27} In upholding the trial court’s decision to deny the Clinic’s motion to strike,

we are not relaxing or ignoring the requirements of Evid.R. 601(D).           The application of

the rule, however, is not applied in a vacuum.     Here, the purpose of Evid.R. 601(D) was

served in this case; Dr. Granacher is a practicing clinician, familiar with the standard of

care.     Further, if the Clinic would have timely raised its objection before

cross-examining Dr. Granacher at trial, the Hyamses could have easily remedied any

issue. Thus, our holding today reinforces the fundamental principle embodied by the

contemporaneous objection rule — a timely objection alerts the questioner to correct his

or her mistake or inadvertence, as well as allows the trial court to avoid error by taking

corrective action.   But the failure to timely object will waive the issue.

        C.     Evid.R. 702(B)

        {¶28} The Clinic also argues that Dr. Granacher’s testimony should have been

stricken because he lacked the necessary qualifications to offer an expert opinion under

Evid.R. 702(B), contending that Dr. Granacher was not a child psychiatrist, not a

pediatric rehabilitation specialist (like Dr. Wechsler), and has not developed a treatment

plan for a child with a conversion disorder for 40 years.      The record reveals, however,

that the Clinic never raised this objection during trial and therefore has waived it. See

Evid.R. 103(A); Butler v. Minton, 6th Dist. No. E-05-061, 2006-Ohio-4800. But even if

they had properly preserved the issue, we find that it lacks merit.
             {¶29} Evid.R. 702(B) provides that a witness may qualify as an expert by reason of

      his or her specialized knowledge, skill, experience, training, or education.     This court

      has succinctly observed the criteria of Evid.R. 702(B) as follows:

      Neither special education nor certification is necessary to confer expert status upon a
      witness. To qualify as an expert, the witness need not be the best witness on the subject.
       The individual offered as an expert need not have complete knowledge of the field in
      question, as long as the knowledge he or she possesses will aid the trier of fact in
      performing its fact-finding function. Moreover, where the fields of medicine overlap and
      more than one type of specialist may perform the treatment, a witness may qualify as an
      expert even though he does not practice the same specialty as the defendant.

Porter v. Sidor, 8th Dist. No. 84756, 2005-Ohio-776, ¶ 7.

      {¶30} Dr. Granacher has spent over 35 years in the practice of medicine, including

neuropsychiatry.    He is board certified in several fields, including general psychiatry and

neuropsychiatry. He is experienced in the diagnosis and treatment of movement disorders seen in

psychiatric medicine. He is familiar with both conversion disorders and dystonia, as well as their

causes, diagnosis, and treatment.   Dr. Granacher devises behavioral treatment plans for his patients as

a regular part of his practice.     Additionally, Dr. Granacher personally evaluated Jared on two

occasions.   Based on this evidence, we find that Dr. Granacher qualified as an expert pursuant to

Evid.R. 702(B).

      D.     Causation Testimony

             {¶31} The Clinic lastly argues that the trial court should have at least stricken Dr.

      Granacher’s causation testimony as being speculative.       The Clinic contends that Dr.

      Granacher could not differentiate between the emotional/psychological injuries that Jared

      allegedly suffered as a result of the Clinic’s negligence from his pre-existing and
independent emotional/psychological problems. Based on this failure, the Clinic argues

that Dr. Granacher’s testimony failed to satisfy the Hyamses’ legal burden of establishing

proximate cause and that his testimony improperly allowed the jury to speculate as to the

extent of Jared’s injuries attributable to the Clinic’s negligence. We find, however, that

this argument lacks merit.

       {¶32} Our review of the record reveals that Dr. Granacher testified, to a reasonable

degree of medical certainty, that the treatment plan followed for Jared’s conversion

disorder breached the standard of care and that as a result of Dr. Wechsler’s negligence,

Jared suffered “significant psychological injuries.”     Dr. Granacher then specifically

identified those injuries, including that Jared experienced “flashbacks” of the day

hospital.    According to Dr. Granacher, the flashbacks are a marker for [Jared’s]

psychological damage; “Jared’s self-esteem has been damaged by this.”          He further

opined that such trauma experienced by a child in the formative years “changes the brain

development in a very negative fashion.”      He stated that as a result of the negative

impact from his treatment, “[Jared’s] social development has been changed.”     He opined

that it has been “arrested.”   He further testified that Jared was extremely nervous when

he first examined him— something that Dr. Granacher attributed partly to the fact that

Jared was made to feel like he was “lying and making up his illness.”       Dr. Granacher

opined that these injuries are “permanent” because “those memories will persist with him

the rest of his life.”
       {¶33} We find no basis by which the trial court should have stricken this

testimony.   And to the extent that Dr. Granacher could not specifically “quantify” or

“put a number on the difference between Jared now and before his involvement with the

Cleveland Clinic,” we do not find that such testimony undermines Dr. Granacher’s

causation testimony.    As explained by Dr. Granacher, “there are certain things you

cannot do that on,” such as “pain.” And the assessment of such damages as pain and

suffering are not intended to be given by an expert; instead, they are “solely for the

determination of the trier of fact.” Fantozzi v. Sandusky Cement Prod. Co., 64 Ohio

St.3d 601, 612, 597 N.E.2d 474 (1992). Indeed, as recognized by the Ohio Supreme

Court, “there is no standard by which such pain and suffering may be measured. * * *

‘[N]o substitute for simple human evaluation has been authoritatively suggested.’”   Id.,

quoting Flory v. New York Cent. RR. Co., 170 Ohio St. 185, 190, 163 N.E.2d 902 (1959).

       {¶34} The first assignment of error is overruled.

                              Motion for a Directed Verdict

       {¶35} In their second assignment of error, the Clinic argues that the trial court

erred in denying their motion for a directed verdict because (1) Dr. Granacher’s expert

testimony should have been stricken as being incompetent under Evid.R. 601(D), and (2)

Dr. Granacher’s causation testimony was legally insufficient. But having already found

that Dr. Granacher’s testimony should not have been stricken and that his causation

testimony was legally sufficient, we find that this argument lacks merit.
       {¶36} Applying a de novo standard of review, we find that the trial court properly

denied the Clinic’s motion for a directed verdict. See Civ.R. 50(A)(4). Indeed, the

Hyamses presented evidence in support of all three elements of their medical malpractice

action — (1) the existence of a standard of care within the medical community; (2) Dr.

Wechsler’s breach of that standard in failing to provide treatment in conformity with that

standard; and (3) proximate cause between the medical negligence and the injury. See

Bruni v. Tatsumi, 46 Ohio St.2d 127, 130-131, 346 N.E.2d 673 (1976). Therefore, the

Clinic was not entitled to judgment as a matter of law, and the trial court properly denied

it. See TLT-Babcock, Inc. v. Serv. Bolt & Nut Co., 16 Ohio App.3d 142, 474 N.E.2d

1223 (9th Dist.1984).

       {¶37} The second assignment of error is overruled.

                                 Other Evidentiary Rulings

       {¶38} In their last three assignments of error, the Clinic argues that the trial court

abused its discretion in (1) allowing the Hyamses to present only portions of Clinic

employees’ depositions but not requiring them to present the entire deposition despite the

Clinic’s request; (2) allowing the Hyamses to play a video of Jared; and (3) prohibiting

the Clinic from discussing Douglas Hyams’s extramarital affair.

       {¶39} “Error may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected * * *.”   Evid.R. 103(A).   The

trial court is vested with broad discretion in the admission and the exclusion of evidence,

and a reviewing court will not reverse a trial court’s ruling unless the trial court has
clearly abused its discretion to the prejudice of the complaining party.         Yaeger v.

Fairview Gen. Hosp., 8th Dist. No. 72361, 1999 Ohio App. LEXIS 904 (Mar. 11, 1999),

citing Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.2d 881 (1988).

       {¶40} Applying the requisite standard of review, we find all three of the Clinic’s

arguments lack merit.

       A.     Reading of Depositions

       {¶41} Relying on Civ.R. 32(A)(4), the Clinic argues that the trial court committed

reversible error in allowing the Hyamses to present only “bits and pieces of videotaped

depositions” of three doctor witnesses — Dr. Cohen, Dr. Abdelsalam, and Dr. Wechsler

— all of whom were employees of the Clinic.      The rule provides that “[i]f only part of a

deposition is offered in evidence by a party, an adverse party may require him to

introduce all of it which is relevant to the part introduced, and any party may introduce

any other parts.”   Civ.R. 32(A)(4).

       {¶42} The Clinic maintains that the jury never heard the doctors’ entire testimonies

in proper context, thereby unfairly prejudicing their defense.        But the trial court

specifically ruled that the Clinic was free to present the entire deposition as part of its

case. Further, the Clinic fails to point out how they were prejudiced by the manner in

which the Hyamses presented the evidence.       Thus, based on the record before us, we

cannot say that the trial court’s decision, even if erroneous, prejudiced the Clinic to

warrant a reversal. See Yaeger, supra. Accordingly, the third assignment of error is

overruled.
       B.     Video of Jared

       {¶43} The Clinic argues that the trial court abused its discretion in allowing the

Hyamses to present a video of Jared taken in May 2006.           The Clinic argues that the

video was irrelevant to the issues at trial, and therefore should have been excluded under

Evid.R. 402. The Clinic further maintains that the Hyamses failed to timely notify the

Clinic of their intent to use the video and that the Hyamses never established the

authenticity or accuracy of the video as required under Evid.R. 901(A).

       {¶44} After careful consideration of the parties’ arguments and viewing the video

outside the presence of the jury, the trial court concluded that the video was relevant and

not unfairly prejudicial. We cannot say that the trial court abused its discretion in

allowing the video to be played.    The record reveals that the Clinic could not have been

surprised by the video as it was the party that produced the video to the Hyamses during

discovery.   The video was relevant because it depicted Jared’s condition on May 6, 2006

— shortly before he was diagnosed with dystonia. Finally, Jared’s parents, who were

present during the taking of the video, authenticated the video on direct examination.

Therefore, we find no merit to the argument that the trial court abused its discretion and

overrule the fourth assignment of error.

       C.     Extramarital Affair

       {¶45} In their final assignment of error, the Clinic argues that the trial court abused

its discretion in prohibiting the Clinic from specifically discussing Douglas Hyams’s

extramarital affair.   The trial court, however, allowed the Clinic to discuss “marital
discord” or “domestic problems” at home.        The trial court’s ruling fairly allowed the

Clinic to get their point across without unfairly sensationalizing the matter. We find no

basis to conclude that the trial court abused its discretion or that the Clinic was prejudiced

by its ruling.

       {¶46} The final assignment of error is overruled.

       {¶47} Judgment affirmed.

       It is ordered that appellees recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR
