         [Cite as Fehrenbach v. O'Malley, 2011-Ohio-5481.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



TARA N. FEHRENBACH,                              :           APPEAL NO. C-100730
                                                             TRIAL NO. A-9701756
GINA D. FEHRENBACH,                              :
                                                             O P I N I O N.
  and                                            :

THOMAS J. FEHRENBACH,                            :

        Plaintiffs-Appellants,                   :

  vs.                                            :

KATHRYN O’MALLEY, M.D.,                          :

  and                                            :

SUBURBAN PEDIATRIC                               :
ASSOCIATES, INC.,

    Defendants-Appellees.                        :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 28, 2011


John H. Metz, for Plaintiffs-Appellants,

Lindhorst & Dreidame, Michael F. Lyon, and Bradley D. McPeek, for Defendants-
Appellees.



Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Presiding Judge.

       {¶1}    Plaintiffs-appellants Tara, Gina, and Thomas Fehrenbach, filed a

medical malpractice action against defendants-appellees Kathryn O’Malley, M.D.,

and her employer, Suburban Pediatric Associates, Inc., (collectively, where

appropriate, “Dr. O’Malley”). A jury returned a verdict in favor of Dr. O’Malley. The

Fehrenbachs have filed a timely appeal. We find no merit in their six assignments of

error, and we affirm the trial court’s judgment.


                                I.   Facts and Procedure

       {¶2}    On October 1, 1990, 14-month-old Tara woke with a temperature of

105.2 degrees. She vomited, and her mother, Gina, found her to be “lethargic.” Gina

made an appointment to take Tara to see her pediatrician, Dr. O’Malley, at Suburban

Pediatric Associates, that afternoon.

       {¶3}    Tara had had a history of ear infections and her parents had

scheduled surgery to correct her ear problems. Dr. O’Malley examined Tara and

concluded that she had a severe double ear infection.       She prescribed an oral

antibiotic and Tylenol.

       {¶4}    That night, Tara was cranky and slept poorly. Gina noticed that she

would not lie on her back. Gina took Tara back to Dr. O’Malley’s office the following

morning. She told the doctor that Tara’s fever had not been lower than 104 degrees,

that she was still vomiting, and that she was “very lethargic.” Dr. O’Malley examined

her and found that Tara was still suffering from ear infections. She told Gina to

continue with the antibiotic and Tylenol, and to give Tara fluids to prevent

dehydration.

       {¶5}    On the morning of October 3, Tara showed some improvement. Her

temperature was lower, and she was able to sit up for a short time and eat a little.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



Gina felt encouraged and left Tara with her mother-in-law while she went to work for

a short time.

       {¶6}     Tara took a turn for the worse that afternoon. Her fever spiked and

her grandmother had difficulty arousing her from sleep. Gina came home and found

Tara to be extremely lethargic.     She held Tara most of the afternoon and Tara

pressed her head into Gina’s arm.

       {¶7}     That night, Thomas returned from an out-of-town trip. He thought

that Tara looked worse than she had when he had left on October 1. He insisted that

they call the doctor’s office. The on-call physician at Suburban Pediatrics told them

to take Tara to the hospital immediately. They took her to the emergency room at

Children’s Hospital Medical Center.

       {¶8}     A lumbar puncture revealed that Tara had bacterial meningitis. Her

spinal fluid revealed over 1 million colonies of a particularly virulent, antibiotic-

resistant bacterium that was virtually unknown in Cincinnati at the time. Tara was

given intravenous antibiotics and remained hospitalized for over a month.

       {¶9}     While she was hospitalized, Tara suffered numerous complications.

She developed hydrocephalus, a condition in which her body’s ability to drain

cerebral fluid was compromised. The doctors placed a shunt into her head to drain

the fluid down to her abdomen. Tara will have to have a shunt for the rest of her life.

       {¶10}    The doctors agreed that Tara had survived the meningitis against the

odds. She did not develop any cognitive impairment, and she was a college student

with a high grade-point average at the time of the trial. Nevertheless, she has had

multiple brain surgeries to remedy complications from the shunt and other issues

that resulted from the meningitis. She also had to have surgery to remedy chronic

back pain. She will have to be monitored for the rest of her life to make sure that the

shunt does not malfunction. If it does, and she becomes lethargic and/or suffers a



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                     OHIO FIRST DISTRICT COURT OF APPEALS



severe headache, she must be able to get to a medical facility capable of conducting

brain surgery within four hours or she could die.

       {¶11}    Seven years after Tara’s illness, Tara, through her parents, sued Dr.

O’Malley and her employer, Suburban Pediatrics, for medical malpractice.          Her

parents also filed a loss-of-consortium claim. Following a trial, a jury returned a

verdict in favor of O’Malley. The trial court denied the Fehrenbachs’ motion for a

new trial or for judgment notwithstanding the verdict. The Fehrenbachs filed a

timely appeal from the trial court’s judgment.

       {¶12}    We reversed the trial court’s judgment on several grounds, most

notably, pervasive misconduct by Dr. O’Malley’s counsel. Fehrenbach v. O’Malley,

164 Ohio App.3d 80, 2005-Ohio-5554, 841 N.E.2d 350 (“Fehrenbach I”).              We

remanded the case for a new trial on both the medical-malpractice claim and the

parental loss-of-consortium claim. Id. at ¶103.

       {¶13}    The case was again tried to a jury. The Fehrenbachs presented expert

testimony that Dr. O’Malley had deviated from the standard of care by failing to

diagnose and treat for meningitis, and that earlier treatment would have prevented

the bacteria in Tara’s blood from infecting her brain or would have attacked the

meningitis in time to prevent hydrocephalus and the other complications that Tara

had suffered.

       {¶14}    O’Malley presented expert testimony showing that Tara had a rare,

aggressive strain of bacteria that did not emerge as meningitis until the afternoon of

October 3, when she took a turn for the worse. O’Malley’s experts testified that Tara

did not have meningitis when she saw Dr. O’Malley on October 1 and 2, and that

given the non-specific symptoms that Tara had presented with on October 1 and 2, a

diagnosis of ear infections was reasonable.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15}   After the jury returned a verdict in favor of Dr. O’Malley, the

Fehrenbachs filed motions for judgment notwithstanding the verdict (“JNOV”) and

for a new trial. The trial court denied both motions. This appeal followed.


                            II. Conduct of Defense Counsel

       {¶16}   In their first assignment of error, the Fehrenbachs contend that the

trial court erred in overruling their motions for JNOV and for a new trial. They

argue that defense counsel made numerous improper remarks in front of the jury

designed to arouse passion or prejudice and that defense counsel’s misconduct again

required a new trial. This assignment of error is not well taken.

       {¶17}   We review a decision to grant or deny a motion for JNOV de novo. A

JNOV is proper if, upon viewing the evidence in a light most favorable to the

nonmoving party, reasonable minds could come to but one conclusion in favor of the

moving party. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d

512, 2002-Ohio-2842, 769 N.E.2d 835, ¶3-4; Blair v. McDonagh, 177 Ohio App.3d

262, 2008-Ohio-3698, ¶44. But where substantial evidence upon which reasonable

minds could reach different conclusions exists to support the nonmoving party’s side

of the case, the court must deny the motion. Osler v. Lorain (1986), 28 Ohio St.3d

345, 347, 504 N.E.2d 19; Blair, supra, at ¶44. We review a ruling on a motion for a

new trial under an abuse-of-discretion standard. Eysoldt v. Go Daddy.com, Inc., 1st

Dist. Nos. C-100528 and C-100529, 2011-Ohio-2359, ¶18; Blair, supra, at ¶44.

       {¶18}   A trial atmosphere tainted with passion and prejudice is grounds for

reversal. Wynn v. Gilbert, 1st Dist. No. C-060457, 2007-Ohio-2798, ¶34. Remarks

or arguments that are not supported by the evidence and 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,



                                          5
                     OHIO FIRST DISTRICT COURT OF APPEALS



2005-Ohio-5205, 839 N.E.2d 441, ¶9; Furnier v. Drury, 163 Ohio App.3d 793, 2004-

Ohio-7362, 840 N.E.2d 1082, ¶10. Counsel must refrain from unwarranted attacks

on opposing counsel, the opposing party, and the witnesses. Roetenberger, supra, at

¶9; Furnier, supra, at ¶10.

       {¶19}   The trial court has a duty to see that counsel’s statements stay within

proper limits and to prohibit counsel from creating an atmosphere of passion and

prejudice. Roetenberger, supra, at ¶9; Furnier, supra, at ¶10. It should not permit

abusive conduct, and it has a duty to intervene sua sponte to correct the prejudicial

effect of misconduct. Pesak v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495,

2000-Ohio-483, 501, 721 N.E.2d 1011; Fehrenbach I, supra, at ¶23; Roetenberger,

supra, at ¶9. But a trial court’s duty to intervene does not apply where counsel’s

arguments are based on the evidence. Wynn, supra, at ¶34.

       {¶20}   In Fehrenbach I, we held that defense counsel’s comments “were

offensive and prejudicial to the plaintiffs and to the integrity of the judicial system.”

We went on to state that defense counsel’s comments “went far beyond the wide

latitude provided to counsel in opening statement and closing argument.” Id. at ¶26.

In fact, we decided a series of cases involving the same defense counsel and ordered

new trials based on that counsel’s misconduct. See, e.g, Thamann v. Bartish, 167

Ohio App.3d 620, 2006-Ohio-3346, 856 N.E.2d 301, ¶5-47; Roetenberger, supra, at

¶4-12; Furnier, supra, at ¶6-13.

       {¶21}   Our review of the record in this case showed that nothing that

occurred in this trial rose to the level of the misconduct that had occurred in the

previous one. On the contrary, defense counsel was restrained and took a new

approach to the trial. Instead of attacking the Fehrenbachs, their attorney and their

experts, counsel stated that “the bad guy” in this case was meningitis and that no one

else, particularly Dr. O’Malley, had done anything wrong. The incidents that the



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Fehrenbachs cite as evidence of misconduct are simply not that egregious, and the

record shows that counsel’s arguments were generally based upon the evidence. We

find no misconduct by defense counsel that was prejudicial in the context of the

overall trial.

        {¶22}    Further, contrary to the Fehrenbachs’ assertions otherwise, the trial

judge kept a tight rein on the trial. In overruling the Fehrenbachs’ motions for JNOV

and for a new trial on the basis of misconduct by defense counsel, the court stated

that “[t]his Court’s recollection of the conduct of defense counsel is totally

inconsistent with that set forth in the memorandum supporting plaintiff’s motion.

Defense counsel’s conduct was well within the appropriate parameters of

representing his client.”

        {¶23}    Where the record supports a trial court’s finding that counsel’s

conduct did not affect the outcome of the trial, an order denying a new trial is not an

abuse of discretion. Merkl v. Siebert, 1st Dist. Nos. C-080973 and C-081033, 2009-

Ohio-5473, ¶26. “[A]ppellate courts should defer to trial judges, who witnessed the

trial firsthand and relied upon more than a cold record to justify a decision.” Harris

v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, 876 N.E.2d 1201, ¶36;

Merkl, supra, at ¶36.

        {¶24}    We cannot hold as a matter of law that the verdict in this case was the

product of passion and prejudice due to counsel’s misconduct. Therefore, the trial

court did not err in overruling the Fehrenbachs’ motion for JNOV. Further, the

court’s decision to overrule the motion for a new trial was not so arbitrary,

unreasonable or unconscionable as to connote an abuse of discretion.                See

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218, 450 N.E.2d 1140; Cincinnati

v. Harrison, 1st Dist. No. C-090702, 2010-Ohio-3430, ¶7. Therefore, the trial court




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                      OHIO FIRST DISTRICT COURT OF APPEALS



did not err in overruling the Fehrenbachs’ motion for a new trial, and we overrule

their first assignment of error.


                              III. Alteration of Medical Records

       {¶25}    In their second assignment of error, the Fehrenbachs contend that the

trial court erred in granting Dr. O’Malley’s motion for a directed verdict and in

denying their motion for a directed verdict on their claims for alteration of medical

records. They argue that the evidence was undisputed that Dr. O’Malley had altered

Tara’s medical records, and that the question of whether the doctor had altered the

records to avoid liability was, at least, a question of fact for the jury. This assignment

of error is not well taken.

       {¶26}    The standard for granting a directed verdict is the same as for

granting JNOV. Mantua Mfg. Co. v. Commerce Exchange Bank, 75 Ohio St.3d 1, 4,

1996-Ohio-187, 661 N.E.2d 161; Lally v. Mukkada, 1st Dist. No. C-100602, 2011-

Ohio-3681, ¶5. We review the trial court’s decision de novo. Eysoldt, supra, at ¶18.

The trial court should grant the motion if, after construing the evidence most

strongly in favor of the nonmoving party, it finds that reasonable minds could come

to but one conclusion on any determinative issue and that conclusion is adverse to

the nonmoving party. Civ.R. 50(A); Mantua Mfg., supra, at 4.

       {¶27}    All parties agree that Dr. O’Malley added information to Tara’s

medical records regarding her temperature, the diagnosis, the medicine prescribed

and an instruction to call if Tara’s symptoms worsened. Dr. O’Malley contended that

she added the information because her partner had brought the incomplete chart to

her attention. She also gave other, inconsistent explanations at various times.

       {¶28}    In Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 1994-Ohio-

324, 635 N.E.2d 331, the Ohio Supreme Court stated that “[a]n intentional



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                      OHIO FIRST DISTRICT COURT OF APPEALS



alteration, falsification or destruction of medical records by a doctor, to avoid

liability for his or her medical negligence, is sufficient to show actual malice, and

punitive damages may be awarded whether or not the act of altering, falsifying or

destroying records directly causes compensable harm.” Id., paragraph one of the

syllabus. Thus, a plaintiff can bring a Moskovitz claim for a presumption of malice.

         {¶29}   In Moskovitz, the doctor had “whited-out” incriminating portions of

his original office chart, added exculpatory language, made copies of the new chart,

and destroyed the original chart. Fisher v. Von Loveren, 1st Dist. No. C-070228,

2008-Ohio-4115, ¶37. In this case, the notes that were added later to the medical

records were accurate. Thus, as the trial court found, the Fehrenbachs could not

show malice. See Fisher, supra, at ¶38; Wachtman v. Meijer, Inc., 10th Dist. No.

03AP-948, 2004-Ohio-6440, ¶26-29.

         {¶30}   A plaintiff can also bring an independent tort claim for spoliation of

evidence. See Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 29, 1993-Ohio-229,

615 N.E.2d 1037. On remand, the trial court allowed the Fehrenbachs to amend their

complaint to present the claim, as we had suggested in the previous appeal. See

Fehrenbach I, supra, at ¶45-46.

         {¶31}   But one of the elements of the claim is willful destruction of evidence

by the defendant designed to disrupt the plaintiff’s case. Smith, supra, at 29; Hope v.

Lake Cty. Bd. of Commrs., 11th Dist. No. 2008-L-173, 2009-Ohio-5895, ¶72. Ohio

courts have declined to extend spoliation claims beyond the destruction of physical

evidence. Hope, supra, at ¶72; Williams v. Continental Express Co., 3rd Dist. No. 17-

08-10, 2008-Ohio-5312; Wachtman, supra, at ¶24-25. Because the Fehrenbachs

failed to prove an essential element of the tort, the trial court did not err in granting a

directed verdict on that claim. Therefore, we overrule their second assignment of

error.



                                            9
                     OHIO FIRST DISTRICT COURT OF APPEALS



                            IV. Expert Testimony/Discovery

       {¶32}     In their third assignment of error, the Fehrenbachs contend that the

trial court erred in allowing defense experts to give new, undisclosed opinions at

trial. They argue that their testimony went well beyond the topics that Dr. O’Malley

had originally stated in discovery and beyond their deposition testimony.           This

assignment of error is not well taken.

       {¶33}    Civ.R. 26(E) requires each party to seasonably supplement the subject

matter of its experts’ expected testimony. But this rule does not require a party to

give notice as to every nuance of an expert’s opinion. Hofmeier v. Cincinnati Inst. of

Plastic & Reconstructive Surgery, Inc., 1st Dist. No. C-000274, 2002-Ohio-188, ¶4.

The decision whether to exclude discovery testimony as a sanction for a violation of

Civ.R. 26(E) lies within the trial court’s discretion. The key element of the analysis is

the existence of prejudice resulting from the noncompliance. Savage v. Correlated

Health Serv., Ltd., 64 Ohio St.3d 42, 47, 1992-Ohio-6, 591 N.E.2d 1216; Huffman v.

Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 84-85, 482 N.E.2d 1248; Hofmeier,

supra, at ¶5.

       {¶34}    The Fehrenbachs failed to object to some of the testimony about

which they now complain, and they, therefore, waived any error. See Stores Realty

Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43, 322 N.E.2d 629; Chomczynski v. Cinna

Scientific, Inc., 1st Dist. No. C-010170, 2002-Ohio-4605, ¶21. Further, this case “did

not involve a situation where a party was completely surprised by an expert’s

testimony at trial or where the subject matter of the expert’s testimony was revealed

for the first time at trial and the opposing party had no reason to anticipate it.”

Hofmeier, supra, at ¶6.      The trial court held that the Fehrenbachs were not

prejudiced because they were aware of the experts’ testimony from the previous trial.

Under the circumstances, we cannot hold that the trial court’s decision was so


                                           10
                     OHIO FIRST DISTRICT COURT OF APPEALS



arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See

Blakemore, supra, at 218; Hofmeier, supra, at ¶8. Consequently, we overrule the

Fehrenbachs’ third assignment of error.


                            V. Basis of Expert Testimony

       {¶35}   In their fourth assignment of error, the Fehrenbachs contend that the

trial court erred in allowing the defense expert witnesses to use undisclosed medical

literature to support their opinions. Specifically, they argue that Dr. Elias Chalhub

referred to “several large studies” that supported his opinion. They argue that that

testimony was improper under the rules of evidence, and that those studies were not

disclosed in discovery as required by Civ.R. 26(E). This assignment of error is not

well taken.

       {¶36}   Previously, Evid.R. 706 had provided that learned treatises could only

be used on cross-examination to impeach a witness. In 2006, that rule was repealed

and Evid.R. 803(18) was enacted.       The new rule allows for a learned-treatise

exception to the hearsay rule. State v. Henry, 11th Dist. No. 2007-L-142, 2009-

Ohio-1138, ¶88-89.

       {¶37}   Even before those amendments, courts had allowed general

references to literature in the expert’s field. The Ohio Supreme Court has stated,

“There is a difference between a witness’s referring to specific statements in

professional literature as substantive evidence and an expert witness’s referring to

the literature as being part of the basis for that expert’s opinion. While the former

reference would be inadmissible hearsay, numerous courts in Ohio have held that the

latter reference is admissible. We agree with the decisions in those cases.” Beard v.

Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶24

(emphasis in original).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶38}   Further, this court has stated, “References to studies by other experts

in a particular field, however, do not automatically make the expert’s testimony

tainted by a learned treatise. It is well established that experts derive much of their

expertise from reading or studying the written works of others in their field;

therefore, the mere acknowledgement of those studies does not necessarily bring into

play the learned-treatise barrier.” Suida v. Howard, 1st Dist. Nos. C-000656 and C-

000687, 2002-Ohio-2292, ¶15.

       {¶39}   As to the argument that O’Malley failed to disclose these studies as a

basis for her expert’s testimony, the record shows that Chalhub had referred to those

studies in his deposition. Further, the reference to the studies was tangential to the

main point of his testimony. Finally, other experts had testified regarding the same

subject matter, although they didn’t refer to the studies. The trial court has broad

discretion in the admission of evidence, including expert testimony.         Terry v.

Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶16; Blair, supra, at

¶28. Under the circumstances, we cannot hold that the trial court abused its

discretion in allowing the testimony into evidence, and we overrule the Fehrenbachs'

fourth assignment of error.


                                   VI. Jury Misconduct

       {¶40}   In their fifth assignment of error, the Fehrenbachs contend that the

trial court erred in denying their motion for a new trial on the basis of jury

misconduct. They argue that a juror conducted outside research and ignored the

trial court’s instructions. This assignment of error is not well taken.

       {¶41}   Under the aliunde rule, a jury’s verdict may not be impeached by

evidence from a member of the jury unless a foundation is laid by evidence aliunde.

Evidence aliunde is extraneous, independent evidence of alleged misconduct based



                                           12
                     OHIO FIRST DISTRICT COURT OF APPEALS



on the firsthand knowledge of someone who is not a juror. Evid.R. 606(B); State v.

Schiebel (1990), 55 Ohio St.3d 71, 75, 564 N.E.2d 54; Bentley v. Kremchek, 1st Dist.

No. C-040721, 2005-Ohio-3038, ¶3; Wittman v. Akron, 9th Dist. No. 21375, 2003-

Ohio-5617, ¶6.     Consequently, one juror’s affidavit alleging the misconduct of

another juror cannot be used to impeach a verdict. Schiebel, supra, at 75; State v.

Doan (Sept. 29, 1995), 1st Dist. No. C-940330. The purpose of the rule is to protect

the finality of verdicts and to ensure that jurors are insulated from harassment by

defeated parties. Schiebel, supra, at 75.

       {¶42}   The parties in this case had stipulated that Children’s Hospital’s

treatment of Tara “was appropriate” and the court had instructed the jury to accept

that stipulation. The court had also given standard instructions that the jury should

not consider outside evidence.

       {¶43}   The Fehrenbachs presented the affidavit of juror number one, in

which he expressed a number of concerns regarding juror number five. He stated,

“During the time we, the jury, were together in this trial, Juror #5 raised issues that

the court instructed us were not to be considered. For example, whether Children’s

Hospital was liable, whether Children’s should have tapped Tara’s head sooner,

whether certain medications should not have been given. He voiced his opinion even

after the verdict that he did not know why the parties did not go after Children’s

since in his opinion they were at fault.

       {¶44}   “Juror #5 also made a number of very specific statements about the

medications, particularly, ‘Dexameth[a]sone.’ He made comments that the drug was

not appropriate and referenced the * * * [Material Safety Data Sheet] as to

Dexamethasone. None of this was offered in evidence before us the jury during trial.

These comments clearly originated from some source other than the evidence

presented during trial.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶45}   “Based upon my observations and comments of Juror #5, I can only

reasonably conclude that he probably did research about this case outside of the

courtroom.

       {¶46}   “I recall that the court had specifically instructed each member of the

jury to refrain from doing any personal research outside of the courtroom during the

pendency of the trial.”

       {¶47}   In overruling the Fehrenbachs’ motion for a new trial, the court

indicated that the statement in the affidavit concluding that juror number five

“probably did research about this case outside the courtroom is conjecture at best.”

We agree. It went on to state the rule that “some competent evidence extraneous and

independent and from another source is an absolute requirement.” It held that the

aliunde rule applied, and said that it would not “invade the sanctity of the jury

process in this case even though it was short of perfect.”

       {¶48}    We agree with the trial court’s reasoning.           The Fehrenbachs

presented no evidence aliunde of juror misconduct. Their argument rests entirely on

the affidavit of another juror, which cannot be used to impeach the verdict. We note

that we do not consider counsel’s arguments about what he heard from jurors

because those arguments were not evidence.

       {¶49}   The Fehrenbachs’ reliance on Doan v. Brigano (C.A.6, 2001), 237

F.3d 722 is misplaced. In that case, the United States Court of Appeals for the Sixth

Circuit held that the application of the aliunde rule in Evid.R. 606(B) violated the

defendant’s Sixth Amendment right to a fair trial, which includes the fundamental

rights of confrontation and cross-examination. Id. at 730-731.

       {¶50}   We believe that this case is a narrow one, and we do not find it to be

dispositive. First, it not binding on this court. Second, it is a criminal case in which

the court relied on separate constitutional grounds for its decision.        Finally, it



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                        OHIO FIRST DISTRICT COURT OF APPEALS



involved an out-of-court juror experiment. The juror reported her findings like an

expert witness, yet she had not been subject to cross-examination or the rules of

evidence. Id. at 733.

       {¶51}    In Doan, the Sixth Circuit Court of Appeals acknowledged the

important policy considerations underlying Evid.R. 606(B).        Id. at 733, quoting

Tanner v. United States (1987), 483 U.S. 107, 119-121, 107 S.Ct. 2739. It also stated

in a later case that no “constitutional impediment to enforcing” the aliunde rule

exists. Hoffner v. Bradshaw (C.A.6, 2010), 622 F.3d 487, 501.

       {¶52}    The Fehrenbachs also imply that the trial court’s decision not to give

an instruction on “subsequent harm” somehow contributed to the misconduct.

They had requested that the court instruct the jury, “If one who has suffered personal

injuries by reason of another’s negligence exercises reasonable care in obtaining the

services of a competent physician or surgeon, and such injuries are thereafter

aggravated by the negligence, mistake or lack of skill of such physician or surgeon,

such aggravation is a proximate result of the negligence of the original tortfeasor,

and he is liable therefore.”

       {¶53}    But the record shows that the court and the parties discussed the

instructions as a whole and agreed to the instructions that were given to the jury,

which did not include the “subsequent harm” instruction. The Fehrenbachs did not

object to the instructions as given, and later acknowledged that they had agreed to

the instruction telling the jury about the stipulation regarding Children’s Hospital.

Consequently, the Fehrenbachs waived any objection. Civ.R. 51(A); Joiner v. Simon,

1st Dist. No. C-050718, 2007-Ohio-425, ¶62. Further, we cannot hold that the

court’s failure to give that instruction prejudiced the Fehrenbachs. As the trial court

noted, because the jury concluded that Dr. O’Malley was not negligent, the conduct

of Children’s Hospital was “immaterial.”



                                           15
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶54}   Under the circumstances, we cannot hold that the trial court abused

its discretion in overruling the Fehrenbachs’ motion for a new trial on the basis of

juror misconduct.     See Bentley, supra, at ¶7.        Therefore, we overrule the

Fehrenbachs’ fifth assignment of error.


                          VII. Motion for Costs and Expenses

       {¶55}   Finally, in their sixth assignment of error, the Fehrenbachs contend

that the trial court erred in overruling their motion for costs and expenses related to

the first trial. They argue that R.C. 2323.51 empowered the court to sanction defense

counsel. This assignment of error is not well taken.

       {¶56}   We find some appeal to this argument given defense counsel’s

misconduct in the previous trial. Nevertheless, the trial court correctly denied the

motion because it was not timely filed. The applicable version of R.C. 2323.51(B)(1)

provides that “at any time prior to the commencement of a trial in a civil action or

within twenty-one days after the entry of judgment in a civil action * * *, the court

may award court costs, reasonable attorney fees, and other reasonable expenses

incurred in connection with the civil action or appeal to any party to the civil action

or appeal who was adversely affected by frivolous conduct.”

       {¶57}   The Ohio Supreme Court has construed the word “judgment” as used

in the statute to mean a final appealable order. Soler v. Evans, 94 Ohio St.3d 432,

436, 2002-Ohio-1246, 763 N.E.2d 1169; Kudukis v. Mascinskas, 8th Dist. No. 85373,

2005-Ohio-2465, ¶10. Therefore, an aggrieved party may file a motion for sanctions

within 21 days of a final judgment. Soler, supra, at paragraph one of the syllabus.

       {¶58}   Consequently, the Fehrenbachs had 21 days after the entity of

judgment following the first trial in which to file their motion. While the legislature

sought to provide a remedy for those harmed by frivolous conduct, it manifested its



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intent “that there be a cutoff time for this sanction to be imposed.” Id. at 436. To

give effect to the legislative intent behind the statute, the time frame within which a

motion for sanctions must be filed “cannot be perpetual.” Rogers v. Goodyear Tire

& Rubber Co., 3rd Dist. No. 14-09-26, 2010-Ohio-194, ¶13; Baker v. AK Steel Corp.,

12th Dist. No. CA2005-07-188, 2006-Ohio-3895, ¶25. Consequently, we overrule

the Fehrenbachs’ sixth assignment of error.


                                     VIII.    Summary

       {¶59}   In sum, we hold that the trial court did not err in overruling the

Fehrenbachs’ motions for JNOV and for a new trial. They received a fair trial, and

we find no reason to overturn the jury’s verdict.        We overrule all six of the

Fehrenbachs’ assignments of error, and we affirm the trial court’s judgment.

                                                                  Judgment affirmed.


H ILDEBRANDT and S UNDERMANN , JJ., concur.


Please Note:
       The court has recorded its own entry this date.




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