[Cite as Roberts v. Falls Family Practice, Inc., 2016-Ohio-7589.]


STATE OF OHIO                     )                          IN THE COURT OF APPEALS
                                  )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

DANIEL ROBERTS, et al.                                       C.A. No.   27973

        Appellants

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
FALLS FAMILY PRACTICE, INC., et al.                          COURT OF COMMON PLEAS
                                                             COUNTY OF SUMMIT, OHIO
        Appellees                                            CASE No.   CV 2013-03-1714

                                  DECISION AND JOURNAL ENTRY

Dated: November 2, 2016



        SCHAFER, Judge.

        {¶1}     Plaintiffs-Appellants, Craig and Danielle Roberts (collectively, “Appellants”),

appeal the judgment of the Summit County Court of Common Pleas in favor of Dr. Andrew

McLaughlin, Dr. Elizabeth Bender, and Falls Family Practice, Inc. (collectively, “Appellees”).

For the reasons set forth below, we affirm.

                                                       I.

        {¶2}     On March 26, 2012, Danielle Roberts presented to Falls Family Practice, Inc.

complaining of painful hemorrhoids. Upon inspection, Mrs. Roberts was referred within Falls

Family Practice, Inc. for a laser hemorrhoidectomy, which was performed by Dr. McLaughlin on

March 28, 2012. Dr. McLaughlin removed two hemorrhoids during the procedure. Following

the procedure, Dr. McLaughlin gave Mrs. Roberts an Ambien and a prescription for pain

medication.
                                                2


       {¶3}     Later that day, Mrs. Roberts called Dr. McLaughlin’s office complaining of pain

and seeking additional pain medication. Dr. McLaughlin instructed Mrs. Roberts to take the

medication that his office had already prescribed for her. Dr. McLaughlin also informed Mrs.

Roberts that he would not prescribe additional pain medication beyond what was already

prescribed. After Dr. McLaughlin refused to prescribe additional pain medication, Mrs. Roberts

contacted her family physician, who in turn referred her to Dr. Bender, who is a general surgeon.

Prior to seeing Dr. Bender, however, Mrs. Roberts presented to the Summa Akron City Hospital

Emergency Room complaining of hematochezia, the passage of blood in the stool. The medical

personnel at Summa prescribed Mrs. Roberts hydrocodone for pain and also directed her to take

over-the-counter stool softener. The medical personnel at Summa also advised Mrs. Roberts to

keep her scheduled appointment with Dr. Bender. Mrs. Roberts was ultimately discharged from

Summa’s care.

       {¶4}     Dr. Bender examined Mrs. Roberts on April 5, 2012. As Mrs. Roberts was

experiencing a great deal of discomfort, Dr. Bender was only able to conduct an external

examination, during which Dr. Bender noted that an early fissure may be forming. Dr. Bender

treated Mrs. Roberts with suppositories, stool softeners, and more pain medication, but informed

Mrs. Roberts that if her symptoms did not improve, she may require an internal examination

under anesthesia.

       {¶5}     On April 13, 2012, Mrs. Roberts called Dr. Bender with complaints of pain and

constipation. Dr. Bender then scheduled a rectal examination under anesthesia for Mrs. Roberts,

which Dr. Bender performed on April 16, 2012. During the surgical procedure, Dr. Bender

discovered evidence of an anoderm thermal injury involving half the circumference of the anal

canal. Based on her experience in treating thermal injuries to the anus, Dr. Bender suspected that
                                                 3


Mrs. Roberts’ injury was consistent with a burn, not a fissure. In light of these findings, Dr.

Bender performed a diverting colostomy in an effort to alleviate discomfort, allow the tissue to

heal, avoid potential fecal impaction, and avoid stercoral ulceration.

       {¶6}    Three days after Dr. Bender performed the colostomy, a bowel obstruction

manifested and Mrs. Roberts was required to undergo exploratory laparoscopic surgery. During

this surgical procedure, Dr. Bender discovered that she had inadvertently mixed up the ends of

Mrs. Roberts’ colon and connected the wrong ends during the colostomy, thus causing an

iatrogenic injury. After diagnosing the iatrogenic injury, Dr. Bender subsequently reversed and

corrected the colostomy in order to restore flow of Mrs. Roberts’ bowel. On June 11, 2012, Dr.

Bender correctly diagnosed Mrs. Roberts’ injury as a chronic anal fissure and performed a

sphincterotomy and papillae removal procedure to correct same. Thereafter, Mrs. Roberts, who

continued suffering from significant rectal pain, was referred by Dr. Bender to a number of

different doctors for further treatments.

       {¶7}    On March 27, 2013, Appellants filed suit against Dr. McLaughlin and Falls

Family Practice, Inc. for medical malpractice. Appellants subsequently amended their complaint

to include Dr. Bender1 as a co-defendant. Appellees denied Appellants’ allegations in their

respective responsive pleadings.

       {¶8}    Trial commenced on August 24, 2015, with jury deliberation beginning on

September 2, 2015. The jury ultimately returned a verdict in favor of the Appellees. The trial

court memorialized the jury verdict via judgment entry on September 9, 2015.




       1
         Appellants filed two amended complaints, wherein they named additional parties as co-
defendants. However, those parties were eventually dismissed from the present lawsuit and are
not relevant to this appeal.
                                                 4


       {¶9}    Appellants filed this timely appeal and raise five assignments of error for this

Court’s review. To facilitate our analysis, we elect to address Appellants’ second and fifth

assignments of error and third and fourth assignments of error together.

                                                II.

                                      Assignment of Error I

       The trial court erred in denying Plaintiffs/Appellants’ Motion for Directed
       Verdict.

       {¶10} In their first assignment of error, Appellants argue that the trial court erred by

denying their motion for a directed verdict with respect to both their medical negligence claim

and the Appellees affirmative defense of contributory negligence. We disagree.

       {¶11} Because a motion for directed verdict presents a question of law, our review is de

novo. Spero v. Avny, 9th Dist. Summit No. 27272, 2015-Ohio-4671, ¶ 17, citing Jackovic v.

Webb, 9th Dist. Summit No. 26555, 2013-Ohio-2520, ¶ 6. A trial court must grant a motion for

directed verdict after the evidence has been presented if, “after 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 * * *.” Civ.R. 50(A)(4); Parrish v.

Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, ¶ 16. “By the same token, if there is substantial

competent evidence to support the party against whom the motion is made, upon which evidence

reasonable minds might reach different conclusions, the motion must be denied.” Hawkins v.

Ivy, 50 Ohio St.2d 114, 115 (1977).

       {¶12} At the outset, we note that a review of the trial transcript reveals that although

Appellants moved for a directed verdict on the Appellees’ affirmative defense of contributory

negligence, they did not ask for a directed verdict with respect to their own negligence claim. A

party’s failure to move for a directed verdict at the close of evidence waives all issues except for
                                                 5


plain error review. See Boyle v. Daimler Chrysler Corp., 2d Dist. Clark No. 2001-CA-81, 2002-

Ohio-4199, ¶ 59. “The plain error doctrine, however, is not favored and seldom applied in civil

appeals.” Id. Regardless, although Appellants have not forfeited arguing plain error on appeal,

they do not make a plain error argument in their appellate brief, and we will decline to fashion

such an argument on their behalf and then address it.        See App.R. 16(A)(7); Coleman v.

Coleman, 9th Dist. Summit No. 27592, 2015-Ohio-2500, ¶ 9.

       {¶13} Turning to Appellant’s motion for directed verdict on Appellees’ affirmative

defense of contributory negligence, we determine that Appellants’ argument on this point is

moot. A review of the jury interrogatories reveals that the jury specifically found that Mrs.

Roberts failed to satisfy her burden of proof with regard to her negligence claim as to all

defendants.   As such, the jury was precluded from considering the issue of contributory

negligence during their deliberations. “An error in charging on contributory negligence is not

prejudicial when the jury answers ‘no’ to the first interrogatory asking whether the defendant is

negligent.” Miller v. Andrews, 5th Dist. Richland No. 12CA44, 2013-Ohio-2490, ¶ 58, citing

Sech v. Rogers, 6 Ohio St.3d 462, 466 (1983). “In such a case, the inquiry into whether it was

error for the trial court to have so charged is immaterial and moot since a finding that defendant

is not negligent obviates ‘the need for the jury to address the affirmative defenses * * *.’” Id.,

quoting Johnson v. Toledo Cardiology Assoc., Inc., 6th Dist. Lucas No. L-89-292, 1991 WL

43064, *2 (Mar. 29, 1991), citing Sech at 466. Thus, without commenting on the propriety of the

trial court’s decision to instruct the jury on the contributory negligence affirmative defense, we

determine that Appellants’ argument on this point is moot and any error asserted is harmless

based on the jury’s verdict finding Falls Family Practice, Inc., Dr. McLaughlin, and Dr. Bender

not liable for negligence. See id. at ¶ 58-59.
                                                   6


        {¶14} Appellants’ first assignment of error is overruled.

                                       Assignment of Error II

                  The trial court erred in giving erroneous jury instructions.

                                       Assignment of Error V

                The jury verdict is against the manifest weight of the evidence.

        {¶15} In their second assignment of error, Appellants argue that the trial court erred by

giving erroneous jury instructions. Specifically, Appellants contend that it was improper for the

trial court to give an instruction on contributory negligence since no expert medical testimony or

evidence was offered at trial demonstrating that Mrs. Roberts was an “active and efficient

contributing cause” to her own injuries. Appellants also assert that, given the evidence produced

at trial, it was erroneous for the trial court to instruct the jury that they had the option to find one,

both, or neither of the Appellees liable. Moreover, in the fifth assignment of error, Appellants

argue that the jury verdict in favor of the Appellees is against the manifest weight of the

evidence. We disagree with both arguments.

        {¶16} A trial court is required to provide jury instructions that correctly and completely

state the law. Sharp v. Norfolk & W. Ry. Co., 72 Ohio St.3d 307, 312 (1995). Jury instructions

must also be warranted by the evidence presented in a case. See Estate of Hall v. Akron Gen.

Med. Ctr., 125 Ohio St.3d 300, 2010-Ohio-1041, ¶ 26.               “The question of whether a jury

instruction is legally correct and factually warranted is subject to de novo review.” Cromer v.

Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 22, citing Estate of

Hall at ¶ 26. However, a “trial court has discretion to decide to give or refuse a particular jury

instruction, and an appellate court will not disturb that decision absent an abuse of discretion.”

Clark v. Grant Med. Ctr., 10th Dist. Franklin No. 14AP-833, 2015-Ohio-4958, ¶ 50, citing
                                                7


Columbus Steel Castings Co. v. Alliance Castings Co., LLC, 10th Dist. Franklin No. 11AP–351,

2011-Ohio-6826, ¶ 15.         An “abuse of discretion” connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶17} Generally, a requested jury instruction should be given if it is a correct statement

of the law as applied to the facts in a given case. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d

585, 591 (1991). “[A] court’s instructions to the jury should be addressed to the actual issues in

the case as posited by the evidence and the pleadings.” State v. Guster, 66 Ohio St.2d 266, 271

(1981). In reviewing a record to ascertain the presence of sufficient evidence to support the

giving of an instruction, an appellate court should determine whether the record contains

evidence from which reasonable minds might reach the conclusion sought by the instruction.

Feterle v. Huettner, 28 Ohio St.2d 54, 55-56 (1971).

       {¶18} With respect to Appellants’ negligence claim, the trial court included the

following jury instruction:

       NO DEFENDANT LIABLE. If you find that [Mrs. Roberts] failed to prove [her]
       claim by the greater weight of the evidence against both defendants, then your
       verdict must be for both of the defendants.

Appellants contend that the trial court’s instruction is erroneous because “[t]he record clearly

established that Mrs. Roberts had received negligent medical treatment at the hands of either Dr.

McLaughlin and/or Dr. Bender[.]” As such, Appellants maintain that the trial court was required

to instruct the jury to return a verdict in Mrs. Roberts’ favor by finding either Dr. McLaughlin or

Dr. Bender, or both doctors, negligent.

       {¶19} We reject Appellants’ reasoning that the trial court was obligated to instruct the

jury to return a plaintiff’s verdict. A thorough review of the trial transcript reflects that Dr.
                                                  8


McLaughlin and Dr. Bender both presented expert witnesses who testified on their behalf and

supported the standard of care with respect to the medical procedures that they respectively

performed. Although Dr. McLaughlin and Dr. Bender and their respective witnesses may have

“pointed the finger” at the other co-defendant while simultaneously denying liability, such finger

pointing amongst co-defendants is not dispositive of whether negligence in fact occurred.

Indeed, after hearing all of the testimony, the jury was free to accept all, some, or none of the

evidence presented at trial, thus leaving the prospect of a complete defense verdict. See Henson

v. K. Collins Plumbing, Inc., 12th Dist. Clermont No. CA2005-07-069, 2006-Ohio-3090, ¶ 49

(“As the trier of fact, the jury was free to accept or reject any or all of appellants’ evidence * * *.

A jury is free to accept or reject any or all of the testimony of a witness, including testimony of

an expert witness.”). Accordingly, we conclude that the trial court’s jury instruction was neither

legally incorrect nor factually unwarranted based on the record before us. The trial court

therefore did not err by giving the disputed jury instruction.

       {¶20} Appellants also maintain that the jury’s verdict completely in favor of the

Appellees is against the manifest weight of the evidence. In support of their manifest weight

argument, Appellants advance the same arguments that were made in support of their argument

that the trial court’s jury instruction was erroneous; namely, that Dr. McLaughlin and/or Dr.

Bender must have been negligent since their respective expert witnesses testified that the other

co-defendant caused Mrs. Roberts’ injury by providing medical treatment that fell below the

requisite standard of care. However, as noted above, the jury was free to discount any or all of

the witnesses’ trial testimony. See id. at ¶ 49. Although Mrs. Roberts attempted to show at trial

that the co-defendants’ finger-pointing demonstrated that one or both of the defendants were

negligent, the jury was free to disregard that theory. After reviewing the record, we cannot
                                                9


conclude that the jury lost its way and committed a manifest miscarriage of justice in not finding

any of the Appellees liable for negligence. See State v. Otten, 33 Ohio App.3d 339, 340 (9th

Dist.1986).

       {¶21} Turning to the trial court’s jury instruction on contributory negligence, we again

determine that Appellants’ argument on this point is misplaced.           A review of the jury

interrogatories reveals that the jury explicitly found that Mrs. Roberts failed to prove by a

preponderance of the evidence that Falls Family Practice, Inc., Dr. McLaughlin, and/or Dr.

Bender were negligent.     Accordingly, the jury never considered the issue of contributory

negligence during their deliberations.    Thus, assuming arguendo that the trial court’s jury

instruction on the affirmative defense of contributory negligence was improper, Appellants are

unable to demonstrate how they were prejudiced by such an instruction. See Cromer, 142 Ohio

St.3d 257, 2015-Ohio-229, at ¶ 56 (O’Donnell, J., concurring in judgment only) (“Erroneous jury

instructions rise to reversible error only if ‘the jury charge was so misleading and prejudicial as

to result in an erroneous verdict.’”), quoting Hayward v. Summa Health Sys./Akron City Hosp.,

139 Ohio St.3d 238, 2014-Ohio-1913, ¶ 25.

       {¶22} Appellants’ second and fifth assignments of error are overruled.

                                    Assignment of Error III

       The trial court erred in excluding standard of care testimony of Defendant
       Hugh McLaughlin, M.D.

                                    Assignment of Error IV

       The trial court erred in improperly excluding standard of care testimony of
       Defendant Elizabeth Bender, M.D.
                                                10


       {¶23} In their third and fourth assignments of error, Appellants contend that the trial

court erred by prohibiting Dr. McLaughlin from testifying about Dr. Bender’s standard of care,

and vice versa. We disagree.

       {¶24} “A trial court has discretion to determine whether a witness is competent to testify

as an expert, and the trial court’s decision will not be reversed absent an abuse of discretion.”

Celmer v. Rodgers, 114 Ohio St.3d 221, 2007-Ohio-3697, ¶ 19. An “abuse of discretion”

implies that the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore, 5

Ohio St.3d at 219. However, “a court’s ruling on a motion in limine does not preserve issues

related to evidentiary rulings for appeal.” State v. Garfield, 9th Dist. Lorain No. 09CA009741,

2011-Ohio-2606, ¶ 55. “The law is well settled that failure to contemporaneously object during

the identification of [evidence] and testimony regarding it forfeits appellate review.” State v.

Rice, 9th Dist. Summit No. 26116, 2012-Ohio-2174, ¶ 20, quoting State v. Cross, 9th Dist.

Summit No. 25487, 2011-Ohio-3250, ¶ 49.

       {¶25} Here, Dr. Bender filed motions in limine to prohibit testimony concerning the

standard of care provided by both herself and Dr. McLaughlin. Although Appellants filed briefs

in opposition to Dr. Bender’s motions, they neither objected contemporaneously when the trial

court revisited the issue at trial, nor proffered what Dr. McLaughlin and Dr. Bender’s testimony

would have been on cross-examination if they were permitted to give their respective opinions.

Accordingly, Appellants have forfeited their arguments pertaining to the trial court’s decision to

exclude such standard of care testimony save for that of plain error. See State v. Roy, 9th Dist.

Lorain No. 13CA010404, 2014-Ohio-5186, ¶ 68-69 (determining that appellant forfeited

appellate review of trial court’s ruling on a motion in limine “by not revisiting the court’s

preliminary ruling at trial.”), citing State v. Ibn-Ford, 9th Dist. Summit No. 26386, 2013-Ohio-
                                                11


2172, ¶ 60. While Appellants have not forfeited arguing the existence of plain error on appeal,

they failed to make a plain error argument in their appellate brief, and we decline to make such

an argument on their behalf. See App.R. 16(A)(7); Coleman, 2015-Ohio-2500, at ¶ 9.

       {¶26} Appellants’ third and fourth assignments of error are overruled.

                                                III.

       {¶27} With all of Appellants’ assignments of error having been overruled, the judgment

of the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                                  12




WHITMORE, J.
CONCURS.

MOORE, P. J.
CONCURRING IN JUDGMENT ONLY.

        {¶28} Although I agree that the Roberts’ assignments of error are properly overruled, I

would analyze them differently than the majority. With specific respect to the first assignment of

error, I believe that the Roberts’ motion for a directed verdict, although not the model of clarity,

could be read as encompassing a motion for a directed verdict with respect to the doctors’

negligence. I would address, and overrule, this portion of the first assignment of error on the

merits. With specific respect to the third and fourth assignments of error, I would address those

assignments on their merits, and I would overrule them on the basis that the trial court did not

abuse its discretion in sustaining the objections to the testimony at issue at trial.


APPEARANCES:

ANTONIOS P. TSAROUHAS, Attorney at Law, for Appellants.

BARRY M. WARD, Attorney at Law, for Appellants.

STEPHEN P. GRIFFIN, Attorney at Law, for Appellees.

STACY A. DELGROS, Attorney at Law, for Appellees.
