[Cite as Hoy v. OhioHealth Corp., 2019-Ohio-4693.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

C. Thomas Hoy, Administrator of the                  :
Estate of Oumou Diakite,
                                                     :
                Plaintiff-Appellant,
                                                     :           No. 19AP-37
v.                                                           (C.P.C. No. 16CV-5305)
                                                     :
OhioHealth Corporation, et al.,                             (REGULAR CALENDAR)
                                                     :
                Defendants-Appellees.
                                                     :


                                          D E C I S I O N

                                 Rendered on November 14, 2019


                On brief: Colley Shroyer & Abraham Co. LPA, and David I.
                Shroyer, for appellant. Argued: David I. Shroyer.

                On brief: Arnold Todaro & Welch, Co., L.P.A., Grier D.
                Schaffer, and Gerald J. Todaro, for appellees Francisco
                Garabis, M.D., and American Health Network Co. Argued:
                Grier D. Schaffer.

                On brief: Poling Law, and Frederick A. Sewards, for
                appellees Hematology Oncology Consultants, Inc., Anitha
                Nallari, M.D., and Adam C. Necker, CNP. Argued:
                Frederick A. Sewards.

                 APPEAL from the Franklin County Court of Common Pleas

NELSON, J.
        {¶ 1} Appealing the judgment that resulted from defense verdicts in this medical
malpractice/wrongful death case, C. Thomas Hoy as Administrator of the Estate of Oumou
Diakite advances a single assignment of error: "The trial court erred in failing to strike
jurors for cause in accordance with R.C. 2313.17(B)(9) where the jurors indicated that they
would not follow the law as given to them by the court, forcing Plaintiff to use peremptory
No. 19AP-37                                                                                 2


challenges to excuse jurors, and denying Plaintiff his constitutional right to a fair and
impartial jury." Appellant's Brief at vi.
       {¶ 2} But Mr. Hoy's appeal encounters two obstacles, each insurmountable. First,
he failed during the jury selection process to exhaust his allocated allotment of peremptory
challenges, and thus under precedent binding on this court waived any objection to the trial
court's denial of his challenges for cause. Second, and perhaps even more fundamentally,
the transcript of the jury selection proceedings in no way reflects that any prospective juror
said or otherwise "indicated" that he or she would refuse to follow the judge's instructions.
       {¶ 3} As to the first impediment, the Supreme Court of Ohio has said more than
once and even in the context of capital cases that "error in the denial of a challenge of a
juror for cause cannot be grounds for reversal when the defendant did not exhaust his
peremptory challenges." State v. Getsy, 84 Ohio St.3d 180, 191 (1998), citing State v.
Poindexter, 36 Ohio St.3d 1, 5 (1988). "The validity of the Getsy rule has also been
recognized in a civil case. * * * [T]o the extent that appellants challenge the court's
'challenge for cause' procedures, appellants' decision at trial not to utilize their remaining
peremptory challenges is grounds for waiver on appeal." Pennell v. Dewan, 5th Dist. No.
2004CA00221, 2005-Ohio-1727, ¶ 31 (citation omitted).
       {¶ 4} Mr. Hoy acknowledges that he was accorded six initial peremptory challenges
(not including the two that he used in the selection of alternate jurors), and that he
exercised only three; with his subsequent "pass" followed by defendants' own, the selection
of the first eight jurors was done. See Appellant's Reply Brief at 9-11; November 26, 2018
Voir Dire Tr. at 140-41. Mr. Hoy did not exhaust his peremptory challenges, and therefore
cannot invoke the trial court's denial of challenges for cause as grounds for reversal. Getsy,
84 Ohio St.3d at 191.
       {¶ 5} Because there may be some resonance, however, in Mr. Hoy's argument that
the trial court's denial of his challenges for cause influenced and prejudicially limited how
he used his peremptory challenges, see Appellant's Reply Brief at 10-12, and because
concern for bedrock principles of our constitutionally enshrined jury system along with the
briefing of all sides has drawn us to further examination of the record, we explain why Mr.
Hoy's protestations about juror selection would be unavailing even had they not been
waived.
No. 19AP-37                                                                                   3


       {¶ 6} Mr. Hoy challenged seven prospective jurors for cause and the trial judge
denied those challenges. See Voir Dire Tr. at 131-35. Throughout his briefing to us, Mr.
Hoy insists that each of those seven "stated that they would require more than a
preponderance of the evidence to find in favor of the decedent's estate * * *." See, e.g.,
Appellant's Brief at 24, and again at 31; Appellant's Reply Brief at 5-6 (same); see also
Appellant's Brief at 15 (referencing two prospective jurors who "would * * * not apply the
preponderance of the evidence standard"), 16 (two more "who indicated they would require
greater than a preponderance of the evidence"), 19 (all seven "clearly indicated that they
would require more than a preponderance of the evidence to find in favor of the decedent's
estate"); Appellant's Reply Brief at 10 (certain prospective jurors "who indicated they would
require greater than a preponderance of the evidence"). But having reviewed with some
care the transcript of jury selection proceedings, we do not find that these prospective jurors
were even asked what they would "require" in the context of this case, let alone that they
responded that they would disregard instructions that the judge would provide.
       {¶ 7} In our perhaps more dispassionate reading, the transcript of the voir dire
proceeding doesn't square with Mr. Hoy's characterizations of it. Indeed, electronic search
confirms that the word "require," so frequently repeated in Mr. Hoy's briefing to us, was
only used once during the questioning of jurors—and then only in a remark by Mr. Hoy's
counsel that "you'll be required to make all your decisions on the basis of whether we are
more likely right or wrong," leading, three sentences later, to his inquiry: "Anybody have
an issue with that?" Voir Dire Tr. at 73-74. The transcript does not reflect that anybody did
have an issue with that. Id. Nor does the transcript reflect any untoward (or other
verbalized) response to the lawyer's question some lines later: "can all of you follow that
law if that's what you hear from the court?" Id. at 74 (before shifting gears and prefacing a
question with, "[n]ow, how about, ma'am, some people want to be sure * * * *," a line of
questioning that we address below).
       {¶ 8} As reflected more fully in the transcript passages quoted at length in Mr.
Hoy's opening brief, see Appellant's Brief at 4-12, much of the questioning by Mr. Hoy's
counsel went to potential jurors' policy views, or to their personal feelings, hopes, or desires
with regard to decision-making. This part of the inquiry began with a discursive policy-
No. 19AP-37                                                                                 4


based question as to how prospective jurors might think the burden of proof ought ideally
to be allocated:
                In trials like this, jurors make decisions on the basis of whether
                my side is more likely right or wrong. Some folks think that
                more likely right than wrong is not fair because it makes it too
                easy, you know, on my side, and too hard for the other side,
                because, you know, some people, you don't really have to prove
                much. Other folks feel that it's okay that if I'm here and here,
                then this side wins. So I'm going to ask you to just ask yourself
                in your mind, Are you a little closer to those people who think
                it's a little unfair from my side to be just a little bit more right
                than wrong to prevail in the case? Or are you more on the side
                that, you know, that's okay? So where would you put yourself?

Voir Dire Transcript at 72.
       {¶ 9} From questions of abstract policy "fair[ness]," the questioning moved to
matters of personal feelings. See, e.g., id. at 74 (after describing preponderance standard,
counsel asks "Sir, how do you feel about that?"). The discussion then progressed to
personal desires. After saying, "[n]ow, how about, ma'am, some people want to be sure,"
the lawyer continued: "They want to be 90 percent sure, a hundred percent sure. How low
down would you go?" Id. Whether the question was how low would the potential juror go
in what she would "want" or what she would "want to be * * * sure" may not have been
entirely clear. So after a response, the lawyer followed up: "How do you feel about the
weighting? Do you kind of want to see more of a 60 or 70 or 80 percent?" Id. at 75. After
another question on feelings, the lawyer made broader, even more abstract inquiry about
everyday reasoning: "When you're analyzing a fact pattern, do you tend to want to see more
like a 60 percent or 70 percent or 90 percent?" Id. When one juror noted that "[if] the
consequences are significant, then I may not want razor-thin. I maybe want to have a little
bit more weight on the side that would ultimately win" —as who wouldn't?—the lawyer said,
"[t]ell me more about that then," before returning to ask another juror, "how do you feel?"
Id. at 76-77.
       {¶ 10} From there, and not including counsel's designations of particular
respondents and inquiries of certain of the prospective jurors he did not challenge for cause,
his operative questions included: "tell me more about your comfort level with that"; "[h]ow
do you feel about that?" (apparently relating to a juror response to the question of "[w]hen
you're analyzing a fact pattern, do you tend to want to see more like a 60 percent or 70
No. 19AP-37                                                                                    5


percent or 90 percent?," and eliciting the answer "70/30"); "what number would you like,
would you feel most comfortable with?"; and "how do you feel? Do you want to see more
than just * * * *" Id. at 757-81.
       {¶ 11} In response to this last inquiry, the prospective juror said, "I think I feel
comfortable with 51 percent. I don't think I want to consider the consequences. I want to
consider what I've learned and heard and feel confident in that, and then the consequences
follow." Id. at 81. Mr. Hoy's counsel then posed a question of simple logic, again not limited
to the trial setting:
               [COUNSEL]: If I give you an example of I've got a sack of balls
               here and I put eight yellow balls in and seven black balls, shake
               them up and randomly draw one and pull one out, have I shown
               you that I picked a yellow ball?

               [The juror responded with the only mathematically correct
               answer: "No."]

               [COUNSEL]: Statistically, it's more likely than not it's a yellow
               ball?

               THE JUROR: Yes.

               [COUNSEL]: You would want to see me open my hand, don't
               you? That's kind of the concept we're talking about.

Id. at 81 (concluding that line of questioning). The lawyer later moved to dismiss that
prospective juror for cause. Voir Dire Tr. at 135.
       {¶ 12} None of that, and none of any of these prospective jurors' responses to
counsel's questions, "stated" or "indicated" on our reading that any potential juror would
"require" a level of proof in the case contrary to that the trial judge would specify, or that he
or she "would not * * * apply" the preponderance standard. And just as no juror was asked
what he or she would "require" in rendering a verdict, no juror was asked or responded to
what legal standard he or she would "apply" or refuse to "apply" (a word that appears
nowhere in the transcript of juror questioning). How prospective jurors "feel" about the
allocation of proof, or what level of proof ideally they would "want" to have, or would "feel
most comfortable with," or whether they believe that an 8 in 15 chance equates with
certainty, does not speak to what they would "require" as duly instructed jurors in the case
at hand.
No. 19AP-37                                                                                    6


       {¶ 13} The prospective juror who responded to the question about what he would
"want to see" "[w]hen you're analyzing a fact pattern," Voir Dire Tr. at 75, by saying
eventually: "if we're gambling on something and we're going to win a penny, I don't really
care that much.      If I'm gambling on something for a million dollars, I'm invested
significantly in that situation. So something of this nature, if the consequences one way or
the other are small or great, it would probably influence my ability to render 51/49 as
adequate," id. at 76-77, is lifted out of that gambling scenario in Mr. Hoy's briefing and
portrayed as someone "who stated when questioned during voir dire that if the case was
worth a penny, he could apply the preponderance standard, but not otherwise." Appellant's
Brief at 15. But he wasn't being asked about "the case," and that's not what he said.
       {¶ 14} Nor is the potential juror who answered the question, "what number would
you like, would you feel most comfortable with?" by speaking in terms of "55/45," see Voir
Dire Tr. at 80, fairly portrayed as someone "who would also not apply the preponderance
of the evidence standard," see Appellant's Brief at 15. Nor is the juror who would "feel
comfortable with 51 percent" and who answered the question about whether counsel had
"shown you that I picked a yellow ball" fairly described as someone "who indicated they
would require greater than a preponderance of the evidence." Compare Voir Dire Tr. at 81
with Appellant's Brief at 16. Nor are any of the other potential jurors justly lumped into
Mr. Hoy's "for cause" class on the basis of the questions they actually were asked and the
answers they actually gave. Having studiously avoided asking potential jurors what legal
standards they would "require" and what standards they "would * * * not apply," compare,
e.g., Appellant's Brief at 15, 19, Mr. Hoy is not in a position now to attribute answers to
them in his brief.
       {¶ 15} Questions of the sort they were asked, which never veered fully into inquiries
along the line of 'if you could be any sort of a tree * * *,' may be entirely appropriate and
may well elicit answers that can inform a lawyer's judgments on peremptory challenges.
Especially to that end, indirection can be quite useful. But at least in this case, the questions
as posed did not generate responses that from the standpoint of this reviewing court
required dismissal for cause.
       {¶ 16} In fact, not only do these jurors seem to have indicated no problem with
observing a preponderance of the evidence standard "if that's what you hear from the
No. 19AP-37                                                                                  7


court," Id. at 74 (question by Mr. Hoy's counsel), they routinely indicated to the judge that
they could be impartial, see, e.g., id. at 41 (juror later challenged for cause), and appear to
have reconfirmed that commitment under questioning by defense counsel, see id. at 99:
"Does anybody here have a problem with following the instructions that Judge Frye gives
you that tells you what the law is, on what preponderance of the evidence is and how you're
to weigh the evidence? None of you? All right."
       {¶ 17} And, at the end of the questioning of the prospective jurors, the judge himself
returned to the matter:
              It is true under Ohio law that the greater weight of the evidence
              is what you're supposed to use to decide a civil case, but that is
              not defined mathematically.

              Now, it's perfectly appropriate for [plaintiff's counsel] to talk
              about 51/49 because, in a mathematical sense, that is the
              greater weight. But there's nothing in a formula that we're
              going to ask you to put on the jury verdict form, Well, how
              much is the weight of the evidence on this side, you know.
              Obviously, we are not going to count witnesses * * * * [I]t's not
              a, Well, they got four and he's got one and, therefore, they win.
              It's the quality intellectually of the evidence. Is everybody
              comfortable with those rules? All right.

Voir Dire Tr. at 92-93.
       {¶ 18} We do not find this to be a case like Klem v. Conrail, 191 Ohio App.3d 690,
2010-Ohio-3330 (6th Dist.), where two potential jurors should have been excused for
cause. There, the jury selection transcript showed that the pair "had difficulty setting aside
the concept of assumption of the risk"; one questioned the validity of the law specifically
applicable to the case and acknowledged it would be "difficult" to accept the judge's
instructions on that score, in his words "[p]otentially" making it harder for the plaintiff to
prove his case, while the other admitted "I have that issue" as well and said that his
disagreement with the law "would make it far more difficult" for plaintiff's counsel to
prevail. Id. at 713-14. No analogous showing is made here.
       {¶ 19} A prospective juror is subject to challenge for cause if "the person discloses
by the person's answers that the person cannot be a fair and impartial juror or will not
follow the law as given to the person by the court." R.C. 2313.17(B)(9). "The determination
of whether a prospective juror should be disqualified for cause pursuant to [that statutory
No. 19AP-37                                                                                    8


subsection as formerly numbered] is a discretionary function of the trial court. Such
determination will not be reversed on appeal absent an abuse of discretion." Berk v.
Matthews, 53 Ohio St.3d 161 (1990), syllabus (citation omitted). " 'The term "abuse of
discretion" * * * implies that the court's attitude is unreasonable, arbitrary or
unconsciounable.' Consequently, when applying this standard, an appellate court is not
free to substitute its judgment for that of the trial judge. [Here], the trial court had the
opportunity to observe the demeanor of the prospective juror and evaluate firsthand the
sincerity of her responses to questions." Id. at 169 (citations omitted). Where the trial court
has "any doubt as to the juror being entirely unbiased," it must excuse the prospective juror
for cause, and failing that will be reversed on appeal where "but one conclusion could have
been legally drawn from the undisputed facts" so as to establish juror bias. Lingafelter v.
Moore, 95 Ohio St. 384, 390 (1917).
       {¶ 20} In this case, we understand the trial court to have considered the prospective
jurors' responses to all the questions posed by counsel for all sides and the court, see, e.g,
Voir Dire Tr. at 132 (court does not adopt characterization of Mr. Hoy's counsel, saying "I
didn't hear it that way as balanced by the court's comments after you got done and the
comments put on the record by defense counsel"), and to have concluded that none was
incapable of being fair and of following the law as instructed by the court. The actual
responses of none of these potential jurors as cited by Mr. Hoy reflected " 'a significant
potential for prejudice in the matter at trial,' " see Appellant's Brief at 29, quoting Patterson
& Neufer, "Removing Juror Bias by Applying Psychology to Challenges for Cause," Cornell
Journal of Law and Public Policy, Vol. 7, Issue 1, p. 1906 (1977), and there is no rule in the
law that the trial court had to disregard their statements of willingness to be fair and follow
the judge's instructions. As in State v. Spirko, 59 Ohio St.3d 1, 24 (1991), "[t]he court's
reliance on the truthfulness of the juror's responses was not, in our opinion, an abuse of
discretion that warrants a reversal." Having reviewed the record, we do not find that the
trial court abused its discretion in declining to dismiss these prospective jurors for cause.
See, e.g., State v. Albert, 10th Dist. No. 06AP-439, 2006-Ohio-6902, ¶ 65 (applying abuse
of discretion standard to R.C. 2313.17(B)(9) precursor).
       {¶ 21} "It is beyond question that the right of trial by jury guaranteed by the
constitution carries with it * * * the right to a trial by a jury composed of unbiased and
No. 19AP-37                                                                                   9


unprejudiced jurors." Lingafelter, 95 Ohio St. at 387. That right is not undermined by the
trial court's denial of a request to excuse a juror for cause based simply on the prospective
juror's initial abstract preference for (or higher "comfort level" with) more certainty rather
than less in making important decisions or "[w]hen * * * analyzing a fact pattern." The trial
court saw the body language and heard the intonations of each of the prospective jurors,
and determined, as the judge put it with regard to two of their number, that "they can follow
the law." Voir Dire Tr. at 135. On the record as presented to us, we see no reversible error
in that conclusion.
       {¶ 22} Mr. Hoy's lone assignment of error is overruled.
       {¶ 23} During the course of this appeal, Defendants-Appellees have presented us
with two "joint motion[s] to strike." They object to "seating diagrams" in Mr. Hoy's opening
brief that they say go beyond matters ascertainable from the record because "[i]t is not
always possible to tell [from the transcript] which [prospective] juror is speaking," see
April 4, 2019 Joint Motion to Strike Diagrams at 4; they also object to an argument relating
to the trial court's having posed questions to the group of prospective jurors, rather than
individually, that they say was not preserved below but that they neglected to challenge on
that basis in their opposition brief, see May 10, 2019 Second Joint Motion to Strike at 1-2,
and they object to Mr. Hoy's courtesy attachment to his reply brief of a couple law review
articles as submitted (presumably) in attempt to bolster his propositions.
       {¶ 24} Neither of these motions is well taken, and we deny them both. Diagrams can
be helpful, and while lawyers do from time to time attempt to argue from matters not
reflected in the record, we are equipped to discern whether a contention has support in the
record, or not: the most useful way for a party to note that something in an opening brief
is from outside the record is to explain that in the opposition brief. The same would have
been true of the argument said not to have been preserved on appeal (although in this
instance, the issue is hard to distinguish from the broader claim of juror bias that was
argued below). By contrast, citations to authority (or even to law review articles) need not
have been specified in the trial court in order to be used here, to the extent that they support
arguments that were made. And filing copies of publically available law review articles so
that they more easily may be taken for whatever they're worth, if anything, violates no
written rule of which we are aware.
No. 19AP-37                                                                    10


         {¶ 25} Having dispatched with the motions and having overruled Mr. Hoy's
assignment of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
                                                                  Motions denied;
                                                               judgment affirmed.

                             KLATT, P.J., concurs.
                   LUPER SCHUSTER, J., concurs in judgment only.
