[Cite as Fennell v. Columbiana, 2010-Ohio-4242.]



                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


BETTY FENNELL, ADMINISTRATRIX )
OF THE ESTATE OF LISA SMITH,  )
DECEASED,                     )
                              )                       CASE NO.     09 CO 42
      PLAINTIFF-APPELLANT,    )
                              )
      - VS -                  )                       OPINION
                              )
CITY OF COLUMBIANA, et al.,   )
                              )
      DEFENDANTS-APPELLEES.   )


CHARACTER OF PROCEEDINGS:                          Civil Appeal from Common Pleas Court,
                                                   Case No. 07CV970.

JUDGMENT:                                          Affirmed.

APPEARANCES:
For Plaintiff-Appellant:                           Attorney Ilan Wexler
                                                   21 North Wickliffe Circle
                                                   Youngstown, Ohio 44515

For Defendants-Appellees:                          Attorney Craig Pelini
                                                   Attorney Randall Traub
                                                   8040 Cleveland Avenue, NW, Suite 400
                                                   North Canton, Ohio 44720

                                                   Attorney David Barbee
                                                   11 South Main Street
                                                   Columbiana, Ohio 44408
                                                   (For Fred Winters)


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

                                                   Dated: September 7, 2010
VUKOVICH, P.J.


       ¶{1}   Plaintiff-appellant, Estate of Lisa Smith, appeals the decision of the
Columbiana County Common Pleas Court, which refused to grant a new trial after
judgment was entered in favor of defendants-appellees the City of Columbiana and
two of its employees. Appellant raises issues concerning defense counsel’s cross-
examination of plaintiff’s expert on his fees for a discovery deposition and on the
expert’s failure to supply defense counsel with the citations to cases in which he had
previously testified.   Appellant then argues that the defense expert changed his
opinion without providing notice to plaintiff.    Appellant also contends that defense
counsel insinuated that lightning could have been the cause of death and alleges that
this violated an agreement made in response to plaintiff’s motion in limine. For the
following reasons, the judgment of the trial court is affirmed.
                              STATEMENT OF THE CASE
       ¶{2}   The City of Columbiana owns and operates power lines within its limits.
In the early morning hours of May 22, 2004, during a strong storm with heavy wind and
much lightning, city employees, Gary Holloway and James Sturgeon, were called to
work due to power outages. They found a transformer that was not receiving power.
Since the fuse was intact and they had been informed about a flash further down the
line, they proceeded down the flooded street.        Between the next two poles, they
discovered a downed power line resting in deep water.
       ¶{3}   Although they treat every wire as live, they did not believe this wire had
power due to the outage problems, noting that they stood in the water as they worked
on the line. Mr. Holloway testified that this opinion was confirmed later when they
discovered that a fuse was blown at the transformer that would have fed this line. (Tr.
31).
       ¶{4}   Mr. Holloway hooked the end of the downed wire to a block and tackle
device with tension grips (said to be similar to a Chinese finger grip). Mr. Sturgeon
took the device thirty-five feet up the pole in a boom and hooked the other grip on the
device onto wire exiting an insulator on the pole. Instead of immediately completing
the wire connection and removing the block and tackle device, they retreated to the
city’s garage due to the severity of the lightning and so Mr. Sturgeon could change into
rubber safety boots. Mr. Holloway testified that they left the line tight and secure and
that there was no way this set up would come apart. (Tr. 20, 24).
       ¶{5}    They returned to the pole after fifteen minutes to find the line down in
water again. Also in the water was the body of Lisa Smith, who had been delivering
newspapers. The coroner concluded that she had been electrocuted.
       ¶{6}    On September 25, 2007, Betty Lou Fennel, as the administratrix of the
estate of Lisa Smith, filed a complaint against the City of Columbiana and its two
employees. It was argued that the city was liable for negligence due to the proprietary
function of operating a utility and the employees were liable for acting recklessly or
wantonly.
       ¶{7}    The case was tried to a jury. The jury was shown the insulator, which
had been in normal condition when the employees hung the line but which was found
thereafter to be broken and scorched. (Tr. 36-37). The city opined that the line fell
again because it had been struck by lightning near the insulator. (Tr. 32).
       ¶{8}    Plaintiff’s expert opined that the damage to the insulator and the line
falling was likely caused by the wind causing the unconnected wires to touch
somewhere they should not have. (Tr. 91). Mr. Holloway, however, stated that wires
could not have blown around due to the grip system which was still in place after the
line fell again.
       ¶{9}    On June 18, 2006, the jury returned a unanimous verdict in favor of the
defendants. In a special interrogatory, the jury found that the defendants were not
negligent. The court entered judgment for the defendants on June 25, 2009.
       ¶{10} On July 9, 2009, appellant filed a timely motion for a new trial based
upon allegations of misconduct of defense counsel, surprise, and newly discovered
evidence. On November 5, 2009, the trial court denied this motion. Appellant filed a
timely appeal in this court only raising the issues presented in the new trial motion.
                   ASSIGNMENT OF ERROR & STANDARD OF REVIEW
       ¶{11} Appellant sets forth the following assignment of error:
       ¶{12} “THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT PLAINTIFF-
APPELLANT’S MOTION FOR A NEW TRIAL.”
       ¶{13} As appellant states, the denial of the new trial motion is reviewed for an
abuse of discretion. See Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-
5587, ¶35. Thus, we cannot overrule the denial of a new trial unless the trial court’s
decision was unreasonable, arbitrary, or unconscionable. Id. In determining whether
the grounds raised deprived the movant of a fair trial or whether they are true,
appellate courts are instructed to defer to trial judges as they personally witnessed the
trial whereas the appellate court views merely a cold record. Id. at ¶36.
       ¶{14} In support of the argument that a new trial was warranted here, appellant
raises the Civ.R. 59(A) grounds of misconduct of the prevailing party, surprise, and
newly discovered evidence. Specifically, appellant presents arguments which deal
with three main issues: the cross-examination of plaintiff’s expert by defense counsel;
the opinion of the defense’s expert and whether a change of opinion resulted in
prejudicial surprise to plaintiff’s counsel; and whether defense counsel violated an
agreement to refrain from making insinuations regarding the role of lightning in the
death. See Civ.R. 59(A)(2), (3), and (8). We shall address these issues individually.
                  CROSS-EXAMINATION OF PLAINTIFF’S EXPERT
       ¶{15} Appellant raises two problems with defense counsel’s questioning of
plaintiff’s expert witness.    Appellant believes that defense counsel improperly
impugned the expert’s credibility by eliciting testimony that the expert promised
defense counsel at deposition that he would provide the defense with a list of prior
cases in which the expert testified but then never provided defense counsel with this
list. The expert admitted that he said at deposition while under oath that he would
provide the information. (Tr. 34-36). The expert then stated that after deposition,
plaintiff’s counsel told him that since the defense did not thereafter press the issue, the
expert should not provide the information. (Tr. 35, 37).
       ¶{16} Appellant contends that since the defense did not file a formal request,
the defense should be prohibited from mentioning this broken deposition promise at
trial. Appellant characterizes this questioning as falling under Civ.R. 59(A)(2), which
entails misconduct of the prevailing party.
       ¶{17} However, there is no indication of misconduct.         The questioning was
relevant. It was not improper to insinuate that the expert may have had something to
hide by not providing the prior cases in which he testified. As the expert admitted, he
promised to provide the information when he returned to his office.
       ¶{18} The fact that the defense never filed a request was also relevant in order
to help provide an explanation as to why the expert broke his promise, and the jury
heard this excuse. The jury could properly weigh the expert’s credibility on this matter.
       ¶{19} Even if the questioning had been improper due to the failure to formally
request the information, counsel’s conduct cannot be said to have tainted the verdict
with passion or prejudice. See Harris, 116 Ohio St.3d 139 at ¶38. In any event,
appellant did not object to this line of questioning below. Rather, appellant allowed
defense counsel to ask questions on this subject. As such, the issue is waived.
       ¶{20} In fact, the defense asked the court to strike the plaintiff’s expert’s
testimony on the basis of the broken promise.         Appellant’s response was that a
promise made at discovery was a credibility issue for the jury.          (Tr. 63).   Thus,
appellant conceded that the question was one for the jury.
       ¶{21} Appellant also complains here that defense counsel used false
information to attack the expert’s credibility. Specifically, defense counsel elicited from
plaintiff’s expert that he required the defense to pay him $1,000 for his time spent
giving his deposition. (Tr. 27-28). It was noted that the expert had acknowledged at
deposition that this amount had been paid to him by the defense. (Tr. 34, 42). It was
then elicited that the deposition took less than two hours and that the expert’s hourly
rate was $250 per hour, which should have totaled only $500. (Tr. 28). No objection
was entered to this line of questioning at trial.
       ¶{22} Initially, we note that there is no dispute regarding the admissibility of
evidence concerning how much the plaintiff’s expert was paid by the defense to testify
at deposition. See, e.g., State v. Fears (1999), 86 Ohio St.3d 329, 334 (can discuss
expert’s fee to show bias or pecuniary interest); Ede v. Atrium S. OB-GYN, Inc. (1994),
71 Ohio St.3d 124, 126 (scope of cross-examination of expert on issues that relate to
bias or pecuniary interest is best left to trial court’s sound discretion). Rather, the
issue raised is that defense counsel appears to have erroneously believed that he paid
$1,000 to plaintiff’s expert.
       ¶{23} As appellant stated in seeking a new trial, the expert went through his
records after trial and discovered that he only billed the defense $600 ($500 for the
two hours at deposition and $100 for travel time) and the defense likewise only paid
him $600. An affidavit from the expert was attached, along with his billing statement
and the check stub.        Appellant concludes that the questioning thus constituted
misconduct of the prevailing party under Civ.R. 59(A)(2) and newly discovered
evidence, material to the movant, which with reasonable diligence could not have been
discovered and produced at trial under Civ.R. 59(A)(8). Appellant contends that the
failure to object at trial was due to the fact that the expert billed the defense directly so
that appellant was unaware of the discrepancy.
       ¶{24} First, there is no indication that the use of the wrong figure entailed
misconduct as opposed to mistake. Second, the expert had the opportunity to explain
about travel time at trial and did not do so. Third, defense counsel was only repeating
what had already been admitted at deposition eight months prior to the trial. The
expert should have checked his billing statement then.             Moreover, if appellant
wondered why the defense was charged for more hours than were actually spent, the
time to investigate was prior to trial (after the issue was clearly raised at deposition),
not after trial when the defense quite predictably used the admission from deposition
to present a credibility issue.
       ¶{25} Regardless, the trial court could rationally conclude that the defense’s
suggestion that the plaintiff’s expert overbilled by $400 was not so prejudicial that it
tainted the verdict. See Harris, 116 Ohio St.3d 139 at ¶36, 38 (appellate court should
defer to trial judge, who has discretion to determine whether alleged misconduct was
sufficient to taint the verdict with passion or prejudice). This is especially so where it
appeared from the deposition (which was read to the jury) that defense counsel
consented to pay for more hours than were actually spent. For all these reasons, this
argument is overruled.
                             DEFENSE EXPERT’S OPINION
       ¶{26} Appellant contends that the defense expert’s report should have been
supplemented in discovery.        Appellant believes that the expert’s opinion changed
between deposition and trial. In particular, appellant alleges that the expert’s trial
testimony was that he no longer expected the line to be tied off to something on the
pole, citing to pages 57-58 of the transcript. Appellant concludes that this testimony
constituted grounds for a new trial under Civ.R. 59(A)(3), dealing with accident or
surprise which ordinary prudence could not have guarded against. (We note that
appellant does not contend misconduct in the failure to supplement discovery as the
expert testified that he never advised defense counsel that new information caused
him to retreat from one of his examples of how the line could have been secured.)
       ¶{27} Initially, we point out that appellant misconstrues a portion of the defense
expert’s testimony. At deposition, this expert stated that it would be appropriate for the
blocks holding the line to be tied-off to the cross-arm or to the insulator during a repair.
(Tr. 56-57). The expert testified at trial that due to the wet conditions that existed in
this case, the employees could not have tied the rope to the cross-arm as this could
have electrified the rope. He maintained his opinion (which worked in plaintiff’s favor)
that they could have tied-off the rope to the insulator. (Tr. 58). Thus, contrary to
appellant’s claim, the defense expert did not testify at trial that the line could not have
been tied to anything.
       ¶{28} Next, we note that it was pointed out at trial that the expert testified at
deposition that there were several methods that could be used to secure a line. (Tr.
66). As plaintiff’s counsel acknowledged, Mr. Sturgeon’s deposition (containing the
specifics of how the line was raised) was provided to the expert prior to trial but was
not taken until after the expert’s deposition. (Tr. 56). The expert’s deposition confirms
that he was not yet aware of the specifics of how the line was raised at the time of his
deposition.
       ¶{29} Moreover, the expert noted at deposition that there were different
arrangements of block systems and stated that it was possible the employees used
“the Chinese finger” grip (which he later found out was the method used). (Depo. Tr.
43). The expert’s trial testimony was that this block and grip system would have
provided a secure situation. (Tr. 67). This does not directly contradict the deposition
testimony and is not alleged to contradict the report.
       ¶{30} As appellee points out, the expert insisted at trial that his opinion had not
changed, but rather that he merely received further information that confirmed his
original opinion. (Tr. 62-63). He insisted that his conclusion was the same as it was
expressed in his report: that the line was secured. He noted that he would have told
defense counsel had his opinion changed and further disclosed that he did not notify
defense counsel of any change. (Tr. 63).
       ¶{31} We conclude that any change was not a material surprise as the specific
testimony contested by appellant was not on the ultimate issue of whether the line was
secured. In addition, plaintiff’s counsel cross-examined the defense’s expert on his
impressions that the testimony changed, and the jury was able to consider this
allegation.   It is also notable that the defense similarly alleged that the plaintiff’s
expert’s opinion changed. This alleged “change” was also due to the fact that Mr.
Sturgeon’s deposition was taken after the expert testified at deposition. (Tr. 58, 70).
Defense counsel moved (unsuccessfully) to strike the testimony of the plaintiff’s
expert. (Tr. 57). Thus, both sides had the same complaint against each other, and
neither saw that the further information received from Mr. Sturgeon’s deposition
warranted supplemental discovery in the form of a new report from their respective
experts.
       ¶{32} Along these lines, there is no indication of any objection being entered in
the record.    By objecting, any alleged surprise could have been rectified by a
continuance or a recalling of a witness. See, e.g., Kroger v. Ryan (1911), 83 Ohio St.
299, 306 (a party cannot fail to voice objection and then claim surprise in a new trial
motion); Porter v. Keefe, 6th Dist. No. E-02-018, 2003-Ohio-7267 (a claim of surprise
as a ground for a new trial is without merit where the movant failed to object to the trial
court about the surprise); City of Dayton v. Moser (Sept. 11, 1998), 2d Dist. No. 16773;
State v. Patton (Mar. 5, 1992), 3d Dist. No. 01-91-12 (the issue is waived if appellant
fails to object at trial to the failure to supplement discovery regarding a witness’s
testimony at a time when the court could have granted a continuance or recess).
       ¶{33} It is well-established that where no timely objection was made on a
particular issue, the issue is generally waived because plain error is rarely recognized
in a civil case. Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, ¶43. The
doctrine can be applied only in an “extremely rare case involving exceptional
circumstances where error, to which no objection was made at the trial court, seriously
affects the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.”         Id., quoting
Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 122-123.
       ¶{34} For all the reasons expressed above, the defense expert’s testimony
does not present such circumstances. Consequently, the trial court did not abuse its
discretion in denying a new trial on this basis. This argument is overruled.
                                       LIGHTNING
       ¶{35} Appellant states that a new trial should have been granted under Civ.R.
59(A)(2) due to misconduct of the prevailing party where defense counsel insinuated
that lightning played a role in the decedent’s death. Appellant claims that defense
counsel broke an agreement regarding a motion in limine.
       ¶{36} Prior to trial, appellant filed a motion in limine requesting the court to
preclude the defense and their witnesses “from presenting, mentioning or insinuating
that a lightning strike occurred either causing the electrical wire to come down and/or
directly causing Lisa K. Smith’s death.” The motion stated that there was no evidence
that she died as a result of a lightning strike and thus the defense should not invite
speculation as to whether she was struck by lightning or as to whether lightning hit the
line which electrocuted her.
       ¶{37} Apparently, the parties discussed this motion off-the-record with the
court. Later, at an on-the-record discussion, appellant sought to present a rebuttal
witness, who would testify that the decedent was not struck by lightning. (Discussions
Tr. 2). It was stated that this expert was not brought forth in plaintiff’s case-in-chief
because it was anticipated that the defense would refrain from arguing that the
decedent died due to lightning. Id. at 3.
       ¶{38} A discussion ensued concerning whether the defense agreed to refrain
from arguing that lightning played any part in the decedent’s death or whether the
defense merely agreed to refrain from arguing that she died from being struck by
lightning. Id. at 4-13. The court resolved the discussion by stating that in closing
arguments, the defense shall not “invite speculation or insinuate that there was a
lightning strike into the water that caused a current that caused the death.” Id. at 13.
       ¶{39} Plaintiff’s attorney agreed that he would be satisfied by this condition. Id.
The court then stated that to keep the defense from mentioning the circumstances that
existed that day would be unfair, noting that there was evidence presented that even a
wet rope can conduct a current. Id.
       ¶{40} Thus, contrary to plaintiff’s argument, the defense was not barred from
discussing the idea that lightning could have caused the line to fall and that, if the
falling line was not electrified by city power at the time, lightning may have imparted its
current at the time of the strike causing the line to become electrified temporarily.
Rather, the defense was merely barred from arguing that lightning directly struck the
decedent’s person or the water in which she had been walking.
         ¶{41} On this topic, appellant takes issue with two portions of defense
counsel’s closing arguments. First, defense counsel stated: “They have to jump over
the legal hurdle of what it was that actually caused the death of Lisa Smith.” (Defense
Closing Tr. 5). Later, defense counsel stated:
         ¶{42} “there was no energy leaving that transformer leading down the line, the
very line that was in the vicinity where Lisa was found. There was a lot of activity that
night.    There was a whole lot of lightning that night.     There was a whole lot of
inclement weather that night. But the one thing we know is that there was no power
flowing through that transformer and thus there could be no power flowing through that
line that was in the downed area.” Id. at 12-13.
         ¶{43} The defense’s closing argument continued by noting that the plaintiff
wanted the jury to speculate that the line was energized by the city’s electrical current
at the time. Id. at 13-14. It was pointed out that the employees stood in the water and
did not get shocked. Id. at 14.
         ¶{44} Contrary to appellant’s contention, none of this was set forth in order to
suggest that lightning struck the decedent directly or directly struck the water. The
defense passed the insulator around to the jury and referenced the testimony which
opined that the insulator appears to have been struck by lightning.         The defense
clearly argued that lightning likely struck the insulator, which caused the wire to
disengage and fall. Id. at 16. The defense may have suggested that just as a wet rope
can conduct current from an electrified line, a lightning strike can impart current into a
non-electrified line causing the same electrocution that a line electrified by city power
would cause to a person standing in the water into which the line fell.
         ¶{45} This does not violate the court’s boundary imposed at the pre-closing
discussions.    The defense was only barred from arguing that lightning struck the
decedent’s person directly or struck the water directly.     As such, this argument is
overruled.
         ¶{46} Moreover, appellant did not object during the defense’s closing
argument. Thus, the issue was waived. See State v. Tenace, 109 Ohio St.3d 255,
2006-Ohio-2417, ¶49; Gable, 103 Ohio St.3d 449 at ¶40. There is no argument here
of civil plain error. In any event, the doctrine is rarely used, and the test for imposing it
has not been met here as there are no exceptional circumstances which seriously
affect the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself. See Gable, 103
Ohio St.3d 449 at ¶43, quoting Goldfuss, 79 Ohio St.3d at 122-123.
       ¶{47} For all of the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
DeGenaro, J., concurs.
