[Cite as Gallaugher v. Holmes Surgical Assoc., Inc., 2011-Ohio-1794.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ROSS COUNTY


LINDSY WILLIAMS GALLAUGHER as                          :
Administrator of the Estate of Jeremy                  :
S. Williams, deceased,                                 :   Case No: 09CA3134
                                                       :
             Plaintiff-Appellant,                      :
                                                       :
             v.                                        :
                                                       :
HOLMES SURGICAL ASSOCIATES,                            :   DECISION AND
INC., et al.,                                          :   JUDGMENT ENTRY
                                                       :
             Defendants-Appellees.                     :   File-stamped date: 3-15-11



                                            APPEARANCES:

Thomas M. Spetnagel and Paige J. McMahon, SPETNAGEL AND MCMAHON,
Chillicothe, Ohio, and Stanley C. Bender, Portsmouth, Ohio, for Appellant.

Gerald J. Todaro, Patrick F. Smith & Karen L. Clouse, ARNOLD TODARO & WELCH
CO., L.P.A., Columbus, Ohio, for Appellees.


Kline, J.:

{¶1}         The Estate of Jeremy Williams (“Estate”) appeals the judgment of the trial

court in favor of Herbert M. Sinning, MD and Holmes Surgical Associates, Inc.1 On

appeal, the Estate contends that the trial court erred by restricting its right to cross-

examine Dr. Sinning. Because we find that the trial court acted within its discretion

when it limited cross-examination that duplicated previously introduced deposition

testimony, we disagree. The Estate next contends that the trial court erred when it

prevented the Estate from calling a radiologist as a rebuttal witness. Because the
1
 Dr. Sinning is the sole shareholder of Holmes Surgical Associates, Inc. For the sake of simplicity, we
will refer to the defendants in this case as simply Dr. Sinning.
Ross App. No. 09CA3134                                                                    2


Estate first raised the relevant issue of whether the sonogram showed the presence of

gallstones, and the trial court reasonably concluded that the Estate could not then

introduce rebuttal evidence on that issue, we disagree. Accordingly, we affirm the

judgment of the trial court.

                                               I.

{¶2}       This case concerns a laparoscopic operation to remove Jeremy Williams’s

gallbladder. Unfortunately, this particular operation had a tragic result. The expert

testimony established that laparoscopic operations of this sort followed similar opening

steps. First, the surgeon needs to create an entry port into the patient’s abdomen.

Second, the surgeon needs to insufflate (inflate) the abdomen with carbon dioxide gas.

Insufflating the abdomen affords the patient’s internal organs space to move, which

permits the surgeon to see and operate in the abdomen. The various experts, however,

disagreed on which particular method of gaining entry and insufflating the patient’s

abdomen was the safest. The Estate’s experts testified that use of the veress needle

was the safest method. Dr. Sinning’s experts testified that the method Dr. Sinning

utilized was at least as safe, if not safer, than the veress needle method. The details of

these disagreements play little part in the present appeal. Suffice to say that Dr.

Sinning used an optical trocar both for the initial insertion and for the insufflation.

{¶3}       When Dr. Sinning inserted the trocar, it punctured Williams’s iliac vein. The

iliac vein is a fixed anatomical structure located in the back of a person’s torso, roughly

at the same depth as the spine. Dr. Sinning then proceeded to inflate Williams’s

abdomen with carbon dioxide. Some of the carbon dioxide made its way into Williams’s

punctured iliac vein and caused a fatal air embolism. The anesthesiologist noticed a
Ross App. No. 09CA3134                                                                 3


drop in the oxygen in Williams’s blood. Dr. Sinning and the other physicians

immediately turned the carbon dioxide off. And the doctors attempted to resuscitate

Williams, but their efforts were unsuccessful.

{¶4}      At trial, the Estate called Dr. Michael Drew and Dr. Anthony Coletta. Dr. Drew

practices in New York, and Dr. Coletta practices in Philadelphia. Both of them testified

that they were among the first to practice laparoscopic gallbladder removal in their

respective locations.

{¶5}      Dr. Drew testified that the iliac vein is not in the “theater” of the surgery and

that this particular injury required that the surgeon make an uncontrolled move. He also

stated that the surgery was unnecessary. He drew this conclusion based on a form

filled out at the hospital by a nurse as well as a sonogram taken of Williams’s abdomen.

The form indicated that Williams stated he was feeling no pain on the morning of the

surgery. Dr. Drew also testified that a sonogram taken before the surgery did not show

any gallstones.

{¶6}      Dr. Coletta testified that the use of an optical trocar for the initial insertion and

insufflation itself fell below the standard of care. Dr. Coletta also corroborated Dr.

Drew’s testimony that Dr. Sinning was negligent in conducting the operation.

{¶7}      Dr. Sinning called Dr. del Grosso to the stand. Dr. del Grosso is a radiologist,

and he testified in regard to the sonogram taken before the operation. Dr. del Grosso

testified that the sonogram indicated that Williams had sludge and gallstones in his

gallbladder. Dr. del Grosso specifically testified that the sonogram indicated gallstones

of about 1mm in size.
Ross App. No. 09CA3134                                                              4


{¶8}      Dr. Sinning next called Dr. Kent Harshberger to the stand. Dr. Harshberger is

a pathologist with the Montgomery County Coroner’s Office, and he conducted the

autopsy of Williams. Dr. Harshberger testified that he found sludge but no stones in

Williams’s gallbladder. But Dr. Harshberger also admitted that he could have easily

missed a stone of 1mm in size.

{¶9}      Dr. Sinning also called Dr. Jeffrey Peters and Dr. Elliot Fegelman. Both Dr.

Peters and Dr. Fegelman were certified as experts in laparoscopic surgery. Dr. Peters

testified that the veress needle is the most common technique, but that many surgeons

believed the use of trocars was safer. He also testified that the damage to the iliac vein

is not necessarily evidence of any negligence. Finally, he testified that the trocar that

Dr. Sinning used was designed to be used in the manner in which Dr. Sinning used it.

{¶10}     Dr. Fegelman largely corroborated Dr. Peters’s testimony that the use of the

optical trocar in this case was a reasonable choice. Dr. Fegelman also testified that he

considered the veress needle a more dangerous method.

{¶11}     Finally, Dr. Sinning testified on his own behalf. Dr. Sinning testified that he

initially learned laparoscopic surgery by using a veress needle. He also testified that he

eventually began to use the trocar to make his primary entry port. Dr. Sinning testified

that he conducted 400 to 450 laparoscopic surgeries successfully using this particular

method.

{¶12}     After trial, the jury returned a verdict in favor of Dr. Sinning. The Estate

appeals and raises the following two assignments of error: I. “THE TRIAL COURT

ERRED WHEN IT RESTRICTED APPELLANT’S RIGHT TO CROSS-EXAMINE DR.

SINNING.” And, II. “THE TRIAL COURT ERRED WHEN IT PROHIBITED APPELLANT
Ross App. No. 09CA3134                                                                5


FROM CALLING AN EXPERT WITNESS IN REBUTTAL TO THE MATTERS RAISED

BY APPELLEES.”

                                              II.

{¶13}      The Estate first contends that the trial court erred when it restricted the

Estate’s scope of cross-examination of Dr. Sinning during Dr. Sinning’s case-in-chief.

The Estate had called Dr. Sinning to the stand during its case by way of a video taped

deposition. And during Dr. Sinning’s case-in-chief, the trial court ruled that “any new

topics that he goes into today, you can cross-examine him on, otherwise it will be very

limited.” Trial Transcript for October 19 to 23, III, at 677.

{¶14}      “The scope of cross-examination and the admissibility of evidence during

cross-examination rest within the sound discretion of the trial court.” Lewis v. Nease,

Scioto App. No. 05CA3025, 2006-Ohio-4362, at ¶80, citing O’Brien v. Angley (1980), 63

Ohio St.2d 159, 163. “‘Abuse of discretion’ connotes more than a mere error of

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

unconscionable.” Wells Fargo v. Mowery, 187 Ohio App.3d 268, 2010-Ohio-1650, at

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

{¶15}      “In order to demonstrate an abuse of discretion, ‘the result must be so

palpably and grossly violative of fact or logic that it evidences not the exercise of will but

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

exercise of reason but instead passion or bias.’” Murphy v. Murphy, Lawrence App. No.

09CA28, 2010-Ohio-5037, at ¶10, quoting Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d

254, 256, 1996-Ohio-159.
Ross App. No. 09CA3134                                                                6


{¶16}     The Estate first cites a case from the United States Court of Appeals for the

Sixth Circuit for the following proposition: “Refusal to permit cross-examination of a

witness concerning matters testified to on direct examination constitutes prejudicial

error.” Francis v. Clark Equip. Co. (C.A.6, 1993), 993 F.2d 545, 550, citing J.E. Hanger,

Inc. v. United States (C.A.D.C.1947), 160 F.2d 8, 10. We, however, find this case

distinguishable from the present case. In Francis, the trial court refused to allow cross-

examination on a particular topic after the plaintiff conducted direct examination on that

topic. Francis at 550 (“The practical effect of the magistrate’s rulings was to deny

defendant the opportunity to explore evidence * * * on cross-examination after plaintiff

had made unfair prejudicial use of the evidence on direct examination.”) Here, the trial

court simply limited cross-examination of matters that the Estate had already explored

in its case-in-chief. In other words, by its own terms, the trial court’s order only limited

cross-examination on those matters that the Estate already had an opportunity to cross-

examine Dr. Sinning on.

{¶17}     The Estate next contends that the right of cross-examination is

constitutionally protected and cites State v. Nayar, Lawrence App. No. 07CA6, 2007-

Ohio-6092, at ¶23. This case and the cases it cites are criminal cases, and the right to

cross-examine they refer to flows from the Sixth Amendment to the United States

Constitution. See State v. Rapp (1990), 67 Ohio App.3d 33, 37 (“To restrict a

defendant’s right to cross-examine serves no useful purpose, hinders the truth-seeking

function of a trial, and clearly violates his guaranteed Sixth Amendment right of

confrontation.”); Nayar at ¶24, citing Rapp at 36. The present case is civil, and the Sixth
Ross App. No. 09CA3134                                                                7


Amendment right to confrontation does not apply. In re Burchfield (1988), 51 Ohio

App.3d 148, 154.

{¶18}      The Estate also contends that the trial court’s limitation of cross-examination

is a “process flaw” and that we should review such errors de novo without deference to

the trial court. Estate’s Brief at 20, citing Purvis v. Hazelbaker, 181 Ohio App.3d 167,

2009-Ohio-765, at ¶9. The Estate also cites an article that identifies process errors as

errors that an appellate court reviews de novo, regardless of the fact that the underlying

standard of review is for an abuse of discretion. Harsha, William H., The Substance of

Appeals: Standards of Appellate Review, (2003), 17, no. 6 Ohio Lawyer. The article

notes several different forms of process errors. Starting with the principle that “when

the trial court considers improper factors, or fails to consider appropriate ones, a legal

error may creep into the review.”

{¶19}      The record in fact establishes that the trial court applied an appropriate factor

in its limiting of cross-examination. Clearly, the trial court was attempting to restrict the

admission of duplicate evidence by limiting the cross-examination of Dr. Sinning on

topics already covered. “Trial judges may impose reasonable limits on cross-

examination based on a variety of concerns, such as harassment, prejudice, confusion

of the issues, the witness’s safety, repetitive testimony, or marginally relevant

interrogation.” State v. Treesh, 90 Ohio St.3d 460, 480-81, 2001-Ohio-4 (emphasis

added), citing Delaware v. Van Arsdall (1986), 475 U.S. 673, 679.

{¶20}      The article also notes that the “failure to exercise discretion in the mistaken

belief that it does not exist” is akin to a process flaw. In this case, there is no indication

that the trial court failed to understand it possessed discretion in allowing or limiting
Ross App. No. 09CA3134                                                              8


cross-examination. Indeed, the use of the word “limit” in this context indicates that the

trial court provided some leeway in its resolution of the issue. The trial court did not

prohibit cross-examination on matters that the deposition covered, but it did indicate that

cross-examination on those topics would be limited.

{¶21}     Dr. Sinning contends that the trial court actually allowed the Estate to cross-

examine Dr. Sinning on matters covered in the deposition. Dr. Sinning’s Brief at 7. At

trial, the Estate cross-examined Dr. Sinning on his training in laparoscopic surgery; Dr.

Sinning’s interaction with the Williams family after the surgery; the proximate cause of

Williams’s death; whether Dr. Sinning inserted the trocar in a safe manner; how deeply

Dr. Sinning inserted the trocar into Williams; whether the surgery was actually

scheduled; the veress needle method; and whether Dr. Sinning read the package insert

that came with the optical trocar. During the deposition, the Estate cross-examined Dr.

Sinning on his training in laparoscopic surgery; how Dr. Sinning knew Williams and

Williams’s family; whether the sonogram indicated the presence of gallstones; the

conduct of the operation generally; whether there were sufficient symptoms present to

justify the operation; and finally whether Dr. Sinning had read the package insert that

came with the optical trocar. At least some topics were present in both cross-

examinations, and we agree with Dr. Sinning that the trial court in fact permitted some

cross-examination on topics that the deposition covered.

{¶22}     Finally, the Estate contends that “[t]he only reason or logic articulated by the

court for making its decision was that the admission of Dr. Sinning’s deposition

testimony satisfied the Estate’s right to cross-exam[ine] him, even after he offered

testimony on his defense on direct examination. That is flawed decision making. The
Ross App. No. 09CA3134                                                                9


lower court did not have the discretion to apply an improper legal analysis to this

evidentiary issue.” Estate’s Brief at 21. The Estate however fails to explain precisely

why the trial court’s determination relied on improper legal analysis. Nor does the

Estate provide any citations of law in support of this argument.

{¶23}     Finally, we have no way of knowing what questions the Estate’s attorneys

wished to ask because the Estate’s attorneys did not proffer them. And even if we

accept that the trial court erred, we cannot find an abuse of discretion where we cannot

judge whether the questions asked could have affected the outcome of the trial. See

Mynes v. Brooks, Scioto App. No. 08CA3211, 2009-Ohio-5017, at ¶39 (“‘So long as a

trial court exercises its discretion in accordance with the rules of procedure and

evidence, a reviewing court will not reverse that judgment absent a clear showing of an

abuse of discretion with attendant material prejudice to defendant.’”) (emphasis added),

quoting Willis v. Martin, Scioto App. No. 06CA3053, 2006-Ohio-4846, at ¶21 (other

citations omitted).

{¶24}     The trial court made its ruling before Dr. Sinning took the stand in his own

defense. In that sense, the trial court’s ruling was much like a ruling on a motion in

limine, and in order for a party to preserve an error they “‘must seek the introduction of

the evidence by proffer or otherwise at trial in order to enable the court to make a final

determination as to its admissibility and to preserve any objection on the record for

purposes of appeal.’” Vespoli v. Encompass Ins. Co., Cuyahoga App. No. 94305, 2010-

Ohio-5359, at ¶14, quoting Collins v. Storer Communications, Inc. (1989), 65 Ohio

App.3d 443, 446.

{¶25}     Accordingly, we overrule the Estate’s first assignment of error.
Ross App. No. 09CA3134                                                             10


                                               III.

{¶26}     The Estate next contends that the trial court erred when it determined that the

Estate could not put its radiology expert on the stand to rebut the testimony of Dr. del

Grosso. The Estate argues that it “has an unconditional right to present rebuttal

testimony on matters which are first addressed in an opponent’s case-in-chief[.]” Phung

v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410, 1994-Ohio-389, citing Katz v. Enzer (1985),

29 Ohio App.3d 118. We review a trial court’s decision on whether to permit particular

rebuttal evidence for an abuse of discretion. See Phung at 411 (finding that the trial

court abused its discretion on this ground).

{¶27}     The Estate contends that the trial court’s error on this ground is also a

process error. But the basis for this argument is not entirely clear from the Estate’s

brief. The gist of the Estate’s argument is that they did not have a radiologist testify

about the presence or absence of gallstones on the sonogram. Dr. Sinning, on the

other hand, called Dr. del Grosso, a radiologist, to testify that the sonogram indicated

the presence of gallstones. The Estate therefore concludes that it was entitled to call its

own radiologist in rebuttal.

{¶28}     But the trial court denied the Estate the opportunity to use its radiologist as a

rebuttal witness. The trial court did so for two reasons. First, the question of whether

gallbladder surgery was necessary or not was part of the Estate’s case-in-chief. That is,

this evidence went to the existence or non-existence of negligence, and the Estate

should have introduced it as part of its case-in-chief. “Matters which the plaintiff bears

the burden of proving are properly presented in plaintiff’s case-in-chief.” Phung at 410.

Second, the trial court noted that one of the Estate’s experts had testified that the
Ross App. No. 09CA3134                                                               11


surgery was not “indicated” because the sonogram did not show the presence of

gallstones.

{¶29}     Dr. Drew, the first expert witness produced by the Estate, testified as follows:

“To my way of reading, I would’ve never, never have called those gallstones. There

were, I call them pinpoint two pinpoint dots that, they’re not, they had no classic features

as I say, I’m a surgeon, but I’ve been doing this for a long time, but I know what a

gallbladder, I would not have looked at that X-Ray[sic] and say ah, it’s a gallbladder

stone or stones.” Trial Transcript, Day Two, at 25. Dr. Drew also testified that even if

the “specks” on the sonogram were gallstones, they were too small to account for

Williams’s pain. Id. at 27. Dr. Drew concluded that Williams did not have the proper

indications for undergoing gallbladder surgery. Id. at 23.

{¶30}     The right of rebuttal extends to matters that are “first addressed in an

opponent’s case-in-chief.” Phung at 410 (emphasis added). Here, regardless of

whether this was an element of the Estate’s case-in-chief, the Estate’s first expert

witness raised the issue of whether the sonogram showed gallstones or not. Therefore,

we do not find that the trial court abused its discretion in determining that this issue was

first addressed in the Estate’s case-in-chief rather than Dr. Sinning’s case-in-chief. This

being so, the right of rebuttal did not extend to this issue.

{¶31}     Accordingly, we overrule the Estate’s second assignment of error.

                                             IV.

{¶32}     Having overruled both of the Estate’s assignments of error, we affirm the

judgment of the trial court.

                                                                 JUDGMENT AFFIRMED.
Ross App. No. 09CA3134                                                          12


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay the costs
herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.



      Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.



                                         For the Court


                                         BY:
                                               Roger L. Kline, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
