COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68326 JEAN CHEROVSKY : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION ST. LUKE'S HOSPITAL OF : CLEVELAND, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 14, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 245197 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees St. Luke's Hospital Assoc. THOMAS MESTER, ESQ. and St. Luke's Medical Center: HARLAN M. GORDON, ESQ. JOEL LEVIN, ESQ. IRENE KEYSE-WALKER, ESQ. SANDRA J. ROSENTHAL, ESQ. KRIS H. TREU, ESQ. Nurenberg, Plevin, Heller JEFFREY A. HEALY, ESQ. & McCarthy Co., L.P.A. Arter & Hadden 1370 Ontario Street, 1st Floor 1100 Huntington Building Cleveland, Ohio 44113-1792 925 Euclid Avenue Cleveland, Ohio 44115-1475 [continued on next page] For Defendants-Appellees JOHN V. JACKSON, II, ESQ. Dr. Laipply and Pathology JOHN A. SIMON, ESQ. Laboratory Consultants, Inc.: STEVEN J. HUPP, ESQ. Jacobson, Maynard, Tuschman & Kalur 1001 Lakeside Avenue, Suite 1600 Cleveland, Ohio 44114-1192 - 3 - JAMES M. PORTER, J., Plaintiff-appellant Jean Cherovsky appeals from a jury verdict and judgment in favor of defendants-appellees Pathology Laboratory Consultants, Inc., its employees, Thomas C. Laipply, M.D. and Lynn Schoenfield, M.D., and St. Luke's Hospital Association and MetroHealth St. Luke's Medical Center (together "St. Luke's") on her medical malpractice claim that through misdiagnosis it was unnecessary to remove her right lung for cancer. Plaintiff claimed the trial court erred in failing to give an adverse inference instruction to the jury and in permitting use of demonstrative photographic exhibits of pathology slides. Plaintiff also claimed that the jury's finding that St. Luke's was not liable under a theory of agency by estoppel was against the manifest weight of the evidence. We find no error and affirm for the reasons stated below. On April 28, 1992, plaintiff visited Dr. Marwan Hilal, an internist, complaining of a sore throat and cough. She was concerned that she may have contracted pneumonia from her father. Plaintiff was a heavy smoker. Chest x-rays and a CAT Scan revealed a lung lesion. Plaintiff was referred to Dr. David Denholm, a board-certified pulmonologist at St. Luke's, who first saw plaintiff on May 15, 1992. He confirmed the lesion diagnosis of the lung. The lesion was not present on a previous X-ray in 1990. Dr. Denholm believed that plaintiff had lung cancer. To follow up his findings, other tests were taken to evaluate her condition. - 4 - On June 2, 1992, Dr. Denholm conducted a bronchoscopy at St. Luke's. He discovered a one to two centimeter nodule in the upper lobe of plaintiff's right lung. He took a small biopsy sample. An attempt to obtain additional samples was discontinued when bleeding was encountered. A bronchial brushing and washing procedure of the affected area revealed no malignant cells. Five slides (four of which were later discovered missing) were made of the biopsy sample at the St. Luke's pathology department. Dr. Lynn Schoenfield, a board-certified pathologist, reviewed the slides and in a June 4, 1992 report, Dr. Schoenfield made the diagnosis of well- differentiated adenocarcinoma, i.e., cancer. Her diagnosis was concurred in by Dr. Laipply, another pathologist at St. Luke's. Both pathologists were not 100% sure that the biopsy slides showed cancer and believed this was a "difficult case." On June 15, 1992, Dr. James Engle performed surgery on Mrs. Cherovsky to excise the lung cancer. During surgery, Dr. Engle discovered a tumor that was adhered to the fissures of the right lung and exhibited involvement with the arterial blood supply. The lymph nodes appeared enlarged. Based on his observations and the biopsy results, Dr. Engle elected to do a right pneumonectomy or removal of the entire right lung due to the extension and involvement of the tumor. The excised lung was examined by Dr. Laipply at St. Luke's. He reviewed over 70 slides of the pneumonectomy and biopsy before finding cancerous tissues. He issued his pathology report on July - 5 - 2, 1992. His final diagnosis was poorly differentiated adenocarcinoma, i.e., cancer, and necrotizing granulomas with fungi consistent with histoplasmosis. The report also noted intra- alveolar hemorrhage and chronic inflammation. The tumor (1.6 mm) was identified on Slide 1-VV as having a small microscopic focus with no evidence of metastasis or spreading beyond the lung. On January 6, 1993, plaintiff filed suit in Cuyahoga County Common Pleas Court against 11 defendants involved in the diagnoses and treatment of Mrs. Cherovsky. Seven defendants were later voluntarily dismissed. On January 24, 1994, a first amended complaint was filed with leave of court asserting a new claim for spoliation of evidence based on the four missing biopsy slides and related tissue blocks. The case proceeded to a jury trial commencing on November 28, 1994 against the defendants. Motions for directed verdict were denied both at the end of plaintiff's case and at the close of all the evidence. On December 9, 1994, the jury returned general verdicts in favor of all the defendants on plaintiff's claims. In response to eighteen special interrogatories, the jury found plaintiff failed to prove that the pathology services rendered by Drs. Schoenfield and Laipply were below the accepted standard of care or proximately caused her any injury. The jury also found plaintiff failed to prove that Drs. Schoenfield, Laipply or St. Luke's willfully destroyed biopsy slides with knowledge of pending or probable litigation and with the intent to disrupt the case. - 6 - The trial court entered judgment for defendants on December 12, 1994, and plaintiff filed a notice of appeal on December 27, 1994. In addition to the background evidence discussed above, the case presented the classic battle of well-qualified experts on both sides. Dr. Edward Sussman, a pathologist, testified for plaintiff. Based on his review of the pneumonectomy and biopsy pathology slides, Dr. Sussman concluded that plaintiff did not have cancer. He diagnosed plaintiff's lesion as an atypical epithelial lesion. Accordingly, Dr. Sussman testified that Drs. Schoenfield and Laipply's readings of the pathology slides were below the standard of care and resulted in the unnecessary removal of plaintiff's lung. Dr. Sussman further testified that loss of the four pathology slides and tissue blocks constituted a breach of the standard of care required of St. Luke's and the defendant pathologists. Dr. Dennis Mazal, a board certified specialist in lung diseases, testified at length to Mrs. Cherovsky's condition following the lung removal and physical disabilities resulting from the removal. In addition to the reduced lung capacity, he predicted further complications which could result in congestive heart failure and a reduced mortality of five to ten years. Dr. Stephen Tahan, another pathologist, testified on behalf of Drs. Schoenfield and Laipply. Dr. Tahan testified that, based on his review of plaintiff's pneumonectomy slides, there was no - 7 - question that plaintiff was suffering from poorly differentiated adenocarcinoma, i.e., lung cancer. He classified the tumor as an "invasive cancer" citing the fact that it was eliciting new growth into surrounding blood vessels. To illustrate certain points about the pathology, photographic enlargements of slides were admitted in evidence and shown to the jury via a slide projector. Dr. Tahan, citing his personal experiences, further testified that pathology slides frequently become lost or misplaced and it is a common occurrence for slides to be missing, especially at a teaching hospital like St. Luke's. He testified that he had never heard of Dr. Sussman's diagnosis of an atypical epithelial lesion. Dr. Arthur Skarin, an oncologist, also testified for Drs. Schoenfield and Laipply. Dr. Skarin testified that approximately 175,000 people will develop lung cancer during the course of a one year period. Approximately 155,000 will die as a direct result of their lung cancer. Further, he stated that an adenocarcinoma of the lung, or any cancer of the lung, can only be cured by prompt and radical surgical intervention. Dr. Skarin testified that plaintiff was a high risk patient for developing lung cancer based on her medical history. Dr. Skarin also testified that if plaintiff's lung cancer had not been removed by Dr. Engle, "her outcome would have been [a] definitely incurable disease with subsequent death due to relentless progression of a cancer by definition that continues to double, grow and spread." - 8 - It is fair to say that the experts' opinions and findings were in large part conflicting - defense experts justifying the pneumonectomy and plaintiff's experts finding no evidence of cancer warranting the removal of the whole lung. Essentially, plaintiff's evidence indicated that the lesion detected during the various studies and procedures revealed histoplasmosis, a relatively benign fungus condition; defense testimony pointed to a cancerous growth threatening survival. Plaintiff vigorously contended that the missing slides would have revealed that the lesion was not cancerous. The missing slides were a constant theme throughout the trial. The evidence was undisputed that the biopsy slides disappeared sometime between June 20 and 24, 1992, about a week after the surgery. This occurred during the period that Dr. Laipply was preparing and reviewing slides of the pneumonectomy tissues. Despite an intensive search, the slides could not be found; nor was it established who last had custody of them within the pathology department. Their disappearance was unusual and a departure from St. Luke's customary policies and procedures. Slides were customarily retained for 20 years and tissue blocks for 5 years. Defendants offered various explanations why slides are lost: the pathology department at a major teaching hospital will handle thousands of slides; someone removes a slide and forgets to return it; it is misfiled; misplaced at a committee meeting; or sent out - 9 - for consultation. (Tr. 240-44, 656-58, 1221-22). However, there was no evidence that these events caused the loss. We will address the assignments of error in the order asserted. I. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THE PLAINTIFF WAS ENTITLED TO AN INFERENCE UNFAVORABLE TO DEFENDANTS BECAUSE OF THE LOSS OF CRITICAL EVIDENCE IN DEFENDANT'S POSSESSION. Plaintiff contends that the trial court committed reversible error in failing to give the jury an adverse inference instruction on defendants' failure to account for the four missing biopsy slides. Plaintiff asserts that the loss of the slides severely damaged her case. Plaintiff's proposed instruction (15-A) stated as follows: If a party fails to produce evidence which is under his control and reasonably available to him and not reasonably available to the adverse party, then you may infer that the evidence is unfavorable to the party who could have produced it and did not. The trial court declined to give this instruction, stating: "*** that plaintiff is not entitled to a presumption on the issue of spoliation *** that what the jury may or may not infer from facts is covered adequately in the general instruction, and [I] will not specifically instruct on that [adverse inference] issue." (Tr. 1323). To the same effect at Tr. 1487. "[I]t is within the sound discretion of the trial court to refuse to admit proposed jury instructions which are either redundant or immaterial ***." Bostic v. Connor (1988), 37 Ohio St.3d 144, 148. "[A] trial court - 10 - does not abuse its discretion in deciding that the factual issues do not require, and will not be assisted by, a requested instruction and in deciding that the issue would be adequately covered by other instructions." Jeanne v. Hawkes Hosp. of Mt. Carmel (1991), 74 Ohio App.3d 246, 253. We note, at the outset, that the proposed instruction was not supported by the state of the evidence at trial. It assumes that the missing slides were still, at the time of trial, "under [defendants'] control and reasonably available to them." The slides disappeared sometime between June 20 and 24, 1992, several months before a lawsuit was threatened. As worded, the instruction infers that the defendants were not telling the truth about the slides being lost. This charge could well have confused or misled the jury. "A trial court must give jury instructions which are a correct and complete statement of the law. *** An inadequate jury instruction which, in effect, misleads the jury, constitutes reversible error." Sharp v. Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307, 312. "The trial court may properly refuse a requested charge which is unintelligible, incomplete or argumentative or which might prove misleading or confusing to the jury." Pickering v. Cirell (1955), 163 Ohio St. 1, 4 citing 53 Am. Jur.2d 422, Sec. 525. Nevertheless, plaintiff asserts that she was entitled to this instruction which would have permitted the jury to infer that the - 11 - missing biopsy slides were unfavorable to the defendants, i.e., failed to show cancer in the right lung. An instruction to the jury must be based upon a correct statement of the law and pertain to an issue fairly raised by the evidence actually presented at trial. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207; Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. In order to obtain a reversal on the giving of an alleged improper instruction, a plaintiff must demonstrate both that the instructions, when considered as a whole, did not clearly and fairly express the law applicable to the case and, further, that substantial rights have been directly affected to plaintiff's prejudice. Deffinbaugh v. Ohio Turnpike Commission (1990), 67 Ohio App.3d 692, 701; Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7, 16; Faber v. Syed (July 7, 1994), Cuyahoga App. No. 65359, unreported at 9. The claim of reversible error in a court's failure to submit a requested charge is subject to the same requirements: it must be a correct statement of the law and pertinent and applicable to an issue raised by the evidence in the case. Pallini v. Dankowski (1969), 17 Ohio St.2d 51, 55; Hardiman v. Zep Mfg. Co. (1984), 14 Ohio App.3d 222, 223. Furthermore, the omission must be prejudicial to the substantial rights of the party proffering same. Smith v. Flesher (1967), 12 Ohio St.2d 107, paragraph two of syllabus; Luong v. Schultz (1994), 97 Ohio App.3d 472, 476; - 12 - Jaworski v. Med. Radiation Consultants (1991), 71 Ohio App.3d 320, 327. We find that the instruction requested by plaintiff was not a correct or complete statement of the law and was not warranted by the state of the evidence. The general principles applicable are stated in 31-A C.J.S. Evidence 156(2) at pp. 401-02: The unexplained failure or refusal of a party to judicial proceedings to produce relevant and competent documentary evidence or an article which would tend to throw light on the issues authorizes, under certain circumstances, an inference or a presumption unfavorable to such party. * * * Further, it must appear that there has been an actual suppression or withholding of the evidence; no unfavorable inference arises where the circumstance indicate that the document or article has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for ***. The few reported Ohio cases which have addressed the issue recognize that the inference is permissible, but only applies when there is no explanation for the failure to produce the missing evidence. Hubbard v. The Cleveland, Columbus & Cincinnati Highway, Inc. (1947), 81 Ohio App, 445, 451; Cleveland Concession Co. v. City of Cleveland (1948), 84 Ohio App. 1, 9; State ex rel. Raydel v. Raible (Cuyahoga App. 1954), 117 N.E.2d 480, 486. As previously discussed, plausible explanations were offered in the instant case for the loss or misplacement of the slides. There is no evidence - 13 - of intentional destruction or suppression of the slides. Nor do the above-cited Ohio cases squarely address the propriety of the jury instruction, which is at issue here. The only Supreme Court authority even remotely bearing on the issue is Banks v. Hardware Co. (1952), 156 Ohio St. 453, which concerned the efficacy of an affidavit under G.C. 11552 in order to establish commissions to which plaintiff was entitled on sales activities, the records for which had been destroyed by defendant. The Court stated at 461: Plaintiff in his brief relies upon the maxim, omnia praesumuntur contra spoliatorem (all things are presumed against a wrongdoer), and many authorities are cited to the effect that where the destruction of documents has been intentional and for the purpose of depriving the opposing party of evidence, the utmost inference logically possible should favor the party aggrieved, and that the contents of the documents destroyed should be presumed to be what the party aggrieved so alleges them. 2 Wigmore on Evidence (3 Ed.), 187, Section 291; Pomeroy v. Benton 77 Mo., 64; Haid, Admr., v. Prendiville, 292 Mo., 552, 238 S.W., 452; and Sullivan, Admr., v. Sullivan, 188 Mass., 380, 74 N.E. 608. (Emphasis added). In Sullivan v. General Motors Corp. (N.D. Ohio 1991), 772 F.Supp. 358, 364, the trial court refused to give an adverse inference instruction and cited Banks for the court's belief that "Ohio courts normally would require a strong showing of malfeasance - or at least gross neglect - before approving such a [adverse inference] charge." This conclusion finds support in this Court's opinion in Temple v. CCC Highway, Inc. (March 28, 1991), Cuyahoga App. Nos 58402/58404, unreported at 10-11: - 14 - CCC Highway asserts that the trial court erred when it refused to instruct the jury that they could infer that Temple's logbook, if produced, would have operated against his interest. CCC Highway contends that the logbook was critical insofar as it would have revealed Temple's whereabouts during the day and evening immediately preceding the accident. *** *** Here, Temple testified as to his conduct and whereabouts prior to the accident. Any information which could have been obtained from the logbook was provided by way of Temple's testimony. Temple further testified to the amount of rest he received the day before the accident and to the last period of sleep he received prior to the accident. Temple stated that he was asked by the police officer if he had his logbook on his person outside of the rig and he replied that he did not and that he was not asked to return to the rig to find it. Our review of the record does not indicate that Temple attempted to conceal or suppress the logbook. Therefore, we do not believe the trial court's refusal to instruct the jury pursuant to CCC Highway's requested charge constituted an abuse of discretion. S S Kresge v. Trester (1931), 123 Ohio St. 383, 175 N.E.2d 611, paragraph three of the syllabus; see Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7, paragraph thirteen of the syllabus. (Emphasis added). The two unreported Ohio cases which plaintiff cites and attaches to her brief do not tend to support the argument she advances for the adverse inference instruction. In Simms Builders v. Liberty Insulation Co. (Feb. 16, 1983), Warren App. No. 73, unreported, the court stated at 4: Although we are sympathetic to the inequities caused by the unavailability of the lighting fixture, the evidence discloses that the lighting fixture was no longer in the control of the appellee at the time the request was made. After the fixture was returned to the appellee from its expert, the lighting fixture - 15 - disappeared from the office of the appellee's trial counsel, making it impossible for the appellee to produce it for inspection. In the absence of any showing of wrongdoing on the part of the appellee, we must conclude that the trial court properly denied the motion in limine. In its third assignment of error, the appellant maintains that the failure of the appellee to produce the lighting fixture for inspection requires the trial court to instruct the jury that the failure to produce creates a presumption that had it been produced the evidence would have been favorable to the appellant. The appellant cites as authority the case of Hubbard v. Cleveland, Columbus and Cincinnati Highway, Inc. (1947), 81 Ohio App.445, 76 N.E.2d 721. Dicta in the Hubbard case indicates that a jury may infer that critical evidence, not admitted at trial, is unfavorable to the party who has custody and control of the evidence and who fails to produce it. The language does not indicate that the trial court must instruct the jury to presume the evidence unfavorable, but only that the inference is permissible. In this case, the appellee in closing argument appropriately drew this inference for the jury's consideration. Further, as stated above, there was no evidence of wrongdoing on the part of the appellee. Thus, the trial court did not err in failing to give the requested jury instruction. Accordingly, the appellant's third assignment of error is overruled. (Emphasis added). In Signs v. Ohio Dept. of Rehabilitation & Correction (Nov. 22, 1994), Franklin App. No. 94 AP105-628, unreported at 4: By his first assignment of error, plaintiff contends that he was entitled to a rebuttable presumption of negligence based upon the failure of defendant to produce the relevant medical records, primarily the x-rays of his cervical spine. Assuming plaintiff is entitled to a presumption of negligence, the burden then is upon the defendant to go forward with the - 16 - evidence to produce evidence meeting or rebutting such presumption. Plaintiff incorrectly contends that the burden is upon the defendant to overcome the presumption by a preponderance of the evidence. Plaintiff does correctly set forth the test in his brief that, where there is relevant evidence under the control of a party who fails to produce it without satisfactory explanation, the trier of fact may draw an inference that such evidence would be unfavorable to the party failing to produce such evidence. * * * Although the x-rays themselves were not available, deposition testimony was presented by physicians who reviewed the x-rays, including Dr. Van Ligten. He also testified that the x-rays showed no fracture and no subluxation. He testified that he had never seen a hairline fracture of the cervical spine and that it would be extremely difficult to identify. In addition, the radiographic report of the x-rays taken on May 4, 1989, was admitted into evidence and did not indicate a fracture, but, instead, states: "The vertebral body heights appeared to be well maintained without evidence to suggest fracture or subluxation." Accordingly, there is evidence to support the trial court's finding to the effect that any presumption or inference that might arise from the x-rays having been misplaced, lost, or destroyed, has been rebutted by evidence that the original x-rays did not reveal a fracture or subluxation. The first assignment of error is not well-taken. (Emphasis added). In the instant case, there is also ample evidence from the testimony of the defendant pathologists and medical records that the original biopsy slides revealed the cancerous condition. However, the instruction requested by plaintiff herein made no allowance for the possibility that the loss of the missing slides may have been without defendants' fault or attributable to - 17 - inadvertence, mistake or the other plausible explanations offered by the defense, and was, therefore, an incomplete and inaccurate statement of the law, which the court was under no obligation to submit. See Henderson v. Spring Run Allotment (1994), 99 Ohio App.3d 633, 638: We do not agree with the Unkefers' contention that their proposed instruction would have provided the jury with the complete law. The trial court specifically instructed the jury that "the owners of all properties involved in the easement cannot modify or change the location without the consent or acquiescence of the other party or parties who have rights in the property." The Unkefers' proposed instruction provided that "[o]ne who changes, moves, or relocates pipes under a pipeline easement is also liable for damages." It is clear that the Unkefers' proposed instruction states the same principle of law communicated by the trial court. Thus, it was within the court's discretion to use its own language to instruct the jury on that legal principle. Likewise, it was within the court's discretion to refuse to add the Unkefers' instruction because that instruction would have been redundant. Finally, the Unkefers' proposed instruction does not even constitute a correct statement of the law. A party who changes, moves, or relocates pipes under a pipeline easement is liable only if the party does not have consent. The Unkefers' instruction does not include the consent limitation and, thus, does not correctly state the law. As a result, its addition to the court's instructions would have been misleading and would have served only to confuse the jury as to the issues in the case. See State v. Williams (1991), 75 Ohio App.3d 102, 116-117, 598 N.E.2d 1250, 1259-1260. We also find that the trial court was justified in rejecting the adverse inference instruction because there was no evidence to - 18 - establish that the defendants were guilty of any wrongdoing or misconduct by intentionally disposing of the slides. In fact, the jury specifically found in their answers to Interrogatory Nos. 10- 18 that there was no intentional destruction of the slides to deprive the plaintiff of favorable evidence. Cases from sister jurisdictions support the prevailing rule that the adverse inference jury instruction does not lie in the absence of wrongful conduct. Gilbert v. Cosco, Inc. (C.A.10, 1993), 989 F.2d 399, 405-06; Evans v. Robbins (C.A.8, 1990), 897 F.2d 233, 239; Spesco v. General Electric Co. (C.A.7, 1983), 719 F.2d 233, 239; Gumbs v. International Harvester, Inc. (C.A.3, 1983), 718 F.2d 88, 96; Allen Pen Co. v. Springfield Photo Mount Co. (C.A.1, 1981), 653 F.2d 17, 23-24; Brewer v. Dowling (Tex. App. 1993), 862 S.W.2d 156, 160; Battocchi v. Washington Hosp. Center (D.C.App. 1990), 581 A.2d 759, 767. In Sullivan v. General Motors Corp. (N.D. Ohio, 1991), 772 F.Supp. 358, the court carefully analyzed all the reported Ohio authorities on the subject, and refused to give the adverse inference instruction because the evidence did not present a "strong showing of malfeasance - or at least gross neglect." Id. at 364. Nor was there such a such showing here. "Where the loss or destruction of evidence is not intentional or reckless, by contrast, some courts give the trial court discretion to admit or exclude testimony relating to the missing evidence and discretion to give or withhold a 'missing - 19 - evidence' instruction." Jones on Evidence 13.12, pp. 492-93 (7th Ed. 1994). We are satisfied that the trial court gave an adequate general instruction on inferences which gave the plaintiff's counsel the leeway he needed to argue the negative inferences from the missing slides, while, at the same time, properly instructing the jury. This was within the trial court's prerogatives. As stated in Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 690-91: The trial court need not give a proposed instruction in the precise language requested by its proponent, even if it properly states an applicable rule of law. The court retains discretion to use its own language to communicate the same legal principles. State v. Scott (1987), 41 Ohio App.3d 313, 535 N.E.2d 379, paragraph three of syllabus; Cleveland v. Frank (Mar. 1, 1990), Cuyahoga App. No. 56426, unreported, at 7, 9, 1990 WL 19321. Where a special instruction given by the court correctly states the law pertinent to one or more issues of the case, the giving of it does not constitute error, even though it is not a full and comprehensive statement of the law. Lackner v. Burns (1946), 175 Ohio St. 469, 26 O.O.2d 85, 196 N.E.2d 447, paragraph one of the syllabus; Deckant v. Cleveland (1951), 155 Ohio St. 498, 44. O.O. 448, 99 N.E.2d 609, paragraph one of the syllabus. Additionally, the existence of a proposed jury instruction which correctly states the issues or law in question does not mandate that the court use the proposed jury instruction verbatim. The court need only include the substance of the proposed instruction. Echols v. Vernick (June 11, 1987), Cuyahoga App. No. 52101, unreported, at 3, 1987 WL 12603; Jenkins v. Clark (1982), 7 Ohio App.3d 93, 7 OBR 124, 454 N.E.2d 541, paragraph five of the syllabus. Moreover, it is within the sound discretion of a trial court to refuse to admit proposed jury instructions which are either redundant or immaterial to the case. Bostic v. Connor (1988), 37 Ohio St.3d - 20 - 144, 524 N.E.2d 881, paragraph two of the syllabus. Echols, supra, at 2, citing Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 176, 51 O.O.2d 232, 237, 258 N.E.2d 597, 604. Thus, this court will not reverse unless an instruction is so prejudicial that it may induce an erroneous verdict. See Wilson v. Dixon (Mar. 29, 1990), Cuyahoga App. No. 56788, unreported, at 4, 1990 WL 37398. The rationale set forth in Youssef has been repeatedly upheld by this Court. Felden v. Ashland Chem. Co., Inc. (1993), 91 Ohio App.3d 48, 66; Reese v. Euclid Cleaning Contractors, Inc. (April 13, 1995), Cuyahoga App. No. 67467, unreported; Woyma v. Begovic (July 14, 1994), Cuyahoga App. No. 64985, unreported. Consistent with Youssef, the trial court gave Ohio's standard permissive inference instruction which allowed plaintiff to argue all the adverse inferences she wished from the missing slide evidence: You are permitted to make any logical and immediate inferences from the facts which you find have been established. An inference is a reasonable deduction of fact which logically follows from other facts established by the evidence, which you may but are not required to make. However, you may not build one inference upon another inference. You may, however, make more than one inference from the same established facts or circumstances. (Tr. 1465-66). This was drawn from OJI 5.10 and was proper. Under this instruction, the jury was permitted, but not required, to infer that the missing biopsy slides were unfavorable, i.e., did not show cancer. Plaintiff's requested instruction was consistent with the standard charge given and would have permitted, - 21 - but not required, the jury to infer that the missing evidence was unfavorable. The court's general charge allowed the same inferences to be drawn and, in fact, they were repeatedly referenced in plaintiff's summation. (Tr. 1349-51, 1358-59, 1372- 73, 1440, 1447-48). On the other hand, the specific adverse inference charge rejected by the court could well be considered redundant and argumentative in unduly emphasizing the missing slide evidence. That appears to be the very reason the plaintiff insisted on it: "The proposed instruction in contrast to the standard instruction, directs the jury's attention to the precise issue, and alerts it that a specific inference may be made." (Pltf's. Reply Brf. at 6). The wisdom of that argument is countered by Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 272: It is apparent that the trial court appropriately determined that the special instructions requested by counsel for Astorhurst would unduly emphasize and draw the jury's attention to the factors suggested within such instructions. For the court to instruct on such specific items might have unduly emphasized those elements at the expense of other evidence presented to the jury. The defense offered evidence that it was not an uncommon occurrence for pathology slides to be misplaced or lost without indication of foul play. This was explained because in teaching hospitals (which St. Luke's was) residents and doctors may pick up slides for review and analysis and not return them. (Tr. 1221- 22). Plaintiff's own witnesses testified that doctors use the - 22 - slides for conferences and in conjunction with teaching programs. (Tr. 476-77). The slides are also taken out of the hospital by the patients themselves when a second opinion is sought. (Tr. 988). Thus, there was evidence of what may have happened to the slides, but no evidence of malfeasance. The plaintiff took full advantage of the missing evidence throughout the trial and in final argument, eliminating any prejudice from the failure to charge. "Additionally, we underscore the fact that the trial court gave counsel the opportunity to argue the major points of his proposed instructions so no resulting prejudice to [plaintiff] occurred even if it could be concluded that the court erred in not giving the requested instruction." Astorhurst Land Co., supra, 18 Ohio St.3d at 273. The jury made findings in its answers to Interrogatory Nos. 4 and 7, that the services rendered by the defendant pathologists (presumably including the care and custody of the slides) were not below the accepted standard of care. It is presumed the jurors weighed and evaluated the conflicting testimony and inferences concerning the loss of the slides. Had plaintiff's requested instruction been given, we cannot say that the jury's determination and the outcome of this case would have been different, i.e., favorable to the plaintiff. "Thus, this court will not reverse unless an [excluded] instruction is so prejudicial that it may induce an erroneous verdict." Youseff at 691. - 23 - There is another independent reason supporting the trial court's discretion in excluding the adverse inference instruction in the context of this case. The plaintiff pressed and the court submitted to the jury the plaintiff's separate claim of intentional spoliation of evidence. (Tr. 1497). Although we do not find the plaintiff's evidence sufficient to meet the stringent requirements of such a cause of action under Smith v. Howard Johnson Co. (1993), 67 Ohio St.3d 28, the adverse inference instruction was squarely aimed at the missing slides. Its submission would have supplied a significant "tilt" in favor of plaintiff on the dubious spoliation claim. The jury may well have found that the adverse inference instruction permitted them to find "willful destruction of evidence by defendant designed to disrupt the plaintiff's case" as required by Howard Johnson, supra. At a minimum, "the jury would have been misled and confused," Youseff at 692, by the contradictory instructions. Under all the circumstances, we find no error in the court's exclusion of the proffered adverse inference instruction. Plaintiff's first assignment of error is overruled. II. THE TRIAL COURT ERRED IN PERMITTING THE USE AT TRIAL OF PHOTOGRAPHS OF PATHOLOGY SLIDES NOT TAKEN BY DEFENDANTS' EXPERT UNTIL AFTER HIS DISCOVERY DEPOSITION AND NOT IDENTIFIED UNTIL THE FIRST DAY OF TRIAL. Plaintiff argues that the use of demonstrative photographs of pathology slides resulted in "trial by ambush" in violation of Civ. R. 26(E)(1). (Pltf's. Brf. 29-30). Plaintiff implies that Dr. - 24 - Tahan premised his testimony and expert opinions on these photographs. (Pltf's Brf. 29; Tr. 443-448, 1141-1158). However, review of Dr. Tahan's trial testimony reveals that the basis of his opinion that slide 1 VV contained cancer was his microscopic review of the slide, not the photographs. He merely used the photographic "blow-ups" to illustrate pathologic features to the jury which are difficult to describe without visual aids or pictures. At trial, Dr. Tahan gave the following explanation concerning the limited purpose for which he reproduced photographs of the relevant diagnostic pathology slides: Q. Doctor, did you recreate photographs from some of the relevant pathology slides in this case? A. I did. And the purpose of dong so, I want to make clear to everyone in the court, that when we use terms in pathology, you know, words are difficult to describe, and we made the decision that it was easier to point out features and to show it, in a way, as a tool to educate those who don't normally look at slides. So we took slides that illustrate certain points about the pathology. (Tr. 1198). Plaintiff's counsel was not ambushed or surprised by Dr. Tahan's opinions because they remained consistent throughout the entire course of the proceedings, i.e., plaintiff's pneumonectomy specimen slide (I-VV) showed adenocarcinoma. This opinion was revealed in his expert report provided to plaintiff on or about September 1, 1994. His discovery deposition taken by plaintiff's counsel on October 18, 1994 disclosed the same opinion. His trial - 25 - testimony was consistent with his discovery deposition testimony on that score. The case of Sulenski v. General Motors Corp. (Jan. 20, 1988), Mahoning App. No. 86 A-146, unreported, does not support the plaintiff's argument. In Sulenski, plaintiff only learned at trial that the defense expert was going to rely on a videotaped experiment to support his opinions. That is a far cry from the instant case where plaintiff had access in discovery to the very slides on which Dr. Tahan relied. Showing the jury photographs of the pathology slides allowed them to view the pathologic features of the slides without each juror looking through a microscope, an impractical exercise. Under Evid. R. 403 and 611(A), the admission of photographic evidence is left to the sound discretion of the trial court. State v. Maur (1984), 15 Ohio St.3d 239, 265; Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 685; Corea v. Toys "R" Us (Dec. 16, 1993), Cuyahoga App. No. 63073, unreported. Since the slides themselves were admitted into evidence, the photographs were admissible as demonstrative evidence to explain and present Dr. Tahan's findings. Brofford v. Marshall (C.A.6, 1985), 751 F.2d 845, 857; Schulze v. Harold G. Foss, M.D. (Dec. 17, 1991), Shelby App. No. 17-91-7, unreported. The admission of expert testimony including demonstrative evidence is a matter within the discretion of the trial court and a decision concerning its admissibility will not be reversed on - 26 - appeal absent an abuse of discretion. Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 44; Tritt v. Judd's Moving and Storage, Inc. (1990), 62 Ohio App.3d 206, 218. In Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, the Ohio Supreme Court defined an abuse of discretion in the following manner: [A]n abuse of discretion involves far more than a difference in *** opinion ***. The term discretion itself involves the idea of choice, of an exercise of will, of a determination made between competing considerations. In order to have an "abuse" in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. The determination of whether testimony results in a surprise at trial is a matter also left to the sound discretion of the trial court. Pang v. Minch (1990), 53 Ohio St.3d 186, 194. In the absence of surprise, there is no abuse of discretion. See, e.g., Brewer v. Sky Climber, Inc. (June 14, 1984), Montgomery App. No. 8071, unreported at 17; Bruce v. Gentry (Aug. 5, 1991), Butler App. No. 89-10-147, unreported at 5. Fiorin v. Whiston (1993), 92 Ohio App.3d 419, 424; Long v. Isokov (1989), 58 Ohio App.3d 46, 51; Morris v. Morris (July 16, 1992), Cuyahoga App. No. 60828, unreported. This Court has also found that when a complaining party knows the identity of the other party's expert, the subject of his expertise and the general nature of his testimony, a party - 27 - cannot complain that they are ambushed. Kalina v. Sagen (March 25, 1992), Cuyahoga App. No. 59761, unreported at 14-16. Pursuant to Civ. R. 26(E)(1) and Loc. R. 21.1(C), a party is required to identify expert witnesses expected to be called at trial and the subject matter of their testimony. In this case, both the identity of Dr. Tahan and the subject matter of his testimony were well known to plaintiff in advance of trial. Therefore, defendants were in full compliance with Civ. R. 26(E) and no violations of the rule occurred. We are reluctant to invade the trial court's prerogatives in this case. "Blow-ups" (photographic enlargements) are commonly used today to make it easier for the jury to visualize critical evidence. These demonstrative aids are a favorable development we do not wish to discourage so long as there is no unfair surprise. Here the plaintiff's counsel had access to the identical slides in preparation of the case. The doctor's opinion was not changed in any way by such enlargements. We see no reason to interfere with the trial court's exercise of discretion in this matter or the use of demonstrative photographs of the pathology slides. Plaintiff's Assignment of Error II is overruled. III. THE JURY'S FINDING THAT ST. LUKE'S WAS NOT LIABLE UNDER THE THEORY OF AGENCY BY ESTOPPEL WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error is based on the vicarious liability that would be visited on St. Luke's if the defendant physicians - 28 - were found to have been liable for malpractice or intentional spoliation of evidence in plaintiff's claims against them. Since we have found no error affecting the jury's determination that said physicians were not liable, there is no reason to consider this assignment of error, which is moot. App. R. 12(A)(1)(c). There is likewise no reason to address the defendant pathologists' cross- assignment of error. Judgment affirmed. - 29 - It is ordered that appellees recover of appellant its 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 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. HARPER, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .