COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69049 OSCAR LUKE, A Minor, Etc. : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION THE CLEVELAND CLINIC FOUNDATION : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 28, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-259092 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: CHRISTIAN R. PATNO Landskroner & Phillips Co., L.P.A. 55 Public Square, Suite 1040 Cleveland, Ohio 44113 EUGENE P. OKEY 337 Third Street, N.W. Canton, Ohio 44702 For Defendant-Appellee: CLIFFORD C. MASCH GARY H. GOLDWASSER Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Logan and Sherry Luke, on behalf of their minor child Oscar Luke, appeal the decision of the trial court, entered pursuant to a jury verdict, finding for the Cleveland Clinic Foundation on claims for malpractice. In April, 1990, Oscar Luke presented to the Cleveland Clinic with obstructive sleep apnea and morbid obesity. On June 6, 1990, to correct the sleep apnea, surgeons at the Clinic removed his tonsils, adenoids, and a portion of his palate and created a permanent tracheostomy site, inserting a tube to facilitate breathing. On June 14, 1990, the Clinic discharged Luke and he returned home. On June 25, 1990 while at home, Oscar Luke stopped breathing, went into cardiopulmonary arrest, and suffered severe brain damage. On October 1, 1993 Logan and Sherry Luke, individually and on behalf of their minor child Oscar Luke, filed suit against the Cleveland Clinic claiming negligence in connection with his care. During discovery, plaintiffs disclosed an intention to present Oscar during their case-in-chief to demonstrate his disabilities and the damages he suffered. In response, prior to trial, the Clinic filed a motion to compel the presence of Oscar Luke during voir dire to determine potential bias of the venire members. The trial court granted the Clinic's motion two days - 3 - after its filing and transferred the case to a visiting judge for trial. Three days before trial, the Lukes dismissed all parties except the Clinic and filed a motion in limine to preclude the Clinic from eliciting expert testimony from fact witnesses. The visiting judge initially decided to reserve ruling on this motion upon learning Dr. Tucker, a treating physician who had not submitted an expert report, had been a named defendant and deposed, but had been dismissed prior to trial. The court later overruled the objection and permitted Dr. Tucker's testimony on direct examination. At trial and prior to commencement of voir dire, the Lukes objected to their son's presence. The trial court overruled this objection, enforced the original order, and specifically ordered that no explanation be given for the child's presence in the courtroom. Thus, in the presence of Oscar Luke the parties conducted voir dire and posed questions to potential jurors regarding sympathy, bias, and prejudice. The trial proceeded on the merits and after both sides rested, the visiting judge granted the Clinic's motion for directed verdict against Logan and Sherry Luke, individually, on their claims for medical expenses and the loss of their son's care, affection, and services, based upon the statute of limitations. After deliberation on Oscar Luke's claim of negligence, the jury returned a verdict in favor of the Cleveland - 4 - Clinic. The Lukes now appeal on behalf of Oscar and assign three errors for our review. The first assignment of error states: THE TRIAL COURT ERRED IN PERMITTING OSCAR LUKE TO BE PRESENT IN THE COURT ROOM DURING VOIR DIRE EXAMINATION BECAUSE IT WAS CONTRARY TO LAW AND HIGHLY PREJUDICIAL TO PLAINTIFFS. The Lukes contend the trial court abused its discretion in compelling Oscar Luke's presence in the courtroom during voir dire because such an order is unprecedented in Ohio, is not supported by law, and contravenes public policy. The Lukes further contend that they were not afforded an opportunity to respond to the Clinic's motion. The Lukes also contend the presiding trial court abused its discretion in failing to correct the original court order and in failing to instruct the jury why Oscar Luke was in the courtroom. The Clinic argues that the trial court properly exercised its discretion because it had a justifiable basis to order Oscar's presence at voir dire and it had no requirement to make an explanation to potential jurors. The Clinic further argues that although the Lukes did not have an opportunity to file a written objection to the Clinic's motion, they were not thereby prejudiced. The issue then for our resolution is whether the trial court abused its discretion in ordering Oscar Luke's presence in the courtroom. - 5 - As the Ohio Supreme Court explained in State v. Bedford (1988), 39 Ohio St.3d 122,129, "The scope of voir dire is within the trial court's discretion and varies depending on the circumstances of each case." Because the scope of the voir dire is essentially a matter of discretion, the trial court's actions may be reversed only if that discretion is abused. Richley v. Bowling (1972), 34 Ohio App.2d 200; Krupp v. Poor (1970), 24 Ohio St.2d 123. The Ohio Supreme Court stated in Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58 Ohio St.3d 147 at 152: Abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. (Citations omitted.) A reviewing court may not substitute its judgment for that of the trial court absent an abuse of discretion. (Citations omitted.) Whether a trial court may compel the attendance of an institutionalized party during voir dire appears to be a matter of first impression in Ohio. However, one Illinois case raises similar voir dire issues. In Roberts v. Sisters of St. Francis Health Servs. (1990), 198 Ill. App.3d 891, 556 N.E.2d 662, the Illinois Court of Appeals reviewed the decision of a trial court permitting the use of a film during voir dire depicting "a day in the life" of a severely retarded plaintiff. The trial court, then, excused several potential jurors who admitted bias after viewing the film. - 6 - In affirming the trial court's decision, the reviewing court explained that the use of such films permits better understanding of the extent of injuries suffered, but also is likely to arouse sympathy for the injured plaintiff. Therefore, the court concluded that because parties have a right to examine potential jurors for bias and prejudice: it seems only fair that defendants should be allowed to make prospective jurors aware of the condition or injury which may be graphically exposed to them during trial. This affords them a meaningful opportunity "to probe an important area of potential bias and prejudice" during voir dire. Gasiorowski v. Homer (1977), 47 Ill. App.3d 989, 991, 365 N.E.2d 43. Id. at 900, 668. The circumstances in this case transcend those in Roberts v. Sisters of St. Francis Health Servs., supra. Physical courtroom presence of a severely brain-damaged child innately arouses feelings of compassion and sympathy which carry a high potential to influence the verdict of jurors. For this reason, the trial court, in the exercise of its discretion, has wide latitude in controlling courtroom procedures not only to permit litigants to adequately present their respective cases, but also to insure that jurors decide the case based on the evidence and the law and not on emotion. Given the circumstances which confronted this trial judge where the Lukes intended to transport the child to court in order to demonstrate his physical and mental condition to the jury during the case-in-chief, and the alternative of giving both - 7 - parties an opportunity to examine potential jurors about their ability to be fair in the presence of Oscar, we cannot conclude that the court's decision to follow this latter course of action evidenced an unreasonable or unconscionable attitude on the part of the court. Nor can we conclude that the court acted against public policy considerations especially in view of the appellants' stated intention to present Oscar during their case-in-chief. Next, we consider the procedural irregularities involved in the trial court's order. In considering this issue, we are mindful that Civ. R. 61 defines harmless error and provides that the court "at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." Thus, an appellate court will not reverse a judgment on the basis of harmless error. Knor v. Parking Co. of Am. (1991), 73 Ohio App.3d 177. In this case, the trial court granted the Clinic's motion to compel within two days of its being filed, thereby denying the Lukes the general seven-day period in which to file a written response. Nonetheless, at trial, the Lukes were afforded an opportunity to orally respond to the motion to compel; thus, they have preserved their position for purposes of appellate review but failed to demonstrate how this affected their substantial rights. Accordingly, this procedural irregularity is not a basis for reversal of the judgment. - 8 - Finally, we consider the trial court's failure to instruct the jury regarding the reason for Oscar Luke's presence in the courtroom during voir dire. The Lukes have not cited, nor have we found any authority which would require a trial court to explain to the jury why a party is present in the courtroom. This is a matter best left to the discretion of the trial judge who is in the best position to assess the demeanor of the parties and take appropriate action. The record reveals that during the course of voir dire, counsel for both parties referred to Oscar Luke's condition and requested that the jury not let sympathy interfere with their determination of the case. We cannot conclude that the court's failure to formally explain Oscar Luke's presence constitutes an abuse of discretion or created prejudice to the Lukes. Based on the foregoing analysis, therefore, the trial court did not abuse its discretion in compelling Oscar Luke's presence during voir dire, and the first assignment of error is overruled. The second assignment of error states: THE TRIAL COURT ERRED IN ALLOWING APPELLEE'S FACT WITNESS DR. TUCKER TO TESTIFY AS AN EXPERT WITNESS. The Lukes argue the trial court erred in allowing Dr. Tucker to testify as an expert because he filed no expert report prior to trial and the court did not make a determination as to whether the physician's records satisfied Loc. R. 21.1 where no such - 9 - report had been filed. The Lukes argue that permitting this testimony amounted to an ambush at trial. The Cleveland Clinic, on the other hand, argues that the trial court properly exercised its discretion in allowing Dr. Tucker to testify because the Lukes named him a defendant in the case, reviewed his medical records, and deposed him before dismissing him only three days before trial. The issue then for our determination is whether or not the trial court erred in permitting Dr. Tucker to present expert testimony. Loc. R. 21.1 states in relevant part: (A) Each counsel shall exchange with all other counsel written reports of medical and expert witnesses expected to testify in advance of the trial. * * * (B) A party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. * * * However, unless good cause is shown, all supplemental reports must be supplied no later than thirty (30) days prior to trial. The report of an expert must reflect his opinions as to each issue on which the expert will testify. An expert will not be permitted to testify or provide opinions on issues not raised in his report. (C) * * * In the event the expert witness is a treating physician, the Court shall have the discretion to determine whether the hospital and/or office records of that physician's treatment which have been produced satisfy the requirements of a written report. The Court shall have the power to exclude testimony of the expert if good cause is not demonstrated. This rule grants the trial court discretion to determine the admissibility of expert testimony by a treating physician, and we - 10 - will not reverse that determination absent an abuse of discretion. Savage v. Correlated Health Serv., Ltd. (1992), 64 Ohio St.3d 42; Pang v. Minch (1990), 53 Ohio St.3d 186; Downs v. Quallich (1993), 90 Ohio App.3d 799. At the beginning of trial in this case, the Lukes requested that the court exclude any expert testimony from witnesses who had not filed an expert report before trial. Although initially stating that witnesses not submitting reports would not be permitted to state opinions, upon learning Dr. Tucker had treated the child, had been a named defendant until three days before trial when the Lukes voluntarily dismissed him, had provided medical records to the Lukes, and had been deposed by the Lukes, the trial court decided to reserve ruling on the issue. The court later overruled the Lukes' objection to Dr. Tucker's testimony. In this case, Dr. Tucker intended to testify at trial. Because the Lukes dismissed him three days before trial, he could no longer testify as a party, and could not comply with the requirements of Loc. R. 21.1. Under these circumstances where the Lukes contributed to the witness's disability and where the Lukes had an earlier opportunity to depose the witness, the trial court did not abuse its discretion in permitting the testimony. Thus, the second assignment of error is overruled. The third assignment of error states: - 11 - THE TRIAL COURT ERRED IN PERMITTING IRRELEVANT, PREJUDICIAL, AND HIGHLY INFLAMMATORY TESTIMONY REGARDING OSCAR LUKE'S OBESITY AND DIET. The Lukes contend the trial court erred in permitting cross- examination regarding Oscar Luke's diet and obesity because it was irrelevant and highly prejudicial. They further contend that even if the evidence is relevant, it constituted a defense and should have been allowed only after they had finished their case. The Cleveland Clinic contends the evidence was relevant to rebut the charge that Cleveland Clinic had been negligent in supervising Oscar Luke's diet and to test the credibility of Oscar Luke's mother and grandmother. Furthermore, the Cleveland Clinic contends that even if the court erred in admitting the evidence, the admission amounts to harmless error. The issue, then, for our consideration is whether the trial court erred in permitting testimony regarding Oscar Luke's diet and obesity. Evid. R. 401 defines relevant evidence: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. All relevant evidence is generally admissible under Evid. R. 402. Therefore, unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice it will be admitted. See Evid. R. 403. - 12 - Furthermore, control over the interrogation of witnesses is within the sound discretion of the trial court. Stinson v. England (1994), 69 Ohio St.3d 451. "Generally, the order in which evidence shall be produced on the trial of an action lies within the sound discretion of the court, and unless such discretion is patently abused, no reversible error occurs." Cities Service Oil Co. v. Burkett (1964), 176 Ohio St. 449, paragraph two of the syllabus. In this case, the Cleveland Clinic deposed plaintiffs' expert Dr. Abramson before trial. During that deposition, Dr. Abramson testified that the Clinic acted negligently in its care of Oscar Luke. Among other things, Abramson concluded that Oscar Luke needed weight reduction and metabolic treatment in addition to surgical treatment, and he further stated that had such care been given by the Clinic, the child would not be in his present condition. Thus, at trial when appellants' counsel told the jury in opening statement that Dr. Abramson would testify, the Cleveland Clinic properly anticipated his testimony would support the allegation that the Clinic had failed to properly treat Oscar's obesity. Since appellants' expert made the treatment of obesity an issue of negligence and counsel told the jury that Dr. Abramson would testify at trial, the Clinic's cross-examination of Oscar Luke's family members regarding his diet and obesity, became relevant to that issue. The Lukes' subsequent decision not to present Dr. Abramson as a witness cannot now make that cross-examination the basis of reversible error, since the flaw - 13 - is contained within appellants' own trial strategy. Accordingly, the trial court did not abuse its discretion in permitting the testimony, and the third assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellee(s) recover of appellant(s) 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 Common Pleas Court 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. SWEENEY, P.J., KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- .