COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69603 NICHOLAS J. VIGNAL, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION CLEVELAND CLINIC FOUNDATION : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 26, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 246323 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANT-APPELLEE: Stewart Mandel, Esq. Irene C. Keyse-Walker, Esq. Donald Weisberger, Esq. George M. Moscarino, Esq. 75 Public Square Bldg. Susan R. Massey, Esq. Suite 650 Arter & Hadden Cleveland, Ohio 44113-2001 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 -2- HARPER, P. J.: Plaintiffs-appellants, Nicholas and Sharon Vignal ("Mr. Vignal" and "Mrs. Vignal"), appeal from an unanimous jury verdict rendered in favor of defendant-appellee, Cleveland Clinic Foundation ("the Clinic"), in an action to recover damages. During a surgical procedure, a physician inadvertently perforated Mr. Vignal's intestine. Mr. Vignal's complaint asserted that the Clinic failed to obtain his informed consent prior to the procedure. Mrs. Vignal asserted loss of services, companionship and consortium of Mr. Vignal as a direct result of the Clinic's conduct. A review of the record compels affirmance. Mr. Vignal was being treated by his endocrinologist, Dr. Sheeler, for elevated cholesterol. Mr. Vignal was prescribed medication, which had an adverse effect upon his liver. Dr. Sheeler referred Mr. Vignal to Dr. Carey, a gastroenter- ologist at the Clinic. Dr. Carey had an initial consultation with Mr. and Mrs. Vignal on September 18, 1991. Dr. Carey referred Mr. Vignal to Dr. Catalano, a gastroenterologist and a "Visiting Fellow" at the Clinic, who performed an endoscopy procedure and diagnostic testing which included a "CAT" scan. Subsequently, Dr. Carey met with Mr. Vignal to discuss the results, the possible factors causing Mr. Vignal's ongoing liver problems, and an appropriate treatment plan. Dr. Carey theorized that stones could be in Mr. Vignal's common bile duct and the presence of the stones would cause Mr. Vignal's abnormally high -3- liver count. Dr. Carey recommended that Mr. Vignal undergo an endoscopic retrograde cholangio pancreatography ("ERCP") procedure. Dr. Carey recommended the ERCP procedure because of its diagnostic and therapeutic capabilities. After Mr. Vignal declined to undergo the ERCP procedure, Dr. Carey recommended additional laboratory work and scheduled a follow up visit. On January 6, 1992, Mr. Vignal returned to Dr. Carey's office for an office consultation. Dr. Carey recommended that Mr. Vignal undergo the ERCP procedure given the nature of Mr. Vignal's on going liver problems. Mr. Vignal agreed to have the ERCP procedure. Mr. Vignal then met with Dr. Catalano to discuss the ERCP procedure. During the consultation with Mr. Vignal, Dr. Catalano set forth the factors necessitating the ERCP procedure: (1) the results of the CAT scan; and (2) symptoms consistent with obstruction of the common bile duct, caused by the stones. Dr. Catalano explained the dual-components of the ERCP procedure. The first procedure is the diagnostic procedure which involves viewing the area to determine the cause of the obstruction. If the diagnostic procedure reveals that a stone is causing the obstruction in the bile duct, then the physician proceeds to the second component of the ERCP procedure which is the therapeutic procedure. The therapeutic "sphincterotomy procedure," involves a physician making a small incision in order to remove the stone causing the obstruction in the common bile duct. Next, Dr. Catalano informed Mr. Vignal of the medical risks associated with -4- the ERCP procedure such as pancreatis, perforation, and bleeding. After Dr. Catalano explained the benefits of the ERCP procedure, Mr. Vignal agreed to go forward with it. Mr. Vignal and Dr. Catalano also discussed the type of anesthetic that would be used. Vignal was informed that morphine would not be used because it causes spasms thus adding further risks in using the ERCP procedure. Therefore fentanyl would be the anesthetic used. Dr. Catalano informed Mr. Vignal that Dr. Ferguson, a gastroenter- ologist at the Clinic, would perform the procedure. Mr. Vignal's ERCP procedure was scheduled for January 23, 1992. On January 23, 1992, Mr. Vignal spoke with Dr. Catalano and Dr. Ferguson prior to the ERCP procedure. Mr. Vignal was informed that he would not be anesthetized with morphine. During the first phase of the ERCP procedure, Dr. Ferguson confirmed the presence of stones in Mr. Vignal's bile duct. Dr. Ferguson determined that the stones could not pass through the bile duct given the diameter of the stones. Therefore, Dr. Ferguson proceeded to remove the stones via the sphincterotomy. During the sphincterotomy procedure, Mr. Vignal was becoming increasingly restless and agitated. Mr. Vignal motioned Dr. Ferguson to stop the procedure and Dr. Ferguson complied with his request. After the ERCP procedure, it was determined that Dr. Ferguson inadvertently perforated Mr. Vignal's intestine. The perforation led to an infection requiring Mr. Vignal to remain hospitalized. Mr. Vignal filed a complaint in Cuyahoga County Common Pleas Court. Mr. Vignal asserted that he was neither informed of the -5- risks of the ERCP procedure nor that Dr. Ferguson would perform the surgery. Mr. Vignal also complained that the Clinic failed to obtain his informed consent prior to Dr. Ferguson's performing the sphincterotomy procedure. The Clinic answered and filed a counterclaim for unpaid medical expenses. The Clinic's counterclaim was voluntarily dismissed before trial. Discovery ensued and depositions from Mr. and Mrs. Vignal and the treating physicians were filed with the court. The Clinic filed a motion in the trial court for summary judgment which was denied. Mr. Vignal moved for leave to file a motion for partial summary judgment on the issue of liability only; it too was denied. In addition, Mr. Vignal's motion in limine was denied by the trial court. At a pre-trial conference, Mr. Vignal informed the court that the case was that of "informed consent" and that he would not have an expert. The trial court informed Mr. Vignal that expert evidence may be presented thorough cross- examination of defendant's doctor. On July 19, 1995, after an eight-day jury trial, the jury returned a unanimous verdict in favor of the Clinic. On August 2, 1995, Mr. Vignal filed post-trial motions requesting judgment notwithstanding the verdict as to liability only or a new trial. The Clinic filed a brief in opposition to Mr. Vignal's post-trial motions. In addition, the Clinic filed a motion to strike documents attached to Mr. Vignal's motion for new trial and judgment not withstanding the verdict as to liability only. The trial court granted the clinic's motion to strike and held a -6- hearing on Mr. Vignal's motion for judgment notwithstanding the verdict and new trial. The trial court denied the motion. Mr. Vignal timely appeals and assigns the following four assignments of error for this court to review. I. THE TRIAL COURT ERRED PREJUDICIALLY BY REFUSING TO ALLOW PLAINTIFFS TO PROCEED AT TRIAL ON THEIR CLAIM OF BATTERY AND TO INSTRUCT THE JURY ON THE CLAIM OF BATTERY WHERE THOSE ERRORS WERE INVITED BY DEFENDANT WHO HAD WAIVED IN ITS ANSWER THE DEFENSE OF SEPARATELY STATING AND NUMBERING EACH COUNT AND WHERE THERE WAS AMPLE CONTROVERTED EVIDENCE THAT THE DEFENDANT DOCTORS PERFORMED AN UNANTICIPATED CUTTING OF THE PLAINTIFF'S SPHINCTER MUSCLE OF HIS BILE DUCT DURING A DIAGNOSTIC ERCP. II. THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING PLAINTIFFS' MOTION FOR PARTIAL JUDGMENT ON LIABILITY ONLY, NOTWITHSTANDING THE VERDICT, AND/OR GRANTING PLAINTIFFS' MOTION FOR A NEW TRIAL ON THE ISSUE OF DAMAGES, ON THE BASIS THAT DEFENDANT IS LIABLE FOR ITS FAILURE TO OBTAIN FROM PLAINTIFF STATUTORILY REQUIRED WRITTEN INFORMED CONSENT TO PERFORM SURGERY UPON HIM. III. THE TRIAL COURT ERRED PREJUDICIALLY IN NOT ALLOWING PLAINTIFFS TO FIRST READ DR. CATALANO'S DEPOSITION TAKEN ON CROSS- EXAMINATION TO THE JURY AS PART OF PLAINTIFFS CASE IN CHIEF BEFORE ALLOWING DEFENDANT DR. CATALANO TO TESTIFY ON DIRECT EXAMINATION BY DEFENDANT'S COUNSEL OUT OF ORDER DURING PLAINTIFFS CASE IN CHIEF. IV. THE TRIAL COURT ERRED PREJUDICIALLY IN STRIKING SEPARATE COPYRIGHTED, INFORMED CONSENT DOCUMENTS FROM UNIVERSITY HOSPITALS AT OHIO STATE UNIVERSITY FROM PLAINTIFFS MOTION FOR NEW TRIAL. Mr. Vignal asserts in his first assignment of error that he was prejudiced by the trial court's ruling which prevented him from proceeding to trial on the claim of battery. Mr. Vignal -7- specifically argues that the facts of this case necessitated him to proceed on a battery claim for two reasons. First, he did not provide informed consent prior to Dr. Ferguson's performing the sphincterotomy. Second, the sphincterotomy is a "substantially separate" procedure from the ERCP procedure. Under this factual scenario, Mr. Vignal's lack of informed consent to the sphincterotomy constitute a cognizable claim of battery. We note that Mr. Vignal moved to amend his complaint to encompass two alternate theories of recovery: battery and lack of informed consent. The trial court denied Mr. Vignal's claim subject to revisitation. A battery is committed when a person unlawfully strikes another or touches another. Green v. Durgold (1950), 60 Ohio Law Abs. In a medical setting, when a physician treats a patient without his consent, the doctor has committed a battery. Leach v. Shapiro (1984), 13 Ohio App.3d 393. In contrast, a physician's acts are lawful when the patient expressly consents prior to medical treatment. Leach, supra, at 395. To establish the tort of lack of informed consent, a party must show the following factors: (1) an unrevealed risk which should have been made known; (2) the unrevealed risk must be harmful to the patient; (3) the disclosure of the significant risks incidental to the treatment could have resulted in the patient's decision against the treatment. Nickall v. Ginzalez (19850, 17 Ohio St.3d 136. -8- The extent to which a physician must disclose a risk and when that risk is material, will require expert evidence concerning what a reasonable person would disclose. Turner v. Children's Hospital, Inc. (1991), 76 Ohio App.3d 547, 548. Civ.R. 15(B), which allows for an amendment to the pleading so that it conforms to the evidence offered at trial, states in pertinent part: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all aspects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. The decision to grant or deny a Civ.R. 15(B) motion to amend pleadings to conform to the evidence is within the sound discretion of the trial court. Such discretion will not be disturbed in the absence of abuse of discretion by the trial court. Northfield Park Associates v. North East Ohio Harness (1987), 36 Ohio App.3d 14. Where the movant fails to present operative facts in support of new allegations, a court does not abuse its discretion in denying a motion to amend. Edmundson v. Steelman (1992), 82 Ohio App.3d 455. There must be a prima facie showing that the movant can support the -9- new matters sought to be pleaded, that the amendment will not cause prejudice to the nonmoving party and that the amendment is not merely to delay the proceedings. Edmundson, at 456. Abuse of discretion implies an attitude by the trial court that is unreasonable, arbitrary or unconscionable. The Supreme Court has defined "unreasonable" as having "no sound reasoning process that would support that decision." AAAA Enterprises, Inc. v. River Place Community Urban Dev. Corp. (1990), 10 Ohio St.3d 157, 161. In this case, Mr. Vignal moved to amend the complaint to include the tort of battery. The trial court heard arguments concerning Mr. Vignal's motion to amend the complaint. The following conversation took place between the trial court and counsel: THE COURT: Are you asking the Court to amend the pleadings to conform to the evidence? Are you asking the Court to consider a jury instruction on the issue of battery, as well as on the issue of informed consent? MR. WEISBERGER: We have a jury instruction on battery, your honor, that we would be pleased to present to you at this time. THE COURT: *** I'm looking for authority to support the first sentence of the third paragraph, Mr. Weisberger, that says, "when a doctor obtains consent to perform an operation, but proceeds to perform additional procedures to which the patient has not consented, the doctor has committed a battery. MR. WEISBERGER: Well, -- THE COURT: Do any of the cases that you cite specifically address that issue? MR. WEISBERGER: I can't answer that question. I know what some of the law is. Of course, if a doctor's doing a surgical procedure and the patient's unconscious, he has no need to get an informed consent. THE COURT: There is no duty to. -10- MR. WEISBERGER: And if it's an emergency procedure, then it's probably as necessary to save the person's life, but this was an elective procedure, your honor. THE COURT: Yes. MR. WEISBERGER: And I think that makes a big, big difference here. And so I guess what my motion is, is for the Court to rule on the efficacy of our jury instruction or give us leave in order for me to give you the case law, and I can brief the issue on that particular subject, because I know there is law on the question you asked. I'm just not ready to respond on that particular issue with the cases. THE COURT: Okay. Thanks, Mr. Weisberger. Mr. Moscarino. MR. MOSCARINO: Your Honor, in order to respond, I think it's proper that I just put the case into context ***. This is an informed consent case. At the beginning of this case, there was a question as to whether or not it would proceed as a medical malpractice case. *** When you look at that Court file, you will see an entry in there, on a postcard entry, where Plaintiffs' counsel states this is an informed consent case; therefore, he will not have an expert. Also, that entry says I have leave of Court to get an expert for a certain period. This has always been an informed consent case, up until this morning. Just to put it also in context, yesterday you used my trial brief, the first paragraph, where I just, in an innocuous fashion, said, "This is a case where they are seeking to recover damages for informed consent," so you could tell the jury what the case was about. You forewarned Mr. Weisberger and Mr. Mandel that you were going to do that. No one objected. The whole -11- jury selection process yesterday was revolved around informed consent and not battery. Number two, what happened was, this morning, for the first time, we learned, Mr. Weisberger told you that he wants to split this case into two separate causes of action, because the evidence is clear that Mr. Vignal, the Plaintiff, consented to the procedure. Mr. Weisberger admitted in chambers, and Mr. Vignal, in his deposition, on numerous occasions, has admitted that he consented to the ERCP. It's one procedure. They want to make it two. But what he wants you to do, and what he told you in chambers about this morning, is, he agrees that the ERCP was consented to, he agreed in chambers that he needs an expert for that cause of action, as informed consent, but he wants to split this, on the sphincterotomy therapeutic portion of the same procedure, into a battery cause of action and, therefore, is now either doing one of two things, asking you to decide now, I think prematurely, on a jury instruction on battery or to conform somehow his pleadings and amend it to battery. My response is that it's improper ***. Number one, it is only one procedure; number two, you cannot split the causes of action, both factually and legally. The unanimous medical evidence, keeping in mind they do not have an expert, is that this is one procedure. It's one of the many procedures in medicine that has a capability of both being diagnostic and therapeutic. This is a case where if you find something, you do it. *** THE COURT: Well, they do make reference to battery in their brief in opposition to your motion for summary judgment, but curiously, there's simply a reference to a battery, but the brief is basically grounded on the law of Ware, which I think, Mr. Moscarino, you indicated you agreed with in chambers yesterday, that Ware precluded summary judgment on the basis of the failure to obtain an expert. *** -12- Okay. Well, the motion is, if you will, primarily, at this point in time, it seems to me, premature. There has been no evidence adduced in the case thus far. In the event that the attending physicians and other witnesses indicate that there is a distinction with a difference between the procedure as it is normally done, for purely diagnostic purposes, and the procedure as it was done in this case, for diagnostic and therapeutic purposes, that evidence would lead both the Court and the trier of fact, it seems to me, to believe that there has been a lack of informed consent and a battery. If the evidence, on the other hand, indicates that the therapeutic use of the ERCP is a usual and customary aspect of the procedure, and that what may have occurred here, as claimed, is a failure to obtain informed consent from the Plaintiff with regard to the therapeutic aspect of the procedure, that would suggest a true merger of the claimed battery into the law of informed consent. It is impossible for the Court at this point in time, without having heard any evidence on this question, to rule on the issue of jury instruction. *** Mr. Weisberger, you look very puzzled. MR. WEISBERGER: Well, I just wanted to object to the Court's ruling. THE COURT: Of course. Of course. Your objection is noted. ***. (Tr. 13-24). The trial court did not expressly deny Mr. Vignal's motion to amend his complaint. A motion not ruled on is presumed denied. Mancino v. Lakewood (1987), 36 Ohio App.3d 219. The trial court did not abuse its discretion when it denied Mr. Vignal's motion to amend his complaint to include the tort of battery because Mr. Vignal failed to assert operative facts, i.e., a physician treating him without his consent to support an -13- allegation of battery. Mr. Vignal failed to make a prima facie showing that he could support, with facts, an allegation of battery. Mr. Vignal also charges that the trial court improperly ruled on his proffered jury instruction. In Marshall v. Gibson (1985), 19 Ohio St.3d 10, the court observed that "[a] charge to the jury should be a plain and distinct and unambiguous statement of the law that is applicable to the case before the jury by the proof adduced." Id. at 12. The Marshall Court further observed that, "[a] jury is entitled to require from the Court such instructions in possession of the issuable facts in controversy as provided it by the pleadings and evidence. Id., at 12. A requested jury instruction should be given if it states the applicable law and reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrolton Mfg. Co. (1991), 61 Ohio St.3d 585; Jeanne v. Hawks Hospital of Mt. Carmel (1991), 74 Ohio App.3d 246, 253. It is within the trial court's discretion to refuse proposed jury instructions that are irrelevant to the case. Bostic v. Connors (1988), 37 Ohio St.3d 144, paragraph two of the syllabus. We find that the trial court did not err when it refused to proffer Mr. Vignal's proposed jury instruction for a claim of battery. The proposed jury instruction for battery would have been inapplicable to the facts of this case, as the evidence did not support a battery claim. Mr. Vignal consented to the ERCP procedure. There was no expert testimony to support his theory that -14- the ERCP performed on him constituted two separate and distinct procedures versus a single procedure. Based on the evidence, a reasonable minds could not have reached the conclusion that Dr. Ferguson's performing a sphincter- otomy a battery. Therefore, Mr. Vignal's assignment of error is not well- taken. In the second assignment of error, Mr. Vignal argues the trial court improvidently denied his motion for partial judgment notwith- standing the verdict for liability or a new trial. Mr. Vignal complains that the issue of liability was incorrectly determined by the jury. He maintains that the Clinic failed to obtain written informed consent prior to the ERCP and that he is entitled to judgment notwithstanding the verdict or a new trial. Mr. Vignal cites R.C. 2317.54 to support his contention that the clinic was required to obtain his informed consent in writing. R.C. 2317.54 pertains to a patient's informed consent to a surgical or medical procedure, it reads in pertinent part: No hospital, home health agency, or provider of a hospice care program shall be held liable for a physician's failure to obtain an informed consent from his patient prior to a surgical or medical procedure or course of procedures, unless the physician is an employee of the hospital, home health agency, or provider of a hospice care program. Written consent to a surgical or medical procedure or course of procedures shall, to the extent that it fulfills all the requirements in divisions (A), (B), and (C) of this section, be presumed to be valid and effective, in the absence of proof by a preponderance of the evidence that the person who sought such consent was not acting in good faith, or that the execution of the -15- consent was induced by fraudulent misrepresentation of material facts, or that the person executing the consent was not able to communicate effectively in spoken and written English or any other language in which the consent is written. Except as herein provided, no evidence shall be admissible to impeach, modify, or limit the authorization for performance of the procedure or procedures set forth in such written consent. *** Any use of a consent form that fulfills the requirements stated in divisions (A), (B), and (C) of this section has no effect on the common law rights and liabilities, including the right of a physician to obtain the oral or implied consent of a patient to a medical procedure, that may exist as between physicians and patients on July 28, 1975. The language of R.C. 2317.54 clearly does not require that a health care provider obtain informed consent in writing. Bedel v. Univ. OB/GYN Assoc. Inc. (1991), 76 Ohio App.3d 742; Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App.3d 181. Mr. Vignal also cites R.C. 2317.56 to support his contention that the Clinic was required by law to obtain his written informal consent. Mr. Vignal maintains that 2317.54, which permits health care providers to obtain informed consent orally, "was repealed by implication by R.C. 2317.56". R.C. 2317.56 requires physicians to provide certain information to women seeking abortions. Pursuant to R.C. 2317.56, a pregnant woman is to sign a consent form certifying that she has received information about the abortion procedure. Upon review of R.C. 2317.56, we find that it does not address informed consent in non-abortion cases. Therefore, Mr. Vignal's reliance on it is misplaced. -16- Given the foregoing, Mr. Vignal's contention is not well taken. The trial court thus did not err when it denied Mr. Vignal's motion for judgment notwithstanding the verdict as to liability only. Mr. Vignal also asserts that the trial court erred when it did not grant his motion for a new trial on the ground that the jury's verdict was not sustained by the weight of the evidence. A trial court has broad discretion in determining whether a jury verdict is against the manifest weight of the evidence. Oster v. Lorain (1986), 21 Ohio St.3d 102. See, also, Verban v. Pennese (1982), 7 Ohio App.3d 102. Granting a motion for a new trial rests on the sound discretion of the trial court; that court's ruling will not be disturbed on appellate review unless there is an abuse of discretion. In a motion for a new trial, the court is confined to the matters raised by the evidence. A judgment supported by some competent, credible evidence enjoys a presumption of correctness. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus; Seasons Coal v. Cleveland (1984), 10 Ohio St.3d 77, 80. Mr. Vignal failed to carry the burden of proving to the jury by a preponderance of the evidence that the Clinic failed to obtain his informed consent prior to undergoing the ERCP procedure, based upon the clinic's policy which requires physicians to obtain informed consent prior to a medical or surgical procedure. In this case, the physicians complied with the clinic's policy. Based upon the unrebutted evidence, the jury concluded that Mr. -17- Vignal had been informed by the Clinic physicians of the medical risks and benefits associated with the ERCP procedure. C.E. Morris Co. Accordingly, Mr. Vignal's assignment of error is overruled. In the third assignment of error, Mr. Vignal contends the trial court erred in not permitting him to read Dr. Catalano's discovery deposition to the jury before Dr. Catalano testified on direct examination. The utilization of a deposition in court proceedings is governed by Civ.R. 32. Evid.R. 611 relates to the trial court's exercising reasonable control over the presentation of evidence. Evid.R. 611. The court shall exercise reasonable control over the mode and order of interrogating witness and presenting evidence as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. A trial judge has broad discretion under Evid.R. 611(A) to control the interrogation of witnesses and "[a] reviewing court, may not substitute its judgment for that of the trial court absent an abuse of discretion. Sowers v. Middleton Hosp. (1993), 89 Ohio App.3d 572, 588. Assessing a trial judge's exercise of discretion in the presentation of depositions at trial, requires a review of the "salient facts *** to conserve a proper application of Civ.R. 32." Wilson v. LTV Steel Co., Inc. (June 11, 1992), Cuyahoga App. Nos. 59515 and 59955, unreported. -18- Upon a review of the record, this court believes that the trial court did not abuse its discretion. Dr. Catalano was waiting outside the courtroom during trial. The court reasoned that it would be "improper and confusing for the jury to have a witness be presented by way of discovery deposition and then to have the witness appear as a live witness, subject to cross- examination again. Potentially, on the very same issues that he has already been cross-examined on." Dr. Catalano testified live during Mr. Vignal's case in chief, and he was subjected to cross- examination. Mr. Vignal has failed to provide pertinent and applicable case law to support his contention that the trial court abused its discretion when it did not permit Mr. Vignal to read Dr. Catalano's discovery deposition to the jury at the time Dr. Catalano was standing outside the courtroom ready to testify. Moreover, Mr. Vignal has failed to demonstrate how he was prejudiced as a result of the trial court's ruling. Accordingly, Mr. Vignal's assignment of error is overruled. In the fourth assignment of error, Mr. Vignal complains that the trial court erred prejudicially in striking the attached copyrighted documents from University Hospital of Ohio State University from his motion for judgment notwithstanding a verdict for a new trial. In this instance, the Clinic maintains that the trial court's ruling was proper given the fact that the documents were not properly authenticated, never proffered to the court, and never offered to the jury. -19- An abuse of discretion standard of review applies to trial court rulings on the admissability of evidence. Peers v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296. In this case, Mr. Vignal conceded that the documents were not evidence in the case but rather evidence submitted to provide a "documentative perspective" on the ERCP procedure. Mr. Vignal does not claim that the documents were newly discovered evidence, which would entitle him to a new trial. Accordingly, the trial court did not abuse its discretion when it granted the Clinic's motion to strike the three documents from Mr. Vignal's motion for judgment notwithstanding the verdict or new trial. Therefore, Mr. Vignal's assignment of error is overruled. Judgment affirmed. -20- It is ordered that appellee recover of appellants 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 Cuyahoga County 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. ANN DYKE, J., AND TERRENCE O'DONNELL, J., CONCUR PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .