COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70347 DARRYN OLIVER, et al : [Appeal by Darryn Oliver] : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION METROHEALTH MEDICAL CENTER : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 12, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 274,896 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: MICHAEL SHAFRAN Attorney at Law Michael Shafran & Associates 113 St. Clair Building, #375 Cleveland, Ohio 44114 For defendant-appellee: GARY H. GOLDWASSER CHRISTINE S. REID BRIAN D. SULLIVAN Attorneys at Law Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114-1273 TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant Darryn Oliver appeals the decision of the court below denying his motions for mistrial and judgment notwith- standing the verdict after a jury returned a verdict in favor of the defendant-appellee, MetroHealth Medical Center. For the reasons adduced below, we affirm the trial court's decisions. This action was brought by Luanna Ballard against MetroHealth Medical Center on behalf of herself and the plaintiff-appellant Oliver, her minor son, as his mother and natural guardian. The complaint alleged that MetroHealth Medical Center failed to pro- vide appropriate medical care to both Luanna Ballard and her son, Darryn Oliver, during Oliver's delivery on November 6, 1984. The within matter proceeded to jury trial on February 22, 1996. Plaintiff Luanna Ballard's claim was dismissed with preju- dice during trial. On February 26, 1996, the jury returned a verdict in favor of MetroHealth Medical Center. On February 27, 1996, plaintiff moved the trial court for a mistrial and judgment notwithstanding the verdict. The lower court overruled the motions on March 4, 1996. Final judgment was entered for MetroHealth Medical Center on March 4, 1996. This timely appeal ensued. Appellant presents four assignments of error for our review. - 3 - I. THE TRIAL COURT ERRED IN ALLOWING THE ADMIS- SION OF EXPERT TESTIMONY OF DEFENDANT APPEL- LEE'S EXPERT WITNESS DR. STUART EDELBERG (SIC) IN VIOLATION OF THE LOCAL RULES OF SUPERINTENDENCE 21.1(B).(SIC) Appellant complains that the trial court erred in allowing Dr. Stuart Edelburg's testimony as expert witness for MetroHealth Medical Center. Specifically, appellant contends that MetroHealth failed to file Dr. Edelburg's expert report at least thirty days before trial pursuant Loc.R. 21.1 of the Cuyahoga County Court of Common Pleas. Appellant further contends that Dr. Edelburg's testimony at trial was highly prejudicial and took the appellant by surprise, violating the spirit and intent of Loc.R.21.1. A review of the deposition transcript indicates that Dr. Edelburg was the attending physician in this matter. The doctor testified as to the applicable standard of care at the time of appellant's birth in 1984. His testimony indicated that the failure to use continuous fetal heart monitoring would be a breach of that standard of care with respect to a high-risk patient. Counsel for the appellant was told during deposition that Dr. Edelburg would testify live at trial and would be asked his opin- ions on all issues raised by appellant's expert, Dr. Nathanson, during the course of his discovery deposition. Counsel was free to inquire of Dr. Edelburg regarding his expert opinions. Upon questioning regarding his expert opinion, Dr. Edelburg opined that - 4 - this patient, based upon the medical record, was not a high-risk patient mandating monitoring. Counsel for the appellant requested a report from the doctor, and one was provided on February 2, 1996. Appellant bases this claimed error on Loc.R. 21.1(B), which states in pertinent part: (B) A party may not call an expert witness to testify unless a written report has been pro- cured from the witness and provided to oppos- ing counsel. *** [U]nless good cause is shown, all supplemental reports must be sup- plied no later than thirty (30) days prior to trial. *** An expert will not be permitted to testify or provide opinions on issues not raised in his report. (C) All experts must submit reports. *** 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 requirement of a written report. The rule grants the trial court discretion to determine the admissibility of expert testimony by a treating physician, and we will not reverse that determination absent an abuse of discre- 1 tion. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is 2 unreasonable, arbitrary or unconscionable." 1 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; Luke v. Cleveland Clinic Foundation (Mar. 28, 1996), Cuyahoga App. No. 69049, unreported. 2 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. - 5 - The record reflects that: (1) Dr. Edelburg was the attending physician, wholly analogous to a "treating physician," under whose supervision resident physicians worked; (2) the medical records were produced during discovery; (3) Dr. Edelburg was deposed January 26, 1996; (4) appellant's counsel was apprised that Dr. Edelburg would testify at trial as to his opinions; (5) appel- lant's counsel was afforded the opportunity to prepare for his cross-examination; (6) on January 23, 1996, appellant's counsel was informed by letter of Dr. Edelburg's opinion testimony; and (7) an informal report was prepared by Dr. Edelburg for the appellant on February 2, 1996. Given these facts as evidenced in the record, appellant can claim no element of surprise at the testimony complained of here. We do not see that the trial court abused its discretion by per- mitting Dr. Edelburg to testify as to his opinions. Accordingly, the appellant's first assignment of error is overruled. II. THE TRIAL COURT ERRED IN EXCLUDING PLAINTIFF APPELLANT'S CROSS-EXAMINATION TESTIMONY OF TREATING PHYSICIAN NAOMI WAHL UNDER THE OHIO RULES OF EVIDENCE RULE 403 AND COMMITTED ERROR - 6 - AND ABUSED THE DISCRETION IN SUSTAINING OBJECTIONS OF DEFENDANT APPELLEE. Appellant contends that he was deprived of his right to impair the credibility of the treating physician, Dr. Naomi Wahl. Appellant further contends that the exclusion of this evidence was highly prejudicial and constituted error. Specifically, the appellant complains that he was prevented from presenting certain probative and relevant testimony during his cross-examination of treating physician Naomi Wahl that would show bias, unfamiliarity with the case and causation due to the trial court's error in sustaining the objections of appellee's counsel to three specific questions posed. The first question of appellant's counsel to which the court sustained the appellee's objection was: Q. You are a defendant in this case--actu- ally you worked for the defendant in this case; is that true? The court struck this question but permitted Dr. Wahl to respond to the reworded question of appellant's counsel: Q. You are an employee of the defendant in this case, were you not? A. I was a resident at Cleveland Metropoli- tan General Hospital at the time this case occurred. We believe that from the response elicited, counsel for the appellant was able to obtain the information that he sought re- garding Dr. Wahl's potential bias as an employee of the defendant. - 7 - The second question that the appellant complains he was pre- vented from asking was: Q. You have no recollection; without a recollection you can't have an opinion? The court struck the question but permitted Dr. Wahl to re- spond to the reworded question of appellant's counsel: Q. My question is whether or not--you do not have memory of this case, how did you formulate your opinion, what records did you rely upon? A. The records that I received that include [Ms. Ballard's] prenatal records, her records of her admission, the operative note, the anesthesia record, the nursing notes, and her postpartum course. We believe from this response that counsel was able to obtain the information that he sought concerning Dr. Wahl's familiarity with the case and how she formulated her opinion. The third question to which the trial court sustained objec- tion was: Q. My question to you is with all the fac- tors considered in this record, was there a potential for asphyxial brain damage? It would appear from the court-edited transcript of the video deposition transcript that only the objection to the question was struck. The record before us reflects that the court permitted both this question and the answer to this question to remain: A. I think any time there is a delivery, there is a chance for asphyxial damage. I think that when a baby has meconium, although this is somewhat still a con- - 8 - troversial area, most people feel that at least some of these babies may have asphyxia; although some of these patients you can never find any specific reason why the meconium is there. We believe from this response that counsel for appellant was able to elicit the information that he sought concerning the cau- sation of asphyxia. This court reviews claimed errors in the exclusion of evi- dence according to the standard announced in Civ.R. 61, which provides in part: No error in either the admission or the ex- clusion of evidence and no error or defect in any ruling or order or in anything done or admitted by the court or by any of the parties is ground for *** disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with sub- stantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not effect the substantial rights of the parties. A harmless error is one which does not affect the parties' substantial rights, and an appellate court will not reverse a 3 judgment on the basis of any error that is harmless. A review of the transcript of the video deposition testimony indicates that although the trial court sustained the objections to the questions at issue here, the relevant responses that appel- lant's counsel sought to elicit were obtained during the deposi- tion through the responses to reworded questions further posed by counsel for the appellant. Thus, we do not see the trial court's 3 Knor v. Parking Co. of Am. (1991), 73 Ohio App.3d 177. - 9 - ruling as a defect in the proceeding that affected the appellant's substantial right. Accordingly, the appellant's second assignment of error is overruled. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRE- TION IN DENYING PLAINTIFF APPELLANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT PUR- SUANT TO OHIO CIVIL RULE OF PROCEDURE 50(B). Appellant contends that the trial court abused its discretion by denying his post-trial motion for a judgment notwithstanding the verdict pursuant to Civ.R. 50(B). Specifically, appellant argues that the verdict was against the manifest weight of the evidence. The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be 4 applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and where there is substantial evidence to support his or her side of the case upon which reasonable minds may reach different conclusions, the motion must be denied. Furthermore, the weight to be given the evidence 5 and witness credibility are primarily for the factfinder. 4 Shore, Shirley & Co. v. Kelley (1988) 40 Ohio App.3d 10. 5 Shore Shirley & Co. v. Kelly, supra; Osler v. Lorain (1986), 28 Ohio St.3d 345, 347; Chambliss v. Kennedy (Feb. 29, 1996), Cuyahoga App. No. 68779, unreported. - 10 - The record before us reflects that sufficient evidence existed to show that the medical care and treatment provided for the appellant's birth was reasonable and acceptable. MetroHealth Medical Center presented expert medical testimony of Dr. Garth Essig to support its position that the care and treatment provided to appellant Oliver and his mother complied with the reasonable and acceptable standards of care. The testimony of the treating physicians supported MetroHealth Medical Center's position that the care provided by MetroHealth during the appellant's birth met the applicable standards of care in 1984. We conclude that, when construing the evidence most strongly in favor of MetroHealth Medical Center, there is substantial evidence to support its side of the case upon which reasonable minds could reach different conclusions; therefore, the trial court properly denied the appellant's motion for a judgment not- withstanding the verdict. Accordingly, the appellant's third assignment of error is overruled. IV. THE TRIAL COURT ERRED IN ORDERING JUDGMENT OF THE DEFENDANT APPELLEE ON A GENERAL VERDICT WHERE TWO JURORS ABSTAINED FROM VOTING OUT OF A PANEL OF 8, PURSUANT TO OHIO CIVIL RULES OF PROCEDURE 48. Appellant complains that the jury verdict was defective in form pursuant to Civ.R. 48. Specifically, appellant contends that - 11 - the parties here chose to have a jury of eight members but that only six members of the jury voted, rendering the verdict suspect. Civ.R. 38(B) states in pertinent part: In all other civil actions the jury shall be composed of eight members unless the demand specifies a lesser number. Civ.R. 48 states: In all civil actions, a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of the jurors concurring therein. All jurors shall then return to court where the judge shall cause the verdict to be read and inquiry made to determine if the verdict is that of three- fourths or more of the jurors. *** If three- fourths or more of the jurors answer affirmatively, the verdict is complete and the jury shall be discharged from the case ***. The record reflects that eight jurors were empaneled to hear the testimony in the matter sub judice. Those eight jurors were properly charged by the trial court and deliberated upon the evidence. During the course of the deliberations, the jury pres- ented a question to the court which read as follows, "Do all the jurors have to vote in the event that a majority has already been decided?". The court responded in writing, "Answer: The law requires that at least six out of eight jurors agree on a verdict, and the same six jurors sign the interrogatories." The verdict, was therefore properly rendered upon the concurrence of three- fourths or more of their number, here six jurors, and was in writing and signed by each of the jurors, concurring therein as required by the rule. Consistent with the rule's mandate, the - 12 - court asked the jurors whether their verdict was that of three- fourths of their number. Six jurors indicated their verdict by raising their hands. We do not see the verdict here as suspect. Three-fourths of the jurors number concurred in the verdict. Had the two abstain- ing jurors voted, they may also have voted to join the majority. Had they both disagreed with the majority and voted for the appel- lant, the verdict would remain unchanged. The proper procedures were followed; the proper safeguards were in place. The verdict was rendered by a proper number of jurors. Accordingly, the appellant's fourth assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellee 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 Cuyahoga 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. PATRICIA BLACKMON, P.J. and ANN DYKE, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .