COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71195 GEORGE A. PAUL, EXECUTOR OF THE : ESTATE OF VERNON T. PAUL, : DECEASED : : Plaintiff-appellant : : -vs- JOURNAL ENTRY : AND METROHEALTH ST. LUKE'S MEDICAL : OPINION CENTER, ET AL. : : Defendant-appellee : : DATE DECISION ANNOUNCED : OCTOBER 22, 1998 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 262636. JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE METRO- HEALTH ST.LUKE'S MEDICAL CENTER: Michael V. Kelley, Esq. Gary A. Goldwasser, Esq. John A. Sivinski, Esq. Brian D. Sullivan, Esq. Anthony Gallucci, Esq. Reminger & Reminger Co., L.P.A. Climaco, Climaco, Seminatore The 113th St. St. Clair Bldg. Lefkowitz & Garofoli Co., L.P.A. Cleveland, Ohio 44114 9th Floor, The Halle Bldg. 1228 Euclid Avenue FOR DEFENDANT APPELLEE DR. Cleveland, Ohio 44115 BRODKEY: Thomas J. Kaiser, Esq. Gallagher, Sharp, Fulton & Norman 1501 Euclid Avenue, 7th Floor Cleveland, Ohio 44115 KENNETH A. ROCCO, J.: In this wrongful death action based upon medical malpractice, plaintiff-appellant George A. Paul, Executor of the Estate of -2- Vernon T. Paul, deceased, appeals from the trial court orders that first granted the motion for summary judgment of defendant-appellee Metrohealth St. Luke's Medical Center ( St. Luke's ), thus dis- missing it from the action, and then denied appellant's later motion for reconsideration of that order. Appellant also appeals from a subsequent jury verdict in favor of the remaining defendant- appellee, Dr. Jerald S. Brodkey. Appellee argues the trial court permitted Dr. Brodkey to exclude potential jurors on a racial basis, allowed inadmissible testimony during trial, and gave an improper instruction to the jury during closing argument. This court has reviewed the record, finds the trial court's actions were appropriate, and therefore affirms the judgments against appellant. I. The record reflects that in November 1990, the decedent, a forty-seven-year-old recovering alcoholic, was diagnosed with inoperable adenocarcinomaof the left lung. He was treated for the condition by Dr. Spain, an oncologist with privileges at St. Luke's. Over the course of Dr. Spain's treatment, Dr. Spain surgically drained a plueral effusion of the decedent's lung.1 Dr. Spain also prescribed an aggressive 2 course of chemotherapy. The chemother- 1One of Dr. Brodkey's expert witnesses, Dr. Peter Sherer, described this condition as blood hemorrhaging into the space around the lung. 2Quotes in this portion of the opinion indicate either testimony given by a witness at trial or the wording of a trial court judgment entry. -3- apy, along with the damage done to the decedent's liver by hi earlier alcoholism, together with the decedent's pulmonary hyper- tension, all had the effect of suppressing the decedent's blood clotting mechanism in his body. In September 1991, a CT scan of the decedent was taken; no abnormalities were revealed in his brain, but the size of the tumor in his lung had increased. Osn December 9, 1991, the decedent went to St. Luke's Oncology Department for his chemotherapy treatment, where he was seen by Dr. Spain. The decedent complained of severe throbbing headaches with slight blurring of his vision over the past week; he further related that two days previously, after standing suddenly, he had fallen and had struck the frontal region of his head on a table. Upon examination, the decedent's left eyelid was drooping, but the pupil of his eye was normal.3 No other neurological deficits were observable. Dr. Spain ordered a CT scan of the decedent's head. It re- vealed a moderately large subdural hematoma4 in the left fronto- parietal portion of the decedent's brain. Dr. Spain admitted the decedent to St. Luke's and endeavored to obtain a neurological consult with another doctor. After attempts to locate one neurosurgeon proved fruitless, Dr. Spain eventually contacted Dr. Brodkey, who agreed to see the 3Dr. Brodkey's expert witness, Dr. Flynn, later opined this symptom was indicative of the increased pressure of the lung tumor against a nerve in the decedent's chest. 4A subdural hematoma is a mass of blood exuded from a blood vessel collected in the area between the brain and the outer membrane which envelopes it. -4- decedent. Dr. Brodkey thereupon immediately proceeded to St. Luke's, arriving at approximately 5:00 p.m. Dr. Brodkey spoke with Dr. Spain regarding the decedent's medical history, reviewed the decedent's admission records and CT scan, and examined the decedent. Thereafter, Dr. Brodkey ordered the following medications for the decedent: Decadron, an anti-inflammatory drug to reduce tissue swelling; Dilantin, a drug used to inhibit seizure activity in the brain; and Vitamin K, a drug to foster clotting of blood platelets. Dr. Brodkey also ordered a series of tests to determine the decedent's bleeding parameters. Dr. Brodkey determined the decedent's brain tumor condition was chronic; i.e., it had been developing over time. He scheduled the decedent for surgery the following morning. Finally, Dr. Brodkey wrote instructions regard- ing the monitoring of decedent's medical progress for St. Luke's personnel before leaving the hospital to return to the social engagement from which he had been called by Dr. Spain. At 10:00 p.m., Dr. Brodkey telephoned St. Luke's to check on the decedent's condition, which was unchanged. At approximately 1:30 a.m. on December 10, 1991, however, the nurses monitoring the decedent found him lying in an odd position in his bed; he was incontinent of urine and confused. They summoned the resident, who diagnosed that the decedent had had a seizure. The decedent was given more Dilantin; thereafter, his mental status seemed improved. The resident confirmed the order for treatment with Dr. Spain. Dr. Brodkey was not notified of the episode. -5- At approximately 3:45 a.m., the decedent had a second seizure. This time, the seizure was accompanied by bloody vomiting and irre- gular breathing. The decedent's pupils were fixed and dilated. The resident called for the cardiopulmonary resuscitation team, administered oxygen, fluids and additional medications, and contacted Dr. Spain. Dr. Spain instructed the resident to transfer the patient to the intensive care unit and to contact Dr. Brodkey. Upon becoming aware of the decedent's condition, Dr. Brodkey ordered him transferred to the surgical unit and immediately proceeded to St. Luke's. At approximately 5:00 a.m., Dr. Brodkey performed a bur hole evacuation of the decedent's subdural hematoma; however, postoperatively, the decedent remained unrespon- sive and ventilatory dependent. An evaluation of his brain activ- ity and physical responses indicated he was brain dead. The decedent was disconnected from the ventilator on December 12, 1991 at approximately 1:00 p.m. and was pronounced dead soon thereafter. Subsequently, in June 1993, appellant filed this action for wrongful death based upon medical malpractice against St. Luke's, Dr. Spain, and eventually Dr. Brodkey. At a May 1994 pretrial conference, the trial court set a schedule for discovery; appellant was to provide his expert reports to appellees by June 15, 1994. A second pretrial was set for July 12, 1994. Appellant complied with the first discovery order by providing to the defendants a letter dated June 14, 1994 written by Dr. Karl Manders, an Indiana neurosurgeon. In pertinent part, the letter stated as follows: -6- It is my opinion that the delay in performing this evacuation of the subdural hematoma was inappropriate. *** [D]ue to the size of the hematoma evident on the CT scan of Mr. Paul's head, this surgery should have been performed immediately. *** [T]he delay in performing the surgery was unacceptable, based on the considerable size of the hematoma. Therefore, with a reasonable degree of medical certainty, I believe that Mr. Paul's demise could have been prevented with prompt evacuation of the subdural hema- toma. When Mr. Paul began experiencing seizures, immediate attention should have been directed toward completing the surgery earlier than scheduled. Additionally, the performance of a bur hole, to evacuate and drain a hematoma, is a fairly simple procedure, and if it was completed promptly following Mr. Paul's admission, I believe the subsequent seizures, more likely than not, would have been avoided. It is my opinion that Mr. Paul's prognosis of (sic) the immediate performance of surgery would have been favorable, and the surgery would have, more likely than not, treated the hematoma without complication. In summary, I believe with a reasonable degree of medical certainty that the treatment pro- vided to Mr. Paul fell below the accepted standard of care. The performance of the sub- dural hematoma evacuation should not have been delayed, due to the extensive size of the hematoma, and the subsequent development of seizures.With a reasonable degree of medical certainty, the performance of the surgery immediately following Mr. Paul's admission would have prevented his tragic demise. (Emphasis added.) The record reflects that at the July 1994 pretrial, the trial court extended the time for appellant to produce any further expert reports until February 1, 1995. Another pretrial was set for July -7- 1995. However, over the course of the next months, the defendants in the action had difficulties obtaining additional discovery from appellant; hence, the trial court granted several motions to compel and permitted the defendants extensions of time to produce their own experts' reports. On July 14, 1995, Dr. Spain filed a motion for summary judgment. On September 1, 1995, with leave of the trial court, St. Luke's also filed a motion for summary judgment. Both defendants argued that based upon appellant's only expert opinion, there were no genuine issues of material fact as to either of them since Dr. Manders' letter alluded to negligence on neither the part of Dr. Spain nor the hospital; rather, Dr. Manders' focus was on Dr. Brodkey's failure to operate in a timely manner. On September 6, 1995, appellant requested a thirty-day extension of time to respond to the motions. On September 7, 1995, the trial court issued an order granting appellant's requests, directing him to respond by October 2, 1995. On October 2, 1995, appellant filed his brief in opposition to the motion for summary judgment filed by St. Luke's. Attached to the brief was Dr. Manders' affidavit dated September 28, 1995. Therein, Dr. Manders stated in pertinent part as follows: 4. It is my opinion within a reasonable degree of medical probability that the care provided to Vernon Paul by Dr. Jerald Brodkey and Metro Health St. Luke's Medical Center fell below the accepted standards of care. Attached hereto as Exhibit B is a true and accurate copy of my report dated June 14, 1994. -8- 5. Exhibit B accurately states my opinions in this case within a reasonable degree of medi- cal certainty. 6. In addition to the opinions contained in my report, I believe that the failure of Metro Health Medical Center personnel to contact Dr. Brodkey between 1:00 a.m. on December 10, 1991 and approximately 4:10 a.m. on December 10, 1991 (concerning Mr. Paul's seizure activity) fell below the accepted standard of care proximately resulting in the death of Vernon Paul. On October 16, 1995, the trial court granted Dr. Spain's motion for summary judgment.5 That same day, in a separate entry, the trial court also granted St. Luke's motion, stating there was no evidence Dr. Brodkey is an employee of [St. Luke's] *** The expert medical opinion *** is critical of Dr. Brodkey but not critical of any established [St. Luke's] employee or agent ***. Subsequently, on November 3, 1995, the trial court set a trial date of March 18, 1996, a date mutually agreeable with all the parties. On February 20, 1996, appellant filed a motion requesting the trial court to reconsider its order granting summary judgment to St. Luke's. Attached thereto was appellant's previously-filed brief in opposition, together with portions of deposition testimony filed by appellant contemporaneously with his motion. One of the depositions was that of Dr. Manders taken by St. Luke's. Appellant argued since Dr. Manders' September 28, 1995 affidavit and his February 3, 1996 deposition testimony clarified his opinion that 5Appellant does not challenge this decision in the instant appeal; hence, Dr. Spain is no longer a party in this action. -9- St. Luke's employees were negligent in their care and treatment of the decedent, summary judgment for St. Luke's had been granted inappropriately. St. Luke's responded to appellant's motion for reconsidera- tion. Thereafter, on March 7, 1996, the trial court issued a judg- ment entry and opinion denying appellant's motion. The trial court stated as the main basis of its decision that Dr. Manders' affi- davit could not be considered competent evidence pursuant to Civ.R. 56(C) and, furthermore, that all of the additional evidence filed by appellant was untimely pursuant to Civ.R. 56(F). This case thus proceeded against the only remaining defendant, Dr. Brodkey. The record reflects on March 11, 1996, appellant notified the trial court of the witnesses he expected to call at trial. Dr. Manders' name was on the list. Appellant videotaped Dr. Manders' trial testimony the following day. During his testimony on direct examination, Dr. Manders reiterated the opinion he gave via affidavit and during his discovery deposition that St. Luke's personnel should have immediately notified Dr. Brodkey when the decedent's first seizure occurred. On March 15, 1996, the trial date was continued to July 29, 1996. On July 23, 1996, appellant filed two separate motions in limine. Appellant's first motion requested an order preventing any reference to any negligence on the part of [St. Luke's], its nurses, house officers, and/or other employees, whether from Dr. Karl Manders' deposition or otherwise. His second requested the -10- trial court to limit Dr. Brodkey's experts' testimony to the mat- ters contained in their expert reports submitted during discovery. Jury selection commenced on July 29, 1996 and concluded the following day. Prior to opening statements, the trial court ruled on appellant's motions in limine. As to the first motion, Dr. Brodkey was permitted to inquire of Dr. Manders as to his criti- cism of St. Luke's employees so long as the word negligence was not used. Appellant's second motion was denied. During appellant's case-in-chief, the videotaped testimony of Dr. Manders was played for the jury. Appellant also called Dr. Brodkey for cross-examination. Appellant and several of the dece- dent's other relatives also testified. Thereafter, Dr. Brodkey presented his witnesses: Dr. Karl Sherer, an oncologist, and Dr. Thomas Flynn, a neurosurgeon. The jury ultimately returned a unanimous verdict for Dr. Brodkey. In response to an interrogatory, the jury indicated that appellant had not proven that Dr. Brodkey failed to exercise ordinary, reasonable care with regard to his treatment of the decedent. II. Appellant has filed a timely appeal from the foregoing final order of judgment; he presents five assignments of error for review, which will be addressed in logical order rather than seriatim. Thus, appellant's second assignment of error follows: THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT-APPELLEE -11- METROHEALTH ST. LUKE'S MEDICAL CENTER (10/16/95 ORDER). Appellant argues Dr. Manders' affidavit of September 28, 1995 and his deposition testimony were proper evidence pursuant to Civ.R. 56 and also were sufficient to raise a genuine issue of material fact with regard to St. Luke's negligence in its care and treatment of the decedent. Appellant contends, therefore, the trial court improperly granted St. Luke's motion for summary judg- ment and improperly denied appellant's subsequent motion for reconsideration. Appellant's contention is unpersuasive. Civ.R. 56(C) makes summary judgment proper when there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. A party moving for summary judgment bears the initial burden of proving that the materials before the trial court demonstrate no genuine issues of material fact exist for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280. The moving party may do this by showing either a failure of proof or insuffi- cient proof of an essential element of the opposing party's case. Id. Once the moving party's burden is met, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. To sustain a medical malpractice action, a plaintiff is required to produce evidence by expert testimony to demonstrate all of the following: 1) the acceptable medical standard of care; 2) the defendant's breach of that standard; and 3) that plaintiff's -12- injuries were proximately caused by defendant's breach. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127; Hubbard v. Laurelwood Hosp. (1993), 85 Ohio App.3d 607. The evidence of proximate cause must be stated in terms of probability. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367; Stinson v. England (1994), 69 Ohio St.3d 451, paragraph l of the syllabus; cf., Roberts v. Ohio Permanente Med. Group, Inc. (1996), 76 Ohio St.3d 483. This court's review of the lower court's decision on St. Luke's motion for summary judgment is de novo since the propriety of its decision is a question of law. Pa. Lumbermens Ins. Corp. v. Landmark Elec. (1996), 110 Ohio App.3d 732; Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826. Thus, the trial court's order may be affirmed if it reached the correct decision on the evidence properly submitted pursuant to Civ.R. 56. See, e.g., Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150. A trial court's decision in ruling on a motion for reconsideration, moreover, may be overturned only when the trial court has abused its discretion. Robinson v. J.C. Penney Co. (May 20, 1993), Cuyahoga App. Nos. 62389, 63062, unreported. In this case, appellant alleged in his complaint simply that all of the defendants were negligent in their treatment and care of the decedent, which proximately resulted in his death. Dr. Manders' letter of June 4, 1994, however, was specific; he related the decedent's death solely to the failure to operate immediately following Mr. Paul's admission to St. Luke's, which was a decision for which Dr. Brodkey was responsible. He further stated such -13- immediate surgery would have prevented [the decedent's] tragic demise. (Emphasis added.) However, appellant provided no evidence in the report that Dr. Brodkey was an employee of St. Luke's. St. Luke's motion for summary judgment was based upon the language of Dr. Manders' letter. Thus, St. Luke's demonstrated an absence of proof in the record to support appellant's claims that 1) St. Luke's employees had departed from an accepted standard of medical care and 2) their actions were the proximate cause of the decedent's death. In his brief in opposition to St. Luke's motion, appellant conceded Dr. Brodkey was an independent contractor. Appellant's response to St. Luke's argument was to submit Dr. Manders' affi- davit of September 28, 1995. Therein, Dr. Manders stated in his opinion within a reasonable degree of medical probability that St. Luke's failure to notify Dr. Brodkey of ([the decedent's] seizure activity) fell below the accepted standard of care. The trial court granted summary judgment to St. Luke's on the basis that appellant's evidence as to St. Luke's breach of the standard of care was insufficient as a matter of law. Later, in its order denying appellant's motion for reconsideration, the trial court further stated that when ruling on St. Luke's motion for sum- mary judgment, it had determined Dr. Manders' affidavit was not timely. The trial court's determination in the latter regard was inappropriate since the rule specifically permits the opposing -14- party to file affidavits prior to the day of hearing. Civ.R. 56(C); see, also, Higgins v. McDonnell (1995), 105 Ohio App.3d 199; Norwalk v. Cochran (1995), 108 Ohio App.3d 181; Turner v. Turner (1993), 67 Ohio St.3d 337. Moreover, the trial court's initial reason for denying appellant's motion for reconsideration, viz., that Dr. Manders' opinion with regard to St. Luke's breach of the accepted standard of medical care in its treatment of the decedent was not stated to the requisite degree of medical certainty, was also incorrect since there is no such requirement. See, e.g., Dellenbach v. Robinson (1993), 95 Ohio App.3d 358; Morris v. Children's Hospital Medical Ctr. (1991), 73 Ohio App.3d 437. However, although its stated reasons for doing so were thus flawed, the trial court properly granted St. Luke's motion for summary judgment because the competent and timely evidentiary materials filed in the action pursuant to Civ.R. 56 failed to sufficiently demonstrate any of St. Luke's employees' actions were more likely than not the proximate cause of either the decedent's death or any other specific injury to the decedent. In this connection, it must be noted that the evidence submitted in this case and the trial court's rulings thereon occurred prior to the Ohio Supreme Court's decision in Roberts v. Ohio Permanente Med. Group, Inc., supra, which was rendered on August 28, 1996. Thus, issues regarding either any increased risk of harm to the decedent or loss of the decedent's chance of sur- vival were not addressed. -15- This court and other Ohio appellate courts have held Roberts applies retroactively to pending medical malpractice appeals. See, e.g., Dougherty v. Fecsik (1996), 116 Ohio App.3d 456; Gleason v. Zimmerman (Dec. 16, 1996), Belmont App. No. 95-B-4, unreported; Starkey v. St. Rita's Medical Center (1997), 117 Ohio App.3d 164. Therefore, this court has examined the record in its review of this assignment of error mindful of Roberts. Nevertheless, Dr. Manders' affidavit states only that St. Luke's actions proximately result[ed] in the death of Vernon Paul. A review of Dr. Manders' affidavit in conjunction with his earlier letter reveals his opinion on proximate causation as to St. Luke's actions fails to contain any terms of either medical certainty or medical probability as required by both Stinson v. England, supra and Roberts. Furthermore, when read together, the letter and affidavit do not relate St. Luke's actions to anything specific with regard to the decedent's condition. In context, Dr. Manders' letter indi- cates surgery should have been performed immediately upon the decedent's admission to the hospital. Dr. Manders includes no speculations that either the risk of harm to the decedent or the decedent's chance of survival were affected during the delay. Thus, Dr. Manders' mere assertion in his subsequent affidavit as to causation, without further detail, fails to affirmatively demon- strate that but for St. Luke's actions hours after the decedent's admission, either the risk of harm to the decedent was increased or the decedent would have had a chance of recovery. Roberts cannot -16- be read to relieve appellant from this burden. See, e.g., Gleason v. Zimmerman, supra; Starkey v. St. Rita's Medical Center, supra; cf., Dougherty v. Fecsik, supra. St. Luke's drew attention to the lack of sufficient proof to establish a probable causal link between the actions of its employees and resulting harm to the decedent. Appellant's evidence submitted in opposition to St. Luke's motion for summary judgment failed to establish such a link. It was therefore insufficient to raise a genuine issue of material fact. Dellenbach v. Robinson, supra; cf., Turner v. Turner, supra; Roberts, supra. Appellant failed to produce evidence to prove an essential element of his claim; thus, summary judgment for St. Luke's was appropriate. See, e.g., Czerwinski v. St. Luke's Medical Center (July 25, 1996), Cuyahoga App. No. 70032, unreported. Finally, appellant cannot demonstrate the trial court abused its discretion in denying his motion for reconsideration. A peru- sal of its opinion reveals the trial court was obviously concerned with judicial economy. This is a proper consideration at the trial court level. See, e.g., Gallagher v. Cleveland Browns (1996), 74 Ohio St.3d 427. The trial court could properly conclude Dr. Manders' deposition testimony was incompetent for purposes of sum- mary judgment since it was material filed well after the time for responding to St. Luke's motion and was initiated by St. Luke's only for purposes of trial. See, e.g., Hubbard v. Laurelwood Hosp., supra; Robinson v. J.C. Penney Co., supra; Cf., Morris v. Children's Hospital Medical Ctr., supra. -17- For the foregoing reasons, appellant's second assignment of error lacks merit and is, accordingly, overruled. Appellant's first assignment of error states: THE TRIAL COURT ERRED BY ALLOWING DEFENDANT- APPELLEE JERALD BRODKEY, M.D. TO USE THREE PEREMPTORY CHALLENGES OF JURORS BASED UPON RACE. Appellant argues the trial court abused its discretion in ruling Dr. Brodkey had no discriminatory intent when he challenged three potential jurors who were all of African-American descent, asserting the stated reasons for excluding those particular jurors were pretextual. The record does not support his argument. The Ohio Supreme Court has recently addressed a claim such as the one appellant raises, stating the following as the relevant analysis: The United States Supreme Court set forth in Batson [v. Kentucky (1986), 476 U.S. 79] the test to be used in determining whether a peremptory strike is racially motivated. First, a party opposing a peremptory challenge must demonstrate a prima-facie case of racial discrimination in the use of the strike. Id. At 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a prima-facie case, a litigant must show he or she is a member of a cogniza- ble racial group and that the peremptory chal- lenge will remove a member of the litigant's race from the venire. The peremptory- challenge opponent is entitled to rely on the fact that the strike is an inherently dis- criminating device, permitting `those to discriminate who are of a mind to discrimi- nate.' State v. Hernandez (1992), 63 Ohio St.3d 577, 582, 589 N.E.2d 1310, 1313, certio- rari denied (1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d 206. The litigant must then show an inference or inferences of racial discrimination by the striking party. The trial court should consider all relevant cir- cumstances in determining whether a prima- -18- facie case exists, including statements by counsel exercising the peremptory challenge, counsel's questions during voir dire, and whether a pattern of strikes against minority venire members is present. See Batson at 96- 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Assuming a prima-facie case exists the strik- ing party must then articulate a race-neutral explanation related to the particular case to be tried. Id. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of gen- eral good faith will not suffice. However, the explanation need not rise to the level justifying exercise of a challenge for cause. Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.The critical issue is whether discrimina- tory intent is inherent in counsel's explana- tion for use of the strike; intent is present if the explanation is merely a pretext for exclusion on the basis of race. Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395, 408. Last, the trial court must determine whether the party opposing the peremptory strike has proved purposeful discrimination. Purkett v. Elem (1995), 514 U.S. ____, ____ 115 S.Ct. 1769, 1770, 131 L.Ed.2d 834, 839. The criti- cal question, which the trial judge must re- solve, is whether counsel's race-neutral ex- planation should be believed. Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. at 1869, 114 L.Ed.2d at 409. * * * *** [T]he duty of the trial court is to decide whether granting the strike will contaminate jury selection through unconstitutional means. Therefore, in analyzing the trial court's actions here, we must determine whether the trial judge's analysis of the contested peremptory strike was sufficient to preserve a constitutionally permissible jury-selection process. *** Trial judges must exercise considerable care in reviewing a claim of racial discrimi- nation in jury selection. A judge should make clear, on the record, that he or she under- stands and has applied the precise Batson test -19- when racial discrimination has been alleged in opposition to a peremptory challenge. * * * Review of a Batson claim largely hinges on issues of credibility. Accordingly, we ordi- narily defer to the findings of the trial court. See Batson at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn. 21. Whether a party in- tended to racially discriminate in challenging potential jurors is a question of fact, and in the absence of clear error, we will not reverse the trial court's determination. Hernandez v. New York, 500 U.S. at 369, 111 S.Ct. at 1871, 114 L.Ed.2d at 412; State v. Hernandez, 63 Ohio St.3d at 583, 589 N.E.2d at 1314. Trial judges, in supervising voir dire, are best equipped to resolve discrimination claims in jury selection, because those issues turn largely on evaluations of credibility. See Batson at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn. 21. Hicks v. Westinghouse Materials Co. (1997), 78 Ohio St.3d 95. (Emphasis added.) In this case, the trial court determined appellant had not proven purposeful discrimination. Its determination is supported by the record. Dr. Brodkey's initial challenge was directed toward potential juror Mrs. Daniel. During questioning by appellant, Mrs. Daniel indicated she worked at night as a cleaning person and, further, that she had a bias against doctors and in favor of plaintiffs in medical malpractice actions. When Dr. Brodkey's counsel inquired of her, she admitted she obtained only a small amount of sleep during the day. Later, Dr. Brodkey's counsel stated in the record as the reason for excusing Mrs. Daniel that she did not seem to be overly attentive to what was going on ***. I was afraid *** that -20- with her working in the nighttime, she would not be attentive to the whole issue and she did not strike me as being overly bright, which was (sic) typically my criteria for a medical malpractice ***. With regard to potential juror Ms. Price, counsel stated Ms. Price was challenged firstly on the basis that she had a second job at which she was required to be present at 5:00 p.m. Concerning this, Ms. Price stated, I'm the only one there, and further stated her manager would have a difficult time having someone else to cover for her if she was delayed by the trial. Secondly, coun- sel was concerned that Ms. Price had a child that had recently been involved in juvenile proceedings and Ms. Price indicated dis- satisfaction with the judicial system. Finally, counsel consi- dered Ms. Price, as a result of her dissatisfaction, to be someone who would not be impartial. Similarly, Dr. Brodkey's challenge directed toward Mrs. Thompson was based upon several nonracial reasons. Mrs. Thompson had been serving in the jury pool for over a week and was concerned about returning to her job. Moreover, she was feeling stressed as a result of her work absence, which was aggravating her diabetic condition and thus causing her to leave the courtroom at odd moments. Finally, Mrs. Thompson described her daughter's experience as a patient at St. Luke's, indicating a belief that malpractice had taken place during the incident. Based upon the foregoing, the trial court concluded, consis- tent with Hicks, that Dr. Brodkey's counsel had expressed legiti- -21- mate concerns about the three jurors and had valid, nonracial reasons for exercising the peremptory challenges against them. Hence, appellant had not proved purposeful discrimination. In view of the transcript of the proceeding, together with the fact that three of the seven jurors eventually seated were of African-American descent, the trial court's determination in this regard was not clearly erroneous. State v. Hernandez (1992), 63 Ohio St.3d 577. Therefore, appellant's first assignment of error is overruled. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN ALLOWING DEFENDANT- APPELLEE JERALD BRODKEY, M.D. TO INTRODUCE TESTIMONY ON THE NEGLIGENCE OF NURSING PERSON- NEL OF DEFENDANT-APPELLEE METROHEALTH ST. LUKE'S MEDICAL CENTER. Appellant argues the trial court erred in permitting Dr. Brodkey to cross-examine Dr. Manders at trial with regard to Manders' opinion that the actions of St. Luke's personnel toward the decedent were a proximate cause of his death. In relevant part, Dr. Manders testified on direct examination as follows: Q. Now, Doctor, again, based upon the medi- cal records, the autopsy, and your educa- tion, training, and experience, do you have an opinion with a reasonable degree of medical certainty as to whether Mr. Paul would have survived had Dr. Brodkey performed timely evacuation of the sub- dural hematoma? A. I have an opinion. Q. What's your opinion, Doctor? A. No question in my mind he would have survived. -22- Q. Doctor, do you have an opinion do you have a professional opinion as to what point in time the bur hole procedure could have been performed and still prob- ably have saved Mr. Paul's life? A. I think if Dr. Brodkey had been notified at one o'clock the following morning, that's on the 10th, of the seizure and the patient was still alert, but appar- ently confused, but still alert, if he had had that bur hole in a timely manner very, very quickly after that he would have survived. (Emphasis added.) On cross-examination, Dr. Brodkey pursued this line of questioning, eliciting the following: Q. Now, you've given us your opinion that Mr. Paul would have survived this sub- dural hematoma had surgery have been performed earlier? A. That's correct. Q. And you've rendered some criticisms today of Dr. Brodkey, but Mr. Sivinski [appellant's counsel] never asked you about the care of the nurses or other employees of St. Luke's Medical Center. You are, indeed, critical of the staff of St. Luke's Medical Center, are you not? MR. SIVINSKI: Objection. A. I am. Q. And, in fact, you feel rather strongly that the nurses that worked for St. Luke's Medical Center were negligent MR. SIVINSKI: Objection. Q. isn't that true? * * * A. That's true. -23- Q. And, indeed, you authored a report in this case talking about the need for earlier surgery, and then you authored an affidavit or signed an affidavit that Mr. Sivinski drafted on September 28, 1995, criticizing the care of the nurses, cor- rect? A. That's correct. Q. And the reason that you are critical of the nurses is that they were ordered to monitor Mr. Paul's vital signs and report any changes to Dr. Brodkey; isn't that true? A. They were so ordered, yes. Q. And that's what is expected of nurses, isn't it? A. That's correct. Q. They are there with the patient for the entire time while the doctor is not; and it is their responsibility to monitor the patient and advise the doctor, the neuro- surgeon of any significant change, cor- rect? A. Correct. * * * Q. Okay. And it is your opinion that had Dr. Brodkey been called at one o'clock a.m. after the seizure, that there still would have been sufficient time to re- verse the process; and the patient, in your opinion, would have survived the subdural hematoma? A. In my opinion. Q. Had the nurses done their job in this case, it is your opinion that this man would have survived the subdural hema- oma, correct? MR. SIVINSKI: Objection. A. I would hope so, yes. -24- (Emphasis added.) Appellant first contends the foregoing testimony failed to comply with the requirements of Stinson v. England, supra. A fair reading of it, however, belies appellant's contention since Dr. Manders stated several times that the decedent would have survived had Dr. Brodkey been notified of the first seizure. This was suf- ficient to establish the causal link. Id.; see, also, Rechenbach v. Haftkowycz (1995), 100 Ohio App.3d 484. Appellant further contends, in essence, that it was unfair for the trial court to permit Dr. Brodkey to elicit this testimony when appellant was precluded from using similar deposition testimony in support of his motion for reconsideration. In response to appellant's contention, it must first be noted appellant's questions on direct examination invited the response to further testimony on the issue; hence, appellant has waived any error in its admission at trial. Center Ridge Ganley, Inc. v. Stinn(1987), 31 Ohio St.3d 310; Hal Artz Lincoln Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, paragraph 1 of the sylla- bus. Secondly, Dr. Manders stated similar opinions in his discovery deposition of February 3, 1996. Under these circumstances, Dr. Brodkey was within his prerogative to explore the ramifications of it in his defense at trial. Cf., Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367. The trial court was there- fore acting within its discretion in permitting the testimony. -25- Waste Mgt. of Ohio v. Mid-America Tire, Inc. (1996), 113 Ohio App.3d 529. Accordingly, appellant's third assignment of error is also overruled. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED IN ALLOWING DEFENDANT- APPELLEE JERALD BRODKEY, M.D. TO PRESENT EXPERT TESTIMONY WHICH FAILED TO COMPLY WITH CUYAHOGA COUNTY COURT OF COMMON PLEAS RULE 21.1. Appellant argues the trial court improperly admitted the testimony of Dr. Brodkey's experts for two reasons, viz., 1) they did not express their opinions to the requisite degree of medical certainty and 2) their testimony exceeded the purpose for which it was originally elicited in contravention of Loc.R. 21.1(B). Dr. Flynn's report states in relevant part: [The decedent's condition] was a chronic sub- dural hematoma, with some evidence of a rela- tively small amount of fresh bleeding, so that one can say that he had been tolerating the basic lesion for some weeks or months prior to his fall. The patient was on chemotherapy, he had pulmo- nary hypertension as a result of his cancer, he was on at least two drugs which are known to hamper the clotting mechanism and he had a history of chronic alcoholism (in recovery). All of these factors would serve as warning flags that even if the hematoma was to be evacuated, there was a significant risk that the patient would have complications following such an evacuation. The prognosis would have been guarded, at best. -26- Mr. Paul had an inoperable squamos cell carci- noma of the lung, as a consequence of which he had already developed pulmonary hypertension. His prognosis, without the subdural hematoma event, was extremely poor. Probably six to twelve months at the outside, for survival. I feel that Dr. Brodkey acted appropriately in admitting the patient overnight for any pro- posed surgery the next day or day or so, in fact. Mr. Paul was neurologically in tact (sic) on admission, and did not present as an emergency. I, myself, would probably not have offered surgery to a patient with such a devastating underlying disease process! I feel that Dr. Brodkey did not act inappro- priately when, after the second seizure, he operated on the patient. I think that the situation was so grave that surgery would not be expected to alter the outcome, but I do not think that the neurosurgeon acted inappropri- ately in performing this surgery. In balance, it is my opinion that Dr. Brodkey did not act below (sic) standard of care in electing to admit the patient overnight prior to surgery and in electing to do emergency surgery when the patient decompensated. Dr. Brodkey's other expert, Dr. Sherer, stated in his report in pertinent part as follows: At autopsy, residual adenocarcinoma was found in the left upper lobe along with dense adhe- sions. In spite of aggressive chemotherapy, [the decedent] still had (sic) recurrent tumor which in all likelihood would have continued to progress and would have caused his death within six months. Stage III B adenocarcinoma of the lung has a 40% one year survival rate, survival dropping to 15% at two years, and 5% at three years. In my opinion, Dr. Spain's care was entirely appropriate. He treated a very difficult type of cancer in an excellent fashion and did a thorough and conscientious job of treating Mr. Paul's headache. Due to the recurrent lung cancer, in spite of aggressive chemotherapy, -27- Mr. Paul had an extremely poor prognosis and probably had less than six months to live. (Emphasis added.) Loc.R. 21.1 states: PART I. EXPERT WITNESS * * * (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. It is counsel's responsibility to take reasonable measures, including the procurement of supplemental reports, to insure that each report adequately sets forth the expert's opinion. *** 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 opin- ions on issues not raised in his report. (Enphasis added.) With regard to appellant's first contention set forth in support of his argument, there is no requirement in Loc.R. 21.1(B) that an expert's discovery report must be stated in terms of probability. Moreover, there is no requirement in Ohio that an expert opinion on the appropriate standard of care must be stated in terms of probability. See, e.g., Bruni v. Tatsumi, supra. Thus, Dr. Flynn's beliefs and feelings were not inadmissible on this basis. Dr. Sherer's opinion, on the other hand, whose testimony concerned the decedent's life expectancy, met the test of Stinson since he stated unequivocally that in all likelihood, the lung cancer would have caused the decedent's death in six months or less. Dellenbach -28- v. Robinson, supra; see, also, Roberts v. Ohio Permanente Med. Group, Inc. (1996), 76 Ohio St.3d 483. Appellant further contends that the experts' trial testimony exceeded the scope of their report; thus, the trial court was required to exclude their testimony pursuant to Loc.R. 21.1(B). However, a trial court has broad discretion in the admission or exclusion of evidence pursuant to a local rule of discovery. Nakoff v. Fairview General Hosp. (1996), 75 Ohio St.3d 254; Pang v. Minch (1990), 53 Ohio St.3d 186, paragraph 1 of the syllabus; Saafir v. Cleveland Metropolitan General Hosp. (Dec. 10, 1993), Cuyahoga App. No. 61475, unreported. In this case, Dr. Flynn's trial testimony was consistent with his expert report. In addition, Dr. Sherer's testimony regarding the decedent's quality of life was intended to merely illustrate the reasons for his opinion as to the decedent's life expectancy. A review of the record in this case thus fails to demonstrate the trial court abused its discretion in admitting such testimony. Moreover, since the jury failed even to reach the issue of proximate cause, the admission of Dr. Sherer's testimony was not prejudicial to appellant. For the foregoing reasons, appellant's fourth assignment of error is overruled. Finally, appellant's fifth assignment of error states: THE TRIAL COURT ERRED BY IMPROPERLY INSTRUCT- ING THE JURY AS TO THE EFFECT OF THE FAILURE OF DEFENDANT-APPELLEE JERALD BRODKEY, M.D., TO TESTIFY IN HIS CASE IN CHIEF AND BY STATING THAT THERE WAS NO REASONABLE INFERENCE OF NEGLIGENCE. -29- Appellant argues the trial court abused its discretion and committed plain error when it sustained Dr. Brodkey's objection to a comment he made during closing argument. At trial, appellant called Dr. Brodkey as a witness in order to cross-examine him. Oleksiw v. Weidener (1964), 2 Ohio St.2d 147. Later, during the initial closing argument, appellant opened his remarks with the following: (MR. KELLEY:) *** [S]ometimes the most com- pelling evidence is evidence that you don't hear when you should have heard it. *** We didn't see Dr. Brodkey testify in his own defense. He didn't get up there. His attorney didn't ask him one question. He didn't get up there and testify in his own defense. Why not? Dr. Brodkey's counsel followed with his closing argument. Thereafter, appellant again addressed the jury. The relevant por- tion of the transcript of the proceedings is set forth below: MR. SIVINSKI: Ladies and gentlemen, I'm amazed at the righteous indig- nation of defense counsel of Mr. Kelley beating up the de- fendant. You know, there is a Judge sit- ting up there and that's her job to control questions and if the Judge thinks it's inappro- priate, the Judge stops it. *** I wouldn't have the guts to get up here and tell you to ask you about honesty and truth when I don't have the guts to get up here and the take stand (sic) and defend myself. Unfortu- nately there is a reasonable inference that [Dr. Brodkey] was negligent in his care of Mr. Paul. -30- MRS. CARULAS: Objection, your Honor. MR. SIVINSKI: Because he will not get up here and testify. THE COURT: Overruled. Overruled. What, what? Excuse me. Excuse me. I'm sorry. I don't think there is a reasonable inference of negligencerelative to his care of Mr. Paul. I sustain the objection. Let's go on. (Emphasis added.) Appellant argues the foregoing comment by the trial court to the jury was an incorrect statement of law. In support of this, however, appellant cites only cases in which a civil defendant potentially was subject also to criminal charges and thus invoked his constitutional Fifth Amendment privilege against self- incrimination. See, e.g., Baxter v. Palmigiano (1976), 425 U.S. 308. The cases cited by appellant have no application to the instant action. Instead, it is appellant who made an improper statement of law. Appellant was required in this case to prove his claim of wrongful death based upon medical malpractice by a preponderance of the evidence. Bruni v. Tatsumi, supra. The evidentiary rules of Ohio, which the trial court was required to enforce, have been promulgated in order to provide procedures for the adjudication of causes to the end that the truth may be ascertained and proceedings justly determined. Evid.R. 102. Although appellant contends he was giving a correct statement of law to the jury during closing argument that the trial court foreclosed, in view of the fact that Evid.R. 407, 408 and 409 all -31- forbid the introduction of certain evidence that might lead to the inference of liability, his contention is meritless. Furthermore, contrary to appellant's assertion, the trial court was not expressing an opinion on the merits of the case; it was, rather, appropriately admonishing appellant. Appellant's argument was a blatant attempt to tip the scales of justice in his favor; appellant offered the jury a baseless statement designed simply to create for him an unfair advantage that the trial court corrected. Evid.R. 103 (C). Under these circumstances, the trial court did not err in instructing the jury during appellant's final closing argument. Appellant's fifth assignment of error is, therefore, overruled. Judgment affirmed. -32- 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 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. DIANE KARPINSKI, P.J. CONCURS IN PART AND DISSENTS IN PART (See attached Opinion) JOHN T. PATTON, J. CONCURS. JUDGE KENNETH A. ROCCO 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71195 -1- GEORGE A. PAUL, EXECUTOR OF THE : ESTATE OF VERNON T. PAUL, DECEASED : : CONCURRING Plaintiff-Appellant : : and v. : : DISSENTING METROHEALTH ST. LUKE'S MEDICAL : CENTER, ET AL. : OPINION : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 KARPINSKI, P.J., CONCURRING IN PART AND DISSENTING IN PART: Because I believe the evidentiary materials submitted by appellant raise a genuine issue of material fact regarding the alleged negligence of the nursing staff at St. Luke's Hospital, I respectfully dissent from the majority's disposition of the second assignment of error. The majority states at page 17 of the opinion as follows: Nevertheless, Dr. Manders' affidavit states only that St. Luke's actions "proximately result[ed] in the death of Vernon Paul." A review of Dr. Manders' affidavit in conjunction with his earlier letter reveals his opinion on proximate causation as to St. Luke's actions fails to contain any terms of either medical certainty or medical probability as required by both Stinson v. England, supra and Roberts. Furthermore, when read together, the letter and affidavit do not relate St. Luke's actions to anything specific with regard to the decedent's condition. In context, Dr. Manders' letter indicates surgery should have been performed immediately upon the decedent's admission to the hospital. Dr. Manders includes no speculations that during the delay either the risk of harm to the decedent or the decedent's chance of survival were affected. Thus, Dr. Manders' mere assertion in his subsequent affidavit as to causation, without further detail, fails to affirmatively demonstrate that "but for" -2- St. Luke's actions hours after the decedent's admission, either the risk of harm to the decedent was increased or the decedent would have had a "chance of recovery." Roberts cannot be read to relieve appellant from this burden. See,e.g., Gleason v. Zimmerman, supra; Starkey v. St. Rita's Medical Center, supra. I do not agree with the majority's two criticisms of this evidence. First, I do not agree with the majority's conclusion that Dr. Manders' letter and affidavit do not contain any terms of medical certainty or probability. On the contrary, paragraph four of Dr. Manders' affidavit states, It is my opinion within a reasonable degree of medical probability that the care provided to Vernon Paul by *** Metrohealth St. Luke's Medical Center fell below the accepted standard of care. Moreover, in his report, Dr. Manders specifically addressed the actions of the St. Luke's staff as follows: When Mr. Paul began experiencing seizures immediate attention should have been directed toward completing the surgery earlier than scheduled. Dr. Manders then concluded his report by stating: In summary, I believe with a reasonable degree of medical certainty that the treatment provided to Mr. Paul fell below the accepted standard of care. Finally, in paragraph five of his affidavit, Manders avers that his report (which as stated supra, was critical of the St. Luke's staff) accurately states his opinions with a reasonable degree of medical certainty. Therefore, I disagree with the majority's conclusion that Dr. Manders' report and affidavit were insufficient because they failed to contain any terms of medical certainty or probability. -3- Second, I disagree with the majority's conclusion that the letter and affidavit do not relate St. Luke's actions to anything specific regarding decedent's condition. In paragraph six of his affidavit, Dr. Manders states: I believe that the failure of Metrohealth Medical Center personnel to contact Dr. Brodkey between 1:00 a.m. on December 10, 1991 and approximately 4:10 a.m. on December 10, 1991 (concerning Mr. Paul's seizure activity) fell below the accepted standard of care proximately resulting in the death of Vernon Paul. Thus Dr. Manders felt that once the decedent began experiencing seizures, the failure of the St. Luke's staff to call Dr. Brodkey proximately caused the death of Vernon Paul. I cannot envision a more specific statement relating St. Luke action (or in this case inaction) to decedent's condition. In reviewing a motion for summary judgment, pursuant to Civ.R 56(C), we must consider the inferences to be drawn from the underlying facts contained in affidavits and other exhibits in the light most favorable to the non-moving party. Hounshell v. American State Ins. Co. (1981), 67 Ohio St.2d 427, 433. Accord- ingly, because Dr. Manders stated his opinion as to the standard of care exercised by St. Luke's in terms of reasonable medical probability and because Dr. Manders directly tied the failure of St. Luke's staff to call Dr. Brodkey to decedent's death, appellant produced sufficient evidence, reviewed in a favorable light, to overcome St. Luke's motion for summary judgment. Therefore, I dissent from the majority's disposition of the second assignment of error. I concur with the majority's disposition of the first, .