^ ^m ®^^s. - .^ ^.^

IN THE SUPREME COURT OF OHIO

Jared Hyams, et al.

Plaintiffs-Appellees

v.

Cleveland Clinic Foundation, et al.

Defendants-Appellants.

SUPREME COURT CASE NO.: 2012-1744

PLAINTIFFS-APPELLEESMEMORANDUM OPPOSING JURISDICTION

Attorneys fo^ Defendants-AppellantsCleveland Clinic Foundation andBarbara Wechsle^, M.D.

Attorneys for Plaintiffs-AppelleesJa^ed Hyams, a minoN by and thNOUghHis Parents and Natu^al GuardiansDouglas and Linda Hyams, et al.

^^^D^§ " sx ^ I^ da ^^'^ c r ^,^ ^u

Douglas G. LeakAnna Moore CarulasIngrid Kinkoph-Zajacdleak@ralaw.comacarulas@ralaw.comikinkopf-zaj ac @ralaw. comRoetzel & Andress, LPAOne Cleveland Center, Ninth Floor1375 East Ninth StreetCleveland, Ohio 44114Telephone: 216.623.0150Facsimile: 216.623 .0134

Christopher M. Mellino (#0021843)Thomas D. Robenalt (#0055960)Allen C. Tittle (#0086590)Mellino Robenalt LLC19704 Center Ridge RoadRocky River, Ohio 44116cmellino@mellinorobenalt.com

^^^^^ ^^ ^^^^..^S^FR^^^^ ^^i^^^ ^^ ^^^®

^ N^^ 1 ^; ^^ i ^^^

CL^R^ QF CO^R^SUPREME COUR`^ OF OHI^?

TABLE OF CONTENTS

...................................................................................................... iiiTABLE OF AUTHORITIES

I. STATEMENT OF WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERALINTEREST .................................................................................................................................... 1

II. STATEMENT OF THE CASE AND FACTS ...................................................................... 3

III. APPELLEES' RESPONSES TO APPELLANTS' ARGUMENTS IN SUPPORT OF

PROPOSITIONS OF LAW ................................................:........................................................ 8

COUNTERPROPOSITION OF LAW NO. 1: A party in a medical malpractice case

who fails to raise a clear and timely objection to the competency of an expert witness

at trial, pursuant to Ohio Evid.R. 601(D), waives the objection ..................................................8

COUNTERPROPOSITION OF LAW NO. 2: A plaintiff satisfies the "causation"requirement in a medical malpractice action when the plaintiff's medical experttestifies to a reasonable medical certainty that the plaintiff has sustained serious andsignificant psychological injuries as the direct and proximate result of the defendant-physician's negligent treatment . ................................................................................................10

COUNTERPROPOSITION OF LAW NO. 3: A trial court's decision in a Civ.R. 32matter may be overturned only upon a demonstration that the court abused itsdiscretion. A parry who claims that his opponent has improperly read excerpts from aphysician's deposition transcript must establish that he has been materially prejudicedby the procedure .........................................................................................................................12

IV. CONCLUSION ..................................................................................................................... 15

CERTIFICATE OF SERVICE ................................................................................................. 16

ii

TABLE OF AUTHORITIES

Rules

Civ. R. 3 2 .. ..... .. .. ..... .. ..... ......... ..... .. .. .. . . . .... .. .. ..... . ...

Civ.R. 61 .....................................

Evid.R. 103 (A)(1) .......................

E 'd R 601(D)

......................................................... 3, 12, 13

............................................................................................. 13

........................................................................................... l, 8

............................................... 1, 2, 7, 8, 9, 10

................. 13

vi . . .....................................................

Evid.R. 611(A) ............................

Evid.R. 611(C) ............................

E 'd R 103 A)

............................................................................

...................

vi . . ( ....................................................

................................................................... 12

................................................................... 13

Cases

AAA All City Heating v. New World Communications of Ohio, Inc., 8th Dist. No. 83334,

2004-Ohio-5 5 91 .........................................................................................................................14

Berdyck v. Shinde, 66 Ohio St.3d 573, 579, 613 N.E.2d 1014 (1993) .........................:................10

Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 346 N.E.2d 673 ........................................................2

Champ v. Wal-Mart Stores, Inc., lst Dist. No.C-010283, 2002-WL-440751 (Mar. 22, 2002).....11

Cities Service Oil Co. v. Burkett, 176 Ohio St. 449, 200 N.E.2d 314 (1964) ...............................13

Clark v. Price, 6th Dist. No.L-86-187, 1987 WL 11245 (May 22, 1987) .....................................11

Clint^n y. Fa%,,rP^ia Fxha„ct Cy c,^ Tnc,, ^d L^ist, No, 2012-CA-L 2012-Ohio-4618 ........................3

Coe v. Young, 145 Ohio App.3d 499, 512-513, 763 N.E.2d 652 (l lth Dist. 2001) .......................8

Czarney v. Porter, 166 Ohio App.3d 830, 833, 2006-Ohio-2471, 853 N.E.2d 692 (8th Dist.) .....10

Fantozzi v. Sandusky Cement Prod. Co., 64 Ohio St.3d 601, 612, 597 N.E.2d 474 (1992) .........12

LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 123, 512 N.E.2d 640 (1987)........9

Mallin v. Mallin, 44 Ohio App.3d 53, 54-55, 541 N.E.2d 116 (8th Dist. 1988) .............................2

Mason v. Swartz, 76 Ohio App.3d 43, 54, 600 N.E.2d 1121 (6th Dist. 1991) ..............................13

Noble v. Colwell, 44 Ohio St. 3d 92, 94, 540 N.E.2d 138 (1989) ...................................................1

Pierson v. Hermann, 3 Ohio App.2d 398, 402, 210 N.E.2d 893 (l Oth Dist. 1965) .......................11

Podany v. Real Estate Mtge. Corp. Escrow Co., 8th Dist. No. 75307, 1999 WL 1204849

(Dec. 16, 1999) ..........................................................................................................................13

Reed v. Weber, 83 Ohio App.3d 437, 441, 615 N.E.2d 253 (lst Dist. 1992) ...............................10

iii

State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379 (1960) ..............................................................9

Turner v. Cleveland Clinic Found., 8th Dist. No. 80949, 2002-Ohio-4790 ..................................10

Williams v. Parker Hannifin Corp., 188 Ohio App.3d 715, 2010-Ohio-1719, 936 N.E.2d

972 (12th Dist.) ............................................................................................................................9

Rules/Statutes

R.C. 2317.52 .................:................................................................................................................12

Miscellaneous

Baldwins Ohio Handbook Series 1 Section 8.31 at 237 ..................................................................1

Judge Mark P. Painter and Andrew S. Pollis, Ohio Appellate Procedure (2011-2012 ed.) ............1

Ohio Sup. Ct. Practice Rule 3.1(B) ..................................................................................................1

iv

I. STATEMENT OF WHY THIS CASE IS NOT OF PUBLIC OR GREATGENERAL INTEREST

Cases of "public or great general interest" are those that present "novel questions of law

or procedure [that] appeal not only to the legal profession but also to this Court's collective

interest in jurisprudence." Noble v. Colwell, 44 Ohio St. 3d 92, 94, 540 N.E.2d 138 (1989). The

Appellants' dramatic hyperbole and baseless disparagement of the Eighth District Court of

Appeals notwithstanding, the instant case is not of public or great general interest. Instead, this

case represents nothing more than an appeal of a disgruntled litigant relating to rulings on

evidentiary matters that rest in the sound discretion of the trial court.

The best evidence of this is that Appellants were unable to articulate any Propositions of

Law in their Memorandum in Support of Jurisdiction as required by Ohio Sup. Ct. Practice Rule

3.1(B). Propositions of law must be general, not specific to the parties in the case, and they

should not be worded like assignments of error. Judge Mark P. Painter and Andrew S. Pollis,

Ohio Appellate Procedure {2011-2012 ed.) Baldwins Ohio Handbook Series 1 Section 8.31 at

237.

The "Propositions of Law" tendered by Appellants do not comport with the Rule 3.1(B),

as they apply only to the facts of this case, thus making the point that this case does not meet the

jurisdictional requirements of this Court of having a question of public or great general interest.

Appellants' first propositi®n of law involves the waiver of an objection under Evid.R.

601(D)-an overarching procedural issue unaccountably concealed from this Court in

Appellants' Memorandum in Support of Jurisdiction. The issue of waiver is utterly devoid of

novelty. Evid.R. 103(A)(1) requires that a party timely object when allegedly inadmissible

evidence is introduced at trial. Similarly, under Ohio's longstanding contemporaneous o'ojectiari

1

rule, "an appellate court will not consider any error which a party complaining of a trial court's

judgment could have called to the trial court's attention at a time when such error could have

been avoided or corrected by the trial court." Mallin v. Mallin, 44 Ohio App.3d 53, 54-55, 541

N.E.2d 116 (8th Dist. 1988). In this case, the trial court determined (and the appellate court

unanimously affirmed) that Appellants had improperly attempted to "sandbag" the Appellees by

failing to timely object to the competency of Appellees' psychiatric expert before the expert

returned home to Kentucky. The Eighth District also agreed in dicta that Appellees' expert (a

practicing, board-certified psychologist with 35 years of specialized experience in movement

disorders) was indisputably qualified under the dual competency requirements enunciated in

Evid.R. 601(D).

Appellants' second proposition of law concerns proximate causation in medical

malpractice `cases- another timeworn legal topic. Ohio law is well established that in order to

prove medical malpractice, the plaintiff has the burden to prove, by a preponderance of the

evidence, that the defendant breached the standard of care owed to the plaintiff and that the

breach proximately caused an injury. Bruni v. Tatsunzi, 46 Ohio St.2d 127, 346 N.E.2d 673

(1976), paragraph one of the syllabus. Contrary to Appellants' mischaracterization of the

evidence, the Eighth District affirmed that Appellees had established, by way of competent

expert testimony to a reasonable degree of inedical certainty, that the young plaintiff-patient had

^uffered permanent and "significant 'psychological injuries," including traumatic flashbacks,

erratic school performance, plummeting self-esteem, arrested social development, and negative

trust issues, all of which were new and distinct injuries resulting from the Clinic's malpractice.

Appellants have attempted to confuse the causation issue, by alleging that Dr. Granacher on

cross could not satisfactorily separate 3ared's malpractice-based injuries from his pre-existirig

2

emotional problems. Appellants' allegation was a non-issue at trial, because Appellees never

contended that the Clinic's negligence "aggravated" a pre-existing psychological injury, the trial

court never instructed the jury on "aggravation of injury," and Appellants never objected to the

trial court's failure to give any such instruction.

-Appellants' third and final proposition of law deals with the use of the depositions of

witnesses at trial under Civ.R. 32, a matter traditionally left to the sound discretion of the trial

court. Clinton v. Faurecia Exhaust Sys., Inc., 2d Dist. No: 2012-CA-l, 2012-Ohio-4618, ¶ 26.

Here, as part of their case in chief, Appellees read into evidence limited excerpts from the

depositions of three treating physician-witnesses employed by the Cleveland Clinic. In response

to Appellants' objections to this testimony, the trial court specifically ruled that Appellants were

free to read the entire deposition of each witness as part of their case- an offer Appellants never

accepted. According to the Eighth District, Appellants also failed to demonstrate how they were

unduly prejudiced by the manner in which Appellees presented the evidence. The appellate court

concluded; moreover, that if the trial court committed any error in the disposition of this matter,

the error was harmless and not a verdict-changer.

II. STATEMENT OF THE CASE AND FACTS

On April 8, 2005, Jared Hyams was nine years old when he presented to the Cleveland

Clinic emergency department with a limp. (Tr. 591-592, 737). The on-call neurologist, Dr. Bruce

Cohen, evaluated Jared and diagnosed him with dystonia (Tr. 233-234, 527), a genetic

neurological disorder in which the body's muscles involuntarily contract. Dr. Cohen advised the

family to follow-up with the neurology clinic (Tr. 234) and instructed Dr. Hossam Abdelsalam, a

resident, to order a bl_ood test to confirm the diagnosis. (Tr. 231). The blood test was not ordered.

3

A few days later, Jared saw Dr. Neil Friedman, a pediatric neurologist, who evaluated the

boy and diagnosed him with a psychiatric condition called conversion disorder, without ordering

the blood test. (Tr. 528-529, 740-749, 758-766). Dr. Friedman ultimately referred Jared to the

Clinic's Day Hospital ("Day Hospital") for treatment. (Tr. 782-784).

At the Day Hospital, Jared came under the overall management of Dr. BarbaraWechsler,

a pediatric rehabilitation specialist (Tr. 949-958), who prescribed what Appellees' expert

described as a punitive and abusive behavioral modification treatment plan. (Tr. 315-316).

Because the Day Hospital staff thought Jared was faking his symptoms and enjoyed the attention

he received from being sick, Jared was subjected on a daily basis to the following Behavior Plan

(Tr. 316-318, Hyams Exhibit No. 5):

• He is to walk everywhere without touching the wall.

• He is not to fall down on purpose.

• If he falls during walking, he owes five sit-ups per fall.

• If he touches the wall/chair/person while walking he owes five push-ups.

• He is supposed to walk iri a"timely manner" and if he is not doing so, you take him

by the hand and walk with him. During that, the rules apply. ` `

• He is not allowed to hop during this and if he does he owes five sit-ups.

^ Jared may have five 1-minute breaks per therapy hour. If he does not get to therapy

on time, he loses 1-minute for each ten minutes he is late.

The Day Hospital staff likewise instructed Jared's parents to continue this treatment at

home if they wanted him to improve. (Tr. 597, 319-320). They told Jared's parents they must

also make Jared do sit-ups and push-ups if he touched furniture, held onto the wall, or fell down

while walking around the house (Hyams Exhibit No. 5). They discouraged additional outside

medical care. (Tr. 604). The staff also admonished Linda Hyams that the close bond she had with

her son was partly to blame for Jared's psychological condition. (Tr. 597, 661). They instructed

the parents to separate fro,n Jared by co^,fning him in his room, withhold all love and affection,

and have no interaction with him. (Tr. 530). When the family went out for the evening or left for

4

vacation, the Hyams were to leave Jared at home with his grandparents unless he improved his

walking. (Tr. 531-532).

When Jared's symptoms did not improve, the Day Hospital staff inedicated Jared with

Lexapro, an antipsychotic drug, and discharged him back to school, thinking that peer pressure

would accelerate Jared's recovery. (Tr. 598-599). Sadly, Dr. Wechsler's School Re-Entry plan

proved as punitive as the Day Hospital plan. (Tr. 318). Staff inembers visited Jared's school to

inform the administration that Jared had a psychiatric illness and that he could walk normally but

was just acting sick. (Tr. 600-601). Appellants supplied the staff at Jared's school with a two

page document called the School Re-Entry plan. (Hyams Exhibit No. 5). The document stated

that Jared was to be treated like any other child and given consequences for being late to classes.

He was expected to walk normally and participate in all activities. He could not visit the school

nurse unless he had a fever, was vomiting or was bleeding. Jared's fellow students were to be

informed that he had a psychiatric condition and can walk normally if he chooses to. His peers

were told not to give him any assistance for this reason.

Jared did not respond to Appellants' "therapy" and his condition continued to deteriorate.

(Tr. 602-604). After more than one year of being managed as a person with a psychiatric

condition, a psychiatrist unaffiliated with the Cleveland Clinic, Dr. Scott Dowling (Tr. 1123-

1125), requested that a dystonia gene panel be performed. This simple blood test revealed that

Jared had a physical genetie condation called dystonia that was causing his inability to use his

muscles properly. (Tr. 607, 808-809). Jared subsequently transferred his care to Dr. Max

Wiznitzer, a pediatric neurologist at University Hospitals of Cleveland (Hyams Exhibit No. 8),

and in January 2008 underwent "deep brain stimulation" surgery for his dystonia at

Massachusetts General Hospital. (Clinic's Exhibit "C"). Jared then began receiving treatment

5

for dystonia for the first time. Prior to being properly diagnosed with dystonia, Jared's physical

condition deteriorated from walking with a limp when he first presented to Appellants to being

wheelchair bound and requiring assistance from his parents for all of his physical needs like

eating, bathing, and toileting himself.

On September 18, 2007, Plaintiffs-Appellees Jared Hyams and his parents Douglas and

Linda ("Appellees") filed the instant medical malpractice action against various parties,

including the Cleveland Clinic Foundation, Neil Friedman, M.D., and Barbara Wechsler, M.D.

("Appellants"). Appellees alleged that Dr. Friedman, the pediatric neurologist, was negligent for

diagnosing Jared with a psychiatric illness without first ruling out a physical illness. Appellees

further claimed the punitive treatment plans authored and enforced by pediatric rehabilitation

specialist, Dr. Wechsler, for treatment of a psychiatric condition Jared did not have, was

negligent. As a result of Appellants' negligence, Appellees contended that Jared sustained a

worsening of his physical condition, significant and permanent psychological injuries, and that

his parents suffered a loss of their son's consortium.

To prove their case of malpractice, Appellees retained Dr. Robert Granacher, a prominent

psychiatrist, neuropsychiatrist, and forensic psychiatrist from Lexington, Kentucky. On February

- 23, 2010, the Clinic filed a Motion in Limine to preclude Dr. Granacher from testifying about the

issue of proximate cause. Appellants claimed that, predicated on his discovery deposition, Dr.

Granacher dvzs unable t© opine to a reasonable degree o_f mcdical probability, to what extent

Jared had suffered any intangible injuries as a result of Appellants' negligence. Appellants did

not file any other pretrial motions challenging Dr. Granacher's competency as an expert witness

at this or any other time. An Affidavit of Dr. Granacher attesting to his qualifications under

6

601(D) and his deposition transcript where he also testified that he met 601(D) qualifications had

already been filed with the court, prior to trial.

On February 7, 2011, a jury trial commenced before visiting judge William Coyne.

Following Dr. Granacher's direct examination, Appellants - after a short recess (Tr. 340-341)

and without specifically challenging Dr. Granacher's competency under Ohio Evid.R. 601(D) on

the record beforehand (Tr. 426) - proceeded uninterruptedly to cross-examine Dr. Granacher.

The next morning, after first ordering an overnight copy of Dr. Granacher's direct testimony and

then ensuring that Dr. Granacher had returned home to Lexington and was unavailable to give

additional live testimony, Appellants moved to strike Dr. Granacher's testimony, pursuant to '

Evid.R. 601(D). (Tr. 418-424). The trial court overruled the motion, as well as subsequent

motions for directed verdict. The trial court specifically identified as one of its reasons for

overruling the motions that defense counsel had never objected to the competency of the witness

before or during his testimony despite being given the opportunity. (Tr. 426-427).

On February 18; 2011, after the presentation of all the evidence, the jury returned a 6-2

verdict in favor of Appellees, finding by way of special interrogatories, negligence on the part of

Dr. Wechsler both in the implementation of Jared's punitive Behavioral Plan, while in the

hospital and in the implementation of a punitive School Re-Entry Plan. The jury awarded

Appellees $890,000.00 by way of non-economic damages.

Following the verdict, Appellants elected not to file a motion for new trial or judgment

notwithstanding the verdict. Instead, the trial court addressed several post-trial motions, granting

Appellants' motion to reduce the verdict to the $500,000.00 statutory damage cap, and

overruling Appellees' motion for pre judgment interest.

7

In a thoughtful, well-reasoned and unanimous opinion, the Eighth District Court of

Appeals upheld the trial court's judgment on the jury's verdict. Hyams v. Cleveland Clinic

Found., 8th Dist. No. 97439, 2012-Ohio-3945.

III. APPELLEES' RESPONSES TO APPELLANTS' ARGUMENTS IN SUPPORT OF

PROPOSITIONS OF LAW

COUNTERPROPOSITION OF LAW NO. 1: A party in a medical malpractice case

who fails to raise a clear and timely objection to the competency of an expert witness

at trial, pursuant to Ohio Evid.R. 601(D), waives the objection.

The Eighth Dastrict decided the issue of Dr. Granacher's competency to testify as an

expert witness primarily on procedural grounds. Appellants claimed that, despite Dr. Granacher's

testimony about his background, credentials, privileges, and description of his clinical practice

he was not competent because he did not expressly use the words that he was licensed, or that he

devoted at least one-half of his professional time to the active clinical practice of inedicine.

Appellants, however, never filed a motion in limine on these grounds challenging Dr.

- Granacher's competency, obviously since that competency had already been established by his

affidavit and deposition testimony.

Nor did they raise any Evid.R. 601(D) objection prior to interrogating Dr. Granacher. Instead,

Appellants thoroughly cross-examined Dr. Granacher and then intentionally waited until Dr.

Granacher had finished testifying and returned home to Kentucky before raising the issue with

__ ,__, the trial court. Due to Appellants' dilatory response, the trial court ruled that Appellants had

waived the issue, and the Eighth District unanimously agreed. Hyams, at ¶ 15-20.

The Eighth District's decision was correct. Evid.R. 103(A)(1) requires that a party timely

object when allegedly inadmissible evidence is introduced at trial. Coe v. Young, 145 Ohio

App.3d 499, 512-513, 763 N.E.2d 652 (i lth Dist. 2001 j. t3hio, moreover, follows the

8

contemporaneous objection rule. Mallin v. Mallin, 44 Ohio App.3d 53, 54-55, 541 N.E.2d 116

(8th Dist. 1988). Under this rule, a party's failure to object to the receipt or use of evidence when

the alleged error could be remedied waives that party's right to address that issue on appeal.

LeFo^t v. Centziry 21-Maitland Realty Co., 32 Ohio St.3d 121, 123, 512 N.E.2d 640 (1987);

State v. Gla^os, 170 Ohio St. 471, 166 N.E.2d 379 (1960), paragraph one of the syllabus. The

purpose of the contemporaneous objection rule is two-fold: it allows the ^uestioner to correct his

or her mistake or inadvertence, and it permits the trial court to avoid error by taking corrective

action. Williams v. Parker Hannifin Corp., 188 Ohio App.3d 715, 2010-Ohio-1719, 936 N.E.2d

972, ¶ 15 (12th Dist.). Appellants, having failed to clearly and timely object before Dr.

Granacher departed the witness stand to return home, cannot now look to this Honorable Court

for legal redress.

In rendering its decision the Eighth District made certain that the purpose and

requirements of Rule 601 were followed. The evidence was undisputed that Dr. Granacher is a

physician licensed to practice medicine in the State of Kentucky and spends more than fifty

percent of his time in the active clinical practice of inedicine.

In reviewing the totality of the evidence presented at trial, the Eighth District

unequivocally concluded that Dr. Granacher met the foundational competency requirements of

Rule 601(D). Rebuffing Appellants' arguments, the appellate court declared:

***^Cj®ntrary to the Clinic's 'insirluation on appeal that Dr. Granacher simply could notsatisfy the dual competency requirements of Evid.R. 601(D), we find that the recordreflects otherwise. Dr. Granacher's testimony on both direct and cross-examinationdetailed his board certification in psychiatry, his 35 years of work in neuropsychiatry, andhis current practice, which includes treating patients on a weekly basis. Additionally, theHyamses filed an affidavit of Dr. Granacher in 2009 that establishes he is licensed topractice medicine and that he devotes at least 50 percent of his professional time to theactive clinical practice of psychiatry. Dr. Granacher's discovery deposition filed with thecourt also supports the conclusion that he meets the dual competency requirements ofEvid.R. 601(D). Given this evidence, and the Clinic's untimely objection, we find that the

9

trial court did not abuse its discretion in denying the motion to strike Dr. Granacher's

testimony. Hyams, at ¶ 22.

The Eighth District also rebuked Appellants for their misplaced reliance on Turner v.

Cleveland Clinic Found., 8th Dist. No. 80949, 2002-Ohio-4790, which the appellate court found

readily distinguishable on its facts and procedural posture. Hyams, at ¶ 23-26.

This Honorable Court should not disturb the Eighth District's procedural and evidentiary

findings, which support the trial's court's sound discretionary decision to sustain Dr. Granacher's

competency to testify as an expert witness pursuant to Evid.R. 601(D). Appellants' First

Proposition of Law should be rejected.

COLTNTERPROPOSITION OF LAW NO. 2: A plaintiff satisfies the "causation"requirement in a medical malpractice action when the plaintiff s medical experttestifies to a reasonable medical certainty that the plaintiff has sustained serious andsignificant psychological injuries as the direct and proximate result of thedefendant-physician's negligent treatment.

In order to prevail on a claim of inedical malpractice under Ohio law, a plaintiff must

prove by a preponderance of the evidence that his injury was directly and proximately caused by

an act or omission that did not meet the standard of care of a doctor of ordinary skill, care and

diligence under like circumstances. Be^dyck v. Shinde, 66 Ohio St.3d 573, 579, 613 N.E.2d 1014

(1993). In medical malpractice cases, there may be more than one proximate cause of an injury.

Reed v. Webe^, 83 Ohio App.3d 437, 441, 615 N.E.2d 253 (lst Dist. 1992). When two factors

combine to produce darr^age ®r illness, each is a proximate cause. CzaNney v. Po^ter9 166 Ohio

App.3d 830, 833, 2006-Ohio-2471, 853 N.E.2d 692, ¶ 7(8^' Dist.).

The Eighth District properly ruled that Appellees satisfied the "causation" requirement in

this case. In Dr. Granacher's expert opinion, neither Dr. Friedman nor Dr. Wechsler met the

applicable standard of care, and to a reasonable medical certainty their negiigence caused

10

"significant" psychological injuries to Jared, traumatizing him at a formative time of his brain

development. (Tr. 323-324). Specifically, Dr. Granacher attributed Jared's traumatic flashbacks,

erratic school performance, plun^meting self-esteem, arrested social development, and negative

trust issues to Appellants' negligence. (Tr. 324-327). Dr. Granacher also opined that Jared's

injuries were permanent, "because those memories will persist for the rest of his life." (Tr. 332-

337). Lastly, Dr. Granacher affirmed that to the extent that Jared had experienced prior

emotional issues, these bore no relationship to the boy's psychiatric injuries in this case. (Tr.

328). When queried about the corifidence of his opinions at the conclusion of his direct

examination, Dr. Granacher responded that "based on his training, knowledge, experience and

more than 35 years of work in neuropsychiatry, he [was] very certain of the opinions he

expressed." (Tr. 340).

In their Memorandum in Support of Jurisdiction, Appellants have attempted to distort the

-- causation issue by conflating "aggravation of injury" with "proximate cause." Ohio law

recognizes that if a plaintiff suffers an aggravation of an existing injury, the defendant is liable

for damages proximately caused by the injury. Champ v. Wal-Ma^t Stores, Inc., lst Dist. No.C-

010283, 2002-WL-440751, *3 (Mar. 22, 2002); Clark v. Price, 6th Dist. No.L-86-187, 1987 WL

11245,, *3 (May 22, 1987). Where the injury sustained by the plaintiff is indeed measurable, that

is, capable of being weighed and appraised, it is subject to apportionment. Pierson v. He^mann, 3

Ghio App.2d 398, 402, 21_0 N,E.2d 893 (lOth Dist. 1965).

As the Eighth District correctly acknowledged, although Dr. Granacher could not

expressly "quantify" or "put a number on the difference between Jared now and before his

involvement with the Cleveland Clinic," this purported deficiency did not undermine Dr.

Granacher's causation testimony. Hyams, at ^33. Assessment of subjective, intangible da_mages

11

like pain and suffering are not intended to be given by an expert; instead, they are "solely for the

determination of the trier of fact." Fantozzi v. Sandusky Cement Prod. Co., 64 Ohio St.3d 601,

612, 597 N.E.2d 474 (1992). As this Court recognized in Fantozzi, "there is no standard by

which such pain and suffering may be measured. ***'[N]o substitute for simple human

evaluation has been authoritatively suggested."' Id., quoting Flory v. New York Cent. RR Co., 170

Ohio St. 185, 190, 163 N.E.2d 902 (1959).

In the final analysis, Appellants' clamor about "aggravation of injury" is purely

academic. The subject was a non-issue at trial, because Appellees never claimed that Appellants'

negligence "aggravated" a pre-existing psychological injury, the trial court never instructed the

jury on "aggravation of injury," and Appellants never objected to the trial court's failure to

provide any instruction on "aggravation." For these reasons then, Appellants' Second

Proposition of law should be rejected.

-^ COUNTERPROPOSITION OF LAW NO. 3: A trial court's decision in a Civ.R. 32- -= matter may be overturned only upon a demonstration that the court abused its

discretion. A party who claims that his opponent has improperly read excerpts froma physician's deposition transcript must establish that he has been materially.,,.o;,,.^.^prl hv the nrncedure.N^.,^....a.....,. ^.^ ^u_ t.- ^------- -

As part of their case-in-chief, Appellees called Dr. Bruce Cohen, Dr. Hossam

Abdelsalam, and Dr. Barbara Wechsler as witnesses, pursuant to R.C. 2317.52 and Evid.R.

611(C): All three physicians were employed by the Cleveland Clinic and participated in varying

degrees in Jared's evaluation or management of his gait disorder. Dr. Abdelsalam initially saw

Jared in the Clinic's emergency room'on the evening of April 9, 2005, then rounded with Dr.

Cohen to see the boy the next morning, and was present when Dr. Friedman assessed Jared two

days later. (Tr. 231-233). Dr. Wechsler, of course, was responsible for Jared's various behavioral

treatment plans at the day hospital, at the child's home, and at his elementary school. (Tr. 958).

12

Since Drs. Cohen, Abdelsalam, and Wechsler were physicians, Appellees were entitled to read

their entire deposition or any portion thereof at trial. Civ.R. 32(A)(3)(e).

Relying on Civ.R. 32(A)(4), Appellants argue that the trial court committed reversible

error in allowing the Hyamses to present only "bits and pieces of videotaped depositions" of the

three doctors, "taken out of context." Appellants' argument is specious.

Under Ohio law, "[a] trial court has the discretionary authority to control the mode and

order of proof." Mason v, SwaNtz, 76 Ohio App.3d 43, 54, 600 N.E.2d 1121 (6th Dist. 1991);

Cities Se^vice Oil Co. v. BuNkett, 176 Ohio St. 449, 200 N.E.2d 314 (1964), paragraph two of the

syllabus. Evid.R. 611(A) explicitly grants the trial court the authority to exercise reasonable

control over the mode and order of interrogating witnesses and presenting evidence so as: (1) to

make the interrogation and presentation effective for the ascertainment of the truth, and (2) to

avoid needless consumption of time. A trial court's decisions on Rule 611(A) matters will not be

overturned on appeal absent a clear and.prejudicial abuse of discretion. Relizon Co. v. Shelly J.

CoNp., 6^' Dist. No. L-02-1377, 2004-Ohio-6884, ¶ 48. Similarly, a trial court's decision on a

Civ.R. 32 matter may be overturned on appeal only upon a demonstration that the lower court

abused its discretion. Podany v. Real Estate Mtge. Co^p. EscNOw Co., 8th Dist. No. 75307, 1999

WL 1204849, *3 (Dec. 16,-1,999). For: such an abuse to occur, the substantial rights of the

complainant must be affected or a substantial injustice must have been perpetrated; otherwise,

the error is deemed harmless. Civ.R. 61; Evid.R.103(A).

In the instant appeal, Appellants never pinpointed any specific testimony elicited from

the physicians' depositions that was "misleading," or offer any explanation why such excerpted

testimony was deceptive or prejudicial. The issue of whether testimony or evidence is confusing

' or misleading is best decided by the trial judge, who is in a significantiy better position to

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analyze the impact of the evidence on the jury. AAA All City Heating v. New Wo^ld

Communications of Ohio, Inc., 8th Dist. No. 83334, 2004-Ohio-5591, ¶ 17.

In addition, the trial court gave Appellants the opportunity to read each doctor's

deposition in its entirety as part of Appellants' case. Hyams, at ¶ 42. Inexplicably, Appellants

never accepted the trial court's invitation, nor did Appellants ever summon any of these three

doctors to provide live testimony at trial. By refusing to take appropriate action, Appellants

cannot now be heard to complain, and therefore, Appellants' Third Proposition of Law should

likewise be rejected.

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IV. CONCLUSION

The case at bar presents legal issues of limited procedural significance. Under the best of

circumstances, the outcome of this litigation is important only to the respective participants and

their lawyers. There are no issues of public or great general interest for this Honorable Court to

adjudicate. These are nothing more than evidentiary issues resting within the sound discretion of

the trial court judge. Appellants, moreover, should not be rewarded for their repeated failure to

voice clear and timely legal objections at trial.

The Cuyahoga County Court of Appeals unanimously rendered the appropriate decision

in this case, based on both the law and the evidence. This Honorable Court should not overturn

that laudatory determination. This Honorable Court should decline jurisdiction in this matter and

permit the decision of the appellate court below upholding the jury's verdict to stand.

Respectfully submitted,

^ ^^

Christopher M. Mellino (#0021843)

Thomas D. Robenalt (#0055960)

Allen C. Tittle (#0086590Mellino Robenalt LLC19704 Center Ridge RoadRocky River, Ohio 44116(440) 333-3800(440) 333-1452 FacsimileEmail: cmellino@mellinorobenalt.com

Attorney for Plaintiffs-Appellees

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^

CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum Opposing Jurisdiction was mailed via FedEx

Overnight, this 13^' day of November, 2012 to:

Douglas G. LeakAnna Moore CarulasIngrid Kinkoph-Zajac

dleak@ralaw.comacarulas@ralaw.com

ikinkopf-zaj ac@ralaw.comRoetzel & Andress, LPA

One Cleveland Center, Ninth Floor1375 East Ninth StreetCleveland, Ohio 44114

Telephone: 216.623.0150Facsimile: 216.623 .0134

AttoNneys fo^ Defendants AppellantsCleveland Clinic Foundation and

Barbara Wechsler, M.D.

/. ^,/ ! e o ^^_

Christopher M. Mellino (#0021843)Thomas D. Robenalt (#0055960)Allen C. Tittle (#0086590

16