s-s-s-s-s-s-s-s-s-S-s-s-s-s-s-S-s-s-s-s-s-s-s-S-s-s-S-s-s-s-s-s-s-s-s-s-s-s-S-s-s-s-s-s-s-s-s-S-S-S-s-s-s-s

IN THE SUPREME COURT OF OHIO

S-S-s-s-s-s-s-s-s-S-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

Mary Johnson, individually, and asAdministrator of the Estate of EugeneJohnson, deceased, and PersonalRepresentative of His Next of Kin,

Appellee,V.

Emergency Physicians of NorthwestOhio at Toledo, Inc., Jaron S. Goldberg,M.D., Carlos A. Sotelo, D.O., Genito-Urinary Surgeons, Inc., Gregor K.Emmert, Jr., M.D. and Richard I.Tapper, M.D.,

Appellants.

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-S-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

Todd E. Gurney, Esq. (0079141)Brian N. Eisen, Esq. (0060081)William M. Greene, Esq. (0016241)Romney Cullers, Esq. (0053668)GREENE & EiSE:\: CO., L.P.A.1300 East Ninth Street1801 Penton Media Building,Cleveland, OH 44114Phone: (216) 687-0900FAX: (216) 687-0651Email: beisen@malpracticeohio.com

Attorneys for AppelleeMary Johnson, Individually and asAdministrator of the Estate of EugeneJohnson, deceased, and PersonalRepresentative of His Next of Kin

RCDVEUE1976845.1

MAR 2 5 2013r%, mr r+MI 10T

Supreme Court Case No. 13-0410

On Appeal from the Lucas County Courtof Appeals

Court of Appeals Case No. L11-1290

MAR ^ 5 ? O'l rj'

CLERK OF COURTSUPREME COURT OF OHIO

Jeffrey M. Stopar (0066640)(Counsel of Record)Peter R. Casey, III (0000579)William P. Bingle (0089463)EASTMAN & SMITH LTD.

One SeaGate, 24th FloorP.O. Box 10032Toledo, OH 43699-0032Telephone: (419) 241-6000Fax: (419) 247-1777E-mail: JMStopar@eastmansmith.com

PRCasey@eastmansmith.comVvPBingle@eastmansmith.com

Attorneys for AppellantsGenito-Urinary Surgeons, Inc., Gregor K.Emmert, Jy:,1V1.D., andRichard I. Tapper,lV1.D.

John C. Barron, Esq. (0003233)Katherine S. Decker, Esq.SHUMAKER, LOOP & KENDRICK, LLP1000 Jackson StreetToledo, OH 43604-5515Phone: (419) 241-9000FAX: (419) 241-6894Email: jbarron@slk-law.com

Attorney for AppellantsEmergency Physicians of Northwest Ohio atToledo, Inc., Jaron S. Goldberg, M.D., andCarlos A. Sotelo, D.O.

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

1976845.1

TABLE OF CONTENTS

Pa e s

1............................ ............................... .................................. 1

II. STATEMENT OF THE CASE AND FACTS .................................................................... 2

A. General B ackground . ....... . . .. . .. .. .. . .. .. .. ... . ....... ... . ... . . .. .. . . .... ... .. .... . .. .... ... .. ..... ... .. . . ... .... .. .. .. 2

B. Adversity Between Urology Defendants and Emergency Medicine Defendants............ 4C. Examination of Defense Experts . ............. ....................................................................... 5D. Standard of Care Testimony Against the Urology Defendants . ...................................... 7

E. The Jury's Verdict ............................................................................................................ 8F. The Sixth District's Decision ........................................................................................... 9

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ......................................... 9

PROPOSITION OF LAW NO. 1: Ohio does not recognize a right of further cross-examination in the absence of re-direct cross-examination . ....................................................... 9

PROPOSITION OF LAW NO. 2: A trial court does not abuse its discretionconcerning its regulation of the mode and order of the examination of a witness wheneach party has had an opportunity to fully examine a witness . ............................................... 9

PROPOSITION OF LAW NO. 3: A trial court does not abuse its discretion in regulatingthe method of interrogation of a witness in the absence of any legal authority recognizingthe right to further cross-examination ........................................................................................ 9

PROPOSITION OF LAW NO. 4: Ohio's two-issue rule applies to medical malpracticeclaims ..................................................................................................................................... 10

PROPOSITION OF LAW NO. 5: Ohio's two-issue rule requires upholding a jury verdictwhen jury interrogatories do not distinguish between negligence and issues of causationand the testimony at issue addresses only causation ................................................................. 10

PROPOSITION OF LAW NO. 6: Under Evid.R. 702(B), a physician is not qualifiedto give a standard of care opinion regarding a physician of a different specialty whenthat physician has not demonstrated familiarity with the standard of care of the differentspecialty................................................................................................................................. 10

IV. CONCLUSION .................................................................................................................... 13

PROOF OF SERVICE ............................................................................................................... 14

i1976845.1

TABLE OF AUTHORITIES

Pa e s )

Cases

Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 383 N.E.2d 564 (1978) .................... 1, 11

Nead v. Brown Cty. Gen. Hosp., 12th Dist. No. CA2005-09-018, 2007-Ohio-2443¶¶ 49-50, 56 ......................................................................................................................... 11,12

Taulbee v. Dunsky, 12th Dist. No. CA2003-03-059, 2003-Ohio-5988, ¶ 24 ......................... 11, 12

Trevena v. Primehealth, 171 Ohio App.3d 501, 2006-Ohio-6535, 871 N.E.2d 1217,¶ 28 (l lth Dist.) ......................................................................................................................... 11

ii1976845.1

I.REA

IS

The propositions of law presented in this case go to the essence of both trial and appellate

litigation and therefore raise issues of public and great general interest. One issue raised by the

Urology Defendants involves the proper foundation of expert testimony in medical malpractice

litigation. The decision of the Sixth District eliminates the requirement that a physician have

knowledge of a different specialty in order to give standard of care opinions regarding that

specialty. Under the Sixth District's ruling, a critical care doctor does not need to have any

knowledge of urology to give a standard of care opinion against a urologist. This holding will

prospectively permit a plaintiff to file a new malpractice lawsuit by attaching an affidavit of

merit prepared by a physician with no knowledge whatsoever of the specialty at issue,

undermining the affidavit of merit requirement of Civ.R. 10(D)(2) and potentially increasing the

medical malpractice dockets in Ohio's trial and appellate courts.

The seminal case from this Court regarding the requirements for a physician to testify

regarding the standard of care of a different specialty is Alexander v. Mt. Carmel Med. Ctr., 56

Ohio St.2d 155, 383 N.E.2d 564 (1978). This Court has not cited Alexander regarding this issue

since 1978, the year it was decided, but Alexander has been cited by Ohio's appellate courts at

least 29 times in analyzing this issue, including 14 times since 2003. Obviously, this issue arises

far more often in trial courts in motions in.limine and related objections to expert testimony. As

such, Ohio's trial and appellate courts, as well as the practicing bar, would benefit from further

guidance and clarification on this often-litigated issue.

In addition, the Sixth District's decision, if allowed to stand, would undercut the broad

discretion of trial courts to regulate the examination of witnesses. Despite no reported case

supporting its decision, the Sixth District concluded that the trial court abused its discretion by

1976845.1

not allowing re-cross examination when there was no re-direct examination. If this holding is

permitted to stand, parties will use this decision to "sandbag" on cross-examination material and

later argue that further cross-examination is needed. Courts may never know when to conclude

the examination of witnesses without risking reversal. Public policy and judicial economy

require parties to use all cross-examination material at the first opportunity, or risk being barred

from further cross-examination.

Finally, the decision of the Sixth District undermines the two-issue rule, the well-

established principle that avoids reversals when a dispositive issue has been tried free of error.

Ohio Jury Instruction CV 417.17 includes a jury interrogatory for medical malpractice cases that

suggests combining standard of care and causation into one interrogatory. Plaintiff vigorously

argued below that the O.J.I. interrogatory precluded application of the two-issue rule. As this

Court is well aware, trial courts follow O.J.I. with great reverence, expecting that there can be no

reversal if it is followed. If this issue is not resolved, trial courts will incorrectly continue to

refuse to allow separate interrogatories for standard of care and causation. That cannot be what

the Editorial Board of Ohio Jury Instructions intended and this Court should clarify Ohio law on

this issue by holding that separate interrogatories for standard and causation are proper under

Civ.R. 49(B) and that the two-issue rule remains viable in medical malpractice cases.

II. STATEMENT OF THE CASE AND FACTS

A. General Background.

This is a medical malpractice wrongful death action brought by Plaintiff Mary Johnson,

Administrator of the Estate of Eugene Johnson, deceased, against Dr. Gregor K. Emmert, Jr.,

Dr. Richard I. Tapper, and their group, Genito-Urinary Surgeons, Inc. ("GUSI") (the "Urology

Defendants") and Dr. Jaron S. Goldberg, Dr. Carlos A. Sotolo, and their group, Emergency

Physicians of Northwest Ohio at Toledo, Inc. ("Emergency Medicine Defendants"). After a

21976845.1

lengthy trial, the jury found for all Defendants, but the appellate court reversed, reasoning that

the trial court erred in prohibiting re-cross examination of an expert witness, although there was

no re-direct examination.

On February 15, 2007, Dr. Eric Pizza, a member of GUSI, performed a radical retropubic

prostatectomy and bilateral pelvic lymphadenectomy on Eugene Johnson, age 69. Mr. Johnson

did well during and following the procedure and was discharged in good condition on

February 20, 2007. One week later, Mr. Johnson was admitted to The Toledo Hospital

Emergency Department complaining of swelling in both of his legs. Mr. Johnson denied calf

pain, chest pain or shortness of breath, and his vital signs were stable.

Dr. Goldberg, an emergency department physician, contacted Dr. Emmert, who was on

call for the urology group, informed him of Mr. Johnson's status, and indicated that he felt that

an ultrasound would be appropriate. Dr. Emmert agreed and asked to be notified of the result.

The ultrasound of the lower extremities was negative and Dr. Sotolo notified Dr. Emmert (or,

according to Dr. Sotolo, Dr. Tapper)1 of that fact and of the fact that Mr. Johnson was to be

discharged, to which Dr. Emmert (or, arguably, Dr. Tapper) expressed no objection as the patient

was, by that point, improving. Mr. Johnson collapsed at home the following morning and was

pronounced dead upon his arrival at the hospital. The cause of death was found to be an acute

pulmonary embolism.

Plaintiff sued the Urology Defendants and the Emergency Medicine Defendants claiming

that, at the time of Mr. Johnson's care in the Emergency Department, he must have had pelvic

vein thrombosis which ultimately caused his death. Plaintiff claimed that the lower extremity

1 Dr. Tapper was named in this suit because Dr. Sotolo testified that he spoke toDr. Tapper, rather than Dr. Emmert, in the second call. This was an issue of contention betweenthe Defendants throughout the trial.

31976845.1

ultrasound study that was performed would not normally discover pelvic vein thrombi and that

Mr. Johnson should not have been discharged without a diagnosis of what had caused his lower

extremity edema. Plaintiff argued that Dr. Emmert/Dr. Tapper, as urologists, had knowledge

superior to that of the Emergency Medicine Defendants and should have known that the prostate

procedure Mr. Johnson had previously undergone could cause pelvic vein thrombosis which, in

turn, could cause bilateral lower extremity swelling. Drs. Emmert and Tapper vigorously

disputed these contentions.

B.

The Urology Defendants and the Emergency Medicine Defendants disagreed on some

significant issues. Plaintiff's primary theory of liability against the Urology Defendants was that

they did not communicate properly with the Emergency Medicine Defendants. This was based,

in part, on the fact that_ although Dr. Emmert testified that he participated in both of the telephone

calls from the Emergency Medicine Defendants, Dr. Sotolo, one of the Emergency Medicine

Defendants, testified both at deposition and at trial, that during the second, and most critical call,

he spoke with Dr. Tapper. Dr. Tapper testified that he has no recollection of such a call and that

it was unlikely that he received the second call. That testimony was enough to keep Dr. Tapper

in the case, although his testimony, and that of Dr. Emmert, stressed that he had nothing to do

with the care of Mr. Johnson.

41976845.1

C. Examination of Defense Experts.

Before trial, Plaintiff argued that each Defendant should be prohibited from cross-

examining each other's experts during the Defendants' case-in-chief. Upon considering the

memoranda filed by all parties and the arguments of counsel, the Court overruled Plaintiff's

motions and held that the Urology Defendants and the Emergency Medicine Defendants were

adverse to each other, and that Defendants were entitled to cross-examine each other's expert

witnesses during the Defendants' case-in-chief.

As the defense case progressed during a three-week trial, Plaintiff s counsel was made

well aware that he would be prohibited from re-cross examining defense witnesses if there was

no re-direct examination, as this issue arose and was addressed by the parties and the Court

during the testimony of various defense experts. First, during the examination of Dr. Norman

Schneiderman, an expert for the Emergency Medicine Defendants, Plaintiff argued that she

should be permitted re-cross examination despite the absence of re-direct examination, and the

trial court denied the request. Second, during the examination of Dr. Robert Kose, a pulmonary

and critical care expert for the Emergency Medicine Defendants, there was no re-direct

examination and Plaintiff again requested re-cross examination which was denied. Thereafter,

when the Urology Defendants called Dr. David Janiak, an emergency physician, as an expert,

there was a re-direct examination, but Plaintiff did not take advantage of the opportunity for re-

cross examination. The Emergency Medicine Defendants next called Dr. Creighton Wright, a

cardiovascular and thoracic surgeon. There was no re-direct examination, and Plaintiff did not

request re-cross examination. The Urology Defendants then called Dr. Arnold Melman, their

expert urologist. There was no re-direct examination and Plaintiff did not request re-cross

examination.

51976845.1

Next, the Urology Defendants called Dr. Anthony Comerota. The direct examination of

Dr. Comerota began with a discussion of his credentials and Mr. Johnson's clinical presentation

in the emergency department. He then criticized the opinions of Dr. Avery, one of Plaintiff's

experts, regarding the cause of the swelling in Mr. Johnson's legs. In great detail, Dr. Comerota

then demonstrated that the results from testing on Mr. Johnson's legs in search of any blood clots

was normal, which, in Dr. Comerota's opinion, meant that Plaintiff's causation theory, as stated

by Dr. Avery, had no merit. The basic conclusion of the direct examination of Dr. Comerota was

that if he had been contacted by a physician in the emergency department, he, as a vascular

surgeon, would not have suggested any additional tests for Mr. Johnson and would have agreed

with the decision to discharge him. Dr. Comerota, however, never gave any standard of care

opinion regarding a urologist or an emergency department physician.

After that direct examination, Plaintiff conducted a lengthy and broad-based cross-

examination of Dr. Comerota, encompassing 72 pages of transcript, which was longer than the

direct examination. Plaintiff s counsel chose, however, not to ask any questions regarding a key

causation issue: whether anticoagulation therapy (i.e. heparin) or an inferior vena cava filter

("IVC filter") would have made a difference in Mr. Johnson's outcome if the pelvic clot had

been diagnosed in the emergency department. Next, counsel for the Emergency Medicine

Defendants asked those very questions (as he had during Dr. Comerota's discovery deposition)

and obtained testimony indicating that heparin would not have saved Mr. Johnson's life and that

Mr. Johnson would not have been a candidate for an IVC filter. There was no re-direct

examination by the Urology Defendants. At that point, Plaintiff's counsel objected to the general

trial procedure: "He [counsel for the Emergency Medicine Defendants] didn't ask a single

question of proper cross- examination. All he did was point out everything that [counsel for the

61976845.1

Urology Defendants] pointed out to attempt to undermine my examination. And I have no

ability to come back." Plaintiff's counsel, however, did not state, as the basis of his objection,

the inability to cross-examine regarding heparin and the IVC filter, or any allegedly "new"

matter raised on cross-examination of the Emergency Medicine Defendants. Yet, the court of

appeals reversed on this very issue.

D. Standard of Care Testimony Against the UrologyDefendants.

The only witness introduced by Plaintiff to offer standard of care testimony against the

Urology Defendants was Dr. Edward Panacek, who practiced emergency medicine, internal

medicine and critical care medicine, but not urology. At trial, the Urology Defendants objected

to Dr. Panacek's standard of care testimony against them, arguing that no foundation had been

laid establishing knowledge and understanding of the urology standard of care. Dr. Panacek

never stated that he was even familiar with the standard of care applicable to urologists. Instead,

Dr. Panacek merely claimed that he was familiar with the manner in which an unidentified

"specialist" should communicate with emergency department physicians.

On cross-examination by the Urology Defendants, Dr. Panacek conceded:

• He is not a urologist;

• Other than a brief rotation in urology nearly 30 years ago, he has no trainingin urology;

• He never performed a radical retro-pubic prostatectomy;

• He never primarily cared for a patient post radical retro-pubic prostatectomy;

• He did not know how often a Board-certified urologist would need to addressbilateral edema in the lower extremities; and

• He did not know whether urologists would even know what test to order forpelvic vein thrombosis.

71976845.1

At the conclusion of Plaintiff's case, the Urology Defendants moved for a directed

verdict for lack of competent expert standard of care testimony against the Urology Defendants.

The trial court overruled the motion. At the conclusion of all evidence, the Urology Defendants

again moved for a directed verdict, arguing that there was no testimony from a urologist, or any

physician familiar with the standard of care applicable to urologists, indicating that the Urology

Defendants had breached the standard of care. After taking a recess, the trial court denied the

motion.

E. The Jury's Verdict.

The Emergency Department Defendants submitted jury interrogatories separating the

jury's findings regarding the standard of care and causation for each of the individually named

physicians. At that time, the jury interrogatories were discussed outside the jury's presence and

the Emergency Medicine Defendants asserted that interrogatories should be separate for each

Defendant for negligence and causation, stating, "If these two [negligence and causation] are

compressed it - it doubles the risk that at the appellate level there will be the opportunity to

argue for instance errors regarding the admission of causation testimony, when in fact the jury

may well have decided this case solely on the issue of negligence." The Urology Defendants

joined the request for separate interrogatories. Plaintiff nevertheless argued that the combined

interrogatories should be submitted and that course was ultimately adopted by the trial court.

Specifically, for each Defendant, there was an interrogatory inquiring whether the individual

physician was "negligent and did that negligence directly and proximately cause the death of

Eugene Johnson?" The jury ultimately found for each Defendant, answering each compound

interrogatory in the negative.

81976845.1

F. The Sixth District's Decision.

The primary issue on appeal was whether "the trial court committed a reversible error

when it denied Mrs. Johnson the right to examine defendants' expert witness on opinions that

were elicited after her initial cross-examination." On February 1, 2013, the Sixth District

reversed the defense verdict, concluding that the trial court's denial of Plaintiff's request to

conduct further cross-examination of Dr. Comerota on matters raised during the cross-

examination conducted by the Emergency Medicine Defendants constituted an abuse of

discretion. On February 6, 2013, the Sixth District Court of Appeals issued a decision correcting

errors in its prior opinion, but did not change the outcome.

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. 1: Ohio does not recognize a right of furthercross-examination in the absence of re-direct cross-examination.

The Urology Defendants join the argument of the Emergency Department Defendants

regarding the Proposition of Law No. 1.

PROPOSITION OF LAW NO. 2: A trial court does not abuse its discretion

concerning its regulation of the mode and order of the examination of a

witness when each party has had an opportunity to fully examine a witness.

The Urology Defendants join the argument of the Emergency Department Defendants

regarding the Proposition of Law No. 2.

PROPOSITION OF LAW NO. 3: A trial court does not abuse its discretion inregulating the method of interrogation of a witness in the absence of any legalauthority recognizing the right to further cross-examination.

The Urology Defendants join the argument of the Emergency Department Defendants

regarding the Proposition of Law No. 3.

91976845.1

PROPOSITION OF LAW NO. 4: Ohio's two-issue rule applies to medical

malpractice claims.

The Urology Defendants join the argument of the Emergency Department Defendants

regarding the Proposition of Law No. 4.

PROPOSITION OF LAW NO. 5: Ohio's two-issue rule requires upholding ajury verdict when jury interrogatories do not distinguish between negligenceand issues of causation and the testimony at issue addresses only causation.

The Urology Defendants join the argument of the Emergency Department Defendants

regarding the Proposition of Law No. 5.

PROPOSITION OF LAW NO. 6: Under Evid.R. 702(B), a physician is notqualified to give a standard of care opinion regarding a physician of a differentspecialty when that physician has not demonstrated familiarity with the standard ofcare of the different specialty.

Plaintiff did not present any testimony from a urologist, or a physician familiar with the

standard of care applicable to a urologist, to establish the urology standard of care. As such, the

court of appeals and trial court erred in allowing Plaintiff s claim against the Urology Defendants

to go to the jury.

An expert may testify at trial only if he "is qualified as an expert by specialized

knowledge, skill, experience, training or education." Evid.R. 702(B). The standard for

admissibility of standard of care opinions by a physician of a different specialty than the

defendant has been stated as follows:

In a medical-malpractice case, it is not required that the witnesspractice in the same specialty as the defendant-physician. `Where* * * fields of medicine overlap and more than one type of specialistmay perform the treatment, a witness may qualify as an experteven though he does not practice the same specialty as thedefendant.' The witness must demonstrate, however, that he isfamiliar with the standard of care applicable to the defendant'sschool or specialty and that his familiarity is `sufficient to enablehim to give an expert opinion as to the conformity of thedefendant's conduct to those particular standards and not to the

101976845.1

standards of the witness' school and, or, specialty if it differs fromthat of the defendant.' `It is the scope of the witness' knowledgeand not the artificial classification by title that should govern thethreshold question of his qualifications.' (Emphasis added.)

Trevena v. Primehealth, 171 Ohio App.3d 501, 2006-Ohio-6535, 871 N.E.2d 1217, ¶ 28 (1 ith

Dist.), quoting Alexander, 56 Ohio St.2d at 160.

An analysis of Alexander and two more recent cases reveals the error in the Sixth

District's decision. In Alexander, a podiatrist testified as an expert regarding the application and

removal of a cast, a practice which he applied on patients in his own practice. Alexander at 158.

The podiatrist testified "that the principles used in applying plaintiffs cast were the same as he

had been taught." Id. at 160. Because he was familiar with the applicable standard of care of

application and removal of casts, the court allowed the podiatrist to testify as an expert regarding

an orthopedic surgeon's application of a cast. Id, at 162. In Taulbee v. Dunsky, 12th Dist.

No. CA2003-03-059, 2003-Ohio-5988, ¶ 24, even though a board certified cardiothoracic

surgeon worked with emergency department and family physicians on a daily basis, he was

deemed not an expert on the standard of care of those specialties in diagnosing initial complaints

of chest pain because his involvement with patients comes long after the initial diagnosis. In

Nead v. Brown Cty. Gen. Hosp., 12th Dist. No. CA2005-09-018, 2007-Ohio-2443 ¶¶ 49-50, 56,

an emergencv department physician who taught residents how to evaluate and explore puncture

wounds testified as an expert regarding a surgeon's treatment, several days after the injury, of an

infected foot wound. The court ruled that the emergency department physician failed to

demonstrate a sufficient knowledge to enable him to give an expert opinion on the surgeon's

conduct due to both his "lack of training and practice in the field of surgery" and the fact that he

did not have experience following up with patients days after an injury. Id.

111976845.1

In this case, Dr. Panacek's testimony fails to meet the requirements of Alexander,

Taulbee, and Nead. Indeed, there was no testimony from Dr. Panacek, a critical care physician,

that he is familiar with the standard of care applicable to urologists. He merely testified that he

was familiar with the manner in which a generic specialist should communicate with an

emergency department physician. Urology Defendants do not argue, as the appellate court

stated, that evidence of the standard of care was lacking because Plaintiff failed to call a

urologist to testify. (See Decision and Judgment, at ¶ 36.) Instead, the Urology Defendants

assert that evidence of the standard of care was lacking because there was no demonstration that

Dr. Panacek's knowledge of urology was sufficient to enable him to give an expert opinion on a

urologist's standard of care in communication. This is not sufficient to establish that Dr.

Panacek was familiar enough with the standards of urology to enable him to express to the trier

of fact how a urologist should communicate to an emergency department physician, given a

specific clinical situation.

Unlike the podiatrist in Alexander, who practiced and was trained in the application and

removal of casts, Dr. Panacek does not practice and has not been trained in urology.

Furthermore, although Dr. Panacek interacts and communicates with "specialists" every day, he

does not have the practice or training in urology necessary to assist the trier of fact in

understanding everything that a urologist must communicate to an emergency department

physician. Dr. Panacek did not demonstrate that he is familiar with the standard of care

applicable to urology and could not provide a standard of care opinion from the perspective of a

urologist under the facts of this case. In other words, although the stated criticism was "poor

communication," that communication was from the perspective of a urologist after prostate

cancer surgery. Dr. Panacek was plainly not qualified to address that standard and was therefore

121976845.1

not qualified to testify as to the standard of care for communications between urologists and

emergency department physicians.

Based on Dr. Panacek's complete lack of knowledge of urology, his testimony should not

have been permitted regarding the standard of care relating to the Urology Defendants.

Accordingly, the trial court and the appellate court erred in permitting the case against the

Urology Defendants to go to the jury.

IV. CONCLUSION

For the foregoing reasons, this case involves matters of great public and general interest.

The Urology Defendants request that this Court accept jurisdiction to clarify Ohio law regarding:

(1) the discretion of trial court to regulate re-cross examination, especially where there is no re-

direct examination; (2) the scope and application of the two-issue rule in medical malpractice

cases, given the confusion created by the proposed jury interrogatories in Ohio Jury Instructions;

and (3) the required knowledge of a physician when testifying on the standard of care of a

different specialty.

Respectfully submitted,

EASTMAN & SMITH LTD.

J

Peter R. Casey;`III (0000579)William P. Bingle (0089463)One SeaGate, 24th Floor, P.O. Box 10032Toledo, OH 43699-0032

Attorneys for AppellantsGenito-Urinary Surgeons, Inc., Gregor K.Emmert, Jr., M.D., and Richard I. Tapper, M.D.

131976845.1

PROOF OF SERVICE

A copy of the foregoing Memorandum in Support of Jurisdiction of Appellants

Genito-Urinary Surgeons, Inc., Gregor K. Emmert, Jr., M.D. and Richard I. Tapper, M.D.

has been mailed this ^ day of March, 2013 to: Todd E. Gurney, Esq., Brian N. Eisen,

Esq., William M. Greene, Esq., and Romney Cullers, Esq., Greene & Eisen Co., L.P.A., 1300

East Ninth Street, 1801 Penton Media Building, Cleveland, Ohio 44114, attorneys for Plaintiff;

and to John C. Barron, Esq., Shumaker, Loop & Kendrick, LLP, 1000 Jackson Street, Toledo,

Ohio 43604-5515, attorney for Defendants Emergency Physicians of Northwest Ohio at Toledo,

Inc., Jaron S. Goldberg, M.D., and Carlos A. Sotelo, D.O.

UrirW Sur oe, nc., Gregor K.t, Jr., M. d Richard I. Tapper, M.D.

141976845.1

r ^RT OF PPEAI-S

1013EE8-1 Aa. 03

COMmONPLEUIS cR y^1O^^t^l^ 0 COU^TS

C^ K OfIN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICTLUCASCOUNTY

Mary Johnson, etc.

Appellant/Cross-Appellee

V.

Emergency Physicians of NorthwestOhio at Toledo, Inc., et al.

Court of Appeals No. L-11-I290

Trial Court No. C10200805902

DECISION AND JUDGMENT

FEB 012413Appellees/Cross-Appellants Decided:

Todd E. Gurney, Brian N. Eisen, William M. Greene and RomneyCullers, for appellant/cross-appellee.

John C. Barron and Stefanie E. Deller, for appellees EmergencyPhysicians of Northwest Ohio at Toledo, Inc., Jaron Goldberg, M.D.and Carlos Sotelo, D.O.

Peter R. Casey, III and Jeffrey M. Stopar, for appellees/cross-appellants.

PIETRYKOWSKI, J.

{¶ 1} This appeal arises in a medical malpractice/wrongful death action brought

by appellant, Mary Johnson, individually and as administrator of the estate of her

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husband, Eugene Johnson, and as personal representative of his next of kin. Mr. Johnson

died on February 28, 2007.

{¶ 2} Appellees are the defendants in the case and include urologists, emergency

room physicians, and their employers. The urology appellees are Gregor K. Emmert, Jr.,

M.D., Richard I. Tapper, M.D., and Genito-Urinary Surgeons, Inc. The emergency room

appellees are Jaron S. Goldberg, M.D., Carlos A. Sotelo, D.O. and Emergency Physicians

of Northwest Ohio at Toledo, Inc.

{¶ 31 The case proceeded to trial before a jury in the Lucas County Court of

Common Pleas in January 2011. The jury returned a verdict in favor of all defendants,

and, pursuant to the verdict, the trial court entered judgment in favor of appellees and

against appellant on February 1, 2011. Appellant appeals the February 1, 2011 judgment.

The urology appellees also have cross-appealed.

{¶ 4) A series of medical experts testified at trial. Together they presented a basic

framework to understand medical issues and testimony presented at trial. A deep vein

thrombosis (DVT) is a blood clot that has formed in a vein located deep in the body.

When a clot breaks off and moves through the bloodstream, it is an embolism. A

pulmonary embolism is a blood clot that has moved from some other place in the body

and into the lungs. The parties do not dispute that the cause of Mr. Johnson's death was

an acute pulmonary embolism.

{¶ 5) Eugene Johnson suffered from prostate cancer and underwent prostate

cancer surgery by Dr. Eric A. Pizza, M.D. in February 2007. Dr. Pizza is a urologist and

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together with Drs. Emmert and Tapper has been employed by appellee Genito-Urinary

Surgeons, Inc.

{¶ 6} At 12:54 a.m. on February 27, 2007 (twelve days after the prostate surgery),

Mr. Johnson went to the emergency room department at Toledo Hospital because both his

legs were swollen and tight. Dr. Jaron S. Goldberg, M.D. was the initial emergency room

physician who treated Mr. Johnson at the emergency room. That night Dr. Emmert was

the physician on call for the urology practice group.

(417) After examining Mr. Johnson, Dr. Goldberg ordered a D-dimer blood test to

look for blood clots located anywhere in the body. (D-dimer is a substance released by

the body in an effort to breakdown blood clots.) After receiving the D-dimer test results,

Dr. Goldberg ordered a Venous Duplex Doppler ultrasound of the lower extremities to

rule out possible blood clots. Dr. Goldberg requested emergency room staff to contact

the physician on call for the urology practice group.

{¶ 8} Dr. Emmert and Dr. Goldberg spoke concerning Mr. Johnson's situation and

Goldberg's evaluation and plan to secure the Venous Duplex Doppler ultrasound. Dr.

Emmert has acknowledged that he agreed with the plan of care and that he requested that

Dr. Goldberg advise him of the results of the ultrasound study.

{¶ 9} Dr. Goldberg's shift in the emergency room department ended before the

Duplex Doppler ultrasound study was conducted. Dr. Sotelo took over for Dr. Goldberg

and performed his own evaluation of Mr. Johnson. The study was reported negative for

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blood clots in the legs. Dr. Sotelo contacted the urology practice group to provide the test

results. During the course of the night, the swelling in Mr. Johnson's legs lessened.

{¶ 10} Dr. Sotelo reviewed Mr. Johnson's course while in the emergency room

department including Duplex Doppler ultrasound test results with either Dr. Emmert or

Dr. Tapper of the urology group. Dr. Sotelo also advised the urologist of his plan to

discharge Mr. Johnson home with instructions.

{¶ 11} At approximately 9:38 a.m. on February 27, 2007, Mr. Johnson was

discharged from the hospital to home with instructions. The instructions were that he

was to follow up with his urologist, Dr. Pizza, at a scheduled appointment (scheduled for

February 28, 2007) and to keep his legs elevated when at rest.

1112) Mr. Johnson collapsed at home on the morning of February 28, 2007, and

was pronounced dead upon arrival at the hospital. An autopsy determined that the cause

of death was an acute pulmonary embolism.

{¶ 13} Appellant asserts two assignments of error in her appeal:

Assignments of Error

1. The trial court committed reversible error when it refused to

excuse a juror for cause where there was doubt as to the juror's being

entirely unbiased; and

2. The trial court committed reversible error when it denied Mrs.

Johnson the right to examine defendants' expert witness on opinions that

were elicited after her initial cross-examination.

4.

{¶ 14} We consider Assignment of Error No. 2 first.

Denial of Recross-Examination of Expert Witness

11115) Appellant argued at trial that appellees breached the standard of care owed

Mr. Johnson by failing to secure additional testing to directly examine Mr. Johnson's

pelvis for blood clots and upon discovery of a blood clot to treat the condition by either

instituting heparin anticoagulant drug therapy or by placement of an IVC (inferior vena

cava) filter. Appellant has contended that the additional testing would have disclosed the

existence of a blood clot in veins of Mr. Johnson's pelvis and that the available treatment,

if pursued, would have prevented Mr. Johnson's death. These contentions were highly

disputed at trial.

11116) Appellant argues under Assignment of Error No. 2 that the trial court erred

by denying appellant an opportunity to cross-examine Dr. Anthony J. Comerota, M.D., at

trial, after the witness was questioned by the emergency room appellees. Dr. Comerota

testified as an expert witness at trial on behalf of the urology appellees. Dr. Comerota is

a vascular surgeon.

{¶ 171 The urology and emergency room appellees were co-defendants and the

trial court permitted them to cross-examine each other's witnesses at trial. The order of

evidence was that Dr. Comerota testified first on direct examination by the urology

appellees, followed by appellant on cross-examination, and then by the emergency room

appellees, also on cross-examination.

5.

{¶ 18} On direct, the emergency room appellees limited their questioning of Dr.

Comerota to liability issues concerning the care received by Mr. Johnson at The Toledo

Hospital and expert opinion testimony with respect to compliance with the standard of

care. The emergency room appellees did not question Dr. Comerota on direct about

appellant's theory that if Mr. Johnson had been treated with heparin or with an IVC filter,

he would have survived. Appellant limited her questioning to issues raised on direct.

(1119) The emergency room appellees explored new matter and secured expert

opinion testimony of the witness on issues not raised in prior questioning by either the

urology appellees or appellant. In examination by the emergency room appellees, Dr.

Comerota testified to his opinions that administration of the drug heparin would not have

saved Mr. Johnson's life and that Mr. Johnson was not a candidate for treatment through

placement of an IVC filter:

Mr. Barron: And if anti-coagulation therapy had been administered

for a 24-hour period do you have an opinion to a reasonable degree of

medical probability whether or not that heparin therapy over a 24-hour

period would have prevented the death? Do you have such an opinion?

Dr. Comerota: It probably would not have.

Mr. Barron: Okay. Now, there has been some testimony in this case

to this jury by other medical witnesses about the potential lifesaving

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promise or ability or effect of an inferior vena cava filter. And I want to

ask you some specific questions about that device.

Based upon again a hypothetical situation where this internal iliac

venin clot was somehow diagnosed on February 27th, 2007 in Mr. Johnson,

would Mr. Johnson have been an appropriate candidate for the placement of

inferior vena cava filter?

First, do you have an opinion to a reasonable medical probability on

that issue?

Dr. Comerota: The proper treatment of Mr. Johnson - if the internal

iliac vein thrombosis was diagnosed the proper treatment would have been

anti-coagulation not an IVC filter.

Q. And -

An IVC filter has complications in and of itself. It will go on to

thrombose the vena cava in varying percentages of patients. And some of

them as much as four to five percent over the next six months in some

reports.

Additionally what has been unquestionably established is that there

is a higher risk of deep vein thrombosis in patients who have an IVC filter

placed. So I'm in favor of the proper use of IVC filters, but I'm not in

favor of the improper use of these filters.

7.

Q. And again, just to come back, based upon your knowledge,

training, and expertise, if hypothetically this internal iliac clot had been

diagnosed on February 27th, would Mr. Johnson have been a proper

candidate for the placement of such a filter on that date?

A. No.

11120) After the emergency room appellees concluded questioning of Dr.

Comerota, the urology appellees advised the court that they had no re-direct. Appellant

requested an opportunity to recross-examine the witness, limited to new matters that were

not raised on direct. The trial court denied the request on the basis that there had been no

re-direct.

{¶ 21) Trial courts have broad discretion to admit or exclude evidence and a ruling

on evidence will not be reversed on appeal absent a showing of an abuse of discretion

that affects the substantial rights of a party or is inconsistent with substantial justice.

Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323,

¶ 20; O'Brien v. Angley, 63 Ohio St.2d 159, 163, 407 N.E.2d 490 (1980). Although

generally the opportunity to recross-examine a witness comes within a trial court's

discretion, where new areas are inquired into on redirect, the trial court is to allow the

opportunity to recross-examine. State v. Faulkner, 56 Ohio St.2d 42, 46, 381 N.E.2d 934

(1978).

{¶ 22) The Ohio Supreme Court defined new matter in Faulkner for purposes of

the right to recross-examine a witness to concern whether the issue for which recross-

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examination is sought had been raised in earlier questioning of the witness at trial. Id.

We do not consider the fact of whether the issue had been addressed during a pretrial

discovery deposition of the witness, as argued by appellees, to be relevant to the inquiry.

{¶ 23) In Bernal v. Lindholm, 133 Ohio App.3d 163, 727 N.E.2d 145 (6th

Dist. 1999), we considered objections to trial procedure in a medical malpractice action

that permitted co-defendants to question each other's witnesses at trial. There and here,

the plaintiffs-appellants argued that the procedure created tactical advantages for the co-

defendants at trial. Id. at 177. In Bernal, we recognized that such a procedure requires a

trial court to permit the plaintiff "a full opportunity for meaningful cross-examination of

the witnesses." Id.

{¶ 24) The opinion testimony on new matter by Dr. Comerota, elicited through

questioning by the emergency room appellees, presented key evidence in defense of

claims against all defendants. The trial court's ruling acted to deny appellant any cross-

examination of the witness on these opinions as against any defendant. We conclude that

the trial court abused its discretion by denying cross-examination of Dr. Comerota on the

new matter. We also conclude that the ruling was highly prejudicial in the case,

involving key defense testimony on the issues of negligence and proximate cause at trial.

Two Issue Rule

{¶ 25) Appellees argue that the two issue rule bars consideration of Assignment of

Error No. 1. In H.E. Culbertson Co. v. Warden, 123 Ohio St. 297, 303, 175 N.E. 205

(1931), the Ohio Supreme Court defined the rule:

9.

This rule as generally applied is that, where there are two causes of

action, or two defenses, thereby raising separate and distinct issues, and a

general verdict has been returned, and the mental processes of the jury have

not been tested by special interrogatories to indicate which of the issues

was resolved in favor of the successful party, it will be presumed that all

issues were so determined; and that, where a single determinative issue has

been tried free from error, error in presenting another issue will be

disregarded.

{¶ 26} Appellees argue that the two issue rule applies because the defense verdict

was supported by the evidence on two independent grounds, negligence and proximate

cause. No special interrogatory was employed at trial to disclose on which issue the jury

rendered its verdict. Appellees contend that the opinion testimony by Dr. Comerota upon

questioning by the emergency room appellees was relevant to the issue of proximate

cause alone. They contend that the issue of negligence was tried free of claimed error

and that the jury could have reached its verdict based upon resolution of the negligence

issue alone.

{¶ 27} Appellees cite a decision of the Seventh District Court of Appeals in Parm

v. Ramsey, 7th Dist. No. 04 MA 258, 2005-Ohio-4505 in support of their argument. The

Parm decision involved an action for personal injuries allegedly sustained in an

automobile accident. The case was defended on claims that the defendant was not

negligent and that the plaintiff was not injured in the accident. On appeal, the plaintiff

10.

asserted trial court errors concerning the negligence alone. Id. at ¶ 6-10. Under the two

issue rule, the court of appeals upheld the defense verdict because no special

interrogatory at trial demonstrated whether the jury based its verdict on a finding of no

negligence or a finding of no injury. Id. at ¶ 18.

1128) We agree with appellant that the Parm decision is distinguishable and that

the two issue rule does not apply in this appeal. This case concerns an action for medical

malpractice. In our view, the evidence of whether placement of an IVC filter or

administration of heparin drug therapy were available effective treatments for Mr.

Johnson's blood clot was relevant evidence with respect to both negligence and

proximate cause. It was relevant on whether appellees were negligent in failing to pursue

further testing for a blood clot in veins of the pelvis. It was also relevant on the issue of

whether failure to pursue further testing proximately caused Mr. Johnson's death.

1129) We conclude that this case does not present an independent ground

supporting the general verdict that was tried free from the claimed trial court error. Dr.

Comerota's testimony concerning heparin and IVC filters related to both negligence and

proximate cause. The two issue rule does not apply.

Proffer and Evid.R. 103(A)(2)

{¶ 30) The emergency room appellees also argue that appellant was required to

make a proffer of expected testimony she intended to elicit from Dr. Comerota on

recross-examination in order to preserve the issue for appeal. Under Evid.R. 103(A)(2),

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however, a proffer is not required to preserve a claim that the trial court erred by

excluding evidence sought through cross-examination. State v. Scott, 6th Dist. No.

S-83-6, 1983 WL 6932, *1 (Aug. 26, 1983); State v. Pierce, 2011-Ohio-4873, 968 N.E.2d

1019, ¶ 3(2d Dist.); State v. Jackson, 9th Dist. Nos. 22378 and 22394, 2005-Ohio-5184,

¶ 12.

{¶ 311 We find appellant's Assignment of Error No. 1 well-taken.

{¶ 32) Under Assignment of Error No. 2, appellant asserts that the trial court erred

in overruling appellant's motion to excuse Juror 5 for cause. Juror 5 was subsequently

excused from jury service through appellant's exercise of a peremptory challenge to the

juror.

{¶ 33) In view of decision on the merits on Assignment of Error No. 1, we find

Assignment of Error No. 2 is moot. See App.R. 12(A)(1)(c).

Cross-Appeal

(1134) The urology appellees assert one assignment of error on cross-appeal:

Assignment of Error on Cross-Appeal: The trial court erred by

overruling the motion for directed verdict of the Urology Defendants

because there was no competent, credible evidence indicating that the

Urology Defendants breached the standard of care.

{¶ 351 The Ohio Supreme Court identified the elements of an action for medical

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

one of the syllabus:

12.

In order to establish medical malpractice, it must be shown by a

preponderance of evidence that the injury complained of was caused by the

doing of some particular thing or things that a physician or surgeon of

ordinary skill, care and diligence would not have done under like or similar

conditions or circumstances, or by the failure or omission to do some

particular thing or things that such a physician or surgeon would have done

under like or similar conditions and circumstances, and that the injury

complained of was the direct and proximate result of such doing or failing

to do some one or more of such particular things.

{¶ 36} The applicable standard of care and proximate cause of injury in medical

malpractice actions are ordinarily established through use of expert opinion testimony.

Rogoffv. King, 91 Ohio App.3d 438, 445, 632 N.E.2d 977 (8th Dist.1993); Mielke v.

Baibak, 6th Dist. No. L-07-1356, 2009-Ohio-2598,^ 25.

In their cross-appeal, the urology appellees contend that competent, credible

evidence was lacking at trial to support a claim that they breached the standard of care

owed by them to the decedent and that the trial court erred in failing to grant their motion

for a directed verdict on that ground. The urology appellees argue evidence of the

applicable standard of care was lacking at trial because appellant did not call a urologist

to testify.

{¶ 37} Ohio courts have recognized that there can be a standard of care with

respect to communication between physicians. See Fowerbaugh v. Univ. Hosps., 118

13.

Ohio App.3d 402, 406-407, 692 N.E.2d 1091 (8th Dist.1997). The urology defendants do

not dispute the existence of a standard with respect to communication between

physicians. They dispute that Dr. Panacek is qualified to testify to establish the standard

for urologists.

{¶ 38} Dr. Edward Allen Panacek, M.D., testified that in his practice he interacts

with specialists every day in circumstances involving emergency room care and critical

care. He testified that his education, training and experience made him knowledgeable

about the quality of communications between specialists and emergency medicine

physicians and the importance of clear and effective communication in both directions in

arriving at a reasonable plan to safely evaluate and treat patients. Dr. Panacek is a

physician and professor at the University of California Davis. He is board certified in

emergency medicine, internal medicine, and critical care medicine.

{¶ 39} Over objection, Dr. Panacek testified at trial to the standard of care owed

by specialists generally in their communications with emergency room physicians and

that Dr. Emmert, in his communications with Dr. Goldberg, and the urologist who

subsequently communicated with Dr. Sotelo (either Dr. Emmert or Dr. Tapper) both

violated that standard of care to the injury of Mr. Johnson.

{¶ 40}- Urology appellees argue that Dr. Panacek is not qualified to testify as to a

urological standard of care. They argue that Dr. Panacek did not testify to any familiarity

with the standard of care applicable to urologists and admittedly lacked a urologist's

understanding of pelvic vein thrombosis. Appellant argues that under the Ohio Supreme

14.

Court's decision in Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 383 N.E.2d

564 (1978), expert opinion testimony by a urologist was not required because specialties

overlap on this issue.

{¶ 41} In Alexander, the trial court excluded the testimony of a podiatrist at trial as

to the standard of care with respect to application and removal of a cast that is too tight in

a medical malpractice action brought against an orthopedic surgeon. Id. at 159-160. The

podiatrist testified "that there was a common way all surgeons applied casts and that the

principles used in applying the plaintiff s cast were the same as he had been taught ." Id.

at 160.

{¶ 42} After reviewing testimony by the podiatrist, the Ohio Supreme Court

concluded that the record in the case contained "probative evidence that there exists a

minimum standard of care common to all specialties with regard to the application of

casts." Id. The Alexander court affirmed a judgment of the Tenth District Court of

Appeals that ruled the testimony by the podiatrist was admissible as the testimony fell

"within that area of medicine which he is authorized to and does practice." Id.

{¶ 43} In Smith v. Promedica Health System, Inc., 6th Dist. No. L-06-1333, 2007-

Ohio-4189, ¶ 17, we considered the case-by-case analysis required under Alexander to

determine admissibility of expert opinion testimony where fields of medicine overlap:

Where the fields of medicine overlap, a witness from a school or

specialty other than that of the defendant physician may qualify as an

expert witness if he demonstrates sufficient knowledge of the standards of

15.

the defendant's school and specialty enabling him to give an expert opinion

as to the conformity of the defendant's conduct to those particular

standards. Alexander, supra, at 158-159. The test of admissibility is

whether a particular witness offered as an expert will aid the trier of fact in

the search of the truth, not whether the expert witness is the best witness on

the subject. Id. Thus, the admissibility of expert testimony must be made

on a case-by-case basis, reviewing the medical expert's knowledge, skill,

experience, training, and education. Taulbee [v. Dunsky, 12th Dist. No.

CA2003-03-059, 2003-Ohio-5988] supra, at ¶ 21.

{¶ 44} Appellant did not seek to introduce expert opinion testimony from Dr.

Panacek on whether the urology appellees were negligent in performing any urological

procedure. Dr. Panacek's testimony with respect to the urology appellees at trial was

limited to whether they were negligent in failing to communicate effectively with the

emergency room appellees in a manner applicable to specialists generally.

{¶ 45} In our view, the trial court did not abuse its discretion in concluding that

Dr. Panacek was qualified to testify as to the existence of a standard of care applying to

communications between specialists and emergency room physicians generally and to an

opinion on whether the urology appellees breached that standard of care to the injury of

decedent.

16.

. . I .

{¶ 46} As the record includes expert testimony as to standard of care and breach of

the standard to the injury of the decedent, we find no trial court error in its overruling the

motion for a direct verdict at trial.

{¶ 47) We find the urology appellee's assignment of error on cross-appeal is not

well-taken.

{¶ 48) We conclude that appellant was denied a fair trial. We reverse the

judgment of the Lucas County Court of Common Pleas and remand this cause for further

proceedings including a new trial. Appellees are ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. Seealso 6th Dist.Loc.App.R. 4.

Peter M. Handwork, J.

Mark L. Pietrykowski, J.

Stephen A. Yarbrough. J.CONCUR.

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This decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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Received02/06/2013 12:51 4192134844

FILEDC'oURT OF aPP'EALS

1013FEB-b P i: 09

COMMON PLEr^..S COURIBE^hlr QU{LTt:Z

CLE t^ Oi COURTS

Feb 6 2013 01=52vmCOURT OF AP PAGE 01/02

TNU.E COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

LUCASCOUNTY

Mary Johnson, etc.

Appel l ant/Cross-Appell ee

Court of Appeals No. L-11-1290

Trial Cotirt No. C10200805902

v,

Emergency Physicians of NorthwestOhio at Toledo, Inc., et al. DECISION AND JUDGMENT

Appellees/Cross-Appellants Decided: FEB 0 6 2013

***^^

This matter is before the court sua sponte. It has come to he court's atten,tior>, that

the judgment in this case, dated February 1, 2013, contains eiror^. Accordingly, the court

hereby issues this notice of effata and orders that the February 1,12013 judgment is

corrected by substituting paragraphs 18, 31, 32, and 33 below

paragraphs in the judgment entry.

The changes to paragraph 18, correct the judgment to

urology appellees conducted the direct examination of Dr. C

{¶ a 8} On direct, the urology appellees limited their

those numbered

the fact that the

ioninR of Dr. Comerota

to liability issues concerning the care received by Mr. Johnson at The Toledo Hospital,

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Received Feb 6 2013 01:53om02/06/2013 12:51 4192134844 COURT OF AP PAGE 02/02

and expert opinion testimony with respect to compliance with the standard of care. The

urology appellees did not question Dr. Comerota on direct about appellant's theory that if

Mr. Johnson had been treated with heparin or with an IVE', filter, he would have survived.

Appellant limited her questioning to issues raised on direct.

The changes to paragraphs 31, 32, and 33, correct ,references to assignments of

error. fn those three paragraphs, references to Assignment of Error No. 1 are changed to

refer to Assignment of Error No. 2. References to Assignment of Error No. 2 are

changed to refer to Assignment of Error No. 1:

(11311 We find appellant's Assignment of Error No. 2 we11-taken.

{¶ 32} Under Assignment of Error No. 1, appellant asserts that the trial court erred

in overruling appellant's motion to excuse Juror 5 for cause. Juror 5 was subsequently

excused from jury service through ap^pella,ht's exercise of' a peremptory challenge to the

juror.

(133) In view of decision on the merits on Assignment of Error No. 2, we find

Assignment of Error No. 1 is moot. See App.R. 12(A)(1)(c).

it is so ordered.

Peter M. Handwork, J.

Mark L. Pietrykowslti, J.

Stephen A. Yarbrough, J.CONCUR.

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