{¶ 28} The majority's opinion joins a recent trend in this appellate district of reversing jury verdicts in medical-malpractice cases supposedly because comments by counsel for the physician or hospital went beyond the bounds of closing argument. I disagree with the majority's conclusion in this appeal and find no support for the argument that Dr. Saeed's counsel "grossly and persistently abuse[d] his privilege" in closing argument. See Snyder v. Stanford (1968),15 Ohio St.2d 31, 44 O.O.2d 18, 238 N.E.2d 563, paragraph one of the syllabus.
{¶ 29} In the 62 pages of transcript that comprise the closing argument of Dr. Saeed's counsel, Roetenberger objected only four times. Three objections targeted counsel's use of the words "rich people," "brand with malpractice," and "during." The fourth objection related to an argument by Roetenberger's counsel comparing the preponderance-of-evidence standard to half a glass of water. Dr. Saeed's counsel said, "Now let me take their glass of water here that they put and they say just trickle a little drop of water and it will go from fifty percent to just over fifty percent and we've met our burden of proof. That's an absolute and utter misrepresentation and manipulation of the burden of proof."
{¶ 30} Surely, the majority would not hold that the trial court abused its discretion by overruling these objections. Therefore, statements that Roetenberger did not object to are subject to plain-error review. "In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfussv. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus.
{¶ 31} To support its determination that Dr. Saeed's counsel made unwarranted attacks on Roetenberger's counsel, the majority strings together a number of isolated statements. There is no dispute that closing argument is improper if counsel personally attacks opposing counsel. Pesek v. Neurologists Assn., Inc. (2000), 87 Ohio St.3d at 501, 721 N.E.2d 1011. Reversible error is founded on the principle that personal attacks that disparage opposing counsel are not based on the evidence and that even if there is no objection, the trial court has a duty to intervene and require counsel to proceed in an orderly, lawyerlike manner. See Jones v. Macedonia-Northfield Banking Co. (1937),132 Ohio St. 341, 351, 8 O.O. 108, 7 N.E.2d 544; Clark v. Doe (1997),119 Ohio App.3d, at 307, 695 N.E.2d 276. While some of the comments at issue may have been questionable, given the overall context in which they were made, I do not agree with the majority that the trial court had a duty to intervene. In my view, the majority has created a *Page 566 per se rule of reversal based on counsel's use of taboo words and has overextended the holding in Pesek, supra.
{¶ 32} I also disagree with the majority's conclusion that counsel maligned Roetenberger's expert witnesses. In professional-negligence trials, expert testimony is almost always essential to prove negligence and causation. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673. The ultimate question is, whose expert does the jury believe? Therefore, an expert's bias and pecuniary interest are appropriate subjects for cross-examination. Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008. Counsel should have leeway to challenge the quality of the expert evidence as long as counsel does not "`create an atmosphere * * * surcharged with passion or prejudice and in which the fair and impartial administration of justice cannot be accomplished.'"Pesek, 87 Ohio St.3d at 501, 721 N.E.2d 1011, quoting Jones v.Macedonia-Northfield Banking Co. (1937), 132 Ohio St. 341, 351,8 O.O. 108, 7 N.E.2d 544.
{¶ 33} The danger of examining remarks in isolation is amply illustrated here. For example, the majority exaggerates when it says that counsel called Roetenberger's expert, Dr. Mark Popil, an "idiot" and not credible because "he wore gym shoes and baggy pants." Counsel for Dr. Saeed did strenuously challenge Dr. Popil's qualifications to give an opinion about the use of Demerol and other drugs. Counsel did, perhaps intemperately, refer to Dr. Popil as an "idiot" and "incompetent," but not because of how the doctor was dressed. The transcript shows that this remark was simply a reference to an earlier observation that the jury saw Dr. Popil testify, as an emergency-room physician, dressed in emergency-room clothing.
{¶ 34} "Medical malpractice cases engender strong emotion, and there is nothing wrong with passionate argument." Clark,119 Ohio App.3d at 307, 695 N.E.2d 276. The majority acknowledges that the trial court should accord great latitude to counsel in the presentation of closing argument to the jury. Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph two of the syllabus. The transcript indicates that the lawyers for the parties, as well as the court, were skilled and experienced in medical-malpractice trials. In my opinion, reversal on the basis of counsel's closing remarks reflects an expression of doubt by the majority as to whether jurors are capable of sifting through the complexities of the evidence and applying the law as they are instructed.
{¶ 35} From the record in this appeal, I have no doubt that the jury's verdict was rendered upon the evidence and was not improperly influenced by defense counsel's remarks in closing argument.
{¶ 36} Finally, I am convinced that the trial court's instruction on alternative methods was proper. This case is factually distinguishable from Pesek, supra, in *Page 567 which it was undisputed that there was only one acceptable method of treatment. Dr. Saeed maintained that Karen Roetenberger's tragic death was caused by an air embolism, a complication of the ERCP surgery, but Roetenberger claimed that Dr. Saeed oversedated her. Based on the testimony of two experts, Roetenberger suggested that Dr. Saeed's use of the sedative Demerol, as opposed to a different sedative, during ERCP was below the standard of care. Therefore, in my view, the jury was presented with evidence that there was more than one acceptable way to treat, and it was instructed accordingly. If, indeed, this instruction was given in error, the jury was not misled and any error was harmless.
{¶ 37} I would affirm the judgment of the trial court.