Daniels v. Northcoast Anesthesia Providers, Inc.

[Cite as Daniels v. Northcoast Anesthesia Providers, Inc., 2018-Ohio-2132.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 105125

VICTORIA DANIELS, ET AL.

PLAINTIFFS-APPELLEES

vs.

NORTHCOAST ANESTHESIA
PROVIDERS, INC., ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT:
REVERSED AND REMANDED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-11-764060

BEFORE: Stewart, J., Keough, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: May 31, 2018
ATTORNEYS FOR APPELLANTS

William A. Meadows
Reminger Co., L.P.A.
1400 Midland Building
101 West Prospect Avenue
Cleveland, OH 44115

David H. Krause
Reminger Co., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, OH 43215

Douglas G. Leak
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway, Suite 100
Akron, OH 44333

ATTORNEYS FOR APPELLEES

Christopher M. Mellino
Meghan C. Lewallen
Mellino Law Firm, L.L.C.
19704 Center Ridge Road
Rocky River, OH 44116
MELODY J. STEWART, J.:

{¶1} As plaintiff-appellee Victoria Daniels was about to have surgery, the

defendant-appellant-anesthesiologists Zoard Vasarhelyi, M.D. and Rostyslav Koziy, M.D.,

approved the placement of a transdermal patch on her to prevent postoperative nausea. Daniels

appeared to have an allergic reaction to the patch and went into anaphylactic shock. She stopped

breathing and experienced low blood oxygen for close to 30 minutes, causing her to suffer brain

damage. Alleging that the active ingredient in the transdermal patch was part of the same family

of drugs to which she had previously disclosed a serious allergic reaction, Daniels brought this

medical malpractice action against both physicians and their employer, defendant-appellant

Northcoast Anesthesia Providers, Inc., claiming that they violated the standard of care by failing

to formulate an anesthesia plan to prevent her from being given drugs belonging to the same class

of drugs to which she had an established allergy.1 She also alleged that the physicians violated

the standard of care in failing to give her adequate doses of a drug called “Epinephrine” to

resuscitate her. A jury found in Daniels’s favor and awarded damages. The court subsequently

awarded her prejudgment interest on the damages award.

{¶2} The ten assignments of error on appeal contest various pretrial and trial rulings by

the court, as well as an award of prejudgment interest. We conclude that the court abused its

discretion by admitting Daniels’s summary of the medical records evidence to go to the jury; that

the court abused its discretion by not giving the “bad results” instruction to the jury; and that the

court abused its discretion by allowing Daniels’s demonstrative boards to be considered by the

jury. We further find that the cumulative effect of these errors deprived Vasarhelyi and Koziy of

1
Daniels’s two minor children were also named as plaintiffs and sought damages for loss of parental care and
comfort. Because the claims of the minor children are derivative of any relief that Daniels obtained, we shall
collectively refer to the plaintiffs as “Daniels.”
a fair trial. The assignments of error relating to the limitation on closing argument and

prejudgment interest are moot.

I. Hearsay

{¶3} The first assignment of error is that the court abused its discretion by admitting into

evidence, and sending to the jury for its deliberations, a learned treatise in violation of Evid.R.

803(18).

{¶4} The basis of Daniels’s claims against Vasarhelyi and Koziy was that prior to

surgery, she disclosed an allergy to an asthma medication called Atrovent. She maintained that

the antinausea patch placed on her prior to surgery contained a drug called Scopolamine and that

Scopolamine and Atrovent belong to the same family of drugs known as “belladonna alkaloids.”

She maintained that the allergic reaction to Scopolamine could have been prevented had

Vasarhelyi and Koziy cross-checked the drug using, among other resources, an online service

called Lexi-Comp that provides drug information such as dosing, warnings, and precautions.

{¶5} Daniels’s expert testified at trial that there were a variety of resources that doctors

and nurses could consult about drugs, including Lexi-Comp. The expert identified plaintiff’s

exhibit No. 26 as a printout from Lexi-Comp titled “Belladonna Alkaloid Allergy.” The printout

contained a list of “associated drugs” including Scopolamine. According to Daniels’s expert,

the printout showed that Scopolomine “could potentially crossreact in that category.” The

expert said that the Lexi-Comp entry “instructs to avoid scopolamine, which was in the patch; it

talks about Atrovent * * *.” The expert then identified a second printout from Lexi-Comp,

plaintiff’s exhibit No. 26B, titled, “Reported Allergy: Patient Management Considerations.”

The expert testified that the printout stated: “In general, when a previous severe reaction has

occurred, repeated exposure to the initial agent and related compounds should be avoided. * * *
Per the manufacturer’s labeling, use is normally contraindicated in patients with prior allergic

reactions.”

{¶6} “Hearsay” is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Evid.R. 801(C). Statements in a “learned treatise” established as reliable authority are not

excluded by the hearsay rule. See Evid.R. 803(18). However, Evid.R. 803(18) states that “[i]f

admitted, the statements may be read into evidence but may not be received as exhibits.”

{¶7} Daniels stated at trial that she laid a foundation for exhibit No. 26B as a learned

treatise and told the court that the exhibit should not be allowed into evidence. Despite Daniels

agreeing that exhibit No. 26B should be withdrawn, the court inexplicably submitted it to the

jury. This was an error. With Daniels having conceded that the document was a learned

treatise, the court violated Evid.R. 803(18). See Moretz v. Muakkassa, 137 Ohio St.3d 171,

2013-Ohio-4656, 998 N.E.2d 479, ¶ 56 (stating that materials subject to the learned treatise

hearsay rule “shall not be admitted into evidence as an exhibit over the objection of a party.”).

{¶8} Daniels sought the admission of exhibit No. 26 by arguing that it was admissible as

a resource available to physicians, presumably under Evid.R. 803(17), which excepts from the

hearsay rule “[m]arket quotations, tabulations, lists, directories, or other published compilations,

generally used and relied upon by the public or by persons in particular occupations.”

{¶9} Lexi-Comp appears to be similar to the Physician’s Desk Reference (“PDR”)2 in

that it can be consulted to ascertain potential drug cross-reactivity. Several courts have refused

to admit the PDR and similar materials into evidence under rules similar to Evid.R. 803(17).

2
The PDR is an annual publication compiling “medications, monographs, and FDA approval limitations.” United
States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir.2012).
See, e.g., Aurora v. Kepley, 11th Dist. Portage No. 801, 1978 Ohio App. LEXIS 9115, at 4 (Sep.

5, 1978) (PDR inadmissible as hearsay “due to the inexact and ever-changing nature of

medicine”); Garvey v. O’Donoghue, 530 A.2d 1141 (D.C.1987) (PDR inadmissible under

Fed.R.Evid. 803(17) because the publication contains not only factual statements, but also

“directions, opinions, suggestions, and recommendations”); Kahanek v. Rogers, 12 S.W.3d 501,

504 (Tex. App. 1999) (PDR inadmissible under market reports exception because the publication

“goes beyond objective information to items on which learned professionals could disagree in

good faith”); In re Richardson-Merrell, Inc. Bendectin Prods. Liab. Litigation, 624 F.Supp.

1212, 1232 (S.D. Ohio 1985) (PDR did not fall within the commercial publications exception of

Fed.R.Evid. 803(17)), aff’d, 857 F.2d 290 (6th Cir. 1988). But see SK&F Co. v. Premo

Pharmaceutical, Laboratories, Inc., 481 F.Supp. 1184, 1189 (D.N.J.1979) (taking judicial notice

that the PDR falls within Fed.R.Evid. 803(17) as “a published compilation generally used and

relied on by physicians and pharmacists”).

{¶10} Despite these courts refusing to allow materials like the PDR into evidence under

their equivalent of Evid.R. 803(17), we find that the prerequisites for admission were established

in this case. Evid.R. 803(17) is patterned after Fed.R.Evid. 803(17). The predicate for

admission under the federal rule of evidence is similar to other hearsay exceptions: necessity and

reliability. United States v. Woods, 321 F.3d 361, 364 (3d Cir.2003), citing 5 Weinstein’s

Federal Evidence Section 803.19[1] (Matthew Bender 2002). With respect to “reliability,”

publications like Lexi-Comp “know that their work will be consulted; if it is inaccurate, the

public or the trade will cease consulting their product.” Id. In other words, the success of the
service depends on its reputation for accuracy, thus ensuring its reliability for purposes of

Evid.R. 803(17).3

{¶11} Daniels’s expert testified without contradiction that physicians rely on materials

like Lexi-Comp and the PDR. Exhibit No. 26 listed Scopolamine as an “associated” drug under

the heading “belladonna alkaloid allergy.” That factual assertion has not been challenged as

false or misleading. In fact, it may have been largely cumulative given the number of witnesses

who agreed that Scopolamine was contraindicated for patients who were hypersensitive to

Atrovent or other belladonna alkaloids. While the court may not have expressly indicated that it

was allowing exhibit No. 26 into evidence under Evid.R. 803(17), it did indicate that the exhibit

was “an informational cite,” a characterization consistent with it being a tabulation or list relied

upon by medical professionals. The court did not err by allowing exhibit No. 26 into evidence.

II. Closing Argument

{¶12} The second assignment of error complains that the court erred by prohibiting

Vasarhelyi and Koziy’s counsel from referencing in closing argument a July 2004 emergency

room treatment that predated the events leading to this case. This assigned error is rendered

moot based on our decision to reverse and remand the case. See App.R. 12(A)(1)(c).

III. FDA Adverse Event Reporting System

{¶13} Vasarhelyi and Koziy filed a motion in limine to bar Daniels from using at trial a

Food and Drug Administration (“FDA”) adverse event report, identified at trial as plaintiff’s

3
Although the “necessity” prong for admission of hearsay is often stated in terms of a witness’s unavailability, State
v. Howard, 2d Dist. Montgomery No. 19413, 2003-Ohio-3235, ¶ 32, learned treatises can be admitted on the basis of
“economic or practical necessity.” State v. Alger, 115 Idaho 42, 49, 764 P.2d 119 (App.1988); Loven v. State, 831
S.W.2d 387, 395 (Tex.App.1992) (“Similarly, there is no longer any reason to believe that evidence contained in a
learned treatise is inferior to live testimony by the author of the treatise.”). Vasarhelyi and Koziy did not question
the necessity of Daniels’s use of the Lexi-Comp materials, so we consider necessity established.
exhibit No. 12. They maintained that the FDA report, which reported 471 cases of adverse

events caused by Scopolamine use, did not include Daniels’s case as an “event” and was not

probative on the issue of whether they breached the standard of care. The court denied the

motion in limine subject to revision at trial. The court allowed questioning on the adverse event

report over objection by Vasarhelyi and Koziy, but it did not allow the report to be admitted into

evidence.

{¶14} “Courts have broad discretion in ruling on the admissibility of evidence, and the

granting of a motion in limine rests within the sound discretion of the trial court.” Bennett v.

Admr., Ohio Bur. of Workers’ Comp., 134 Ohio St.3d 329, 2012-Ohio-5639, 982 N.E.2d 666, ¶

52. In this context, admissibility is predicated on relevancy; that is, does the evidence have “any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Evid.R. 401.

Even if relevant, evidence must be excluded “if its probative value is substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R.

403(A).

{¶15} “Federal regulations require drug manufacturers to report ‘[a]ny adverse event

associated with the use of a drug in humans, whether or not considered drug related’ to the

FDA.” Utts v. Bristol-Myers Squibb Co., S.D.N.Y. No. 16cv5668(DLC), 2017 U.S. Dist.

LEXIS 70317, 31 (May 8, 2017), quoting 21 C.F.R. Section 314.80(a), (c). But reporting of

adverse events is not limited to drug manufacturers: “Anyone can submit an adverse event report,

including drug manufacturers, doctors, and individual patients.” Drake v. Allergan, Inc., 111 F.

Supp.3d 562, 565 (D.Vt.2015). The FDA makes it clear that it “does not require that a causal

relationship between a product and event be proven, and reports do not always contain enough
detail to properly evaluate an event.” Utts, supra. “The fact that a user of a drug has suffered

an adverse event, standing alone, does not mean that the drug caused that event.” Matrixx

Initiatives, Inc. v. Siracusano, 563 U.S. 27, 44, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011).

{¶16} The fact that an adverse event report specifically does not establish a causal

relationship between a drug and an event does not mean that the report had no probative value.

“A lack of statistically significant data does not mean that medical experts have no reliable basis

for inferring a causal link between a drug and adverse events.” Id. at 40. An adverse event

might be considered significant depending on a variety of factors like the “strength of the

association,” the “temporal relationship of product use and the event,” and the “seriousness of the

event relative to the disease being treated.” Id. at 41.

{¶17} We agree that the court did not abuse its discretion by denying the motion in

limine. It was conceivable, in the pretrial motion stage, that Daniels could establish a basis for

admission of the adverse event report at trial. As it happened, she did not — none of the factors

that might have shown causation or significance were mentioned at trial. Daniels’s expert

testified that the FDA monitors the use of drugs to ensure that adverse drug reactions are

reported. The expert said that the FDA collects the data to both inform drug manufacturers that

the drug might pose a danger and “to communicate to the healthcare providers not to administer

that drug if they see a pattern of potentially danger [sic] with a drug.” Daniels then asked the

expert to identify the adverse event report, which the expert described as “the first page of the

FDA website for adverse event reporting.” With respect to Scopolamine, the expert identified a

section of the adverse effect report, “which you can see is about an inch thick,” listing adverse

events from the drug.
 {¶18} This testimony did not take into account how many of the 471 reported instances

actually involved a direct reaction to Scopolamine as opposed to some other cause. This

tenuous connection created the possibility that the jury would give undue weight to the adverse

event report, particularly when the report contained just one relevant instance of anaphylactic

shock associated with the usage of Scopolamine. The report was properly excluded from

evidence because its prejudicial effect substantially outweighed its probative value. That the

report was later excluded from the evidence does not mean that the court erred by denying the

motion in limine and allowing testimony on the report subject to exclusion.

IV. Summary of Medical Records

{¶19} Daniels offered the report of a nurse who summarized Daniels’s medical records.

Vasarhelyi and Koziy filed a motion in limine to exclude the nurse from testifying on grounds

that the summary of medical records went beyond what was allowed under Evid.R. 1006 and that

the summary contained expert opinion that had not been disclosed as required by Loc.R. 21.1.

The court denied the motion in limine (it ordered Daniels to strike a two-sentence paragraph at

the end of the summary), allowed the nurse to testify to matters contained in her report, and later

admitted both the summary and medical records into evidence.

{¶20} “The contents of voluminous writings, recordings, or photographs which cannot

conveniently be examined in court may be presented in the form of a chart, summary, or

calculation.” Evid.R. 1006. This is a rule of convenience based on practical necessity. See

Notes of Advisory Committee on Proposed Fed.R.Evid. 1006 (construing identical federal rule).

Because the summary itself is admitted in lieu of the voluminous evidence, the jury is entitled to

consider the summary in its deliberations and base a verdict on it.
 {¶21} Fed.R.Evid. 1006, which is functionally identical to Evid.R. 1006, does not

generally permit both a summary of the voluminous evidence and voluminous evidence to be

admitted into evidence. See, e.g., United States v. Whitfield, 590 F.3d 325, 364 (5th Cir. 2009)

(court should avoid the use of a summary of previously admitted evidence to simply repeat entire

case shortly before jury deliberations). If the purpose of the rule is to avoid having to introduce

certain voluminous writings by allowing the introduction of a summary as proof of the content of

voluminous writings where those writings “cannot be conveniently examined,” see United States

v. Janati, 374, 396 (4th Cir. 2004), then under the rule, the summary itself is the evidence

admitted as proof of the content of the writings or other material summarized.

{¶22} Some Ohio cases state the proposition that “for a summary to be admissible, the

documents on which it was based must be admitted or offered into evidence or their absence

explained.” Eysoldt v. Imaging, 194 Ohio App.3d 630, 2011-Ohio-2359, 957 N.E.2d 780, ¶ 34

(1st Dist.); Hornsby v. Gosser, 12th Dist. Warren No. CA2013-12-134, 2015-Ohio-162, ¶ 14.

{¶23} These cases appear to confuse admissibility under Evid.R. 1006 with the original

document or “best evidence” rule of Evid.R. 1002 (“To prove the content of a writing, recording,

or photograph, the original writing, recording, or photograph is required, except as otherwise

provided in these rules or by statute enacted by the General Assembly not in conflict with a rule

of the Supreme Court of Ohio.” ). Courts interpreting Fed.R.Evid. 1006 recognize that the rule

is an exception to the best evidence rule. United States v. Weaver, 350 U.S.App.D.C. 121, 281

F.3d 228, 232 (2002); Martin v. Funtime, Inc., 963 F.2d 110, 115 (6th Cir.1992); United States v.

Ashford, 924 F.2d 1416, 1422 (7th Cir.1991).

{¶24} To be sure, a summary of voluminous evidence is not automatically admissible —

the evidence on which the summary is based must itself meet all criteria for admissibility.
United States v. Johnson, 594 F.2d 1253, 1256 (9th Cir.1979) (“Commentators and other courts

have agreed that Rule 1006 requires that the proponent of the summary establish that the

underlying documents are admissible in evidence.”); United States v. Scales, 594 F.2d 558, 562

(6th Cir.1979) (“If the records themselves could have been admitted to show what their contents

did not include, there appears to be no reason why Rule 1006 would not apply to a summary of

their contents.”). There is no question that the medical records on which the summary in this

case was based were admissible as medical records under the Evid.R. 803(4) hearsay exception.

{¶25} We find the federal authority persuasive — there is no requirement that the

evidence on which the summaries are based must also be produced at trial. However, Evid.R.

1006 does not bar the trial judge from admitting the actual records into evidence — the rule

plainly states that “[t]he court may order that [the originals] be produced in court.” United States

v. Lemire, 720 F.2d 1327, 1347 (D.C.Cir.1983); United States v. Milkiewicz, 470 F.3d 390, 397

(1st Cir.2006). The court had the discretion to admit the original medical records along with the

summary of those medical records.

{¶26} The court in this case abused its discretion, however, by admitting into evidence a

summary of medical records that contained the opinions of the person summarizing the evidence.

{¶27} To be admissible under Evid.R. 1006, a summary must fairly condense the

voluminous material and do so without embellishment. Gomez v. Great Lakes Steel, Natl. Steel

Corp., 803 F.2d 250, 258 (6th Cir.1986) (criticizing admission of a summary that was “more akin

to argument than evidence”); United States v. Drougas, 748 F.2d 8, 25 (1st Cir.1984) (summaries

with information “not present” in the underlying records deemed inadmissible). At bottom,
because summaries are admitted as evidence in lieu of the records themselves, they must be both

“accurate and nonprejudicial.” United States v. Bray, 139 F.3d 1104, 1111 (6th Cir.1998).

{¶28} The summary offered by Daniels was not an accurate representation of her medical

records. In fact, the summary was more in the nature of an annotation than a summary. The

nurse provided explanations for medical terms, procedures and devices, and she included

numerous “exhibits” not contained in the medical records that depicted body parts, medical

equipment, and illustrations of medical procedures. These annotations went beyond what the

documents themselves contained and were thus impermissible embellishment.

{¶29} At various points the nurse offered her own “notes” to highlight the content of

certain records. For example, she made the following notation regarding a nursing note:

“(NOTE: this note was timed as 0800 [8:00 AM] although it was part of the note written at 1300

[1:00 PM].)” By doing so, the nurse went beyond what the record stated. In another example,

the nurse commented on the amount of Fentanyl administered to Daniels before her surgery:

At 7:35 AM, Ms. Daniels received Ancef 1 gm IV (antibiotic), Versed 2 mg, and
Fentanyl 100 mg. (Fentanyl is a very potent narcotic analgesic. A dose of 100
mcg [or 0.1 mg] of Fentanyl is the equivalent of about 10 mg of Morphine. 100
mg would be an enormous dose of Fentanyl.)

{¶30} The nurse injected her own opinions into the summary. When summarizing a

record that showed Daniels’s oxygen saturation level as “hovering in the 40s,” the nurse included

a parenthetical stating that “[n]ormal oxygen saturation is usually 95% or above; 40% is

extremely low.” When summarizing a postoperative record showing the amount of urine

drained from Daniels, the nurse parenthetically stated that “This is a massive amount of urine.”

When summarizing a postoperative record of Daniels’s weight, the nurse stated, “(Ms. Daniels
weighed 163 pounds on the day of her laparoscopy. This would mean that in two days, Ms.

Daniels gained 88 pounds!)”

{¶31} In going beyond summarizing the medical records themselves, the nurse offered

additional information that was prejudicial to Vasarhelyi and Koziy. The nurse italicized nearly

every portion of the summary in which the records showed that Daniels disclosed an allergy to

Atrovent prior to her surgery. When summarizing a record of postoperative care, the nurse

stated: “The nurses also suctioned Ms. Daniels; breathing tube multiple times. (This can be very

uncomfortable. It can cause gagging and coughing, and a sensation of being unable to catch

your breath.).” When summarizing a record showing that Daniels was given pain medication

and offered “reassurance” in the form of “holding pt’s hand,” the nurse included a parenthetical

stating, “This must have been a very frightening time for Ms. Daniels.” The nurse stated that

“Ms. Daniels’ complex care went on all day, every day; throughout the night, every night. Her

sleep was constantly interrupted.” When describing a record showing that Daniels had been

placed on an ECMO (extra corporeal membrane oxygenation) machine, the nurse wrote in bold

type that “Ms. Daniels’ life was now literally dependent on the staff and a machine.”

(Emphasis sic.)

{¶32} None of this was admissible under Evid.R. 1006 because the addition of the nurse’s

commentary went beyond summarizing the medical records. And the prejudicial effect was

obvious: the nurse’s commentary would no doubt engender sympathy for Daniels.

{¶33} Daniels implicitly concedes prejudice by stating that she offered the nurse as a

witness on pain and suffering, presumably meaning that the commentary in the summary was

designed to portray the medical records in a light most favorable to that end. But by doing so,

the nurse went well beyond what is acceptable for a summary of voluminous evidence under
Evid.R. 1006. And other parts of the summary — notably the numerous italicized portions that

emphasized how Daniels disclosed an allergy to Atrovent — could only be viewed as attempting

to assist Daniels in establishing liability on the medical malpractice claim. This was far outside

what is permissible under the rule.

{¶34} Daniels maintains that any error in admitting the summary was harmless because

the court also sent the actual medical records for comparison purposes. Because the summary

was allowed as substantive evidence in lieu of the actual medical records, the jury in all

likelihood considered the summary to the exclusion of the actual medical records. Would there

be any doubt that if the court admitted both the novel War and Peace and the Cliff Notes version

of that novel into evidence, the jury would read the Cliff Notes? Daniels even conceded in

arguing for the admission of the summary that the medical records consisted of “thousands of

pages of medical records” and that “[t]o ask a juror to examine and fully understand a set of such

complicated medical records is virtually an impossible task[.]” We have no confidence that the

jury, with a 30-page summary of the medical records and the actual medical records numbering

in the “thousands,” actually compared the summary against the medical records. The court’s

error in admitting the summary of the medical records was prejudicial.

V. Jury Instructions

{¶35} The court, over objection, gave the jury an “eggshell skull” instruction, telling the

jury that “if you find that Victoria Daniels had a predisposition that made her more susceptible to

injury” the defendants were nevertheless liable for her actual injuries and damages. Vasarhelyi

and Koziy argue that the court gave this instruction in error because neither party suggested that

Daniels suffered any greater injury due to her frailty or that a person of greater strength would

have been injured less under the circumstances.
 {¶36} The “eggshell skull” or “thin skull” doctrine evolved in the context of preexisting

injuries to provide that if a defendant’s wrongful act causes injury, the defendant is fully liable

for the resulting damage even though the injured plaintiff had a preexisting condition that made

the consequences of the wrongful act more severe than they would have been for a plaintiff

without a preexisting condition or injuries. See generally Calandrillo & Buehler, Eggshell

Economics: A Revolutionary Approach to the Eggshell Plaintiff Rule, 74 Ohio St. L.J. 375, 380

(2013).

{¶37} A tortfeasor is fully liable for any damages resulting from its wrongful act even if

the victim had a preexisting condition that made the consequences of the wrongful act more

severe for him than they would have been for a person without the condition. Meyers v.

Wal-Mart Stores, E., Inc., 257 F.3d 625, 632 (6th Cir. 2001); Figueroa-Torres v. Toledo-Davila,

232 F.3d 270, 275-276 (1st Cir. 2000); Jordan v. Atchison, Topeka & Santa Fe Ry. Co., 934 F.2d

225, 228-229 (9th Cir. 1991). While it is a truism that the tortfeasor “takes his victim as he

finds him,” Binns v. Fredendall, 32 Ohio St.3d 244, 246, 513 N.E.2d 278 (1987), the eggshell

skull rule states only that the tortfeasor may not escape or reduce liability because the victim’s

preexisting condition made the victim more susceptible of injury from the tortfeasor’s conduct.

{¶38} Our review of the record satisfies us that there was sufficient evidence to support

the court’s decision to give the eggshell skull instruction. Niskanen v. Giant Eagle, Inc., 122

Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 22. Daniels offered the testimony of a

medical doctor specializing in physical medicine and rehabilitation who testified that Daniels

suffered from migraine headaches before suffering hypoxia (oxygen deficiency) as a result of

going into anaphylactic shock. The expert testified that those migraines “are much more

common since she had the brain injury.” The physician also testified that Daniels suffered from
depression prior to going into anaphylactic shock and that “if you already have problems with

depression and anxiety, having hypoxic brain injury makes it that much worse.”

{¶39} Vasarhelyi and Koziy next argue that the court erred by refusing to give a “bad

result” jury instruction. That instruction states that “‘[t]he fact that a doctor’s treatment did not

bring about a cure does not by itself prove that the doctor was negligent.’” Hinkle v. Cleveland

Clinic Found., 159 Ohio App.3d 351, 2004-Ohio-6853, 823 N.E.2d 945, ¶ 86 (8th Dist.), quoting

Ohio Jury Instructions 331.01(6).

{¶40} The “bad result” or “no guarantee” instruction recognizes that unsatisfactory results

from treatment or care alone do not determine whether the defendant was negligent in treating

the plaintiff. In other words, a bad outcome alone does not determine whether the applicable

standard of care has been met. The instruction thus recognizes a fundamental precept of tort law

that the mere occurrence of an injury or accident, in and of itself, does not mean that the injury

was the result of negligence. Laughlin v. Cleveland, 168 Ohio St. 576, 577, 156 N.E.2d 827

(1959), paragraph two of the syllabus.

{¶41} Daniels argues that a “bad results” instruction was unwarranted because she did not

plead a cause of action against Vasarhelyi and Koziy for breach of personal satisfaction of

contract, breach of express warranty, or lack of informed consent. This argument

misapprehends the nature of the “bad results” jury instruction. The issue at trial was whether

Vasarhelyi and Koziy breached the applicable standard of care. The instruction would have

made it clear that the mere fact that there was a bad result in Daniels’s treatment did not, by

itself, prove that malpractice occurred.

{¶42} Jury instructions “must be given when they are correct, pertinent, and timely

presented.” State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995), citing Cincinnati v.
Epperson, 20 Ohio St.2d 59, 253 N.E.2d 785 (1969), paragraph one of the syllabus. Because

medical malpractice cannot be based solely on the fact that the plaintiff suffered an adverse

result, there was no reason for the court to refuse the requested instruction. The court erred by

doing so.

VI. News Video

{¶43} Less than one month after the anaphylactic reaction, one of the nondefendant

doctors who participated in reviving Daniels was interviewed in a local television newscast.

That video apparently showed Daniels, and Vasarhelyi and Koziy wished to introduce a clip of

the video, without accompanying audio, to counter Daniels’s use of photographs to depict the

condition of her body in the weeks following her going into shock. Daniels filed a motion in

limine to exclude the video on grounds that Vasarhelyi and Koziy did not timely produce the

video in discovery, that the video was hearsay, and that it was unduly prejudicial because it made

a nonparty doctor to the case look like “a hero.” The court found the motion in limine moot,4

excluded the video, and it was proffered into evidence.

{¶44} Daniels argues that Vasarhelyi and Koziy did not properly authenticate or verify the

trustworthiness of the video. If the court excluded the proffered video for want of

authentication, this writer is of the opinion that the court erred by doing so. Authentication is

merely a means of proving that something is what its proponent claims it to be. See Evid.R.

901(A). With respect to video, we have held that under Evid.R. 901(B)(4), which permits

authentication based on distinctive appearance, contents, or substance, that “[t]he distinctive

4
It is unclear why the court found the motion in limine moot. The motion might be rendered moot if Daniels chose
not to introduce photographs of her physical condition, thus making it unnecessary for Vasarhelyi and Koziy to
offer the video in rebuttal. However, neither party argues that this happened, nor do they give any indication why
the court found the motion in limine to be moot.
characteristics of the videotaped news report are sufficient evidence” to support a finding that the

news report was what the proponent claimed it to be. Skelly Beauty Academy, Inc. v. Columbia

Gas of Ohio, Inc., 8th Dist. Cuyahoga Nos. 58597, 58598, 58599 and 58600, 1991 Ohio App.

LEXIS 4235, 12 (Aug. 29, 1991). Vasarhelyi and Koziy offered the video to show Daniels in

the period following her going into shock, for the purpose of rebutting photographs that Daniels

used to depict her physical condition during the same time period. At no time did Daniels

suggest that she was not the person shown in the newscast, nor has she suggested that the video

Vasarhelyi and Koziy wished to play to the jury was not a fair depiction of what had been

broadcast during the news segment.

{¶45} To support her motion in limine, Daniels cited State v. Mays, 108 Ohio App.3d

598, 671 N.E.2d 553, 568 (8th Dist.1995), for the proposition that newscasts are unreliable

hearsay and should be excluded from evidence. Mays is not on point. Mays, a medical doctor,

was found guilty of fraudulently billing county welfare agencies for oral surgeries he did not

perform. Mays wanted to introduce into evidence excerpts from a series of television news

stories relating to welfare fraud that aired three years after his crimes were committed. The

newscast included interviews with persons unrelated to the charges against Mays, and the trial

judge excluded the newscast because it was not evidence on the theft charge and because those

interviewed for the newscast could not be cross-examined. We found that video to be “rank

hearsay as well as irrelevant and confusing.” Id. at 568.

{¶46} In this case, the newscast would be played with no audio, so it would not have

contained any statements offered for the truth of the matter asserted. The newscast was being

offered as demonstrative evidence for the very limited purpose of rebutting photographs that
Daniels planned to introduce for the purpose of showing her condition in the weeks following

anaphylaxis. There was nothing confusing about the video or its purpose.

{¶47} Daniels also maintained that Vasarhelyi and Koziy waited too long to inform her

that they intended to use the newscast — offering it only five days before trial and six days after

the court’s deadline for motions in limine. The trial court may have properly excluded the video

for this reason, however, we need not address this aspect of the issue based on the decision to

reverse the case. There is no majority decision reached on the resolution of this assignment of

error.

VII. Life Care Plan

{¶48} Daniels offered the testimony of a nurse who prepared a life care plan as part of

Daniels’s claim for future monetary damages. Although the nurse reduced her calculation of

future damages to its present value, Vasarhelyi and Koziy maintain that Daniels had to provide

expert testimony to reduce the monetary damage to present day value. They maintain that the

nurse had not been identified as an expert as required by Loc.R. 21.1, so the reduction could not

have been made to a requisite degree of certainty and would be the product of speculation.

{¶49} “In Ohio, a plaintiff is entitled to an award of damages to compensate him for

losses which he is reasonably certain to incur in the future.” Galayda v. Lake Hosp. Sys., 71

Ohio St.3d 421, 425, 644 N.E.2d 298 (1994). Those future damages are often set forth in what

is called a “life care plan.” The typical life care plan details the life-time costs of all future

medical care resulting from the tortfeasor’s acts that is reasonably certain to occur in the future.

But as with all future damages, the cost of a life care plan must be reduced to present value of

those actual damages. Id.
 {¶50} “Expert testimony is not required to entitle a plaintiff to recover future earnings.”

Sahrbacker v. Lucerne Prods., Inc., 52 Ohio St.3d 179, 179, 556 N.E.2d 497 (1990).

{¶51} Vasarhelyi and Koziy acknowledge Sahrbacker, but claim that it is distinguishable

from this case and does not prevent us from finding that expert testimony is required to reduce to

present value any future award. They maintain that Sahrbacker addressed a contract claim that,

unlike the medical malpractice claim in this case, did not require the jury to establish damages to

a reasonable degree of medical certainty. Their attempt to distinguish Sahrbacker fails — courts

have long-held that “[i]n order for a plaintiff to recover lost profits in a breach of contract action,

the amount of the lost profits, as well as their existence, must be demonstrated with reasonable

certainty.” Gahanna v. Eastgate Properties, Inc., 36 Ohio St.3d 65, 66, 521 N.E.2d 814 (1988).

See also Gateway Consultants Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga

No. 104014, 2017-Ohio-1443, ¶ 8 (damages in a breach of contract action must be shown with

certainty); Chuang Dev. L.L.C. v. Raina, 10th Dist. Franklin Nos. 15AP-1062 and 16AP-500,

2017-Ohio-3000, ¶ 73 (“A plaintiff must establish their entitlement to damages under a contract

with reasonable certainty, and such damages may not be based on mere speculation or

conjecture.”). The reasonable certainty standard applied to damages in a medical malpractice

case is the same standard as that applied in a contract case like Sahrbacker. Consistent with

Sahrbacker, Daniels did not have to offer expert testimony reducing the life care plan to present

value.

{¶52} Vasarhelyi and Koziy also argue that the court abused its discretion by refusing to

bar Daniels from offering the nurse as an expert because Daniels did not timely identify the nurse

as an expert witness under Loc.R. 21.1. We need not address this issue in light of our disposition

of the case.
 {¶53} Finally, Vasarhelyi and Koziy maintain that the court erred by allowing the jury to

view a copy of the life care plan during its deliberations. They maintain that the life care plan

was prejudicially cumulative and repetitive to the nurse’s testimony. We reject this assertion

because the life care plan consisted of charts that were admitted into evidence after the nurse

discussed the life care plan during her testimony. Vasarhelyi and Koziy did not offer their own

cost estimate of a life care plan for Daniels, nor did they cross-examine the nurse on the

substance of her calculations. We thus have no basis for finding that the jury was unfairly

influenced by the court’s decision to admit the life care plan into evidence and allow it to go the

jury room during deliberations.

VIII. Demonstrative Boards

{¶54} One of Daniels’s experts testified with the aid of a demonstrative chart titled

“Harms and Losses.” The chart described 30 different “limitations” caused by the alleged

malpractice, such as “migraines, headaches, accompanied by loss of vision.” Next to the

particular limitation was a checkmark indicating whether the particular limitation was “Frequent”

or “Always.” Over objection, the court admitted the chart into evidence and allowed it to go the

jury. Vasarhelyi and Koziy complain that by allowing the chart to go to the jury, the court

influenced the jury by allowing it to place more emphasis on what was repetitive to the expert’s

trial testimony.

{¶55} There is a distinction between summaries of evidence allowed by Evid.R. 1006 and

pedagogical devices that organize evidence for the aid of the jury. Kinn v. HCR ManorCare,

2013-Ohio-4086, 998 N.E.2d 852, ¶ 79 (6th Dist.). Pedagogical (sometimes called

“demonstrative” or “illustrative”) devices make it easier for the jury to visualize evidence, a

“development we do not wish to discourage so long as there is no unfair surprise.” Cherovsky v.
St. Luke’s Hosp., 8th Dist. Cuyahoga No. 68326, 1995 Ohio App. LEXIS 5530, 35 (Dec. 14,

1995).

{¶56} Unlike summaries of evidence allowed by Evid.R. 1006, pedagogical devices are

not evidence, but “more akin to argument than evidence.” Kinn, supra. The presence of a chart

in the jury room might cause the jury to believe that the chart itself, as opposed to the testimony

of the witness who prepared the chart, constitutes the actual evidence. There is also the

possibility that the jury might rely on the summarized information as a substitute for assessing

the credibility of the witness who prepared the chart. For this reason, a pedagogical device

should not be allowed into the jury room unless all parties consent, and even then, the

pedagogical device should be accompanied by a limiting instruction that the device is not

evidence. Id., citing United States v. Munar, 419 Fed.Appx. 600, 608 (6th Cir.2011) and

Gomez, 803 F.2d 250 at 257-259. See also Lucitte v. Lucitte (In re Estate of Lucitte), 6th Dist.

Lucas No. L-10-1136, 2012-Ohio-390, ¶ 71; United States v. Harms, 442 F.3d 367, 375 (5th

Cir.2006) (“If a summary or chart is introduced solely as a pedagogical device, the court should

instruct the jury that the chart or summary is not to be considered as evidence, but only as an aid

in evaluating evidence.”).

{¶57} Daniels argues that the chart was a pedagogical device authorized by Evid.R.

611(A). That rule allows the court to exercise reasonable control over the presentation of

evidence in order to, among other things, “make the interrogation and presentation effective for

the ascertainment of the truth[.]”

{¶58} Daniels acknowledges that some courts have declined to treat pedagogical devices

as evidence, but cites several federal courts that have allowed pedagogical devices to go into

evidence for the jury’s consideration. See, e.g., Bray, 139 F.3d 1104 at 1111-1112; United
States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir. 1987). While we acknowledge those cases,

we see no basis for departing from established Ohio precedent on the matter. The court erred by

allowing the “harms and losses” chart to go to the jury, and it compounded the error by failing to

give a limiting instruction.

IX. Prejudgment Interest

{¶59} Vasarhelyi and Koziy offer a ninth assignment of error relating to the imposition of

prejudgment interest. However, the errors we have found are sufficient for us to turn to the

tenth assigned error and the claim of cumulative error, rendering any ruling on prejudgment

interest moot. See App.R. 12(A)(1)(c).

X. Cumulative Error

{¶60} “Under the doctrine of cumulative error, ‘a conviction will be reversed when the

cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the

numerous instances of trial-court error does not individually constitute cause for reversal.’”

State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 321, quoting State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. We apply the cumulative

error doctrine to civil cases. See, e.g., Edge v. Fairview Hosp., 8th Dist. Cuyahoga No. 95215,

2011-Ohio-2148, ¶ 46; O’Malley v. O’Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-5238,

¶ 95; Dawson v. Cleveland Metro. Gen. Hosp., 8th Dist. Cuyahoga Nos. 51052 and 51779, 1986

Ohio App. LEXIS 9169 (Nov. 20, 1986). Other Ohio appellate districts also apply the

cumulative error doctrine to civil cases. See, e.g., Katz v. Enzer, 29 Ohio App.3d 118, 124, 504

N.E.2d 427 (1st Dist.1985); Bigler v. Personal Serv. Ins. Co., 7th Dist. Belmont No. 12 BE 10,

2014-Ohio-1467, ¶ 175-176.
 {¶61} Some Ohio appellate districts, however, do not apply the cumulative error doctrine

to civil cases. See, e.g., Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No.

12AP-999, 2013-Ohio-5140, ¶ 124; Wolf v. Rothstein, 2016-Ohio-5441, 61 N.E.3d 1, ¶ 96 (2d

Dist.); J.P. v. T.H., 9th Dist. Lorain No. 14CA010715, 2016-Ohio-243, ¶ 35; Lambert v.

Wilkinson, 11th Dist. Ashtabula No. 2007-A-0032, 2008-Ohio-2915, ¶ 110. It bears noting,

however, that these districts are not emphatic in rejecting the cumulative error doctrine in the

civil context, couching the doctrine in terms of it not being “typically” or “generally” applicable.

See, e.g, Stanley, supra, at ¶ 124 (“the cumulative error doctrine is not typically employed in civil

cases”); Lambert, supra (“the cumulative error doctrine is generally not applicable in civil

cases.”).

{¶62} Two other appellate districts are agnostic. See, e.g., State, Dept. of Natural

Resources v. Mark L. Knapke Revocable Living Trust, 2015-Ohio-470, 28 N.E.3d 667, ¶ 57 (3d

Dist.) (assuming without finding that cumulative error applies in civil cases); McQueen v.

Goldey, 20 Ohio App.3d 41, 50, 484 N.E.2d 712 (12th Dist.1984) (“Without addressing the

relative merits of the cumulative error concept, we conclude that even if we were to accept and

apply the concept to a civil case, the accumulation of harmless errors in the case at bar did not

constitute prejudicial error.”).

{¶63} The case on which some districts rely in refusing to apply the cumulative error

doctrine to civil cases appears to be Richlin v. Gooding Amusement Co., 113 Ohio App. 99, 170

N.E.2d 505 (8th Dist.1960), where we held:

An error committed by the court in its charge to the jury is either prejudicial or it
is not. There is no legal way to add up the separate effects of such claims so that
taken together they may be considered as affecting prejudicially the rights of a
contending party. Each claim of error must be considered as standing or falling
on its own facts unassociated with others on different subjects.
Id. at 103.

{¶64} The stated rationale of Richlin — that there is no legal way to add up the separate

effects of claims of error to determine whether together they prejudicially affect the rights of the

complaining party — is no longer viable. The Ohio Supreme Court applies the cumulative error

doctrine in criminal cases, proving that there is a basis for “adding up” the separate effects of

errors. See, e.g., Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 223 (“a

conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of

a fair trial even though each of the numerous instances of trial-court error does not individually

constitute cause for reversal.”); State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),

paragraph two of the syllabus (“Although violations of the Rules of Evidence during trial,

singularly, may not rise to the level of prejudicial error, a conviction will be reversed where the

cumulative effect of the errors deprives a defendant of the constitutional right to a fair trial.”);

State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 147. The ability

to weigh the cumulative impact of multiple trial errors is independent of whether the context is

criminal or civil. Richlin, and to the extent that other cases can be traced back to it, is no longer

persuasive. A 30-year, unbroken line of cases from this appellate district applying the

cumulative error doctrine to civil cases indicates that we long ago rejected Richlin as binding

authority on the matter. We hereby reaffirm that the cumulative error doctrine applies to civil

cases.

{¶65} In reviewing the assignments of error, we have identified several trial errors that,

standing alone, might not support reversal. Cumulatively, however, those errors are numerous
enough that we conclude that Vasarhelyi and Koziy did not receive a fair trial. We therefore

vacate the judgment and reverse and remand for a new trial.

XI. Conclusion

{¶66} The fourth, fifth, eighth, and tenth assignments of error are sustained. The second

and ninth assignments of error are moot. The remaining assignments of error are overruled.

{¶67} Judgment reversed and remanded.

It is ordered that appellants recover of appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

______________________________________________
MELODY J. STEWART, JUDGE

EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION);
KATHLEEN ANN KEOUGH, P.J., DISSENTS IN PART AND CONCURS IN JUDGMENT
ONLY IN PART (WITH SEPARATE OPINION)

EILEEN T. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

{¶68} I concur in judgment only with the majority’s decision to vacate the judgment and

remand for a new trial based on its determination that appellants did not receive a fair trial.

However, I write separately to express my belief that appellants’ fourth assignment of error,

standing alone, supports reversal for a new trial.
 {¶69} In this case, the trial court permitted counsel for Daniels to submit to the jury a

medical history report prepared by Jane Heron, R.N. As stated by the majority, however, the

medical history summary improperly contained annotations that expressed Heron’s personal

opinions and the various conclusions or inferences she made upon reviewing Daniels’s medical

records. Thus, the summary was not an accurate representation of Daniels’s medical records,

and the trial court erred by admitting the document under Evid.R. 1006.

{¶70} Furthermore, I cannot say the introduction of the medical history summary was

harmless. Given the competing theories of the parties in this case, the prejudicial impact of the

opinion-based commentary in the summary was significant. Without question, Daniels’s

medical history, including her previous interaction with belladonna alkaloids, was relevant to the

jury’s assessment of liability in this medical malpractice case. Because the summary was clearly

designed to support Daniels’s claims while simultaneously invoking sympathy, I am unable to

conclude that the erroneous admission of the summary “[did] not affect the substantial rights of

the complaining party.” O’Brien v. Angley, 63 Ohio St.2d 159, 407 N.E.2d 490 (1980); Civ.R.

61.

{¶71} Accordingly, I would vacate the judgment exclusively on the grounds set forth in

the majority’s fourth assignment of error. I would further find that the remaining assignments of

error are moot. I recognize that the unaddressed challenges to the trial court’s evidentiary

rulings “may or may not be at issue [on remand].” Nance v. Akron City Hosp., 9th Dist. Summit

No. 20112, 2001 Ohio App. LEXIS 2278, 11 (May 23, 2001). However, I am equally cognizant

that those issues “may be resolved upon different arguments or supplemental evidence.” Id.

Therefore, the resolution of the remaining assignments of error would be advisory in nature, and

would not resolve a live controversy. See Ramadan v. Metrohealth Med. Ctr., 8th Dist.
Cuyahoga No. 93981, 2011-Ohio-67, ¶ 94, citing App.R. 12(A)(1)(c) (“As an appeals court,

however, we will not indulge in advisory opinions.”).

{¶72} I am sympathetic to the significant and permanent injuries sustained by Daniels in

this matter. To be clear, resolution of the assignments of error is predicated solely on legal

precedent, and should not be interpreted as a position on the merits of Daniels’s allegations.

Regardless of the facts before this court, however, protection of the fundamental and substantial

right to a fair trial is paramount. Accordingly, I would sustain appellants’ fourth assignment of

error, vacate the judgment of the common pleas court, and remand this case for a new trial.

KATHLEEN ANN KEOUGH, P.J., CONCURRING IN JUDGMENT ONLY IN PART;

DISSENTING IN PART:

{¶73} I disagree that it is unnecessary to address the defendants’ late disclosure of their

intent to use the video in the sixth assignment of error, and would find the late disclosure to be a

proper basis to exclude the newscast. If defendants had timely disclosed their intent to use the

video, Daniels could have called the “hero” doctor as a witness to point out how egregious

defendants’ errors were. Furthermore, defendants apparently engaged in a pattern of late

disclosure — their expert offered new opinions at trial without first disclosing those opinions to

Daniels.

{¶74} Nevertheless, I concur that the cumulative effect of the other errors warrants a

reversal and a new trial. Accordingly, I dissent in part and concur in judgment only in part.