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Kahn v. Moront3/14/2003
DECISION AND JUDGMENT ENTRY
. Rochelle Kahn, Executrix of the estate of Paul L. Kahn, ("Kahn") appeals the denial of her motion in limine to preclude any reference to defense counsel's being a licensed physician during trial on her medical malpractice and wrongful death action. For the reasons that follow, we affirm the decision of the trial court.
. Kahn filed a complaint against Dr. Moront and Cardiothoracic Surgeons for Northwest Ohio, Inc. among other defendants in June 2000, following the death of Paul Kahn after a heart valve replacement surgery. A few days before trial, Kahn filed a motion in limine seeking an order to preclude any reference to defense counsel as a licensed physician. Before voir dire began, the trial court denied Kahn's motion, finding that it was necessary and appropriate for defense counsel to voir dire the potential jurors about any contacts with him as a physician. During voir dire, defense counsel asked that very question. After a negative indication, defense counsel proceeded with the remainder of his voir dire without any further reference to his physician status. The case was tried, and the jury returned a verdict for defendants.
. Kahn raises a single assignment of error:
. "The trial court erred in denying appellant's motion in limine."
. Initially this court notes that a motion in limine is " pretrial request that certain inadmissible evidence not be referred to or offered at trial." Black's Law Dictionary (7 Ed.1999), 1033. The purpose of such a motion is to prevent potentially prejudicial matter that is neither relevant nor admissible from being injected into a trial. Rinehart v. Toledo Blade Co. (1985), 21 Ohio App.3d 274, 278. In this case, Kahn's motion in limine did not seek to exclude evidence but sought rather to limit the defense's voir dire and how defense counsel would be addressed by the court, the attorneys, the parties and the witnesses. Although Kahn acknowledges in her brief that this is not really an evidentiary matter, she proceeds to argue the motion as a motion in limine. We will examine Kahn's motion as a procedural motion concerning voir dire and courtroom procedure and will analyze Kahn's assignment of error accordingly.
. Kahn contends that the trial court abused its discretion by denying her motion and permitting defense counsel to inform the venire that he was also a physician and allowing witnesses to refer to defense counsel as "Dr. Skiver." While Kahn indicates there are multiple references to defense counsel's being a doctor, the limited record before us reveals only one isolated reference, occurring during voir dire as noted above. Upon appeal of an adverse judgment, it is incumbent upon the party appealing the judgment to ensure that the record, or whatever portions of the record are necessary for determination of the appeal, are filed with the court in which review is sought. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19; App.R. 9(B) and 10(A). The duty of submitting the record falls upon an appellant because it is the appellant who bears the burden of showing error by references to matters in the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. In the absence of a complete and adequate record, a reviewing court has nothing to pass upon and must presume the regularity of the proceedings and the presence of sufficient evidence to support the trial court's decision. Id.
. From the record provided, the reference to defense counsel's status as a physician that Kahn complains about occurred during defense counsel's voir dire. He asked the following question:
. "As you've already heard, my name is Steve
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