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Kennedy v. Streibel12/31/2003
Balson could not have been harmless, because it was predicated on a pure question of law. Id.
. After Whittington, some courts have applied the "pure question of law" distinction as a rationale for considering error based on denial of summary judgment. See, e.g., First Capital Corp. v. G & J Industries, Inc. (1999), 131 Ohio App.3d 106, 111 (holding that Whittington was inapplicable because issues involving a contract raised "pure questions of law").
. On appeal, Jon does not specifically claim that the question of the "heeding presumption" is one of pure law. However, even if we assume that the issue is purely legal, and that error occurred, there is no relevant connection between the error and the verdict. As we noted, the summary judgment motion was based on Dr. Striebel's failure to warn Glynda of risks associated with taking VIOXX(TM). Because Jon elected not to pursue that theory at trial, there is no basis, other than speculation, for concluding that the jury verdict was impacted by the denial of summary judgment.
. Furthermore, even if this problem could be overcome, Jon waived any error because he failed to amend the complaint to raise claims of supplier liability. Jon also failed to raise the issue of a "heeding presumption" at trial, and did not request any jury instructions on supplier liability or the heeding presumption. Failure to object at trial waives all but plain error, which is used only in " `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.' "(citation omitted). See, e.g., Weiner v. Kwait, Montgomery App. No. 19289, 2003-Ohio-3409, at .
. Having reviewed the trial transcript in its entirety, we find no such evidence of error affecting the fairness or integrity of the judicial process. To the contrary, there appears to be overwhelming evidence that even if Glynda had received warnings to seek emergency help, her death was not proximately caused by the lack of warnings. Instead, her death was proximately caused by a sudden event that occurred unexpectedly, without warning symptoms. Accordingly, the single assignment of error is overruled, and the judgment of the trial court is affirmed.
FAIN, P.J., and WOLFF, J., concur.
Robert R. Furnier
Jeanette N. Dannenfelser
Mark L. Schumacher
Lisa A. Hesse
Hon. Dennis Langer
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