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Pittock v. Kaiser Foundation Health Plan of Ohio5/14/1998
first, second, and fourth assignments of error to be without merit, and they are overruled.
VOIR DIRE OF DR. FREEDMAN
Appellants' third assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ALLOW APPELLANTS TO VOIR DIRE DR. FREEDMAN PRIOR TO HIS DIRECT EXAMINATION TESTIMONY.
One purpose of conducting voir dire of a witness is to avoid unfair prejudice or surprise. Sindel v. Toledo Edison Co. (1993), 87 Ohio App.3d 525, 529. Nonetheless, the admissibility of expert testimony rests within the discretion of the trial court. Id. While the better practice is to allow voir dire, see, e.g., Turner v. Turner (1993), 67 Ohio St.3d 337, 343, we find that the trial court did not abuse its discretion in denying voir dire, given the factual situation before us. As we have already discussed, we agree with the trial court that there was no substantial likelihood of surprise in the testimony at issue.
We find appellants' third assignment of error to be without merit, and it is overruled.
THE JURY'S REQUEST FOR A DICTIONARY
Appellants' fifth assignment of error states:
THE TRIAL COURT ERRED IN SUBMITTING A DICTIONARY TO THE JURY WITHOUT NOTIFYING THE PARTIES.
Appellants contend that there is a strong possibility that the jury made inappropriate use of the dictionary provided and that this influenced its decision.
This court has recognized the long-standing rule that a judgment will not be reversed because of alleged juror misconduct unless prejudice to the complaining party is shown. Bell v. Mt. Sinai Med. Ctr. (1994), 95 Ohio App.3d 590, 599 (citing State v. Kehn , 50 Ohio St.2d 11, 19). In Bell, the appellant suggested that individual jurors improperly used dictionaries to help them understand certain terms in a medical malpractice action. Id. Appellant there argued that the trial court erred in not ordering a new trial. Id.
An appellate court will not consider any error that a party could have called to the trial court's attention, but did not, at a time when such error could have been corrected. LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 123. In overruling the assignment of error in Bell, we noted that no objection was raised at trial when the dictionary usage became known. Bell, 95 Ohio App.3d at 599. We ruled that appellant there had waived the issue for appeal. We find a similar situation in the case before us. The jury requested the use of a dictionary, from one of the assistants, during deliberations. T. at 946. The court brought this to the attention of the parties. Id. No objection was raised by either party, either before or after the verdict was read. Id. Appellants thus waived this issue on appeal. LeFort, 32 Ohio St.3d at 123.
Even assuming the existence of error, we find no showing of prejudicial juror misconduct. A jury is presumed to follow the jury instructions as given by the trial court. Bell, 95 Ohio App.3d at 599. See, also, Pang v. Minch (1990), 53 Ohio St.3d 186, 195. In Bell, the jurors admitted using the dictionaries to look up several definitions. Bell, 95 Ohio App.3d at 600. However, the court was unable to compare the definitions utilized by the jury with the instructions given by the court in order to determine the existence of prejudice. Id. Here, appellants have not established what use, if any, actually was made of the dictionary. A judgment will not be reversed because of alleged juror misconduct unless prejudice to the complaining party is shown. Id. at 599.
Appellants' fifth assignment of error is without merit and is overruled.
MR. PITTOCK'S ABILITY TO
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