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Roetenberger v. Christ Hospital9/30/2005
t. 341, 7 N.E.2d 544; Dillon v. Bundy (1991), 72 Ohio App.3d 767, 596 N.E.2d 500. It is the trial court's duty to see that counsel's statements are confined to proper limits and to prohibit counsel from creating an atmosphere of passion and prejudice or misleading the jury. See Clark v. Doe, supra, citing Jones v. Macedonia-Northfield Banking Co., supra. Abusive comments directed at opposing counsel, the opposing party, and the opposing party's witnesses should not be permitted. See Pesek v. University Neurologists Assn., Inc., 87 Ohio St.3d 495, 2000-Ohio-483, 721 N.E.2d 1011. If there is room for doubt about whether counsel's improper remarks may have influenced the outcome of the case, that doubt should be resolved in favor of the losing party. See id.
{ } Defense counsel's remarks in the instant case were clearly designed to arouse the jury's passion and prejudice. Defense counsel made various assertions and inferences that were not supported by any evidence. Defense counsel painted Roetenberger, his counsel, and his witnesses as greedy, empty-hearted people without souls who were manipulating the lawsuit and "branding" a good doctor all for the sake of money. Defense counsel went so far as to warn the jury that a verdict in favor of Roetenberger would "affirm" that type of "behavior in an American court."
{ } The attacks on Roetenberger, his counsel, and his witnesses were "inexcusable, unprincipled, and clearly outside the scope of final argument." See Pesek v. University Neurologists Assn., Inc., supra. The trial court erred in permitting defense counsel to direct such abusive remarks at Roetenberger, his counsel, and his witnesses.
See id. The remarks were improper and beyond the bounds of permissible argument. See id.; Furnier v. Drury (Dec. 10, 2004), 1st Dist. No. C-030067; Clark v. Doe, supra. We recognize that Roetenberger's counsel did not object to all of defense counsel's remarks, but after reviewing defense counsel's closing statement as a whole, we hold that there was a substantial likelihood that the jury was misled and that the verdict was influenced by defense counsel's improper remarks. See Pesek v. University Neurologists Assn., Inc., supra; Furnier v. Drury, supra.
{ } We note that Saeed has argued that Roetenberger's counsel also engaged in improper argument. If Roetenberger's counsel did argue improperly, doubts about whether counsel's improper remarks misled the jury and influenced the outcome of the case must be resolved in favor of the losing party. See id. The first assignment of error is sustained.
{ } The second assignment of error alleges that the trial court erred in instructing the jury on "different methods of treatment." The "different methods" instruction is given in appropriate cases to inform the jury that where alternative methods of treatment can be used, "the selection of one method over the other is not in and of itself negligence." See Pesek v. University Neurologists Assn., Inc., supra.
{ } A jury instruction is proper if it correctly states the law and if it applies in light of the evidence adduced in the case. See Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828; Pallini v. Dankowski (1969), 17 Ohio St.2d 51, 53, 245 N.E.2d 353. In reviewing whether the evidence supports a particular jury instruction, an appellate court must "determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." See Murphy v. Carrollton Mfg. Co., supra, citing Feterle v. Huettner (1971), 28 Ohio St.2d 54, 57, 275 N.E.2d 340. "By its terms, in medical malpractice cases, the 'different methods' charge to the jury is appropriate
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