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Roetenberger v. Christ Hospital9/30/2005
a little drop of water and it will go from fifty percent to just over fifty percent and we've met our burden of proof. That's an absolute and utter misrepresentation and manipulation of the burden of proof."
{ } Surely, the majority would not hold that the trial court abused its discretion by overruling these objections. Therefore, statements that Roetenberger did not object to are subject to plain-error review. "In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving 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." Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus.
{ } To support its determination that Dr. Saeed's counsel made unwarranted attacks on Roetenberger's counsel, the majority strings together a number of isolated statements. There is no dispute that closing argument is improper if counsel personally attacks opposing counsel. Pesek at 501, 721 N.E.2d 1011. Reversible error is founded on the principle that personal attacks that disparage opposing counsel are not based on the evidence and that, even if there is no objection, the trial court has a duty to intervene and require counsel to proceed in an orderly, lawyer-like manner. See Jones v. Macedonia-Northfield Banking Co. (1937), 132 Ohio St. 341, 351, 7 N.E.2d 544; Clark, supra, at 307, 695 N.E.2d 276. While some of the comments at issue may have been questionable, given the overall context in which they were made, I do not agree with the majority that the trial court had a duty to intervene. In my view, the majority has created a per se rule of reversal based on counsel's use of taboo words and has overextended the holding in Pesek, supra.
{ } I also disagree with the majority's conclusion that counsel maligned Roetenberger's expert witnesses. In professional-negligence trials, expert testimony is almost always essential to prove negligence and causation. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 346 N.E.2d 673.The ultimate question is whose expert does the jury believe? Therefore, an expert's bias and pecuniary interest are appropriate subjects for cross-examination. Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 436 N.E.2d 1008. Counsel should have leeway to challenge the quality of the expert evidence as long as counsel does not "create an atmosphere surcharged with passion or prejudice and in which the fair and impartial administration of justice cannot be accomplished." Pesek at 501, 721 N.E.2d 1101.
{ } The danger of examining remarks in isolation is amply illustrated here. For example, the majority exaggerates when it says that counsel called Roetenberger's expert, Dr. Mark Popil, an "idiot" and not credible because "he wore gym shoes and baggy pants." Counsel for Dr. Saeed did strenuously challenge Dr. Popil's qualifications to give an opinion about the use of Demerol and other drugs. Counsel did, perhaps intemperately, refer to Dr. Popil as an "idiot" and "incompetent," but not because of how the doctor was dressed. The transcript shows that this remark was simply a reference to an earlier observation that the jury saw Dr. Popil testify, as an emergency-room physician, dressed in emergency-room clothing.
{ } "Medical malpractice cases engender strong emotion, and there is nothing wrong with passionate argument." Clark at 307, 695 N.E.2d 276. The majority acknowledges that the trial court should accord "great latitude" to counsel in the presentation of closing argument to the jur
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