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Bowden v. Annenberg12/9/2005
e expert witnesses agreed that Dr. Annenberg's initial laceration of the common iliac vein with the right angle clamp was not the result of negligence. Through his expert witnesses, Bowden argued that Dr. Annenberg's or Smith's negligent handling of the sponge sticks during the repair efforts resulted in subsequent injury to the additional blood vessels, and that Dr. Annenberg was negligent in failing to control the resulting bleeding, especially the bleeding into Mrs. Bowden's pelvis.
{ } Dr. Annenberg's and Mercy Hospital's expert witnesses testified that injury to the additional blood vessels due to movement of the sponge sticks in a blood-filled surgical field was not negligent, and that the retraction of the sacral vein into the spine precluded further repair of that vessel. The jury also heard testimony from Bowden's expert witnesses, as well as Dr. Annenberg's and Mercy Hospital's experts, that employing sponge sticks to stop bleeding in this case was not a deviation from the standard of care, that sponge sticks could move and slip in the absence of negligence, and that sponge-stick movement, in and of itself, did not represent a deviation from the standard of care.
{ } After receiving the testimony of more than a dozen witnesses and 22 exhibits in a 10-day trial, the jury returned a defense verdict.
The Remarks of Counsel
{ } Bowden first argues that during voir dire, opening statement, cross-examination, and closing argument, Dr. Annenberg's defense counsel persisted in a course of "inflammatory remarks designed to arouse the jurors' passion." Bowden contends that a calculated pattern of misconduct by Dr. Annenberg's trial counsel improperly influenced the jury's verdict.
Opening Statement
{ } In response to perceived inaccuracies in Bowden's opening statement, Mr. Triona, Dr. Annenberg's counsel, stated, "Unlike you and I, the risk entailed in [Dr. Annenberg's] job can mean sometimes despite his best efforts in what he's trained to do his patient can die.
{ } "We don't face that in our jobs. We don't face the potential of coming in a courtroom and being accused of killing someone yet being accused of killing someone when they distort the facts of the case.
{ } "And that's where I was, Your Honor. I'm trying to curb my anger over what I just heard because a good portion of that is not in this case.
{ } "I heard that repeated sponge stick injuries are below the standard of care. They've known for nearly five years that the transcription of the op notes and death summary that said sponge sticks were used in the pelvis was incorrect. The sponge sticks weren't there and they know from their own expert witness that the sponge sticks in the pelvis never came up at any time."
{ } The trial court appropriately instructed the jury that an opening statement was not evidence, and that it was intended only to advise the jury what counsel expected the evidence to show. See State v. Smith (1992), 84 Ohio App.3d 647, 662, 617 N.E.2d 1160; see, also, Capeheart v. O'Brien, 1st Dist. No. C-040223, 2005-Ohio-3033, at . "But counsel must be afforded wide latitude during opening statement and is allowed fair comment on the facts to be presented at trial." Capeheart v. O'Brien at , citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, at ; see, also, Maggio v. Cleveland (1949), 151 Ohio St. 136, 84 N.E.2d 912, paragraph two of the syllabus
{ } When the trial court perceived that counsel's statement deviated from comment on what the evidence would show and became argumentative by rebutting Bowden's contentions, it properly intervened.
{ } "THE
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