Bowden v. Annenberg12/9/2005
late their opinions." Appellant's Brief at 5-6.
{ } Bowden, however, only objected to the winning-lottery-ticket reference in voir dire. He failed to object during the cross-examination of Dr. Battle or during closing argument. To support reversal of a judgment on the ground of misconduct of counsel and improper closing argument to a jury, a proper and timely objection must be made to the claimed improper remarks so that the trial court may take proper action. See Snyder v. Stanford (1968), 15 Ohio St.2d 31, 238 N.E.2d 563, paragraph one of the syllabus; see, also, Cincinnati v. Banks (2001), 143 Ohio App.3d 272, 294, 757 N.E.2d 1205. Otherwise, a party waives all but plain error. "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, 79 Ohio St.3d 116, 1997-Ohio-401, 679 N.E.2d 1099, syllabus.
{ } Here, none of Dr. Annenberg's references in cross-examination or closing argument called into question the basic integrity of the judicial system. Bowden nonetheless, relying on the Ohio Supreme Court's decision in Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495, 501-502, 2000-Ohio-483, 721 N.E.2d 1011, contends that the trial court was required to intervene sua sponte to admonish counsel and to take curative action to nullify the effects of Mr. Triona's improper questions and comments.
{ } Trial counsel must refrain from unwarranted attacks on opposing counsel, the opposing party, and its witnesses. See id.; see, also, Roetenberger v. Christ Hosp., 1st Dist. No. C-040009, 2005-Ohio-5205, at ; Fehrenbach v. O'Malley, 1st Dist. No. C-040128, 2005-Ohio-5554, at ; Furnier v. Drury, 1st Dist. No. C-030067, 2004-Ohio-7362. Bowden makes no claim that Mr. Triona disparaged his counsel or his role in the proceedings, or attacked Bowden or his family.
{ } Rather, Bowden argues that Mr. Triona's comments undermined the credibility of his expert witnesses. But in medical-malpractice trials, expert testimony is essential to prove negligence and causation. See 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, we have held that the limitations of an expert's opinion are an appropriate subject for cross-examination and comment. See Clark v. Doe (1997), 119 Ohio App.3d 296, 306, 695 N.E.2d 276. But "the permissible bounds of fair argument are not unlimited." Id.
{ } The danger that Pesek seeks to prevent arises where there is a question "whether the verdict was rendered upon the evidence, or may have been influenced by improper remarks of counsel." Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d at 501, 2000-Ohio-483, 721 N.E.2d 1011 (internal quotations omitted and emphasis added). "Remarks or arguments that are not supported by the evidence and are designed to arouse passion or prejudice to the extent that there is a substantial likelihood that the jury may be misled are improper." Roetenberger v. Christ Hosp. at (emphasis added). "The law is unambiguous: 'When argument spills into disparagement not based on any evidence, it is improper.' " Fehrenbach v. O'Malley at , quoting Clark v. Doe, 119 Ohio App.3d at 307, 695 N.E.2d 276 (emphasis added). Where, however, counsel's argument is based upon the evidence admitted at trial and highlights legitimate limitations in the testimony of an opponent's expert witnesses, the argu
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