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Bowden v. Annenberg12/9/2005
ment is not improper. See Roetenberger v. Christ Hosp. at ; see, also, Capeheart v. O'Brien at . The trial court's duty to sua sponte intervene does not arise where counsel's arguments are warranted by the evidence. See Fehrenbach v. O'Malley at .
{ } Here, the first reference to clairvoyance was made not by Mr. Triona, but by Bowden's own expert, Dr. Battle. In response to a question about his recollection of the time of injury, Dr. Battle answered, "I think I said around that time -- Mr. Triona, I don't pretend to be clairvoyant. * * * You by necessity have to estimate when things happen."
{ } Every other question or comment by Mr. Triona was made to highlight the difference between the retrospective evaluation of the medical records by Bowden's experts and the prospective evaluation by Dr. Annenberg, during the surgery, and by his expert witness Dr. Klamer. Dr. Klamer testified that he reviewed the case from separate "packets" of records sent to him in sequence by Mr. Triona. The first packet contained redacted records that did not reveal the outcome of the surgical procedure. Like Dr. Annenberg, Dr. Klamer was evaluating Mrs. Bowden's medical condition prospectively. Each of Bowden's experts, however, knew of the fatal consequences of the surgery not only before offering an opinion, but also before reviewing the medical records. As noted in his closing argument, Mr. Triona's analogies to crystal balls, clairvoyance, and the advantage of knowing winning lottery-ticket numbers in advance served to highlight the extent of knowledge of the experts when they formed their opinions about negligence and causation.
{ } Comment upon matters in evidence that identifies the basis of an expert's testimony and that assists the jury to weigh and to evaluate the credibility of that testimony is a hallmark of effective litigation. See Lilly, An Introduction to the Law of Evidence (2 Ed.1987), 491-492, Section 12.3; see, also, Clark v. Doe, 119 Ohio App.3d at 306, 695 N.E.2d 276. Since counsel's comments in voir dire, opening statement, cross-examination, and closing argument were based upon the evidence, and since they served to highlight for the jury legitimate limitations in the testimony of Bowden's expert witnesses, they were not improper. Thus, they were not subject to the trial court's sua sponte review under Pesek.
{ } The scope of voir dire, cross-examination, and closing argument are, in the first instance, within the discretion of the trial court. See Evid.R. 611; see, also, Brokamp v. Mercy Hosp. (1999), 132 Ohio App.3d 850, 862, 868, 726 N.E.2d 594. Here, an experienced trial judge, having heard all the testimony, did not abuse his discretion. The first assignment of error is overruled.
The Res-Ipsa-Loquitur Instruction
{ } In his second assignment of error, Bowden asserts that the trial court erred by failing to instruct the jury on the applicable law regarding res ipsa loquitur. Bowden's complaint alleged negligence on the part of Dr. Annenberg and Mercy Hospital. In the trial court, Bowden relied upon the evidentiary doctrine of res ipsa loquitur as one means of demonstrating the alleged negligence.
{ } The doctrine of res ipsa loquitur is a rule of evidence that permits a plaintiff to prove negligence circumstantially upon showing that (1) the instrumentality that caused the harm was in the exclusive control of the defendants, and (2) the event that caused the harm was not of the type that would normally occur in the absence of the defendants' negligence. See Wiley v. Gibson (1990), 70 Ohio App.3d 463, 465, 591 N.E.2d 382; see, also, Merritt v. Deaconess Hosp. (Sept. 7, 1976), 1st Dist. No. C-750343. While the doctrine ma
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