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Bowden v. Annenberg12/9/2005
s that the jury's verdict must be reversed because the trial court abused its discretion in failing to maintain orderly proceedings, to determine the mode and scope of interrogating witnesses, and to evaluate a juror's professed ability to be fair and impartial.
{ } To succeed on these assignments of error, Bowden must demonstrate that, in making its decisions, the trial court exhibited an attitude that was "unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. In applying this standard, a reviewing court "is not free to substitute its judgment for that of the trial judge." Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301. Rather, if a trial court's exercise of its discretion exhibits a sound reasoning process that would support its decision, a reviewing court will not disturb that determination. See AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.
Remarks to Bowden's Expert
{ } Bowden's third assignment of error, in which he contends that the trial court demonstrated partiality against his expert witness Stuart Battle, M.D., when it "reprimanded" him during his testimony, is overruled. The trial court simply instructed Dr. Battle to speak up and not to turn his back on the court reporter when Dr. Battle left the witness stand and approached a video monitor to highlight matters for the jury. We are unable to discern any error in the trial court's statements. The trial court retains the responsibility to ensure orderly proceedings in the trial. See, e.g, Evid.R. 611. It is difficult to appreciate how the trial court erred when it attempted to ensure that the court reporter could make an accurate record of the proceedings. See R.C. 2301.20.
Cross-Examination of Defense Experts
{ } Bowden's fourth assignment of error, in which he argues that the trial court erred in finding sufficient adversity between Dr. Annenberg's and Mercy Hospital's interests to permit them to cross-examine each other's expert witnesses, is also overruled. "A party is entitled to cross-examine another party's witness, whether on the same side of the case or not, if some significant adversity exists between the two." Turner v. Providence Hosp. (Oct. 1, 1980), 1st Dist. No. C-790350. This decision over the mode and scope of interrogating witnesses, under Evid.R. 611, is consigned to the sound discretion of the trial court. See id.; see, also, Costell v. Toledo Hosp. (1992), 82 Ohio App.3d 393, 402, 612 N.E.2d 487.
{ } Despite cooperating to exercise their peremptory challenges, Dr. Annenberg and Mercy Hospital retained separate counsel, had separate liability-insurance carriers, filed separate pleadings, made separate motions, and defended against separate theories of liability advanced by Bowden. Dr. Annenberg and Mercy Hospital had adverse interests sufficient to entitle each to the right of cross-examination of the other's witnesses. See Bernal v. Lindholm (1999), 133 Ohio App.3d 163, 174-176, 727 N.E.2d 145.
Juror Acquaintance with a Witness
{ } In his fifth assignment of error, Bowden contends that the trial court improperly denied his motion to exclude a juror. Bowden argues that the prospective juror should have been excused for cause because, during voir dire, the prospective juror stated that Dr. Fegelman, one of Mercy Hospital's expert witnesses, had performed a catheterization procedure on him during a hospitalization for cancer eight years earlier.
{ } A juror's acquaintance with a witness is not one of the specific challenges for cause listed under R.C. 2313.42. But R.C. 2313.42
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