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Bowden v. Annenberg12/9/2005
(J) contemplates the removal of a prospective juror for good cause when "he discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as given to him by the court." A juror's acquaintance with a witness does not necessarily affect the juror's impartiality where the juror demonstrates to the trial court's satisfaction that he can be impartial. See McQueen v. Goldey (1984), 20 Ohio App.3d 41, 45, 484 N.E.2d 712. The trial court has wide discretion in determining a juror's ability to be impartial. See State v. Nields, 93 Ohio St.3d 6, 20-21, 2001-Ohio-1291, 752 N.E.2d 859.
{ } Here, the prospective juror stated that he could be fair and impartial in deciding this case. When asked by Bowden's trial counsel whether he would "tilt" toward Dr. Fegelman, the prospective juror responded that he would not because the trial involved a different procedure from his catheterization, and because he had no knowledge of what Dr. Fegelman's testimony would be. Accordingly, Bowden's motion to exclude this juror for cause was properly denied and will not be disturbed on appeal. See State v. Tyler (1990), 50 Ohio St.3d 24, 31, 553 N.E.2d 576, 587. The assignment of error is overruled.
Rebuttal Testimony
{ } In his final assignment of error, Bowden claims that the trial court erred in excluding some testimony of anesthesiologist Dr. McClary offered to rebut surgeon Dr. Fegelman's testimony about the frequency of sponge-stick slips and to expound on the importance of Mrs. Bowden's blood-gas levels.
{ } Contrary to Bowden's assertion, R.C. 2315.01(D) does not grant an absolute right to present rebuttal testimony. The statute merely describes the regular order in which evidence and argument shall be presented at trial. A party does have a right to present rebuttal testimony, however, if the testimony would not be appropriate for one's case-in-chief, and if the testimony is first addressed in an opponent's case-in-chief. See Phung v. Waste Mgmt., Inc. (1994), 71 Ohio St.3d 408, 410, 644 N.E.2d 286. Determining what evidence is admissible as proper rebuttal evidence, however, lies within the trial court's discretion. See State v. McNeill, 83 Ohio St.3d 438, 446, 1998-Ohio-293, 700 N.E.2d 596.
{ } The primary focus of Bowden's claims was that Dr. Annenberg's negligence resulted in a sponge-stick injury to Mrs. Bowden. If Dr. McClary were to testify on the frequency of sponge-stick injuries, he could have been called in Bowden's case-in-chief. Dr. McClary was afforded considerable latitude to testify about Mrs. Bowden's respiratory and metabolic acidosis and their implications for her clinical status. Therefore, the trial court did not abuse its discretion in limiting Dr. McClary's rebuttal testimony. The sixth assignment of error is overruled.
{ } Therefore, the judgment of the trial court is affirmed.
Judgment affirmed.
SUNDERMANN and HENDON, JJ., concur.
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