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Pennell v. Dewan4/11/2005
JUDGMENT: Affirmed
{ } Appellants/Cross-Appellees David and Diane Pennell appeal the decision of the Court of Common Pleas, Stark County, following a jury verdict in favor of Appellees/Cross-Appellants Sanjeev Dewan, M.D., and Ohio Eye Alliance, Inc. The relevant facts leading to this appeal are as follows.
{ } On December 28, 1999, appellants filed a medical malpractice action against appellees, alleging negligence in the performance of optical surgery upon David. The matter proceeded to trial on July 28, 2003. Jury selection began the same day, as further analyzed infra. On July 31, 2003, subsequent to said jury selection and the completion of the trial, six members of the jury returned a verdict in favor of appellees. A 1/2 -page judgment entry on the verdict was filed on August 11, 2003.
{ } On June 1, 2004, appellants filed a "Motion to Order Service of Final Entry." Appellees filed a memorandum in opposition on June 14, 2004. On June 15, 2004, the court granted appellants' motion, noting that the 2003 "judgment on the verdict" entry had not directed the clerk to perfect service of same.
{ } On July 8, 2004, appellants filed a notice of appeal. Appellees filed their notice of cross-appeal on July 20, 2004. Appellants herein raise the following Assignment of Error:
{ } "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS-APPELLANTS BY REFUSING TO ALLOW COUNSEL TO INQUIRE OF SOME JURORS WHO INDICATED POSSIBLE BIAS, BUT SUBSEQUENTLY CONTESTING THE STATEMENTS OF OTHER JURORS WHO INDICATED BIAS AGAINST THE PLAINTIFFS-APPELLANTS."
{ } Appellees raise the following Assignment of Error on appeal:
{ } "I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN RULING THAT THE NOTICE OF APPEAL WAS TIMELY WHEN, AFTER HAVING ACTUAL AND CONSTRUCTIVE NOTICE OF A FINAL ORDER, PLAINTIFFS-APPELLANTS CLAIMED THEY WERE DENIED APPROPRIATE NOTICE BECAUSE OF A CLERICAL ERROR REGARDING COURT SERVICE.
Pennell Appeal
I.
{ } In their sole Assignment of Error, appellants argue the trial court committed prejudicial error in its manner of addressing potential juror bias, particularly during voir dire. We disagree.
{ } App.R. 47(B) reads in pertinent part that " n addition to challenges for cause provided by law, each party peremptorily may challenge three jurors." However, " * the selection and qualification of jurors are largely under the control of the trial court and, unless an abuse of discretion is clearly shown with respect to rulings thereon, they will not constitute ground for reversal." State v. Trummer (1996), 114 Ohio App.3d 456, 461, 683 N.E.2d 392, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301. A juror " * * * ought not to suffer a challenge for cause when the court is satisfied from an examination of the prospective juror or from other evidence that the prospective juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." State v. Duerr (1982), 8 Ohio App.3d 404, 8 OBR 526, 457 N.E.2d 843, paragraph two of the syllabus.
{ } Appellants first direct us to the voir dire examination in the case sub judice of Juror No. 4 and Juror No. 18. The court first addressed Juror No. 18, who stated that her father and father-in-law were both doctors, and that her mother was an x-ray technician. Tr. at 14-15. After a short inquiry, the court directed its attention to Juror No. 4, who indicated that because of her experience with doctors misdiagnosing her parents, she had questions about her impartiality. Tr. at 15-16.
{ } The judge thereupon called a sidebar conference on the is
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