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1 IN THE SUPREME COURT OF OHIO CELESTINE WYNN VS. Plaintiff-Appellee CARL GILBERT, M.D., FACS,. Supreme Court No On Appeal from the First Appellate District Defendant-Appellant. Court of Appeals No. C MEMORANDUM IN SUPPORT OF JURISDITION MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, CARL GILBERT, M.D. David C. Calderhead ( ) Stephanie P. Franckewitz ( ) (COUNSEL OF RECORD) TRIONA, CALDERHEAD, & LOCKEMEYER 2021 Auburn Ave. Cincinnati, OH Tel: /Fax: Counsel for Defendant-Appellant, Carl Gilbert, M.D., FACS Glenn V. Whitaker Barbara Bison Jacobson VORYS, SATER, SEYMOUR & PEASE,LLP L FEE ru 221 E. 4th St. Cincinnati, Ohio ^^ bbjacobson@vssp.com Tel: /Fax: CnURT Counsel for Plaintiff-Appellee, Celestine Wynn SUPR UR7 EME OF OHIO

2 TABLE OF CONTENTS: STATEMENT OF PUBLIC OR GREAT GENERAL INTEREST... 1 STATEMENT OF THE CASE... 3 STATEMENT OF THE FACTS... 3 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW... 6 Proposition of Law 1 :... 6 A willful non-disclosure by counsel of material evidence previously requested during discovery that is later unveiled at trial in a calculated "trial by ambush" strategy is misconduct. The misconduct is especially egregious when the disclosed information at trial is privileged attorney work-product. Proposition of Law 2 : When critical damaging testimony is purposely withheld from a defendant that has the potential to affect core trial strategy, the lack of prior knowledge fundamentally hinders a defendant's ability to rationally evaluate his risk of liability for purposes of prejudgment interest. Under these facts, a plaintiff cannot be found to have fully cooperated in discovery proceedings and thus forgoes any possibility of earning prejudgment interest. Pase Proposition of Law 3 : Commonality of insurance is intended to illuminate any potential bias on behalf of an expert who stands to benefit from his testimony for a fellowinsured because they share a common pool of profit/loss. When no such potential for economic impact exists, commonality of insurance remains an improper topic for cross-examination. Proposition of Law 4: R.C (C) is unconstitutional. CONCLUSION CERTIFICATE OF SERVICE... 16

3 APPENDIX Appx. Page Judgment Entry of the Hamilton County Court of Appeals and Opinion of the Hamilton County Court of Appeals (June 8, 2007)... 1

4 I. STATEMENT OF PUBLIC OR GREAT GENERAL INTEREST There is something unseemly about a plaintiff who purposely conceals from a defendant during deposition key information that is unfavorable to the defendant's case, only to spring it on the defendant at trial. It is even more egregious when that information, if known before trial, would have marked a different strategic course for the defense of the case; and the absence of which fundamentally hinders a defendant's ability to rationally evaluate his risk of liability. Error is further compounded when the disclosed information is protected work-product. This concealment is unjust. It jars the conscience of fair-minded people, and it is the hope of this Defendant that it jars the conscience of this Honorable Court. A willful non-disclosure by counsel of material evidence previously requested during discovery that is later unveiled at trial in a calculated "trial by ambush" strategy is misconduct. The misconduct is especially egregious when the disclosed information at trial is privileged attorney work-product that was developed in a prior case. The First District excuses this conduct as "harmless error." Misconduct cannot and should not be excused through use of the "harmless error" doctrine. On its face, litigants throughout the state are sent the message that the purposeful withholding of evidence in discovery and its later use at trial will be condoned if the trial court interprets it as "harmless" and that attorney work-product in prior cases are a ripe hunting ground for evidence affecting witness credibility. Review of this case is important because its impact is acutely felt in all cases that require expert testimony to prove liability. In "battle of the expert" cases, the credibility of expert testimony is paramount. Counsel for plaintiffs and defendants alike, take great care in selecting and procuring a proper expert; the selection is the very underpinning of trial strategy. During discovery, counsel from both sides, seek out information that may compromise the credibility of 1

5 their expert, so that strategic decisions can be made in an effort to design a winning case. Thus, when damaging information about a defendant's sole expert is purposely withheld from a party, even in the face of questions designed to uncover such unfavorable information, and is later revealed at trial through direct examination of the opposing expert, a party's basic right to a fair trial has been compromised. As in the instant case, the misconduct is magnified when the surprise disclosure at trial is privileged work-product. Specifically, if an expert witness has been sued before, then attorney work-product that was developed in defense of the prior case may be used against the expert in the current case in order to affect the witness' credibility. While the context of the instant case sounds in medical malpractice, its wake can be foretold: If you are a witness in any civil case, work-product information from any previous litigation may be fodder for the opposing side if it can be twisted to affect credibility. Review of this case is irnportant because the First District improperly elevates the right to challenge a witness' credibility above the witness' right to the protection of work-product. The protection of work-product strikes at the heart of every civil case because attomeys need the privacy necessary to work up their client's case with confidence that the information will not used in a subsequent trial where their client is called as a witness. If this decision is left unattended, the results are clearly foreseeable: It will have a chilling effect on witness cooperation, expert witness participation, and attorney preparation of any civil case. Finally, review of this case is important because this Court has not clearly stated a rule for the lower courts to follow when faced with the prospect of introducing privileged workproduct that has been developed in a prior, uiirelated case and is sought to be interjected into current litigation. The Second District looked to the federal courts to develop a 3-part test to answer the question because they found this Court to be silent on this unique issue. 2

6 II. STATEMENT OF THE CASE: Plaintiff-Appellee ("Wynn") filed suit alleging medical malpractice against Defendant- Appellant Carl Gilbert, M.D. ("Dr. Gilbert"). This matter went to trial and the jury awarded Wynn $1,500,000. Dr. Gilbert filed Motions for New Trial and Remittitur. Wynn filed a motion for prejudgment interest. Dr. Gilbert's motions were denied and Wynn's motion was granted. Dr. Gilbert appealed. The First District affirmed. A Notice of Appeal was filed to this Court. III. STATEMENT OF THE FACTS: Wynn sued Dr. Gilbert for medical malpractice. Wynn nained two experts within the expert disclosure deadline and Dr. Gilbert named Dr. Donald Hura as his expert. Three months before trial and after the expert disclosure deadline, Wynn moved the trial court to name a new expert, Dr. William Schirmer, offering to give up her other two experts in exchange. The court granted Wynn's motion and permitted her to name Dr. Schirmer as her new expert after the deadline had expired. Dr. Schirmer's Deposition: Two months before trial, Dr. Schirmer's deposition was taken by Defense Counsel. In an effort to discover any knowledge that Dr. Schirmer had of Defense Expert, Dr. Hura, Defense Counsel asked the following: Q: Do you know Dr. Donald Hura? A: I know of him, I don't know him personally. Q: Does he have a good reputation in the community? A: Again, he works, I believe, I don't know exactly where he works right now. My understanding, I think, is he works in the Mount Carmel system. That may or may not be accurate and I just don't know enough about him. Nothing negative about him. I have not heard anything -I have heard nothing either way good or bad. Q: You have no opinion one way or another with regards to Dr. Hura? 3

7 A: Correct. Unbeknownst to Defense Counsel and Dr. Hura, Dr. Schirmer had been hired by Dr. Hura's counsel to review two medical malpractice cases filed against Dr. Hura in the past. ' This was never disclosed to Defense Counsel during discovery. The Disclosure at Trial: Although the information had been requested by Defense Counsel during Dr. Schirmer's deposition, it was not until his direct examination by Plaintiffs Counsel at trial did Defense Counsel learn of the damaging facts. Waiting until the very end of Dr. Schirmer's direct examination in order to receive the highest impact with the jury, Plaintiff s Counsel asked the following: Q: If another expert doctor such as yourself comes into this courtroom and says that the reversed Roux-En-Y that we have already described is an alternative method, a proper altemative method of doing that surgery, is that correct? A: No, that's not correct. Q: Assuming that the expert that comes into this Court on behalf of the defense is Dr. Donald Hura and assume for the sake of discussion he is going to come in and testify in this case, you have reviewed records of Dr. Hura as an expert, haven't you? A: Yes. MR. CALDERHEAD: Objection. THE COURT: Overruled. Q: More than one occasion? A: Yes. Q: Your expert opinion was sought? A: I have been asked on two occasions to review records to defend Dr. Hura in medical negligence cases. 'T.p ,

8 MR. CALDERHEAD: Move to strike. THE COURT: Overruled. MS. JACOBSON: Thank you very much. We appreciate you taking time to come here today. I don't have any further questions at this time.z On cross-examination, Dr. Schirmer defended his dishonesty: Q: I want to talk about Dr. Hura. At the end of your direct examination. I want to follow up. Is it not true, sir, you did not mention to me during your deposition I took within the last two months you had been involved in reviewing any cases involving Dr. Hura; is that not true? A: I was never asked the question. I believe I answered every one of your questions. I was never asked that question. Q: You were asked about Dr. Hura, were you not, at the time of your deposition? A: I think you asked if I knew Dr. Hura.3 Plaintiff Failed to Make a Prima Facie Showing at Prejudgment Interest Hearing: After the conclusion of the trial, Plaintiff filed a motion for prejudgment interest 4 Plaintiff offered no proper evidentiary proof at the evidentiary hearing, other than a copy of a settlement demand letter and a certified copy of Dr. Gilbert's insurance policy. No witnesses were called and no sworn testimony was offered.5 'fhe Plaintiff offered only oral argument. When asked by the trial court if she wanted to present any evidence, the Plaintiff declined.6 Facts Relating to Commonality of Insurance: The deposition of defense expert, Dr. Hura, took place in December, At that time, Wynn elicited that Dr. Hura is insured by the same company as Dr. Gilbert. Dr. Hura had no knowledge of that fact prior to Wynn bringing it to his attention. Dr. Hura and Dr. Gilbert's 2 T.p T.p T.d. 93, T.p , Post-Trial Motions. 6 T.p Post-Trial Motions. 'T.d.71. 5

9 insurer is not a mutual insurance company; tlms there is no common pool of liability between Dr. Hura and Dr. Gilbert. Despite this, the trial court permitted Wynn to use this information, not to argue bias, but rather to inject the existence of malpractice insurance into this case. IV. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW: Proposition of Law 1: A willful non-disclosure by counsel of material evidence previously requested during discovery that is later unveiled at trial in a calculated "trial by ambush" strategy is misconduct. The misconduct is especially egregious when the disclosed information at trial is privileged attotney work-product. Analysis of the proper discourse of discovery in Ohio begins with the Rules of Civil Procedure. Civil Rule 26(A) provides that it is the policy of the civil rules to encourage attorneys to investigate the favorable, as well as, the unfavorable aspects of their case. "The Ohio civil procedure rules were designed to provide for full discovery of all pertinent nonprivileged evidence and to allow both parties to accurately assess the merits of their case prior to trial. Furthermore, the civil rules are intended to eliminate surprise and prevent a "trial by ambush."8 And an intentional violation of the rules should not be easily disregarded.9 Ohio Civil Rule 26(E) requires supplementation of responses when actual knowledge is obtained that a prior response is incorrect and prevents knowing concealment by a party or attorney.lo Additionally, the duty is heightened when expert testimony is involved, "[b]ecause preparation for effective cross-examination is especially compelling where expert testimony is to be introduced."" Nowhere is expert testimony more critical than in a medical malpractice case 8 Jones v. Murphy (1984), 12 Ohio St3d 84, 465 N.E.2d 444. See also Civil Rule 26(B)(4). 9 Ia. Civil Rule 26, Staff Notes, emphasis added. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 504 N.E.2d 44. See also Civil Rule 26(B)(4)(b). 6

10 because a plaintiff cannot prevail on her claim without properly qualified expert witness testimony. 12 Case law underscores that the spirit of the Civil Rules require disolosure and do not permit a party to rely upon technical hairsplitting as an excuse for withholding information when the essence of the requested information is apparent. In Weimer v. Anzvezio, the defendant, by means of a request for production of documents, requested any reports from any expert the plaintiff expected call at trial.13 The plaintiff responded "None at this time." The defendant never presented the plaintiff with an interrogatory asking for the identity of plaintiffs experts to be called at trial. At trial, the plaintiff attempted to call an expert to the stand. The defendant objected on the grounds that he was not identified prior to trial in answer to his request for production of documents. The trial court excluded the testimony. The Court of Appeals held: While appellant did not directly violate the Civil Rules, she did violate the spirit and intent of those Rules. * * * Here there was a total failure to provide the information so obviously requested; a failure wliich may itself rise to the level of willful noncompliance. Plaintiff's Strategy: A Calculated "Trial by Ambush": The deception in Weimer pales in comparison to the instant case. Plaintiff's expert, Dr. Schirmer, at deposition, did not disclose the fact that he had reviewed cases in defense of Dr. Hura in the past. It is clear that Dr. Schirmer knew at the time of his deposition the meaning and intent of defense counsel's questions because he was very careful to tap dance around the fact in cross-examination at trial by exclaiming coyly, "I was never asked the question. I believe I answered every one of your questions. I was never asked that question."14 Defense counsel countered by asking, "You were asked about Dr. Hura, were you not, at the time of your 12 Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 346 N.E.2d Weimer v. Anzvezio (1997), 122 Ohio App.3d 720, 702 N.E.2d T.p

11 deposition?" He answered, "I think you asked if I knew Dr. Hura."15 His response is nothing short of Clintonesque: it depends on how you define the word "knew" as to whether he was obligated to tell Defense Counsel that he had reviewed cases in defense of Dr: Hura in the past. Aside from the parsing of definitions of words, the absolute indisputable deception occurred in the follow-up question at deposition, "Does he have a good reputation in the community?" Dr. Schirmer's answer was patently dishonest: "*** I just don't know enough about him. Nothing negative about him. I have not heard anything - I have heard nothing either way good or bad."16 Really?? Nothing negative - other than Dr. Hura had been sued at least twice before for medical malpractice and he reviewed two cases in his defense. Dr. Schirmer is not stupid. Plaintiff's counsel covered Dr. Schirmer's experience and background in no less than 18 pages of trial testimony." He obtained his medical degree from prestigious Johns Hopkins. He is board certified. I-Ie was an assistant professor of surgery with tenure at Ohio State University. He was a member of the Society of University of Surgeons. He peer reviews articles. He has participated in obtaining grants for research. He has published articles. He has won several awards based on his research and on his teaching. Yet, despite all this, we are to believe that he did not understand or appreciate the content or the spirit in which the questions were asked regarding his knowledge of Dr. Hura. Although Dr. Schirmer's hair-splitting is disturbing, Plaintiff's Counsel's behavior is the most culpable. Plaintiffs Counsel likely knew when they petitioned the court for leave to name Dr. Schirmer as an expert that he had reviewed cases for Dr. Hura, evidenced by the fact that they were willing to give up their two previously named and deposed experts in exchange for Dr. 15 T.p Emphasis added. 16 T.p T.p

12 Schirmer only 12 weeks before trial.18 Likewise, it is apparent they knew at Dr. Schirmer's deposition because Dr. Schirmer's deft maneuvering through the questions smacks of a wellprepared witness. Undisputedly, Plaintiffs Counsel knew before trial. Obvious care was taken and thoughtful consideration was given as to when and how the surprise information would be revealed. The questions on direct examination were purposely timed to be unveiled at the conclusion of Dr. Schirmer's testimony to provide the most impact.19 The result was trial by ambush and a denial of Dr. Gilbert's right to a fair trial. PlaintifPs Counsel's Conduct Had Cascading Effect: Consider the impact Plaintiffs Counsel's conduct had on Dr. Gilbert's rights and his attorney's ability to prepare his defense. It affected pretrial motion strategy by not giving any chance whatsoever to prevent the information's introduction. Once unfairly prejudicial information is heard by the jury, the well is poisoned. Any attomey worth their salt will strive to keep the information out of evidence by means of a protective order or by a motion in limine. Dr. Gilbert was deprived of this chance. Additionally, it affected cross-examination preparation. If the Defense had known about PlaintifPs Counsel's surprise, Defense Counsel could have prepared for it before trial. The matter would have been investigated in detail during discovery and based on whatever information was found, the circumstances possibly could have been framed in a more positive light. Who knows? That's the point. The Defense did not get the opportunity to find out. And once the information was sprung at trial the Defense was in no position to combat it. It was too late. Any attempt thereafter to find the details of the information would have forced the Defense " T.d According to Mauet's Fundamentals of Trial Techniques, "Remember that jurors, like people in general, remember best what they hear first and last. (These are the general principles of "primacy" and "recency").", p. 96, 9

13 to highlight and focus the jury's attention even further on the revelation and possibly uncover more damaging information to Dr. Gilbert's case. For exainple, Dr. Schirmer testified that when he reviews cases, he sometimes can defend them and sometimes cannot20 He testified that he had been asked to "review records" to defend Dr. Hura.21 Dr. Schirmer testified that he did not know Dr. Hura, so obviously he never met him.22 Dr. Hura was unaware that Dr. Schirmer had ever reviewed cases on his behalf.23 The obvious question the jury must have been asking themselves is "What happened in Dr. Hura's cases?" The void of information begs the natural conclusion: His reviews must have not been favorable. What else could explain the fact that Dr. Hura was unaware of the reviews? Why else did Defense Counsel not even breach the issue? What the jury did not know is that Defense Counsel had been placed in an impossible position. A cardinal rule in cross-examination is never to ask a question you don't already know the answer to. Defense Counsel could not possibly have taken the chance during live trial testimony by asking a smoking-gun question without Iniowing the response. Prudence forced Defense Counsel to drop the line of questioning. Again, if Dr. Schirmer and Plaintiffs Counsel had been honest during discovery, then the information surrounding the reviews would have been investigated at the proper time: during deposition and not in front of the jury. Thus, Dr. Gilbert's right to intelligently cross-examine Dr. Schirmer was completely hampered, leaving the wrong impression with the jury and materially damaging his defense. Further, Dr. Gilbert's trial strategy was affected at its core. Medical malpractice cases are the classic "battle of the experts." Whoever's expert is the most credible in the eyes of the jury, wins. The information that Dr. Schinner had reviewed cases in defense of Dr. Hura creates 20 T.p T.p ZZ T.p T.p

14 the false impression that Dr. Hura looked to Dr. Schirmer defend him because he is "the best." Had the Defense known the infonnation, a motion for leave to name a new expert may have been sought, just as Plaintiff's did when naming Dr. Schirmer.24 It's all second-guessing at this point. What could have been done, should have been done or would have been done became moot the moment Dr. Schirmer testified at trial. Plaintiff will surely argue in response that the Defense could have accessed the information from Dr. Hura himself Not so. Dr. Hura testified at trial that he did not know anything about Dr. Schirmer, and he learned that Dr. Schirmer had reviewed cases on his behalf from Defense Counsel.25 To any individual who does not defend malpractice cases for a living, this may seem incredulous. It is not. In fact, it is common practice for defense attorneys to send information about a malpractice case to potential experts without the client's knowledge. Physicians are busy people. They are not involved in the day to day work up of the defense of their case. It is simply logistically and practically impossible. Plaintiff will also likely argue that Defense Counsel should have taken other steps to discover the information. This argument does not hold. Initially, one would have to assume that Dr. Schirmer's testimony was unreliable in the first place. Then, since Dr. Hura had no knowledge that Dr. Schirmer had reviewed cases on his behalf, Defense Counsel's next step necessarily would have been to contact Dr. Hura's attorneys directly to investigate who had participated in expert reviews for him in the past. Even this effort may not have been successful because the identity of experts retained in the anticipation of trial is protected work-product zb Instead, Defense Counsel took the direct and logical approach: He asked Dr. Schirmer. 14 T.d T.p Owens v. Bell ( 1983), 6 Ohio St.3d 46, 451 N.E.2d 241, concurring opinion. 11

15 Attorney Work-Product from Prior Case is not Admissible Evidence: Plaintiff's Counsel's conduct is further aggravated by the fact that the nature of the evidence disclosed at trial is protected work-product. The Civil Rules protect against the discovery of materials prepared in anticipation of litigation and are discoverable only upon a showing of good cause.27 Likewise, the discovery of the identity of experts consulted for trial preparation and their opinions is also protected.z$ Protection of work-product involves a substantial right.29 And the work-product privilege belongs to the attorney.30 If a party requests discovery of work-product, the trial court must conduct an evidentiary hearing.31 While the protection of work-product developed in ongoing litigation is well-settled, the question of whether work-product loses its privileged status in subsequent litigation for the purpose of affecting a witness' credibility remains relatively uncharted. In Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Schaefer had been previously sued by an injured employee, Bourelle; the case settled. hi a subsequent suit, Schaefer sued the insurance agency for not recommending a policy that would have covered the settlement. The insurance agency wanted access to the work-product produced in the case between Schaefer and Bourelle, The Second District, noting that this Court had not dealt with the issue, turned to the federal courts: Although the work-product doctrine is typically applied to protect material prepared in anticipation of ongoing litigation, nowhpre does the rule so limit its protection. While Ohio courts have not considered wlietlier Civ.R. 26(B)(3) may be applied to protect work product prepared in anticipation of prior litigation, 27 Civil Rule 26(B)(3). State v. Kemper (2004), 158 Oliio App.3d 185, 2004 Ohio 4050, 814 N.E.2d Civil Rule 26(B)(4). See also, Owens v. Bell (1983), 6 Ohio St.3d 46, concurring opinion. 29 Nelson v. Toledo Oxygen & Equip. (1992), 63 Ohio St.3d 385, 588 N.E.2d 789, overruled on other grounds in Polikoffv. Adam (1993), 67 Ohio S5.3d 100, 616 N.E.2d Frank w. Schaefer, Inc. v. C. Garfield Mitchell Agency (1992), 82 Ohio App.3d 322, 612 N.E.2d Peyko v. Frederick (1986), 25 Ohio St,.3d 164, 495 N.E.2d

16 several federal courts have addressed the issue within the context of Fed.R.Civ.P. 26(b)(3). Relying upon federal case law, the court considered 3 factors: (1) whether the work product of the past litigation is closely related to the present litigation, (2) whether permitting discovery of work product in subsequent cases would result in a chilling effect on the performance of attorney's preparation for litigation, or (3) whether the work product in past litigation consists of material which is directly at issue in the present litigation. The court ultimately held the information should be excluded as protected work-product. In the instant case, no evidentiary hearing was ever held on whether Dr. Schirmer's identity as Dr. Hura's expert could be disclosed; therefore no information was before the court to even consider waiving the work-product privilege. With no underlying evidence, the factors cited in Schaefer can only result in upholding the protection of the work-product and not allowing the jury to consider it for any reason. Additionally, Dr. Schirnier had no authority to disclose his identity as one of Dr. Hura's reviewing experts to begin with. Only Dr. Hura's attorney had the right to release that information and there is no proof in this case that Dr. Schirmer's identity was ever made public. Indeed, Dr. Hura did not even know his identity before the revelation at trial. Further, Plaintiff's Counsel knew that if Defense Counsel were aware of the information, they would have taken any steps necessary to block its interjection into the case. They successfully avoided this certain opposition by engaging in trial by ambush. While this case deals directly with Dr. Gilbert's right to a fair trial, Dr. Hura's rights should not be overlooked in this matter. Dr. Hura has a substantial right to have work-product from his own cases to remain privileged. He does not waive that privilege by acting as an expert in defense of a completely unrelated case. The result sends the signal that when an expert 13

17 testifies, personal counsel should be involved in order to protect work-product developed in any past and/or pending case where the expert is the defendant. This cannot be a correct result. This Court should set forth clear guidelines to assist the bench and the bar on restricting the use of privileged work-product in subsequent cases. By acquiescing on the issue, the protections afforded by the work-product doctrine will slowly be eroded by courts of appeals left to create their own design of the law resulting in confusion and misapplication. Was Plaintiffs Risky Strategy worth It? Civil Rule 59(A) allows for a new trial based on the misconduct of the prevailing party. Plaintiffs Counsel's actions in the instant case by purposely withholding discovery and engaging in trial by ambush by injecting privileged information about a competing expert witness unmistakably rises to the level of misconduct. The withholding was willful. It was purposeful. It was pondered. It was strategic. It was calculated. It was impactful. It was risky. Let it not be said by Plaintiff, "It was worth it." Proposition of Law 2: When critical damaging testimony is purposely withheld from a defendant that has the potential to affect core trial strategy, the lack of prior knowledge fundamentally hinders a defendant's ability to rationally evaluate his risk of liability for purposes of prejudgment interest. Under these facts, a plaintiff cannot be found to have fully cooperated in discovery proceedings and thus forgoes any possibility of eaming prejudgment interest. In order to award prejudgment interest, a trial court must find that the plaintiff did not fail to make a good faith effort to settle the case.32 A party has "failed to make a good faith effort to settle" under R.C (C) if she has not fully cooperated in discovery.33 Further, if plaintiff's actions deny a defendant the ability to rationally evaluate his risk, then prejudgment interest cannot be awarded. 'Z Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 1994 Ohio 324, 635 N.E.2d Kalain v. Smith ( 1986), 25 Ohio St.3d 157, 495 N.E.2d

18 Proposition of Law 3: Commonality of insuiance is intended to illuminate any potential bias on behalf of an expert who stands to benefit from his testimony for a fellow-insured because they share a common pool of profiuloss. When no such potential for economic impact exists, commonality of insurance remains an improper topic for cross-exaniination. In Ede v. Atrium South OB-GYN, this Court held that a plaintiff can question a defense expert on the issue of commonality of insurance where the potential for economic bias exists. 34 If an expert and a defendant have commonality of insurance but the insurer is not a"mutual insurance company" then no economic bias can exist and questioning on the commonality of insurance should be held improper. Proposition of Law 4: R.C (C) is unconstitutional. R.C is unconstitutional denying the defendant due process, failing the rational basis and strict scrutiny tests, and violates equal protection under the law. V. CONCLUSION: For the foregoing reasons, the Defendant urges the Court to assert jurisdiction and to issue an order to certify the record. By: David C. Calderhead Stephanie P. Franckewitz TRIONA, CALDERHEAD & LOCKEMEYER 2021 Auburn Avenue Cincinnati, Ohio sfranckewitzna,tcl-law.net Tel: Fax: Counsel for Defendants-Appellants 34 Ede v. Atrium S. OB-GYN (1994), 71 Ohio St. 3d 124, 1994 Ohio 424, 642 N.E. 2d

19 CERTIFICATE OF SERVICE I certify that a copy of this Memorand m in Support of Jurisdiction was sent to the following counsel by regular U.S. Mail this day of July, 2007: Barbara Bison Jacobson, Esq. VORYS, SATER, SEYMOUR AND PEASE, LLP 221 E. 4th Street, Suite 2000 Atrium II P.O. Box 236 Cincinnati, OH Attorney for plaintiff Barry A. Rothchild, Esq. ROTHCHILD LAW OFFICE, CO., LPA 101 W.Central Pkwy Cincinnati, OH Co-counsel for plaintiff David C. Calderhead ( ) Stephanie P. Franckewitz ( ) TRIONA, CALDERHEAD & LOCKEMEYER 2021 Auburn Avenue Cincinnati, Ohio sfi anckewitz@tcl-law.net dcalderhead@tcl-law.net Tel: Fax: Counsel for Defendants-Appellants 16

20 APPENDIX:

21 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO ENT^RTD JUN 'o s 2007 IiKAGE HAMILTON COUNTY, OHIO CELESTE WYNN, vs. Plaintiff-Appellee, APPEAL NO. C-o60457 TRIAL NO. A-o3o JUDGMENT ENTRY. CARL GILBERT, M.D., FACS, Defendant-Appellant. This cause was heard upon the appeal, the record, the briefs, and arguments. The judgment of the trial court is affirmed for the reasons set forth in the Decision filed this date. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty and orders that costs are taxed under App. R. 24. The court further orders that i} a copy of this Judgment with a copy of the Decision attached constitutes the inandate, and 2) the mandate be sent to the trial court for execution under App. R. 27.,.. To The CIerk: Enter upon the Journal of the Court on June 8, 2007 per Order of the Court. 6y: Presiding Jtidge

22 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO! HAMILTON COUNTY, OHIO I CELESTE WYNN, Plaintiff-Appellee, vs. CARL GILBERT, M.D., FACS,. Defendant-Appellant. APPEAL NO. C-o6o4$7 TRIAL NO. A-03o1638 DECISION. PRESENTED TO THE CLERK OF COURTS FOR FiLING JUN COURT OF APPEALS Civil Appeal From: Hamilton County Common Pleas Court ijudgment Appealed From Is: Affirmed 1 Date of Judgment Entry on Appeal: June 8, 2007 Glenn V. Whitaker, Barbara Bison Jacobsen, Whitney C. Gibson, and Vorys, Sater, Seymour & Pease, LLP, and Barry Rothchild and Rothchild Law Office, for Plaintiff- AppeIIee, David C. Calderhead, Joel L. Peschke, and Triona, Calderhead & Lockemeyer, LTD., for Defendant-Appellant. This case has been removed from the accelerated calendar.

23 OHIO FIRST DISTRICT COURT OF APPEAIS MARK P. PAINTER, Presiding Judge. (11) In this medical-malpractice case, defendant-appellant Carl Gilbert challenges the jury verdict and the award of prejudgment interest in favor of plaintiff-appellee Celeste Wynn.. Wynn alleged.that Dr. Gilbert had severed the wrong duct while removing her gallbladder, and that the reconstructive repair had I been done in reverse peristaltic order, causing her excruciating post-operative pain. {12) Dr. Gilbert's defense was denial, even in the face of overwhelming evidence that he had botched the operation. The jury saw through the masquerade. And this ostrich-like defense more than supported the trial court's award of preijudgment interest. We affirm the trial court's judgment in all respects. 1. The Mistake-and Consequences ( 3) The removal surgery was initially planned as a micro-invasive laparoscopic procedure. But after cutting the wrong duct, Gilbert was forced to modify the operation to an open^ procedure so that he could repair his error and better identify Wynn's anatomy. Gilbert opened Wynn up, consulted fellow surgeons i bn how to proceed, removed thegallbladder, and then attempted a Roux-en-Y to ireconstruct the errantly transected duct. {14) After surgery and for the next six months, Wynn experienced excruciating pain, lost 46 pounds, and had little strength to care for either herself or lier children. Gilbert was unable to determine the cause of Wynn's extreme pain, e,ventually hypothesizing that she was suffering from phantom pains or depression. { S} Wynn sought another opinion from Dr. Jeffrey Matthews, Chairman d.f the Department of Surgery at the University of Cincinnati. During an exploratory 2

24 OHIO FIRST DISTRICT COURT OF APPEALS surgery, Matthews discovered that the Roux-en-Y procedure had been done in reverse peristaltic order (counter-to the main alimentary-tract progression). With the faulty reconstruction, food "traveled against the grain," towards the common bile duct and liver. Matthews reconnected Wynn's intestines from the reverse order to the proper orientation, and she recovered and sued. Il. Wynn's Background and Surgeries {1[6} Wynn had the gallbladder-removal surgery in October 2ooi, and at the time she was in otherwise good health. She was a married 36-year-old hair stylist ; and mother of an 18-month-old son and a 9-year-old daughter. { 7} This case can be divided into three significant events: (i) the laparoscopic cholecystectomy ("gallbladder surgery"), (2) the resulting Roux-en-Y choledochojejunostomy (the "reconstructive repair"), and (3) Matthews's exploratory! surgery ("exploratory surgery"). The negligent gallbladder surgery and resultant reconstructive repair were two separate procedures that occurred during the same surgery in October 2ooi. The exploratory surgery was completed in April IR. The Gallbladder Surgery {18} A laparoscopic gallbladder surgery initially requires the surgeon to correctly identify the Triangle of Calot. The Triangle refers collectively to the cystic duct, the common bile duct, and the liver. Only after the Triangle has been visualized should the first cut be made; and only the cystic duct should be transected. Identification of all three sides of the Triangle is critical because in isolation the lcystic duct and the common bile duct are nearly indistinguishable. But if the surgeon is able to see the liver and both the common bile duct and the cystic duct 3

25 OHIO FIRST DISTRIC."I' COURT OF APPEALS simultaneously, then the two duciis can be differentiated. Again, it is the cystic duct that should be transected and not the common bile duct. {19} While attempting the minimally invasive laparoscopic procedure, Gilbert completely severed the common bile duct, necessitating a more invasive open i procedure. At trial, Wynn argued that Gilbert had failed to identify the 'lriangle and that this conduct fell below the surgical standard of care. Gilbert countered that he had reasonably identified the cystic duct, but that in hindsight he had simply misidentified Gilbert's anatomy. That the wrong duct was transected is certain. IV. The Reconstrucdve Repair and its Aftermath { 10} After cutting the wrong duct, Gilbert was forced to convert the surgery to an open procedure so that he could better identify Wynn's anatomy and perform the reconstructive repair of the wrongly severed common bile duct. Because the duct had been completely severed, Gilbert was required to perform a duct-to-duct surgical connection (anastomosis) between her lower intestine and her common bile duct. In this procedure, a transection is made at a random point of the lower intestine (jejunum). The lower (distal) end of the transection is connected (anastomosed) to the injured common bile duct,' creating a defunctionalized limb. The upper (proximal) end of the transection'is then remerged (anastomosed) downstream (to 4he defunctionalized limb), creating a Y. When the procedure is performed correctly, food and bile are propelled in one direction. {111} A week after the surgery, Wynn was unable to walk without assistance, was very weak, and could not ingest enough food to maintain proper nutrition. These ailments were compounded with periods of 104 -io6 fever, dry sldn, and pain. She 4

26 OHIO FIRST DISTRICT COURT OF APPEAIS also suffered from inflamed bile ducts and had a biilary anastomotic leak (biliary fluid leaking into her abdominal cavity at the point of the surgical connection). { 12} Wynn required 24-hour aid including assistance in dressing, bathing, rearing her children, and using the restroom. She could not work, and every time she attenipted to eat, she would enperience excruciating pain that "felt like food was cutting through her system." Wynn's sister described the.aftermath of ingestion as agonizing to watch and hear: "[W]ithin minutes of ingesting anything ***[an] awful gurgling sound [could be heard], and [Wynn] would start to rock and shake. It, was agonizing to watch her attempt to eat, but we felt like we ha[d] to work with her fto get her to eat just to stay alive." Wynn's mother similarly testified that, after 'Wynn would swallow, her stomach could be heard churning from across the room ;and that it sounded as if something in her intestine was twisted and moving in the wrong direction. { 13} These symptoms progressively eroded Wynn's health. She lost 27 pounds in two weeks, and 46 pounds total. For the pain, Wynn was prescribed Demerol, Dilaudid, Morphine, Percocet, Roxicet, and Vicodin over the next six inonths. At one point, Wynn's 'symptoms had become. so insufferable that she posited that if the pain did not kill her, then she would likely die of starvation. { 14} Again Gilbert attributed Wynn's symptoms to phantom pain and depression. Gilbert acknowledged, that he did not "really know what was causing the damn problem." Wynn, having had enough, sought a new physician. V. The Exploratory Surgery { 15} Wynn made an appointment with Dr. Matthews, who eventually suggested an exploratory surgery to determine the cause of Wynn's symptoms, 5

27 OHIO FIRST DISTRICT COURT OF APPEAI.S There were no intervening surgeries between Gilbert's gallbladder surgery and ; reconstructive repair, and Mathews's exploratory surgery. { 16} About six months after Gilbert's removal and repair surgery, Matthews opened Wynn up and made a "striking discovery." He found that the reconstructive repair had been done in reverse order. The upper (proximal) end of the transected jejunum was connected to the common bile duct rather than the lower (distal) end. { 17} The resulting anatomy directed food against the normal peristaltic flow toward, rather than away from, the bile duct and the liver. { 18} Matthews had to completely revise Gilbert's reconstruction from the.reverse manner to the proper orientation. About six months after Matthews's!corrective surgery, Wynn testified; she was feeling much better: "I felt like I was "** alive [again]." It took Wynn an entire year after Matthews's exploratory surgery to fiilly recover. I ' Vf. The Trial {114} Throughout the trial, Gilbert denied performing the Roux-en-Y in reverse order. Even after Dr. Matthews documented the reversed Roux-en-Y, Gilbert inaintained that he had done the repair surgery correctly-this improbable assertion came despite the fact that no additional surgeries had been performed on Wynn 6etween Gilbert's gallbladder removal and Matthews's exploratory surgery. {1f20} At trial, Gilbert attributed Wynn's post-surgery complications to a stricture rather than the reversed reconstruction. Then Gilbert attempted to persuade the jury that the reversed reconstruction was medically acceptable, and that even if he had reversed the Roux-en-Y, the resulting connection would have 6

28 OHIO FIRST DISTRICT COYTRT OF APPEAI.s functioned normally. Then Gilbert attempted to debunk Wynn's assertion that she had been in pain by citing medical records where she had stated that she was in only minimal pain-even though at the time Wynn was under the influence of copious amounts of various pain medication. {121} Conversely, Wynn's evidence showed that Gilbert had errantly severed her bile duct because he had not adequately visualized the Triangle of Calot, and that he had mistakenly reconstructed Wynn's anatomy in reverse peristaltic,orientation. Even when confronted with this evidence, Gilbert again denied reversing Wynn's intestines. When asked if he was still "unwilling to admit that [he had] done [the procedurej the way Dr. Matthews *** found it[," Gilbert replied that ^ was "[c]orrect." {Q22} At trial, the jury heard from Wynn's expert witnesses, Dr. Matthews and Dr. William Schirmer, and four lay witnesses. {123) Gilbert testified on his own behalf along with his expert witness, Dr. Donald Hura. Dr. Farooq Mirza, who had been present for the Roux-en-Y procedure, a]so testified on Gilbert's behalf. The issue of liability depended on the differing expert opinions of Matthews and Hura. { 24} Matthews testified that, while performing the exploratory surgery, he had found that the anastomosis (the surgical connection between the intestine and the bile duct) had been strictured and that the Roux-en-Y had been done in reverse orientation so that peristalsis was propelling food towards the liver and the bile duct. {1[25} Hura, relying on Gilbert's pre- and post-operative notes, countered i that (1) a stricture was the cause of the symptoms, (2) a stricture was a common and a known complication of the Roux-en-Y procedure, (g) strictures often developed 7

29 OHIO FIRST DISTRICT COURT OF APPEALS even where a surgeon had met the applicable standard of care (had done nothing wrong), and (4) the Roux-en-Y that had been reflected in Gilbert's pre- and postoperation notes was proper. {126} Gilbert testified that he had not done the Roux-en-Y in reverse order, 1 relying on his pre- and post-operative reports, which noted that the Roux-en-Y had,been done in the correct peristalxic order. Gilbert's colleague Mirza observed the surgery and corroborated Gilbert's'testimony. {127} A well-educated jury unanimously believed Matthews's testimony. ithe jury returned a$i,5oo,00o verdict in Wynn's favor. And because the trial court,found that Gilbert had failed to make a good-faith effort to settle and had failed to,rationally evaluate his risk, it awarded Wynn $400, in prejudgment interest. 'Gilbert's appeal now asserts six assignments and sub-assignments of error in his attempt to overturn the jury verdict and the prejudgment-interest award. {128) Gilbert's assignments of error charge the trial court with error in (i) allowing inflammatory and improper closing arguments; (2) refusing to grant his remittitur or new-trial motions based on the jury's damage award; (3) awarding prejudgment interest; (4) allowing testimony from Wynn's expert that he had previously reviewed cases for Gilbert's expert, thus opening the door for Wynn to question Gilbert's expert on past lawsuits; (y) allowing the use of commonality of insurance between Gilbert and his expert; and (6) failing to instruct the jury on quotient verdicts. We address Gilbert's assignments of error in order. 8

30 OHIO FIRST DISTRICT COURT OF APPEAIS VII. Improper and Inflammatory Closing Statements { 29} Gilbert's first argument is that the trial court erroneously allowed Wynn's counsel to make improper and inflammatory statements to the jury during closing arguments, and that those statements entitle him to a new trial. { 30} In Ohio, counsel is afforded wide latitude in closing argument, and whether the boundaries of permissible closing argument have been breached is determined in the first instance by the trial court.l Because that determination is one of judicial discretion, it will noy be reversed on appeal absent an abuse of that discretion.2 An abuse of discretion connotes an attitude that is unreasonable, arbitrary, or unconscionable.3 {13I} Gilbert chailenges the following comments made during closing argutnent: "`I will tell you what [Gilbert] has done in this case [that] I believe to be imperfect, reprehensible. `** WhaYs so reprehensible about [GilberPs] defense is that it is filled with Ired herrings. ***[He] ha[s] put this lady through a second bout of hell, through this trial by i[lus] refusal to be honest, [and his] refusal to adniit that she was connected wrongly, [and bas asserted] a series of halftruths in;front of a jury to getawaywith it." { 32} Gilbert's brief also maintains that Wynn improperly reminded the jury that should it wish to send a substantial message, a presumably wealthy insurance company would foot the bill: "How can Dr. Hura be accepted for anything he says when he runs contrary to everybody else in this case. *** Why bring him I '. See Pesek v. Univ. Neurologists Assn. Inc., 87 Ohio St.3d 495, 5oi, 2ooo-Ohio-483, y2i N.E.2d ioii. z.seeid. See Hollingsworth v. TYme Warner Cable, i68 Ohio App.3d 658, 2oo6-Ohio-49o3, 861 N,E.2d 580, at 26. 9

31 OHIO FIRST DISTItiCT COURT OF APPF.AI.S into it? We know he has the same insurance company as [Gilbert]. All the surgeons in the whole world, and he gets picked." {1133} At trial, Gilbert failed to object to Wynn's closing argument. A proper and timely objection must be made to support the reversal of a judgment on grounds of misconduct of counsel and improper closing argument to the jury, and in failing to!object, a party waives all but plain error.4 The application of the doctrine of plain error is disfavored in civil appeals, and it should apply "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."s {1134} An atmosphere tainted with passion and prejudice is grounds for teversal; "A party that loses a jury trial is entitled to a new trial if opposing counsel has transcended the bounds of acceptable closing argument by creating an atmosphere surcharged with passion or prejudice."6 The dispositive question is "whether the verdict was rendered on the evidence, or was influenced by improper remarks of counsel."7 Likewise, "[r]emarks 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."s Disparaging 4 jsee Bowden v. Annenberg, tst Dist. No. C-o4o499, 20o5-Ohio-6515, at 3i, citing Snyder U. Stanford (1968), 15 Ohio St.2d 31, 238 N.E.2d 563, paragraph one of the syllabus. si8ee id., quoting Golfus v. Davidson, 79 Ohio St.3d ii6, 1997-Ohio-4oi, 679 N.E.2d io9g, syllabus. 6 See fd. at 88, quoting Pesek, supra (internal quotations and citations omitted). 7 See, Pesek, supra (internal quotations omitted and emphasis added). See, also, Bowden, supra, at 35 s Roetenberger u. Christ Hosp. & Anesthesia Assocs. of CEncinnati, 163 Ohio App.3d 555, Ohio-52o5, 839 N.E,2d 441, at