HLD, v. 32, n. 8 (August 2004)
Ohio Appeals Court Says Defense Failed To Preserve Significant
Issue For Appeal
In 1998, Dr. Ralph W. Colla, an obstetrician-gynecologist, performed
a laparoscopic procedure to determine the cause of Pamela Patterson's pelvic
pain. A few days after the procedure Patterson experienced severe abdominal
pain and had to undergo a surgical colon resection and temporary colostomy.
Patterson also suffered a stroke, was on a ventilator due to adult respiratory
distress syndrome, and developed an incisional hernia that had to be surgically
corrected. In December 1998, Patterson and her husband (plaintiffs) sued Colla
and his medical practice, Parkside Women's Center, Inc. (defendants), for medical
malpractice on a claim that Colla had perforated Patterson's bowel during the
procedure, which required the additional surgery. Shortly before the trial began,
the trial court ruled on defendants' motion in limine that testimony about Colla's
bankruptcy proceedings and other lawsuits was barred and that information about
a restriction on Colla's license by the Arizona State Medical Board would be
admissible only for impeachment purposes. In June 2002, the jury awarded damages
of $800,000 to Patterson and $100,000 to her husband. Defendants moved for a
new trial, and the trial court denied the motion. The trial court also granted
plaintiffs' motion for prejudgment interest. Defendants appealed.
The Ohio Court of Appeals affirmed the judgment against defendants.
Defendants argued the trial court erred in denying their motion in limine about
evidence of the restrictions on Colla's medical license. At trial, defendants'
counsel had stated prior to opening arguments that he was renewing his request
that the license restriction information only be used for impeachment purposes
and that he was not waiving argument on that issue. A preliminary ruling on
a motion in limine is not a ruling on the evidence, said the appeals court,
and a party must raise specific evidentiary objections at trial. Any failure
to object waives the right to appeal the issue. On the record, the appeals court
determined that plaintiffs' counsel called Colla and questioned him about the
licensing issue and defendants' counsel only occasionally objected to certain
specific questions about the licensing issue, but failed to generally object
to the trial court's preliminary determination that the evidence was admissible
under certain limited conditions. The appeals court concluded that defendants'
counsel had failed to properly preserve the issue for appeal and thus defendants
were barred from raising it.
Defendants also argued that the trial court erred in denying their
request for a new trial on the ground the evidence about the licensing proceeding
against Colla should not have been admitted. Under Ohio Civ. R. 59(A)(9) a new trial may
be granted when an error of law has occurred, but not when there has been a
failure to object to the admission of evidence at trial. In this case, the appeals
court determined defendants waived their Rule 59(A)(9) argument by not objecting
to the admission of the evidence about the licensing proceedings during trial.
The appeals court also determined that the trial court's decision was not plain
error. Defendants contended that the trial court erred in allowing evidence
of a prior lawsuit in the same county against Colla to be admitted. The appeals
court again determined that the issue was not properly preserved for appeal
by defendants' counsel. Even if the evidence was improperly admitted, the appeals
court found any error was harmless and did not affect defendants' substantial
Defendants next claim of error was that the trial court failed
to properly correct plaintiffs' counsel's comments during closing arguments.
The trial court sustained defense counsel's objections to the remarks made by
plaintiffs' counsel, but did not instruct the jury to disregard the comments.
Trial counsel has great latitude during closing arguments, but cannot make comments
that are abusive or prejudicial, said the appeals court. Based on the entire
record of the closing arguments the appeals court determined the remarks were
not unduly abusive or prejudicial and the trial court did not abuse its discretion
in declining to instruct the jury following the objection to the remarks.
The appeals court also disagreed with defendants' argument that
the verdict was excessive and therefore they should have been granted a new
trial. Specifically, defendants argued that in an interrogatory the jury did
not find Colla negligent in causing the injury but only negligent in not providing
any follow-up treatment after the procedure, which does not support an excessive
verdict because Patterson had no permanent injury. The appeals court found that
the jury's answer to the interrogatory could be interpreted differently as finding
Colla had negligently failed to detect the injury during and after the procedure,
which aggravated it. The appeals court also found that defendants failed to
object to the answer to the interrogatory before the jury was discharged, and
therefore the trial court had not abused its discretion in denying the motion
for a new trial on the ground the verdict was excessive.
A dissent argued that Colla should have been granted a new trial
because defense counsel preserved the objection to the admission of the evidence
about the licensing proceeding, and it was also error to allow the information
about the local lawsuit to be admitted.
Patterson v. Colla, No. 03 MA 18, 2004 WL 1326053 (Ohio
Ct. App. June 11, 2004).