JIMMY WESTFALL, ADMINISTRATOR OF THE ESTATE OF JESSICA ANNE MCKENNA, DECEASED Plaintiff-Appellant
AULTMAN HOSPITAL, ET AL. Defendants-Appellees
from the Stark County Court of Common Pleas, Case No.
Plaintiff-Appellant: RICHARD L. DEMSEY JUSTIN D. GOULD
Defendants-Appellees: RICHARD S. MILLIGAN PAUL J. PUSATERI
JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
Plaintiff-Appellant Jimmy Westfall, Administrator of the
Estate of Jessica Anne McKenna, Deceased, appeals the
November 20, 2015 judgment entry of the Stark County Court of
Common Pleas journalizing a jury verdict in favor of
Defendants-Appellees Teri Teel Weber, P.A., Thomas Kinney,
M.D., Brad Goldman, M.D., Canton Aultman Emergency Room
Physicians, Inc., Chitra Ganta, M.D., Jose Lizcano-Perez,
M.D., and Aultman Hospital.
AND PROCEDURAL HISTORY
Visits Aultman Hospital ER on January 24, 2011
On January 24, 2011, Jessica McKenna presented to the
Emergency Room of Defendant-Appellee Aultman Hospital,
located in Canton, Ohio. She came to the Emergency Room
because she had been suffering from nausea, vomiting, and
diarrhea for some time and her symptoms were not resolving.
At the time of her admission to the Emergency Room, McKenna
was 18 years old and weighed 85 pounds. She had recently
given birth to her daughter on December 7, 2010.
After being seen by the triage nurse, McKenna was placed in a
room and examined by Defendant-Appellee Teri Teel Weber, a
Physician's Assistant employed by Defendant-Appellee
Canton Aultman Emergency Physicians, Inc. P.A. Weber gave
McKenna a physical exam and took her history. During P.A.
Weber's examination, McKenna complained of nausea,
vomiting, cough, fatigue, epigastric pain, and shortness of
breath. P.A. Weber found McKenna's blood pressure,
respiratory rate, lung sounds, and heart sounds to be normal.
She observed that McKenna's heart rate was elevated. P.A.
Weber ordered blood work and a urine sample. While the blood
work was pending, McKenna was administered intravenous fluids
and an intravenous medication to reduce her nausea.
The blood test results were within normal limits.
McKenna's glucose level and one liver enzyme were
minimally elevated. The urine sample did not show severe
McKenna was next examined by Defendant-Appellee Dr. Todd
Kinney, an employee of Canton Aultman Emergency Physicians,
Inc. Dr. Kinney reviewed P.A. Weber's notes and conducted
his own physical examination of McKenna. To Dr. Kinney,
McKenna reported the same symptoms of nausea, vomiting, and
diarrhea. She did not tell Dr. Kinney she had shortness of
breath. Dr. Kinney reviewed the results of her blood work. He
found her blood pressure, respiratory rate, lung sounds, and
heart sounds to be normal.
After receiving fluids, McKenna's heart rate slowed to
within normal limits. McKenna reported feeling better. P.A.
Weber and Dr. Kenney diagnosed McKenna with gastroenteritis
and McKenna was discharged with orders to follow up with her
family physician within the next two days.
Returns to Aultman ER on January 31, 2011
McKenna returned to the Aultman Hospital Emergency Room on
January 31, 2011. She was examined by Defendant-Appellee Dr.
Brad Goldman, an employee of Canton Aultman Emergency
Physicians, Inc. McKenna's chief complaint to Dr. Goldman
was continued vomiting and diarrhea, chest pain, and
shortness of breath. Dr. Goldman observed that McKenna looked
His examination discovered that McKenna's heart rate was
elevated, but her respiration rate and blood oxygen were
within normal limits. He felt her blood pressure was lower
than normal. He listened to her lungs and did not hear any
abnormal sounds that might indicate fluid in her lungs. He
did not hear any abnormalities when he listened to her heart.
Based on her elevated heart rate and low blood pressure,
coupled with her persistent vomiting and diarrhea, Dr.
Goldman administered two liters of I.V. fluids for
dehydration. He also ordered laboratory studies. The results
of the blood work reviewed by Dr. Goldman showed McKenna was
Based on McKenna's recent pregnancy and her symptoms, Dr.
Goldman was concerned McKenna could be suffering from a
pulmonary embolism. He ordered a CT scan of her chest. The CT
scan was read by Dr. Allen Rovner, a radiologist with Aultman
Hospital. The CT scan showed McKenna's entire lung. Dr.
Rovner did not observe any fluid in McKenna's lungs. He
also did not observe indications of a pulmonary embolism. In
his report of the CT scan, Dr. Rovner identified that
McKenna's heart appeared moderately enlarged and there
was an enlargement of the left ventricle. He also observed a
small pericardial effusion, which is fluid around the heart.
is admitted to Aultman Hospital on February 1, 2011
Dr. Goldman made the decision to admit McKenna to Aultman
Hospital. His admitting diagnosis was based on her
intractable vomiting and diarrhea and on the cardiac findings
in the CT scan. In order to admit McKenna to the hospital,
Dr. Goldman worked with third-year resident,
Defendant-Appellee Dr. Jose F. Lizcano-Perez, and first-year
resident, Defendant-Appellee Dr. Chitra Ganta, both employees
of the Canton Medical Education Foundation. Drs.
Lizcano-Perez and Ganta were rotating with general medicine
services. The attending physician on-call that night was Dr.
Kevin Hill. As attending physician, Dr. Hill supervised the
care provided by Drs. Lizcano-Perez and Ganta; however, Dr.
Hill was not at Aultman Hospital on January 31, 2011.
Both resident doctors conducted an initial assessment and
evaluation of McKenna. Among McKenna's previous symptoms
of vomiting and diarrhea, the doctors observed her heart rate
was elevated and she had shortness of breath upon exertion.
She complained of mild epigastric pain. Dr. Lizcano-Perez
found trace lower extremity edema. Neither doctor, however,
observed signs of heart failure. Dr. Lizcano-Perez felt her
mildly enlarged heart was a normal condition due to her
recent pregnancy where a pregnant woman's heart enlarges
to compensate for the increased blood volume. The doctors
ordered more blood work. McKenna was admitted to the general
medicine floor of the hospital at 12:00 a.m. on February 1,
At 3:40 a.m., the resident doctors received the results of
McKenna's blood work. One of the tests showed
McKenna's liver enzymes were significantly elevated.
Based on this result, the resident doctors ordered an
abdominal ultrasound, hepatitis panel, and toxin screen. The
results of the test were not available until after the end of
the resident doctors' shift at 6:00 or 7:00 a.m.
After McKenna's admission to the general medicine floor
of the hospital, Drs. Lizcano-Perez and Ganta did not examine
McKenna again. Dr. Lizcano-Perez or Dr. Ganta contacted Dr.
Kevin Hill by telephone on January 31, 2011 or February 1,
2011 to review their findings. Dr. Hill signed off on Dr.
Ganta's orders written on January 31, 2011.
At 7:00 a.m., McKenna was taken from her room for some
testing. When she returned, around 9:00 a.m., she and her
fiancée discussed leaving Aultman Hospital to check on
the baby and go to another local hospital for treatment.
After discussion with the doctors and her family, McKenna
decided to stay at Aultman Hospital. At 10:00 a.m.,
McKenna's blood oxygen level dropped to 70% and she was
moved to the intensive care unit. A Code Blue was called for
McKenna at 2:20 p.m. The hospital performed an echocardiogram
and discovered the left and right ventricles of her heart
were severely dysfunctional. The hospital discovered her
hemoglobin levels were low and at 2:24 p.m., the hospital
started a blood transfusion for McKenna. From 2:24 p.m. to
3:25 p.m., McKenna received eight units of blood. Even with
the blood transfusion, McKenna's hemoglobin levels did
not return to normal levels. The hospital connected her to an
extracorporeal membrane oxygenator to provide oxygen to her
blood. At 3:11 p.m., the hospital conducted an x-ray of her
abdomen and it showed fluid in her abdomen. At 3:25 p.m.,
McKenna was examined and found to have no brain function.
No autopsy was conducted on McKenna. The death certificate
completed by a doctor with Aultman Hospital stated
McKenna's cause of death was postpartum cardiomyopathy.
Postpartum or peripartum cardiomyopathy is a rare form of
heart failure seen in pregnant women.
Plaintiff-Appellant Jimmy Westfall, Administrator of the
Estate of Jessica Ann McKenna, Deceased
("Administrator") originally filed his complaint
for medical negligence in Cuyahoga County. The case was
transferred to the Stark County Court of Common Pleas on July
12, 2013. Administrator voluntarily dismissed the complaint
on September 12, 2013.
Administrator refiled the complaint on September 4, 2014
naming the Defendants-Appellees discussed in the medical
history above. Administrator's complaint included claims
for survivorship and wrongful death, but the survivorship
claim was dismissed as time-barred. Discovery and expert
reports were exchanged.
The case was tried before a jury for six days beginning on
November 9, 2015. Administrator argued Defendants-Appellees
fell below the reasonable standard of care by their failure
to diagnose and treat McKenna's postpartum
cardiomyopathy, causing her death. On November 19, 2015, the
jury returned a verdict for all Defendants-Appellees. The
trial court journalized the verdict on November 20, 2015 and
it is from this judgment entry Administrator now appeals.
Administrator raises seven Assignments of Error:
"I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
PERMITTING DEFENDANTS-APPELLEES, OVER OBJECTION FROM
PLAINTIFF-APPELLANT, TO PRESENT SURPRISE EXPERT TESTIMONY
FROM TWO WITNESSES, IDENTIFIED BY DEFENDANTS-APPELLEES AS
FACT WITNESSES, AFTER DEFENDANTS-APPELLEES NEVER PREVIOUSLY
IDENTIFIED SAID WITNESSES AS EXPERTS AND FAILED TO PROVIDE
PLAINTIFF-APPELLANT WITH EXPERT REPORTS, BOTH OF WHICH WERE
REQUIRED BY COURT ORDER.
"II. AFTER PERMITTING SURPRISE EXPERT TESTIMONY FROM
DEFENDANTS' FACT WITNESS, KEVIN HILL, M.D., WITHOUT
IDENTIFICATION AS AN EXPERT OR A REPORT, THE TRIAL COURT
COMMITTED PREJUDICIAL ERROR BY LIMITING PLAINTIFF'S
CROSS-EXAMINATION OF DR. HILL TO A SPECIFIC DATE OF TREATMENT
OF PLAINTIFF'S DECEDENT.
"III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
REFUSING TO ALLOW PLAINTIFF-APPELLANT TO INTRODUCE DEPOSITION
TESTIMONY OF MARK RICHARD BIBLER, M.D., AS REBUTTAL TESTIMONY
ON MATTERS WHICH WERE FIRST ADDRESSED IN
"IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
DENYING PLAINTIFF-APPELLANT'S CHALLENGE FOR CAUSE OF
PROSPECTIVE JUROR NO. 3, WHEN QUESTIONING OF THAT JUROR
REVEALED BIAS REGARDING THE PREPONDERANCE OF THE EVIDENCE
STANDARD AND THEREFORE PLAINTIFF-APPELLANT WAS FORCED TO USE
A PEREMPTORY CHALLENGE TO DISMISS THAT JUROR, WHICH RESULTED
IN PLAINTIFF-APPELLANT HAVING FEWER PEREMPTORY CHALLENGES
THAN THE LAW PROVIDES.
"V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
ALLOWING 'THE ALIGNED DEFENDANTS' TO EACH EXERCISE
THREE PEREMPTORY CHALLENGES.
"VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
SUSTAINING THE OBJECTION OF DEFENDANTS-APPELLEES AND REFUSING
TO PERMIT PLAINTIFF-APPELLANT TO INTRODUCE THE DAUGHTER OF
PLAINTIFF-APPELLANT'S DECEDENT TO THE JURY IN ORDER TO
PROVE, ON THE RECORD, THE EXISTENCE OF THE PRIMARY WRONGFUL
"VII. THE TRIAL COURT COMMITTED PLAIN AND PREJUDICIAL
ERROR BY INSTRUCTING THE JURY TO SPECULATE AS TO WHY THE
TRIAL COURT SUSTAINED OBJECTIONS AND WHAT THE ANSWERS TO A
QUESTION MIGHT HAVE BEEN HAD THE QUESTION BEEN ALLOWED TO BE
For ease of analysis, we discuss Administrator's
Assignments of Error out of order. The order of the
Assignments of Error will follow the chronological order of
the alleged errors as they occurred during the trial.
Appearance of Decedent's Child at Trial
On November 6, 2015, Administrator filed a motion for
clarification about the trial court's position on
permitting McKenna's child to be present at trial.
Administrator raised the issue again before the start of jury
selection and requested the trial court permit McKenna's
child to be present at trial or to allow the child be
introduced to the jury. (Vol. I, 9). Administrator argued the
child was entitled to be present as a beneficiary, in
addition to McKenna's parents, in the wrongful death
action. Defendants-Appellees objected to the child's
presence at trial or the child's introduction to the
jury. The child was not going to be a witness subject to
cross-examination. (Vol I., 9).
The trial court denied Administrator's request to bring
the child into court. The court permitted Administrator to
introduce the child by picture or video without sound, or the
child's father could speak about the child during his
testimony. (Vol. I., 11).
Prior to the testimony of Jimmy Westfall, the father of
McKenna's child and McKenna's fiancée,
Administrator requested the trial court explain to the jury
that the trial court would not permit the child to be present
in the courtroom. (Vol. IV, 7). The trial court agreed and
stated to the jury:
THE COURT: Additionally, the next witness that you're
going to hear from is Jimmy Westfall who is [the child's]
father. Now, [the child] is the child of Jessica McKenna. She
is four years old. Out of respect for her age and to avoid
any unnecessary trauma for having to bring her into this
courtroom, she has been excused by the Court; so the
testimony that you will hear about her will come to you
through Mr. Westfall. Okay? Is that satisfactory? MR. DEMSEY:
Right, and no inference, of course. THE COURT: And no
inference is to be drawn by the fact that she is not here. I
have excluded her essentially from being here. Okay?
(Vol. IV, 10-11).
Administrator argues the trial court erred when it would not
allow him to introduce McKenna's child, the primary
beneficiary of the wrongful death action, to the jury. We
"A party in a civil case is entitled to be in the
courtroom, both personally and by counsel, at all stages of
the trial." Long v. Maxwell Co., 118 Ohio
App.134, 136, 183 N.E.2d 423 (2nd Dist.1962). In this case,
however, McKenna's child is not a party to the action -
the child is a beneficiary interested in a judgment against
the Defendants-Appellees pursuant to R.C. 2125.02. A wrongful
death action is brought in the name of the personal
representative for the decedent for the benefit of the
surviving spouse, children, parents, and next of kin of
decedent. R.C. 2152.02(A)(1). The personal representative is
required to prove the existence of statutory beneficiaries at
the time of trial in order to recover damages in a wrongful
death action. Id.; Mansour v. Woo, 7th
Dist. Ashtabula No. 2011-A-0038, 2012-Ohio-1883, ¶ 7.
Administrator contends that by not permitting McKenna's
child to be introduced to the jury to demonstrate active
proof of her existence, the trial court prevented
Administrator from meeting one of the essential elements of a
wrongful death cause of action.
It has been held that it is within the trial court's
discretion to permit a beneficiary, especially a child, to be
present in the courtroom during a wrongful death action.
Long at 136-137; See also State v. Levy,
8th Dist. No. 83114, 2004-Ohio-4489, ¶ 45-46. In order
to determine whether the trial court abused its discretion,
we may examine the circumstances under which the trial court
made the decision. Long at 137.
In this case, the circumstances supported the trial
court's decision to exclude the child from the courtroom.
The child was six-weeks-old when McKenna died. At the time of
trial, the child was four-years-old. At this young age, her
presence could offer no special aid to the proper trial of
the wrongful death action. The jury was fully informed of her
existence through witness testimony. See Long at
137. On behalf of the Administrator, the child's father.
The mother of McKenna and the father of McKenna testified at
trial. The father of the child is raising the child.
McKenna's father and mother have a relationship with the
child. All three witnesses testified about the child, showed
pictures of the child, and testified about McKenna's
relationship with the child.
The trial court instructed the jury that it was the decision
of the trial court to exclude the child from the courtroom
due to her young age. The trial court further instructed the
jury that it should make no inference as to why the child was
not present in the courtroom.
We find the trial court's decision to exclude the child
from the courtroom was not an abuse of discretion. Through
witness testimony, Administrator demonstrated McKenna's
child and McKenna's parents were McKenna's
beneficiaries pursuant to R.C. 2501.02.
Administrator's sixth Assignment of Error is overruled.
Administrator claims the trial court erred in granting
Defendants-Appellees six peremptory challenges: three to Dr.
Kinney, P.A. Weber, Dr. Goldman, and Canton Aultman Emergency
Physicians, Inc.; and three to Dr. Lizcano-Perez, Dr. Ganta,
and Aultman Hospital. Administrator contends the interests of
all Defendants-Appellees were essentially the same, so
Defendants-Appellees were only entitled to three peremptory
Civ.R. 47 governs jurors. Subsection (C) states the
(C) Challenges to prospective jurors. In
addition to challenges for cause provided by law, each party
peremptorily may challenge three prospective jurors. If the
interests of multiple litigants are essentially the same,
"each party" shall mean "each side."
Peremptory challenges shall be exercised alternately, with
the first challenge exercised by the plaintiff. The failure
of a party to exercise a peremptory challenge constitutes a
waiver of that challenge, but does not constitute a waiver of
any subsequent challenge. However, if all parties or sides,
alternately and in sequence, fail to exercise a peremptory
challenge, the joint failure constitutes a waiver of all
A prospective juror peremptorily challenged by either party
shall be excused.
Nothing in this rule shall limit the court's discretion
to allow challenges to be made outside the hearing of
In Brown v. Martin, 5th Dist. Fairfield No.
14-CA-31, 2015-Ohio-503, we analyzed a similar argument as to
the number of peremptory challenges in a medical malpractice
action where there were multiple defendant doctors. We
reviewed the status of peremptory challenges vis-à-vis
Civ.R. 47(C) as set forth by the Ohio Supreme Court in
LeFort v. Century 21-Maitland Realty Co., 32 Ohio
St.3d 121, 125, 512 N.E.2d 640 (1987):
Chakeres v. Merchants & Mechanics Federal S. & L.
Assn. (1962), 117 Ohio App. 351, 24 O.O.2d 131, 192
N.E.2d 323, summarizes the current status of the law with
respect to peremptory challenges in civil cases.
Chakeres provides at 355, 24 O.O.2d at 133, 192
N.E.2d at 326:
"Under statutes which allow a specific number of
challenges to 'each party, ' the majority view is
that those who have identical interests or defenses are to be
considered as one party and therefore only collectively
entitled to the number of challenges allowed to one party by
the statute. * * * However, if the interests of the parties
defendant are essentially different or antagonistic, each
litigant is ordinarily deemed a party within the
contemplation of the statute and entitled to the full number
of peremptory challenges. * * * "
This court, in Nieves v. Kietlinski (1970), 22 Ohio
St.2d 139, 51 O.O.2d 216, 258 N.E.2d 454, adopted the
Chakeres rule and found that multiple plaintiffs who
filed a common complaint, relied upon a singular statement of
facts, and employed the same attorney to represent them could
properly be considered a single party for the purposes of
determining the proper number of peremptory challenges.
Brown, ¶¶ 13-15.
The task under this rule of law is to evaluate the nature and
defenses of each defendant-group. This involves a general
review of the status of the litigation prior to trial. In
this case, there are two defendant-groups: (1) the emergency
room physicians and physician's assistant who treated
McKenna in the Aultman Emergency Department and (2) the
resident physicians who admitted McKenna to Aultman Hospital.
On November 9, 2015, the trial court and counsel discussed
the jury selection process. The trial court addressed counsel
as to the challenges for cause and peremptory challenges:
THE COURT: The parties will be given an unlimited number of
challenges for cause; three peremptory challenges per side.
And just let me identify for the record that the Court finds
that the Canton Aultman Emergency Physician parties are not
necessarily aligned with, for lack of a better term, the
Aultman defendants. And the Court will give each set of
defendants three peremptories.
(Vol. I, 23-24). Administrator objected to each
defendant-group receiving three peremptories each:
MR. DEMSEY: * * * I do believe they are aligned. They are
partners in the same law office; every motion is virtually
identical, with exception of changing the names of the
parties. I believe that they have the same insurance or
insurance representative. There seems to be an alignment
there. I'm not sure exactly what it is.
(Vol. I, 24-25). Counsel for the defendant-group emergency
room physicians and counsel for the defendant-group resident