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Merlin v. Ankle & Foot Care Centers of Ohio

Court of Appeals of Ohio, Seventh District, Mahoning

June 16, 2017

KIMBERLY MERLIN PLAINTIFF-APPELLANT
v.
ANKLE & FOOT CARE CENTERS OF OHIO, et al. DEFENDANTS-APPELLEES

         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2014 CV 1149

          JUDGMENT: Affirmed. For Plaintiff-Appellant Attorney Gregg Rossi

          For Defendants-Appellees Attorney Robert Yallech Attorney Thomas Prislipsky

          JUDGES: Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb

          OPINION

          DeGENARO, J.

         {¶1} Plaintiff-Appellant, Kimberly Merlin, appeals the trial court's judgment entry adopting the magistrate's decision denying her motion for mistrial. As the trial court did not err in adopting the magistrate's decision and denying the motion for a mistrial, the judgment of the trial court is affirmed.

         {¶2} On May 8, 2014, Merlin filed a medical malpractice complaint against Appellees, Ankle & Foot Care Centers of Ohio and Dr. John E. Barrett. Appellees filed an answer denying all claims and asserting various defenses. Attempts at mediation were unsuccessful. Pursuant to Civ.R. 53 all parties consented to a magistrate overseeing the jury trial and all issues in this matter. Trial was continued multiple times and ultimately held on February 8, 2016.

         {¶3} On February 2, 2016, Appellees supplemented discovery through an email to Merlin's attorney. Counsel for Merlin conceded that he did not go through the attached documents page by page. Merlin originally was provided 51 pages; the emailed supplement served by Appellees' counsel a mere six days before trial had 227 pages. Merlin did not seek a motion for a continuance to evaluate this eleventh hour discovery either pre-trial or before she presented her case in chief.

         {¶4} On the first day of trial, Merlin introduced testimony in support of her case in chief. During cross-examination of Appellees' expert, Merlin used documents from the recent supplemental discovery. On the beginning of day two, Merlin made a motion for mistrial on the basis of the newly disclosed evidence that was contained in the February 2, 2016 email. The magistrate denied this motion and trial continued resulting in a jury verdict in favor of Appellees. The magistrate recommended the trial court enter judgment upon the verdict.

         {¶5} Merlin filed objections to the magistrate's decision. In the motion, Merlin's attorney acknowledged that he received the emailed documents days prior to trial and that they constituted unfair surprise. Appellees responded that, "Plaintiff simply cannot claim sufficient surprise and prejudice to warrant a mistrial when she was provided with this evidence before trial began, raised no objections, and only now take issue once a verdict has been rendered against her." The trial court rejected Merlin's objections, adopted the decision of the magistrate and denied the motion for a mistrial.

         {¶6} Merlin's sole assignment of error asserts:

The magistrate abused his discretion in denying Appellant's motion for mistrial, and the trial court erred in adopting the magistrate's decision as it relates to same.

         {¶7} The decision to grant or deny a motion for a mistrial is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Smolkovich v. Burlock, 7th Dist. No. 94 CA 102, 1998 WL 574666 (Sept. 1, 1998). An abuse of discretion means the trial court's decision is unreasonable based upon the record; that the appellate court may have reached a different result is not enough to warrant reversal. Smith v. Smith, 7th Dist. No. 14 CA 0901, 2016-Ohio-3223, ¶ 13.

         {¶8} Civ.R. 59 authorizes a new trial if a party can demonstrate "[a]ccident or surprise which ordinary prudence could not have guarded against[.]" Civ.R. 59(A)(3). To warrant a new trial the complaining party must show unfair surprise. Wright v. Suzuki Motor Corp., 4th Dist. No. 03CA2, 03CA3, 03CA4, 2005-Ohio-3494, ¶ 121. "A court may grant a motion for a mistrial when a party is confronted by surprising new facts or conditions which were unknown despite reasonable trial preparation." Id. (Internal citations omitted) Civ.R. 59 permits, ...


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