Court of Appeals of Ohio, Eighth District, Cuyahoga
LYNN CORDOVA, ET AL. PLAINTIFFS-APPELLANTS
EMERGENCY PROFESSIONAL SERVICES, INC., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANTS Stuart E. Scott Dustin B. Herman
Spangenberg, Shibley & Liber, L.L.P.
ATTORNEYS FOR APPELLEE For Thomas Mucci, D.O. Erin Siebenhar
Hess Reminger Co., L.P.A.
Listed: For Community Health Systems Professional Services
Corporation Michael Ockerman Rocco D. Potenza Hanna, Campbell
& Powell, L.L.P.
Emergency Professional Services, Inc. Philip J. Truax
Wickens, Herzer, Panza, Cook & Batista
Youngstown Ohio Hospital Company, L.L.C., d.b.a. Northside
Medical Center Youngstown Ohio Hospital Company c/o CSC
Lawyers Incorporating Service
BEFORE: Boyle, J., Keough, A.J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, JUDGE
This appeal involves a medical malpractice action following a
unanimous jury verdict in favor of defendant-appellee, Thomas
Mucci, D.O. Plaintiffs-appellants, Lynn and Raymond Cordova,
in their sole assignment of error, argue that the trial court
impermissibly refused to excuse juror No. 3 - an internal
medicine physician - for cause.
This appeal strikes at the core of our legal system: the
jury. The purpose of our jury system is to impress upon the
community as a whole that a verdict is given in accordance
with the law by persons who are fair and impartial. See
Powers v. Ohio, 499 U.S. 400, 111 S.Ct.1364, 113 L.Ed.2d
411 (1991). Stated another way, "the quest is for jurors
who will conscientiously apply the law and find the
facts." Wainwright v. Witt, 469 U.S. 412, 423,
105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
The Cordovas claim that they did not receive a fair jury
composition because the trial court refused to remove juror
No. 3 for cause, which forced them to use one of their three
peremptory challenges to remove her from the venire and
precluded them from exercising a peremptory challenge on
another prospective juror. They ask this court to adopt a
position that any potential juror, who has specialized
experience, education, or knowledge about a field of study at
issue in a case, must be excused for cause even if that
prospective juror states that he or she will be fair,
impartial, and will follow the law. Not only do we find the
record void of evidence that juror No. 3 would not follow the
law or would not be fair and impartial, we also decline to
adopt the Cordovas' position regarding the removal of
prospective jurors with challenges for cause.
For the reasons that follow, we affirm.
Nature of the Lawsuit
The Cordovas filed a medical malpractice complaint against
several parties, including Dr. Mucci. The Cordovas alleged that
Lynn had recently been diagnosed with diverticulitis by her
primary care physician. According to the Cordovas, when Lynn
later went to the emergency room, she told Dr. Mucci about
the diagnosis for diverticulitis, but Dr. Mucci improperly
diagnosed and treated Lynn for irritable bowel syndrome. The
Cordovas claimed that Lynn's diverticulitis worsened
until her bowel ruptured, necessitating emergency life-saving
surgery, the removal of 90 percent of Lynn's large
intestine, and leaving her with a colostomy bag. They
asserted that Dr. Mucci's negligent care and treatment
caused Lynn's injuries for which they sought monetary
Dr. Mucci argued that he met the standard of care in his
treatment of Lynn at the emergency room. Dr. Mucci argued
that nothing, including antibiotics or a CAT scan, would have
prevented Lynn's injuries. According to Dr. Mucci, after
he diagnosed Lynn with irritable bowel syndrome in the
emergency room, she developed an obstruction, which led to a
perforation located on the other side of her bowel from where
the diverticula is located. Dr. Mucci argued that the
obstruction and perforation, which were not present during
his examination of Lynn at the emergency room, are what led
to the emergency life-saving surgery and caused Lynn's
The case proceeded to a jury trial and jury selection began.
The case would center around diverticulitis and irritable
bowel syndrome, along with their symptoms, causes, diagnoses,
and treatment options.
During voir dire, the trial court seated the first set of
eight prospective jurors. Notably, several of the prospective
jurors had medical backgrounds: juror No. 1 - a
cardiothoracic surgical intensive care nurse; juror No. 3 -
an internal medicine physician; juror No. 5 - a nurse
practitioner with an anesthesiologist husband; and juror No.
6 - an infectious disease physician.
At the outset of the voir dire, the trial court explained the
It's a common experience, however, that no matter how
skillful the examination may be, no matter how extensive its
scope, after it is all over there may lurk in the minds of
you some deep-rooted reason why you cannot be fair and
impartial to sit as a juror in this case, and no question may
bring this out.
If that's the case, we want you to speak out frankly so
we may be assured that the jury chosen to try the issues in
this case will decide them fairly and impartially to both the
Plaintiff and Defense.
The trial court then questioned the prospective jurors
individually. Juror No. 3 explained that she had been an
internal medicine physician for 20 years. The trial court
then asked juror No. 3 the following:
Q. The burden of proof is to prove their case, causation,
damages, by a preponderance of the evidence, the greater
weight of the evidence. Can you do that?
* * *
Q. Can you test the credibility or believability of the
Q. Okay. Because [there are] going to be experts coming in,
so to speak, and you're going to have to weigh their
testimony. Fair enough?
Q. Any prejudices that you had that you can set aside?
* * *
Q. Any reason you feel you can't be fair and impartial to
After the trial court completed its questioning of the
prospective jurors, the Cordovas' counsel questioned
them. The following reflects his questioning of juror No. 3:
Q. [T]his internal medicine, area of diverticulitis,
irritable bowel syndrome is right in your bailiwick in terms
of your training and experience in your day-to-day practice?
Q. Can you tell us what training and your experience is with
regards to the diagnosis and treatment of first
A. Um, in terms of training, internal medicine, I don't
have a sub-specialty. I'm a primary care physician. In
terms of experience, I treat both through the hospital as
well as at the hospital.
* * *
Q. The thing is you heard from the Judge when he was reading
to you about the lawsuit, a primary care physician actually
diagnosed Lynn Cordova with diverticulitis in the office
setting. Is that something you have ever done, diagnosed
diverticulitis in the office setting?
Q. And I assume that you've had training through your
residency and experience to do that, to diagnose
diverticulitis based on its clinical symptoms and signs in
Q. How frequently do you see diverticulitis as a diagnosis in
your office based - the office based portion ...