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Cordova v. Emergency Professional Services, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 17, 2017

LYNN CORDOVA, ET AL. PLAINTIFFS-APPELLANTS
v.
EMERGENCY PROFESSIONAL SERVICES, INC., ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-834741

          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.

          Also Listed: For Community Health Systems Professional Services Corporation Michael Ockerman Rocco D. Potenza Hanna, Campbell & Powell, L.L.P.

          For Emergency Professional Services, Inc. Philip J. Truax Wickens, Herzer, Panza, Cook & Batista

          For 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

          MARY J. BOYLE, JUDGE

         {¶1} 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.

         {¶2} 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).

         {¶3} 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.

         {¶4} For the reasons that follow, we affirm.

         I. Procedural History

         A. Nature of the Lawsuit

         {¶5} The Cordovas filed a medical malpractice complaint against several parties, including Dr. Mucci.[1] 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 damages.

         {¶6} 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 resulting injuries.

         B. Voir Dire

         {¶7} 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.

         {¶8} 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.

         {¶9} At the outset of the voir dire, the trial court explained the following:

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.

         {¶10} 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?
A. Yes.
* * *
Q. Can you test the credibility or believability of the witnesses?
A. Yes.
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?
A. Yes.
Q. Any prejudices that you had that you can set aside?
A. Yes.
* * *
Q. Any reason you feel you can't be fair and impartial to anybody here?
A. No.

         {¶11} 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?
A. Yes.
Q. Can you tell us what training and your experience is with regards to the diagnosis and treatment of first diverticulitis?
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?
A. Yes.
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 the office?
A. Yes.
Q. How frequently do you see diverticulitis as a diagnosis in your office based - the office based portion ...

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