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Elsner v. Birchall

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 28, 2018

FREDRICK S. ELSNER PLAINTIFF-APPELLANT
v.
CURTIS L. BIRCHALL, M.D., ET AL. DEFENDANTS-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-859954

          ATTORNEYS FOR APPELLANT Dale R. Friedland Rapoport Spitz Friedland & Courtney Jonathan Misny Thomas J. Misny

          ATTORNEYS FOR APPELLEES Holly M. Wilson Adam J. Davis Martin T. Galvin Reminger Co., L.P.A.

          BEFORE: Boyle, J., E.A. Gallagher, A.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, JUDGE

         {¶1} Plaintiff-appellant, Frederick S. Elsner, appeals the trial court's denial of his motion for a new trial and raises one assignment of error for our review:

The trial court erred in denying the Plaintiffs Motion for a New Trial based on juror misconduct and the manifest weight of the evidence.

         {¶2} Finding no merit to his assignment of error, we affirm.

         I. Procedural History and Factual Background

         {¶3} In December 2014, Elsner visited Birchall and Associates, L.L.C., and underwent the Priapus procedure.[1] Dr. Curtis L. Birchall performed the procedure, and Elsner was discharged the same day. Over the course of the next month, Elsner developed a fever and other symptoms. He eventually went to the emergency room at the Cleveland Clinic, where he was diagnosed with scrotal gangrene and underwent "an extensive scrotal debridement under general anesthesia."

         {¶4} On March 7, 2016, Elsner filed a complaint against Dr. Birchall, Birchall and Associates, L.L.C. (d.b.a. The Fountain Clinic), and Katina Walker, setting forth claims for medical malpractice and fraud due to performance of an unauthorized medical procedure outside of the standard of care for treatment of male impotence, with misrepresentation and lack of scientific substantiation of promised results.

         {¶5} Walker moved to dismiss the claims against her under Civ.R. 12(B)(6), which Elsner did not oppose and the court granted.

         {¶6} The parties engaged in lengthy pretrial motion practice and discovery. The case was eventually reassigned from the original trial judge to a visiting judge based on a scheduling conflict. The case proceeded to a trial by jury. The jury returned a verdict in favor of the defendants and was polled in open court and on the record.

         {¶7} Three days later, Elsner filed a motion for a new trial as well as two motions for judgment notwithstanding the verdict. Elsner's motion for a new trial argued that a member of the jury engaged in misconduct and that the weight of the evidence did not support the judgment. The defendants filed a brief in opposition to those motions. The trial court ordered the transcript of the voir dire portion of the trial. The original trial judge, who did not preside over the trial, denied Elsner's motions for judgment notwithstanding the verdict as well as his motion for a new trial.

         {¶8} It is from the trial court's denial of his motion for a new trial that Elsner now appeals.

         II. Law and Analysis

         {¶9} In his sole assignment of error, Elsner argues that the trial court erred when it denied his motion for a new trial. In support of his assignment of error, Elsner argues that the court should have granted him a new trial because (1) juror No. 2 failed to disclose that she was previously represented by the same law firm representing Birchall, (2) juror No. 2 worked on word puzzles during the trial and bullied other jury members into finding for Birchall, (3) the judgment was against the manifest weight ...


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