Court of Appeals of Ohio, Eighth District, Cuyahoga
FREDRICK S. ELSNER PLAINTIFF-APPELLANT
CURTIS L. BIRCHALL, M.D., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
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
J. BOYLE, JUDGE
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.
Finding no merit to his assignment of error, we affirm.
Procedural History and Factual Background
In December 2014, Elsner visited Birchall and Associates,
L.L.C., and underwent the Priapus procedure. 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."
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.
Walker moved to dismiss the claims against her under Civ.R.
12(B)(6), which Elsner did not oppose and the court granted.
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.
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.
It is from the trial court's denial of his motion for a
new trial that Elsner now appeals.
Law and Analysis
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 ...