[Cite as Moretz v. Muakkassa,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

LARRY J. MORETZ, et al. C.A. No. 25602

Appellees / Cross-appellants

v. APPEAL FROM JUDGMENT ENTERED IN THE KAMEL F. MUAKKASSA, M.D., et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellants / Cross-appellees CASE No. CV-2007-03-2157

DECISION AND JOURNAL ENTRY

Dated: March 21, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} Following surgery to remove a large, fluid-filled mass in his pelvis, Larry Moretz

found that he had lost all control of his bowels and bladder and all sexual function. He and his

wife sued his neurosurgeon and general surgeon. The general surgeon, Gary Williams, settled

before trial. The Moretzes prosecuted their medical malpractice claims against the

neurosurgeon, Kamel Muakkassa, arguing that he violated the standard of care by failing to scrub

in on the surgery and failing to use magnification and/or nerve stimulation to help locate and

protect nerves during the procedure. The parties do not dispute that Mr. Moretz’s injuries are

permanent or that they were caused by the surgery, but Dr. Muakkassa has argued that the

injuries were not caused by any deviation from the standard of care. Following a jury verdict of

$995,428 against him, Dr. Muakkassa appealed and the Moretzes cross-appealed. This Court

affirms in part because the trial court (1) exercised proper discretion in determining there was 2

good cause to permit a later filing of the Moretzes’ expert’s deposition under Rule 32(A) of the

Ohio Rules of Civil Procedure, (2) correctly refused to submit a narrative jury interrogatory, (3)

properly determined that Evidence Rule 803(18) would not operate to exclude a medical

illustration taken from a textbook, (4) properly admitted Mr. Moretz’s medical bills and expert

testimony about their reasonableness, and (5) properly excluded evidence of write-offs from

medical bills in the absence of a proper foundation and because (6) Dr. Muakkassa did not

demonstrate prejudicial error in the trial court’s exclusion of evidence about Dr. Williams’s

settlement, (7) Section 1343.03(C) of the Ohio Revised Code is not unconstitutional, and (8) the

trial court properly exercised discretion in determining that Dr. Muakkassa did not make a good

faith effort to settle the claims against him. This Court reverses the judgment in part and

remands this matter for recalculation of prejudgment interest because the trial court should have

calculated interest on the verdict after it was reduced by the amount of Dr. Williams’s settlement.

BACKGROUND

{¶2} At the time of the surgery, Mr. Moretz was 36 years old, married, and the father

of a two-year-old daughter. He had normal sensation and sexual function and normal bowel and

bladder function. After experiencing acute abdominal pain and some constipation and hesitancy

with urination, he sought treatment for his symptoms. A radiology report revealed a grapefruit-

sized mass near his tailbone, and he was referred to Dr. Muakkassa for treatment of an anterior

sacral meningocele. Mr. Moretz testified that his doctors told him he had a hole in his tailbone

and the fluid around his spinal cord had forced its way out through the hole to form a pouch

created by the membrane surrounding the spinal cord. He was told that the large, fluid-filled cyst

was pressing on his bladder and other organs, causing his symptoms. Dr. Muakkassa advised 3

him to see Dr. Williams, a general surgeon, to discuss whether the cyst could be removed

laparoscopically.

{¶3} The parties agree that Mr. Moretz had a large cyst located near the end of his

spinal cord, but they disagree about whether it was a meningocele or a neurenteric cyst. The

Moretzes’ neurosurgery expert, Gary Dennis, described the cyst as an anterior sacral

meningocele, which he explained is an “outpouching” of the meninges, or covering of the spinal

cord, filled with cerebral spinal fluid. Dr. Muakkassa and his neurosurgery expert, Mark

McLaughlin, however, testified that the cyst was not a meningocele, but a neurenteric cyst,

which is associated with spinal abnormalities, but does not have nerve tissue in it. Dr.

McLaughlin explained that a neurenteric cyst is “really more of a digestive [system]

abnormality” that typically would be removed by a general surgeon rather than a neurosurgeon.

{¶4} Dr. Williams and Mr. Moretz testified consistently about the surgical plan.

According to them, if Dr. Williams was unable to remove the cyst with a less invasive

laparoscopic approach, he would switch to an open incision and provide access through the

abdomen to the cyst. Then, Dr. Muakkassa would remove the cyst from the tip of the spinal cord

and seal it off.

{¶5} Dr. Muakkassa and his expert, Dr. McLaughlin, testified that Dr. Muakkassa did

not violate the standard of care in his treatment of Mr. Moretz. Dr. Muakkassa testified that he

did not scrub in for Mr. Moretz’s procedure because it was unnecessary. He said that he entered

the surgical suite several times in order to consult with Dr. Williams. He described his

involvement as checking to see that Dr. Williams located the cyst and properly closed it off to

avoid a leak of cerebral spinal fluid. He said that he was not specifically looking for nerves

because there are no nerves in that area, but if there had been any there, he would have seen 4

them. He described the surgery as removal of a cyst in the abdominal cavity, not neurosurgery.

Dr. Muakkassa testified that Dr. Williams appropriately performed the surgery. He said the

injuries occurred because the pressure of the cyst over time had caused damage to the nerves so

that they could not endure the normal stretching required to access the cyst during surgery,

resulting in a loss of function.

{¶6} After the jury returned a verdict against Dr. Muakkassa, he moved to apply the

statutory cap for non-economic damages and a statutory set-off for the amount paid by Dr.

Williams in settlement. The Moretzes opposed the motion for a set-off of the amount paid by

Dr. Williams and moved for prejudgment interest. The trial court reduced the verdict by $39,600

to bring the noneconomic damages element in line with the cap, then calculated prejudgment

interest before applying a set-off for the prior settlement. The trial court entered judgment for

the Moretzes in the amount of $953,858.08 and ordered Dr. Muakkassa to pay costs.

CIVIL RULE 32(A)

{¶7} Dr. Muakkassa’s first assignment of error is that the trial court incorrectly

permitted the Moretzes to present expert witness testimony via a videotape deposition that was

not timely filed as required by Rule 32(A) of the Ohio Rules of Civil Procedure. He has argued

that they failed to show good cause for the delay in filing the deposition and, had the deposition

been excluded for violation of the rule, Dr. Muakkassa would have been entitled to a directed

verdict.

{¶8} Under Rule 32(A) of the Ohio Rules of Civil Procedure, “[e]very deposition

intended to be presented as evidence must be filed at least one day before the day of trial or

hearing unless for good cause shown the court permits a later filing.” The duty is mandatory, but

the Rule allows the trial court to permit a later filing if it determines there is good cause to do so. 5

In this case, the Moretzes did not file the transcript of the videotaped deposition of their medical

expert, Dr. Gary C. Dennis, until the second day of trial, after Dr. Muakkassa had objected to its

use. The trial court overruled the objection, permitting the use of the deposition despite the

“technical noncompliance” with Rule 32(A) because Dr. Muakkassa was not surprised that the

Moretzes intended to introduce it as evidence at trial.

{¶9} The 1970 Staff Notes to Civil Rule 32 indicate that the requirement of filing the

deposition the day before trial is designed to put opposing parties on notice that the deposition

might be used in evidence. In this case, there was no need to put Dr. Muakkassa on notice that

Dr. Dennis’s deposition might be used in evidence at trial. On June 11, 2010, one month before

trial, the Moretzes filed a “Notice of Videotaped Trial Testimony of Gary C. Dennis, M.D.” that

provided that “[t]he videotaped trial testimony will be used as evidence in the trial of this

matter.” Five days before trial, on July 7, 2010, lawyers for the Moretzes and Dr. Muakkassa

traveled to Baton Rouge, Louisiana, to videotape the deposition of Dr. Dennis. Dr. Muakkassa

was not surprised at trial that the Moretzes intended to use the videotaped deposition of his

expert rather than calling Dr. Dennis live. In fact, Dr. Muakkassa had been aware of that for at

least a month since he had received the notice of deposition. Furthermore, it is not clear from the

record that the transcript could have been filed the day before trial as Rule 32(A) requires, given

that it was taken in Louisiana on the Wednesday before a Monday trial date.

{¶10} Dr. Muakkassa has not explained to this Court how he was prejudiced by the trial

court’s admission of the deposition. There is no argument that he was surprised or somehow

handicapped in his trial preparation due to the fact that the deposition had not been filed one day

before the start of the trial. His only argument is that, because Dr. Dennis was the Moretzes’

only medical expert, Dr. Muakkassa would have been entitled to a directed verdict if the 6

deposition had been excluded. One would guess that, if the trial court had sustained the

objection to the use of the deposition, the Moretzes would have moved heaven and earth to

secure Dr. Dennis’s live testimony before resting their case. In any event, Rule 32 was not

designed to facilitate a technical victory by avoiding a decision on the merits. In this situation,

the trial court exercised proper discretion in determining there was good cause to “permit[ ]a

later filing.” Civ. R. 32(A). Dr. Muakkassa’s first assignment of error is overruled.

JURY INTERROGATORY

{¶11} Dr. Muakkassa’s second assignment of error is that the trial court incorrectly

refused to give a narrative jury interrogatory he requested. Dr. Muakkassa proposed a jury

interrogatory that, in the event the jury found negligence, would have asked the jury to “[s]tate

the respect in which you find Kamel Muakkassa was negligent.” The trial court acknowledged

the mandatory language of Civil Rule 49(B), but, citing Freeman v. Norfolk & Western Railway

Company,

(1994), rejected the interrogatory, ruling that it was not

appropriate because only one act of negligence was alleged. In response to Dr. Muakkassa’s

argument that the Moretzes had alleged multiple acts of negligence, the trial court determined

that they all boiled down to criticizing Dr. Muakkassa for failing to scrub in to the surgery.

{¶12} Rule 49(B) of the Ohio Rules of Civil Procedure provides that a trial court “shall

submit written interrogatories to the jury, together with appropriate forms for a general verdict,

upon request of any party prior to the commencement of argument. . . . [T]he interrogatories

shall be submitted to the jury in the form that the court approves [and] . . . may be directed to one

or more determinative issues whether issues of fact or mixed issues of fact and law.” “While it is

mandatory that the court submit to the jury properly drafted interrogatories, the trial court retains

discretion to reject interrogatories that are inappropriate in form or content.” Freeman v. Norfolk 7

& W. Ry. Co.,

(1994). “A court may reject a proposed interrogatory that

is ambiguous, confusing, redundant, or otherwise legally objectionable.”

{¶13} “The purpose of an interrogatory is to ‘test the jury’s thinking in resolving an

ultimate issue so as not to conflict with its verdict.’” Freeman v. Norfolk & W. Ry. Co.,

(1994) (quoting Riley v. Cincinnati,

(1976)). “Proper

jury interrogatories must address determinative issues and must be based upon trial evidence.”

Ramage v. Cent. Ohio Emergency Servs. Inc.,

(1992). Interrogatories that

ask for conclusions that are not legitimate issues are improper. Freeman,

.

The Ohio Supreme Court has held that, “[w]hen only one act of negligence is alleged against a

defendant, an interrogatory asking the jury to specify the manner in which the defendant was

negligent is improper.”

{¶14} The trial court told Dr. Muakkassa that it would reject his interrogatory for two

reasons: (1) all allegations of negligence were dependent upon his failure to scrub in to the

surgery, and (2) the narrative form was likely to confuse the jury. At trial, the Moretzes’ medical

expert, Dr. Dennis, testified that Dr. Muakkassa violated the applicable standard of care in the

treatment of Mr. Moretz in three ways: (1) failure to scrub in to the procedure; (2) failure to use

magnification via a microscope or telescopic glasses called Loupes; and (3) failure to use

neurophysiological monitoring or nerve stimulation to help locate nerves to avoid injury during

the procedure. He testified that these failures proximately caused Mr. Moretz’s injuries.

{¶15} According to Dr. Dennis, Dr. Muakkassa “agreed to operate on Mr. Moretz, but,

unfortunately, he never did.” Dr. Dennis testified that Dr. Muakkassa fell below the standard of

care because he “did not use the techniques that ordinarily he would have used if he were doing

the procedure himself to be certain that nerves were not being injured and nerves were being 8

identified and protected.” He explained that with a large mass that has been growing since birth,

it is very difficult to see and identify normal nerves because they “are often plastered to the

outside of a big cyst like that[.]” He criticized Dr. Muakkassa for failing to “get into the field

himself and use his expertise . . . the way that a neurosurgeon would[.]” Dr. Dennis’s testimony

framed magnification and nerve stimulation as methods a neurosurgeon of ordinary skill would

use to protect against nerve damage during this type of procedure. When asked if Dr. Muakkassa

“ever even attempt[ed] to look for any nerves[,]” Dr. Dennis responded, “he didn’t scrub in so -

not that I could determine.” Dr. Dennis testified that Dr. Muakkassa’s failures to scrub in, use

magnification, and monitor the nerves proximately caused Mr. Moretz’s injury because “[Dr.

Muakkassa] was not there physically in the field able to identify the nerves for Dr. Williams.”

{¶16} Dr. Muakkassa testified that he did not need to look for nerves because there are

no nerves in that area of the body. He also testified that the nerves involved in this injury are

large enough to have been seen with the naked eye even from where he was standing without

scrubbing in. There is no evidence that Dr. Muakkassa could have used either magnification or

nerve stimulation techniques without scrubbing in to the procedure. As the evidence suggests

that Dr. Muakkassa was criticized for not physically participating in the surgery, which would

have allowed him to use magnification and nerve stimulation techniques to avoid injury to the

nerves responsible for controlling bowel, bladder, and sexual function, the trial court correctly

determined that the Moretzes’ allegations boil down to one act of negligence. Therefore, the

proposed narrative interrogatory would not have been appropriate in this case. Freeman v.

Norfolk & W. Ry. Co.,

(1994). Dr. Muakkassa’s second assignment of

error is overruled.

EVIDENCE RULE 803(18) 9

{¶17} Dr. Muakkassa’s third assignment of error is that the trial court violated Rule

803(18) of the Ohio Rules of Evidence by incorrectly allowing the jury to consider during

deliberations an illustration taken from a learned treatise. He has argued that, as hearsay that fell

within that exception, it was admissible for use during expert testimony, but was not permitted to

be sent back with the jury for deliberations. The Moretzes have argued that Rule 803(18) does

not apply to exhibit 36 and Dr. Muakkassa failed to show how he was materially prejudiced by

its being sent back with the jury.

{¶18} Under Rule 803(18) of the Ohio Rules of Evidence, “statements contained in [a]

published treatise[ ] . . . [regarding] history, medicine, or other science or art” may be admissible

“[t]o the extent [they are] called to the attention of an expert witness upon cross-examination or

relied upon by the expert witness in direct examination” provided the treatise is “established as a

reliable authority by the testimony or admission of the witness or by other expert testimony[.]”

“If admitted, the statements may be read into evidence but may not be received as exhibits.”

{¶19} Exhibit 36 is a medical illustration described as “a congenital anterior sacral

meningocele.” It is a photocopy of page 1157, Figure 83.1, from the second edition of a medical

textbook entitled, “Spine Surgery Techniques, Complication, Avoidance and Management.” Dr.

Muakkassa’s expert, Dr. McLaughlin, testified that he is familiar with the book and that he read

the chapter regarding anterior sacral meningoceles several times in preparation for his trial

testimony. He agreed the text is authoritative and that the relevant chapter is “excellent.” Dr.

McLaughlin testified that the illustration was an accurate depiction of what can occur with an

anterior sacral meningocele. He testified, however, that he did not agree that Mr. Moretz had an

anterior sacral meningocele or that the liquid inside the cyst was cerebral spinal fluid. He

testified that Mr. Moretz had a neurenteric cyst, which can look very similar to an anterior sacral 10

meningocele, but does not involve the nervous system. The trial court admitted exhibit 36 over

Dr. Muakkassa’s hearsay objection, noting that the fact that the illustration came from a medical

textbook does not change the fact that it is an artistic rendering of human anatomy.

{¶20} Evidence may not be admitted unless it is first properly authenticated via

“evidence sufficient to support a finding that the matter in question is what its proponent claims.”

Evid. R. 901(A). Dr. McLaughlin met that requirement by testifying that the illustration was an

accurate depiction of an anterior sacral meningocele. The next question is whether the

illustration of the meningocele is relevant evidence. Evidence Rule 401 defines “relevant

evidence” as “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” Although the medical illustration at issue did not directly meet this test, a

tangible “object may be relevant because it is ‘substantive’ evidence or it may be relevant

because it is ‘illustrative’ of facts or opinions testified to by a witness.” State v. Hoffmeyer, 9th

Dist. No. 23712,

(quoting 2 George E. Dix et al., McCormick on

Evidence § 212, at 3 (Kenneth S. Broun ed. 2006)).

{¶21} Tangible objects used demonstratively “are relevant if they aid the trier [of fact]

in understanding the witness’s testimony, which itself makes a fact of consequence more or less

probable.” 2 George E. Dix et al., McCormick on Evidence § 212, at 3 (Kenneth S. Broun ed.

2006)). If the object played no part in the events underlying the litigation, “[i]ts source and how

it was created may be of no significance whatever.” Id. at § 214, at 15. “Instead, the theory

justifying its admission is that the item is a fair and accurate representation of relevant testimony

or documentary evidence otherwise admitted in the case. Typically a[ ] [visual] aid will be

identified by a witness, during the witness’s testimony, as a substantively correct representation 11

of something the witness once perceived and is now describing.” Id. This Court has held that

“[d]emonstrative evidence is admissible to illustrate a witness’s testimony.” State v.

McCollough, 9th Dist. No. 2764,

at *2 (Aug. 4, 1993). The Ohio Supreme

Court has held that “[s]ending properly admitted evidence into jury deliberations rests within the

sound discretion of the trial judge.” State v. McGuire,

(1997).

{¶22} A properly authenticated medical illustration of the human anatomy discussed by

medical experts can be helpful to the jury in understanding the issues in a medical malpractice

case. Here the Defendant’s own expert vouched for the accuracy of this depiction of the

anomalous anatomical condition the plaintiff sought to prove that he had. As the exhibit was

authenticated and relevant, it was admissible at the discretion of the trial court unless prohibited

by some other rule or statute. Evid. R. 402.

{¶23} At common law, “[m]edical books or treatises, even though properly identified

and authenticated and shown to be recognized as standard authorities on the subjects to which

they relate, [were] not admissible in evidence to prove the truth of the statements therein

contained.” Hallworth v. Republic Steel Corp.,

, paragraph two of the syllabus

(1950). The common law later evolved to allow parties to use a learned treatise for the limited

purpose of impeaching the credibility of an expert who had either relied on it or acknowledged it

as authoritative in the field. Stinson v. England,

(1994). In 1998, Ohio

codified that concept in Evidence Rule 706. In 2006, the Supreme Court repealed Evidence Rule

706 when it adopted Rule 803(18), patterned after the federal rule, to allow statements in learned

treatises to be used as substantive evidence rather than restricting their use to impeachment and

rehabilitation. 12

{¶24} This exception to the hearsay rule is primarily aimed at passages in treatises

containing “theories and opinions” of the author “representing inductive reasoning.” See

Piotrowski v. Corey Hosp.,

, 69 (1961) (explaining bases for the exclusion of

learned treatises including lack of certainty regarding opinions and conclusions asserted in

treatises and the inability to cross-examine the authors). Although an illustration in a textbook

could include “statements” of the type Rule 803(18) was meant to address, exhibit 36 does not.

Exhibit 36 is more similar to a photograph or map properly admitted if authenticated and

relevant to the claims or defenses of either party. The identity of the artist who created the

depiction is not of interest to the court. There is no need for cross-examination. We agree with

the commentator on the Ohio Rules of Evidence who has written that the restriction in Evidence

Rule 803(18) against taking learned treatises into the jury room “should not be read so broadly as

to preclude the proponent from presenting the evidence in the form of a visual presentation

where the presentation assists the jurors in evaluating and understanding the material.” Glen

Weissenberger, Ohio Evidence, § 803.224, at 183 (2011).

{¶25} Dr. Muakkassa has not argued that the author of the textbook made any

“statements” in this illustration of a type Rule 803(18) was intended to address. He has argued

only that, because it comes from a learned treatise, it is hearsay subject to that exception. To the

extent that the author of the treatise “asserted” anything through the illustration, it was only that

the illustration accurately depicted an anterior sacral meningocele. See Evid. R. 801(A), (C).

Dr. Muakkassa’s own expert witness adopted that “assertion” as his own. The illustration is not

hearsay, and Rule 803(18) should not operate to exclude the illustration from the jury’s

consideration during deliberations. In this case, the treatise was not taken into the jury room to

be potentially misconstrued by jurors interpreting a medical textbook without the help of an 13

expert. Dr. Muakkassa did not dispute the accuracy of the medical illustration or the author’s

basis for drawing it a certain way. In fact, his own expert vouched for the accuracy of it.

Hearsay was Dr. Muakkassa’s only basis for objecting to the jury considering the exhibit during

deliberations. The trial court properly determined that Evidence Rule 803(18) would not operate

to exclude the illustration.

{¶26} Dr. Muakkassa has argued that he was prejudiced because the admission of the

exhibit made it more likely the jury would give undue weight to the theory that Mr. Moretz had a

meningocele rather than a neurenteric cyst. There is no evidence to suggest the admission of the

exhibit prejudiced Dr. Muakkassa. The illustration did not tend to prove that Mr. Moretz had a

meningocele.

{¶27} Dr. Muakkassa has also argued exhibit 36 was not properly identified and

authenticated because the Moretzes’ lawyer failed to mark the exhibit while cross-examining Dr.

McLaughlin and failed to establish which of two drawings he later marked as exhibit 36. If Dr.

Muakkassa’s lawyer felt there was some confusion about which illustration had been marked as

exhibit 36, he did not raise that objection with the trial court when that confusion could have

been eliminated, even though they twice discussed whether exhibit 36 should be admitted into

evidence. This Court will not consider his argument for the first time on appeal. See State v.

Williams,

, paragraph one of the syllabus (1977). Dr. Muakkassa’s third

assignment of error is overruled.

EVIDENCE OF CO-DEFENDANT’S SETTLEMENT

{¶28} Dr. Muakkassa’s fourth assignment of error is that the trial court incorrectly

refused to allow him to present evidence of the fact that Dr. Williams, a witness at the trial, had

been named as a co-defendant, but had settled the Moretzes’ claims against him before trial. Dr. 14

Muakkassa has argued that he should have been permitted to introduce evidence of the

settlement between Dr. Williams and the Moretzes in order to prove that Dr. Williams was

biased against him. He has argued that “Dr. Williams was very angry at Dr. Muakkassa for his

failure to settle this case and then being drawn back into the case to testify[,]” which resulted in

“some very damaging testimony against Dr. Muakkassa” on cross-examination.

{¶29} Under Rule 408 of the Ohio Rules of Evidence, evidence of the settlement of a

claim is inadmissible to prove liability or invalidity of the claim or its amount, but the rule “does

not require exclusion when the evidence is offered for another purpose, such as proving bias or

prejudice of a witness[.]” The Moretzes moved in limine to exclude any mention of their

settlement with Dr. Williams. The trial court granted the motion on the record prior to opening

statements, but limited the scope of the ruling so that the jury could understand Dr. Williams’s

relationship to the case. The court permitted Dr. Muakkassa to elicit testimony about the fact

that Dr. Williams had performed the surgery, had been named as a defendant in the case, and

that, at the time of trial, he was no longer a defendant.

{¶30} At trial, Dr. Muakkassa called Dr. Williams as a witness. Dr. Muakkassa asked

him whether he realized that, in deposition, the Moretzes’ medical expert had said that Dr.

Williams had deviated from the standard of care in his treatment of Mr. Moretz. Dr. Williams

testified that he was aware of that and that he did not agree with that assessment. Dr. Muakkassa

then asked two leading questions that made it clear to the jury that Dr. Williams had been a

defendant in the lawsuit until he had settled the claim. Dr. Muakkassa’s two questions were

“you chose apparently at some point in time not to proceed to trial to defend yourself?” and “you

were dismissed from this case I believe last year, 2009?” Dr. Williams responded affirmatively 15

to both questions. Dr. Muakkassa did not seek to introduce any further evidence regarding Dr.

Williams’s settlement.

{¶31} Even if this Court could find error in the trial court’s ruling, Dr. Muakkassa has

not pointed to any “damaging testimony” in the record nor explained how introducing further

evidence about the settlement would have helped him avoid whatever prejudice he believes he

suffered. App. R. 16(A)(7). Dr. Muakkassa has not affirmatively demonstrated prejudicial error.

See Civ. R. 61; App. R. 16(A)(7); Cardone v. Cardone, 9th Dist. No. 18349,

at

*8 (May 6, 1998). His fourth assignment of error is overruled.

EVIDENCE OF MR. MORETZ’S MEDICAL BILLS

{¶32} Dr. Muakkassa’s fifth assignment of error is in two parts. He has seemingly

argued that the trial court incorrectly admitted Mr. Moretz’s medical bills without competent

evidence regarding the necessity and reasonableness of the charges. He has also argued that the

trial court incorrectly excluded evidence of the write-offs of the medical bills without expert

testimony regarding reasonableness.

{¶33} In considering the first part of this assignment of error, it is unclear whether Dr.

Muakkassa intended to argue that the medical bills were inappropriately admitted and/or that the

trial court should have excluded the testimony of Dr. Dennis regarding those bills. In any event,

his argument appears to be limited to questioning the competence of the evidence tending to

show the medical charges were reasonable.

{¶34} Section 2317.42.1 of the Ohio Revised Code provides that an itemized “written

bill or statement” shall be “prima-facie evidence of the reasonableness of any charges and fees

stated therein” provided the fees are for medication or services as described in the statute and the

bills are delivered to all adverse parties not less than five days before trial. Compliance with the 16

statute creates a rebuttable presumption of the reasonableness of all charges reflected in the

qualifying medical bills. Stiver v. Miami Valley Cable Council,

(2d

Dist. 1995); see also Jaques v. Manton,

,

. The

parties agree that the Moretzes met the requirements of the statute in this case. Thus, the medical

bills were prima facie evidence of the reasonableness of the charges reflected in the bills.

{¶35} In addition to the presumption triggered by compliance with the statute, the

Moretzes offered further evidence of the reasonableness of the charges. On direct examination,

Dr. Dennis considered exhibit one, which was identified as a compilation of Mr. Moretz’s

medical bills with a summary sheet on top that was prepared by his lawyer. Dr. Dennis testified

that the charges were reasonable and necessary. On cross-examination, he testified that he had

not considered each line on each bill, but had relied on the accuracy of the summary sheet to

support his opinion that the bills reflected reasonable and necessary charges for medical services

rendered to Mr. Moretz due to the injuries received via Dr. Muakkassa’s alleged deviation from

the standard of care. Dr. Dennis offered a competent expert opinion regarding the

reasonableness of the charges for the services rendered. Dr. Muakkassa’s cross-examination

may have affected the credibility of that opinion, but that goes only to the weight and not the

admissibility of the evidence. See Segedy v. Cardiothoracic & Vascular Surgery of Akron Inc.,

,

, at ¶ 18 (9th Dist. 2009).

{¶36} The second part of Dr. Muakkassa’s fifth assignment of error is that the trial court

incorrectly excluded evidence of the medical providers’ write-offs of the medical bills. In

personal injury cases, “[a] plaintiff is entitled to recover the reasonable value of medical

expenses incurred due to the defendant’s conduct.” Jaques v. Manton,

,

. The reasonable cost of any given medical procedure is generally 17

“beyond the knowledge or experience possessed by lay persons.” Evid. R. 702(A). Therefore,

although medical bills are evidence of what the provider charged for each service, expert

testimony would be required to prove the reasonableness of those charges.

{¶37} The General Assembly created a shortcut for proving the reasonableness of

medical charges in a personal injury or wrongful death case via the rebuttable presumption

created by compliance with Section 2317.42.1. The defendant may then present contrary

evidence to challenge the reasonableness of the charges. Robinson v. Bates,

,

, at ¶ 9. Because plaintiffs are not always responsible for paying the total

amounts charged by their medical providers, questions have developed regarding how defendants

might rebut the presumption of reasonableness created by Section 2317.42.1. Frequently,

plaintiffs are able to settle their medical bills for less than the full amount, especially if they have

health insurance. If the plaintiff had secured health insurance coverage prior to being injured by

a defendant’s negligence, then, generally speaking, the insurance company will have negotiated

with the providers for a reduced rate. In that case, the plaintiff and/or his employer pays

insurance premiums and, when bills are issued for care received, the insurance company and

plaintiff together pay the provider something that is often significantly less than the amount

billed. The provider then writes off the difference, accepting the reduced rate as payment in full.

Usually, the insurance contract will also include a subrogation clause that entitles the insurance

company to recover from the plaintiff any payments it made on his behalf in the event that the

plaintiff recovers those costs from a negligent third party who caused the injuries.

{¶38} The collateral source rule has been described as “the judicial refusal to credit to

the benefit of the wrongdoer money or services received in reparation of the injury caused which

emanates from sources other than the wrongdoer.” Roberts v. State Farm Mut. Auto. Ins. Co., 18

,

(2d Dist.) (quoting Carville v. Estate of Phillips,

2d Dist. No. 99CA52,

at * 2 (Aug. 25, 2000)). The collateral source rule “is

an exception to the general rule that in a tort action, the measure of damages is that which will

compensate and make the plaintiff whole.” Robinson v. Bates,

, 2006-Ohio-

6362, at ¶ 11. “Through this exception, the plaintiff is allowed to receive more than the amount

of damages [ ]he actually incurred.” Roberts,

. The purpose of the

collateral source exception to the general rule of tort damages is to ensure that “benefits the

plaintiff receives from a source wholly independent of the wrongdoer [do] not benefit the

wrongdoer by reducing the amount of damages that a plaintiff might otherwise recover from

him.”

The rationale is that a negligent defendant should not reap the advantage created by a

plaintiff’s foresight in securing insurance or other sources of benefits to help cover the cost of

injuries caused by the defendant. Robinson,

, at ¶ 11. “As an evidentiary rule,

the collateral source rule bars the introduction into evidence of collateral payments to the

plaintiff in order to prevent the jury’s consideration of such payments in determining the amount

of damages.” Roberts,

(quoting Carville,

at *2).

{¶39} In 2005, the General Assembly adopted a statute essentially limiting the collateral

source rule to sources of benefits that carry a right of subrogation. Under Section 2315.20(A) of

the Ohio Revised Code, a defendant may introduce evidence of collateral source benefits to the

plaintiff only if the source of those benefits does not have a right of subrogation. Thus, the

General Assembly determined that, if the plaintiff will have to reimburse his insurance carrier

under a subrogation clause, then the jury should not learn of the collateral benefit. Instead, the

jury will hear only the amounts charged for each service and, if the judgment includes those

charged amounts, it will be the plaintiff rather than the defendant who reaps the benefit of any 19

amounts written off by his health care providers. Five years after the codification of the rule, the

Ohio Supreme Court held that “the statute does not address evidence of . . . write-offs by medical

providers[.]” Jaques v. Manton,

,

. Under Jaques,

“evidence of write-offs is admissible to show the reasonable value of medical expenses.” Id. at ¶

16.

{¶40} In this case, the trial court excluded evidence of the amounts written off by

medical providers due to a lack of foundation, not because of the collateral source rule. Dr.

Muakkassa sought to offer evidence of the amounts written off of the medical bills in order to

prove that the reasonable value of the medical services was less than the amounts the providers

charged. He did not, however, offer any expert testimony on the issue of the reasonable value of

the medical services rendered. “[T]he reasonable value of medical services is a matter for the

jury to determine from all relevant evidence.” Jaques v. Manton,

, 2010-

Ohio-1838, at ¶ 15 (quoting Robinson v. Bates,

,

, at ¶ 17). In

Jaques, the Ohio Supreme Court held that, regardless of the collateral source rule and any

applicable subrogation rights, write-offs by medical providers are relevant evidence bearing on

the reasonable value of medical services. Id. at ¶ 16. Jaques, however, did not address the

question at issue in this case, that is, how to lay a foundation for such evidence.

{¶41} As the reasonable value of medical services is outside the common knowledge of

laymen, expert testimony is necessary as a foundation for presentation of this evidence to the

jury. See Evid. R. 702(A). For plaintiffs seeking to present amounts charged as evidence of the

reasonable value of medical services rendered, the General Assembly has codified a rebuttable

presumption in that regard, obviating the need for expert testimony. R.C. 2317.42.1. Under the

statute, in the absence of contrary evidence, the amount charged will be sufficient to prove the 20

reasonable value of the medical services. Defendants seeking to introduce evidence of write-offs

do so in an effort to contradict that statutory presumption.

{¶42} Defendants offer evidence of write-offs in hopes that juries will determine the

reasonable value of the medical services was actually equal to the amount charged minus the

amount written off by the provider. See Evans v. Thobe,

,

(2d Dist). Despite the Ohio Supreme Court’s holding in Jaques that such evidence is

relevant and admissible, there is no presumption or shortcut available to allow such evidence to

be introduced without a proper foundation. As Dr. Muakkassa offered evidence of the amounts

written off by Mr. Moretz’s medical providers as evidence to contradict the statutory

presumption of reasonableness of the charges, the trial court correctly excluded the evidence in

the absence of competent expert testimony. Dr. Muakkassa’s fifth assignment of error is

overruled.

CUMULATIVE EFFECT OF TRIAL ERRORS

{¶43} Dr. Muakkassa’s sixth assignment of error is that the trial court denied him a fair

trial through the cumulative effect of the trial court’s errors. As this Court has identified no trial

error, this assignment of error is overruled.

PREJUDGMENT INTEREST

{¶44} Dr. Muakkassa’s seventh assignment of error is that the trial court incorrectly

awarded prejudgment interest. He has argued that the prejudgment interest statute is

unconstitutional, the Moretzes failed to satisfy their burden to prove they were entitled to

prejudgment interest, and the trial court abused its discretion in calculating the interest. Under

Section 1343.03(C) of the Ohio Revised Code, following a judgment, decree, or order for the

payment of money in a civil action based on tortious conduct, a party may move for prejudgment 21

interest. If the trial court determines at a subsequent hearing “that the party required to pay the

money failed to make a good faith effort to settle the case and that the party to whom the money

is to be paid did not fail to make a good faith effort to settle the case,” then it shall order

prejudgment interest. R.C. 1343.03(C)(1).

Constitutionality of Section 1343.03(C)

{¶45} Dr. Muakkassa has argued that the prejudgment interest statute is unconstitutional

because it violates the right to trial by jury and the equal protection clause. His arguments are

brief and do not cite either the state or federal constitution. It appears he has argued that the

statute violates the right to a jury trial because it abrogated the common law right to have the jury

make prejudgment interest determinations and the statute punishes defendants for exercising

their right to go to trial.

{¶46} The Ohio Supreme Court has ruled that “Section 1343.03(C) does not infringe

upon a party’s right to a jury trial.” Galayda v. Lake Hosp. Sys. Inc.,

(1994) (quoting Kalain v. Smith,

(1986)). Although the statute has been

amended several times over the intervening years, the substance of the section applicable to Dr.

Muakkassa’s arguments remains the same today. The Ohio Supreme Court has ruled that

imposing a requirement of a “good faith effort to settle” does not force a defendant to forgo the

right of having a jury determine the existence of his liability in a tort action.

(quoting Kalain,

). Although a defendant who chooses to try his case risks the possibility

that he may ultimately be found liable for a larger total judgment under Section 1343.03(C), the

statute “in no way precludes a defendant from insisting on exercising his right to trial by jury nor

does it ‘create a financial barrier that prevents a . . . party from taking his case to a jury.’”

(quoting Kuenzer v. Teamsters Union Local 507,

(1981)). The Supreme 22

Court determined that an award of prejudgment interest under the statute is compensatory rather

than punitive.

“Where a defendant benefits monetarily as a result of failing to negotiate

possible settlement in good faith, R.C. 1343.03 does not constitute a penalty, but, to the contrary,

is wholly compensatory, and indeed equitable, in nature.” Id. at 428.

{¶47} The Ohio Supreme Court has also held that Section 1343.03(C) does not violate

the Due Process Clause of the Ohio Constitution. Galayda v. Lake Hosp. Sys. Inc.,

(1994) (citing Ohio Const. Art. I § 16). The Supreme Court agreed “with the

overwhelming weight of authority that prejudgment interest statutes are rationally related to the

legitimate goals of encouraging prompt resolution of disputes, and ensuring prompt payment of

compensation to parties injured by tortious conduct.” Id. To the extent that Dr. Muakkassa has

argued that Section 1343.03(C) is unconstitutional, this assignment of error is overruled.

Award of Prejudgment Interest

{¶48} As part of his seventh assignment of error, Dr. Muakkassa has argued that the

Moretzes failed to satisfy their burden of proof under Section 1343.03(C). The Ohio Supreme

Court has written that the prejudgment interest statute “was enacted to promote settlement

efforts, to prevent parties who have engaged in tortious conduct from frivolously delaying the

ultimate resolution of cases, and to encourage good faith efforts to settle controversies outside a

trial setting.” Kalain v. Smith,

(1986). “A party has not ‘failed to make

a good faith effort to settle’ under R.C. 1343.03(C) if he has (1) fully cooperated in discovery

proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to

unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer

or responded in good faith to an offer from the other party.”

23

{¶49} The Supreme Court has also written that, “[i]f a party has a good faith, objectively

reasonable belief that he has no liability, he need not make a monetary settlement offer.” Kalain

v. Smith,

(1986). It has also issued a caveat that “the ‘good faith,

objectively reasonable belief’ language of Kalain must be ‘strictly construed so as to carry out

the purposes of R.C. 1343.02.’” Galayda v. Lake Hosp. Sys. Inc.,

(1994) (quoting Moskovitz v. Mt. Sinai Med. Ctr.,

(1994)). In Galayda,

the Ohio Supreme Court held that a trial court correctly awards prejudgment interest if “a

defendant ‘just says no’ [to settlement discussions] despite a plaintiff’s presentation of credible

medical evidence that the defendant physician fell short of the standard of professional care

required of him, . . . it is clear that the plaintiff has suffered injuries, and . . . the causation of

those injuries is arguably attributable to the defendant’s conduct.” Id. at 429.

{¶50} The prejudgment interest statute uses mandatory language. “Therefore, if a party

meets the four requirements of the statute, the decision to allow or not allow prejudgment interest

is not discretionary. What is discretionary with the trial court is the determination of lack of

good faith.” Moskovitz v. Mt. Sinai Med. Ctr.,

(1994). Thus, “[w]e

review a trial court’s determination regarding whether a party made a ‘good faith effort’ to settle

for an abuse of discretion.” Kane v. Saverko, 9th Dist. No. 23908,

.

{¶51} In this case, the Moretzes alleged that, despite mounting evidence against him, Dr.

Muakkassa failed to make any settlement offer over the course of this lengthy litigation in the

face of settlement overtures from the Moretzes. There was evidence that, in May 2009, the

Moretzes provided both defendants with a settlement package and demand in preparation for

mediation. There was also evidence that they settled with Dr. Williams at the mediation 24

conference and tried to discuss settlement with Dr. Muakkassa as late as the final pretrial and

again on the day of the prejudgment interest hearing.

{¶52} Dr. Muakkassa has argued that the evidence introduced at the prejudgment

interest hearing established that he had a good faith, objectively reasonable belief that he had no

liability. Therefore, he did not need to make a settlement offer in order to avoid paying

prejudgment interest under Section 1343.03(C). The trial court determined that “Dr. Muakkassa

did not engage in a good faith effort to settle this case.” The trial court indicated that its

assessment was based on testimony from the hearing indicating that “Dr. Muakkassa and his

insurer made a decision at the beginning of this litigation to proceed to trial, and no offer of

settlement, however small, would be entertained.” The court pointed to testimony of Dr.

Muakkassa’s insurance adjuster, Linda Gorjup, indicating that the insurance company would not

have offered even one dollar to settle this case, even if Dr. Muakkassa had consented to settle.

Ms. Gorjup testified that she attended the mediation conference because the court had ordered it,

but she did not participate in any settlement negotiations at any time during the pendency of this

litigation.

{¶53} The Moretzes have argued that Ms. Gorjup’s “cavalier attitude” at the hearing

may have influenced the trial court’s opinion of the reasonableness of the insurer’s belief that Dr.

Muakkassa had no liability for Mr. Moretz’s injuries. The Moretzes argued that the insurer’s

position was largely based on online medical research conducted by Ms. Gorjup, who has no

medical training. Ms. Gorjup testified that she considered reviews of the case by the defense

lawyer and several medical panels and she concluded that the case was defensible. She testified

that, although the company reserved a million dollars for the case based on damages alone, she

did not think a jury would find that Dr. Muakkassa had proximately caused Mr. Moretz’s injuries 25

because Dr. Muakkassa did not perform the surgery. Given that the allegations against Dr.

Muakkassa were based entirely on what he had failed to do while Dr. Williams performed the

surgery, the trial court could have reasonably concluded that a firm no-liability position was not

objectively reasonable under the circumstances.

{¶54} Experts on both sides agreed that Mr. Moretz’s injuries are permanent and that

they were caused by the surgery. Dr. Williams testified at deposition that, before the surgery, he

believed the two would be co-surgeons participating in the procedure together. Dr. Muakkassa

admitted at his deposition that he did not scrub in or make any effort to locate any nerves at any

time during the surgery. Although he testified at deposition that Dr. Williams never asked him to

scrub in, Dr. Williams later testified at his deposition that he had invited Dr. Muakkassa to scrub

in during the procedure.

{¶55} Through depositions taken nearly two years before the trial, the Moretzes

developed some credible medical evidence that Dr. Muakkassa fell short of the standard of care

in his treatment of Mr. Moretz, that Mr. Moretz suffered serious permanent injuries, and that the

causation of those injuries was arguably attributable to Dr. Muakkassa’s conduct. See Galayda

v. Lake Hosp. Sys. Inc.,

(1994). At the prejudgment interest hearing, the

trial court heard evidence tending to show that, while the Moretzes made various attempts at

initiating settlement discussions and successfully settled with a co-defendant, Dr. Muakkassa

steadfastly refused to make any offer of settlement. See

This Court cannot say that the trial

court improperly exercised its discretion in determining that Dr. Muakkassa did not make a good

faith effort to settle the claims against him. To the extent that assignment of error number seven

addressed the basis for the trial court’s determination that prejudgment interest should be

awarded, it is overruled. 26

Calculation of Prejudgment Interest

{¶56} The last part of Dr. Muakkassa’s seventh assignment of error is that the trial court

incorrectly calculated prejudgment interest by basing it on the amount of the verdict before

applying the statutory set-off for the amount of his co-defendant’s settlement. Under Section

2307.28, the effect of the Moretzes’ settlement agreement with Dr. Williams was to reduce the

claim against Dr. Muakkassa by the amount Dr. Williams paid in settlement. Section 1343.03(C)

of the Ohio Revised Code does not address the effect that statutory set-offs have on the

calculation of prejudgment interest. The question is whether a trial court must calculate

prejudgment interest before or after it reduces the verdict by the amount of a settlement paid by a

co-defendant.

{¶57} At common law, injured parties had a right to prejudgment interest because “if

reparation for the injury is delayed for a long time by the wrong-doer, the injured party can not

be made whole unless the damages awarded include compensation, in the nature of interest, for

withholding the reparation which ought to have been promptly made.” Moskovitz v. Mt. Sinai

Med. Ctr.,

(1994) (quoting The Lawrence RR Co. v. Cobb,

, 98-99 (1878)). The Supreme Court has explained that, in addition to encouraging good faith

efforts to settle cases in order to conserve judicial resources, “[Section] 1343.03(C), like any

statute awarding interest, has the additional purpose of compensating a plaintiff for the

defendant’s use of money which rightfully belonged to the plaintiff.” Musisca v. Massillon

Cmty. Hosp.,

(1994) (citing West Virginia v. United States,

, 310 n.2 (1987)). Section 1343.03(C) is not punitive. The Ohio Supreme Court has held that

the practice of disgorging the benefit a defendant gains from delaying plaintiff’s recovery is 27

“wholly compensatory, and indeed equitable, in nature.” Galayda v. Lake Hosp. Sys. Inc.,

(1994).

{¶58} In this case, the trial court indicated that it calculated prejudgment interest on the

verdict before applying the set-off in order to prevent Dr. Muakkassa from benefitting from his

co-defendant’s good faith settlement efforts. If prejudgment interest is calculated before the set-

off is applied, however, then the plaintiff receives a windfall. See Mowery v. Welsh, 9th Dist.

No. 22849,

(construing R.C. 1343.03(A)). A plaintiff is not entitled to

prejudgment interest on money previously received via settlement because he was not deprived

of the beneficial use of that money while the defendant delayed judgment. In keeping with the

purposes of the statute discussed above, we hold that a trial court must first apply the statutory

set-off under Section 2307.28 before calculating prejudgment interest under Section 1343.03(C).

To the extent that Dr. Muakkassa’s seventh assignment of error addressed the trial court’s

calculation of prejudgment interest, it is sustained.

THE MORETZES’ ASSIGNMENT OF ERROR ON CROSS-APPEAL

{¶59} The Moretzs’ assignment of error on their cross-appeal is that the trial court

incorrectly granted a set-off under Section 2307.28 of the Ohio Revised Code because Dr.

Muakkassa did not plead it as an affirmative defense and failed to support his motion with

evidence. Section 2307.28 provides that the effect of a release or covenant not to sue or not to

enforce judgment given to one of two or more people for the same injury or loss to person or

property, is that it reduces the settling plaintiffs’ claim against the remaining defendants and

releases the settling defendant from all liability for contribution to any other tortfeasor.

{¶60} Following the verdict in this case, Dr. Muakkassa moved the trial court to reduce

the jury’s award of noneconomic damages to the statutory cap of $500,000 and to further reduce 28

the verdict by the amount Dr. Williams paid in settlement. The parties agreed to submit the issue

on the briefs, and Dr. Muakkassa did not submit any evidentiary materials in support of his

motion. The trial court granted the set-off. The Moretzes have cross-appealed, arguing that the

trial court incorrectly granted the set-off because Dr. Muakkassa waived it by failing to plead it

as an affirmative defense. They have also argued that Dr. Muakkassa failed to carry his burden

of proof on the issue. The Moretzes did not make either of these two arguments to the trial court.

This Court will not consider these arguments for the first time on appeal. Eisenbrei v. Akron, 9th

Dist. No. 25788, 2011–Ohio–5777, at ¶ 12 (citing Thrower v. Akron Dep’t of Public Hous.

Appeals Bd., 9th Dist. No. 20778, 2002–Ohio–3409, at ¶ 20). The Moretzes’ assignment of error

is overruled.

CONCLUSION

{¶61} Dr. Muakkassa’s first through sixth assignments of error are overruled. His

seventh assignment of error is sustained to the extent that it addressed the trial court’s calculation

of prejudgment interest. The remainder of his seventh assignment of error is overruled. The

Moretzes’ assignment of error is overruled. The judgment of the Summit County Common Pleas

Court is reversed, in part, and this matter is remanded for a recalculation of prejudgment interest

consistent with this opinion.

Judgment affirmed in part, reversed in part, and remanded.

There were reasonable grounds for this appeal. 29

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

CLAIR E. DICKINSON FOR THE COURT

MOORE, J. CONCURS.

CARR, P. J. CONCURRING IN PART, AND DISSENTING IN PART.

{¶62} I concur in all of the majority opinion except for the third and seventh

assignments of error. With respect to the third assignment of error, I concur in judgment only on

the basis that if there was any error, it was harmless. I respectfully dissent in regard to the

seventh assignment of error on the basis that the trial court did not err in calculating prejudgment

interest prior to applying the set-off from Dr. Williams’ settlement. 30

APPEARANCES:

DOUGLAS G. LEAK, Attorney at Law, for Appellant / Cross-appellees.

THOMAS A. TREADON, Attorney at Law, for Appellant / Cross-appellees.

MARK D. AMADDIO, Attorney at Law, for Appellees / Cross-appellants.

DAVID M. TODARO, Attorney at Law, for Appellees / Cross-appellants.

MARK S. FUSCO, Attorney at Law, for Appellees / Cross-appellants.