[Cite as Elsner v. Birchall, M.D., 2018-Ohio-2521.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106524



                                        FREDRICK S. ELSNER

                                                            PLAINTIFF-APPELLANT

                                                      vs.

                               CURTIS L. BIRCHALL, M.D., ET AL.

                                                            DEFENDANTS-APPELLEES




                                               JUDGMENT:
                                                AFFIRMED



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

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

        RELEASED AND JOURNALIZED: June 28, 2018
ATTORNEYS FOR APPELLANT

Dale R. Friedland
Rapoport Spitz Friedland & Courtney
27600 Chagrin Boulevard, Suite 340
Woodmere, Ohio 44122

Jonathan Misny
Thomas J. Misny
7319 Eagle Mills Road
Waite Hill, Ohio 44094


ATTORNEYS FOR APPELLEES

Holly M. Wilson
Adam J. Davis
Martin T. Galvin
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 44115-1093
MARY J. BOYLE, J.:

         {¶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 Plaintiff’s 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.



         1
             According to a brochure titled “Male Enhancement: Patient Information About the Priapus Shot” and
attached to Elsner’s complaint as an exhibit, the Priapus shot is an injection of a patient’s platelet-rich plasma into
the patient’s corpus cavernosa, which is a structure in the penis that causes an erection. The brochure states that the
shot “enhances blood flow to the corpus cavernosa,” resulting in “a firmer, harder erection.”
        {¶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 of the evidence, and (4) the judge who presided over

the trial, not the original trial judge, should have ruled on his motion for a new trial.

        {¶10} Under Civ.R. 59(A), a court may grant a new trial based on “[m]isconduct of the

jury.” A court may also grant a new trial within its “sound discretion * * * for good cause
shown.” Id. Nevertheless, “motions for new trial are not to be granted lightly.” State v.

Jerido, 8th Dist. Cuyahoga No. 72327, 1998 Ohio App. LEXIS 730, 5 (Feb. 26, 1998), citing

Toledo v. Stuart, 11 Ohio App.3d 292, 465 N.E.2d 474 (6th Dist.1983).

       {¶11} We review a motion for a new trial based on jury misconduct under Civ.R.

59(A)(2) for an abuse of discretion.      Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139,

2007-Ohio-5587, 876 N.E.2d 1201, ¶ 36. A trial court’s denial of a motion for a new trial does

not constitute an abuse of discretion if competent, credible evidence supports the verdict.   Smith

v. Sass, Friedmann & Assocs., 8th Dist. Cuyahoga No. 81953, 2004-Ohio-494, ¶ 37.

       {¶12} Analyzing allegations of juror misconduct requires a two-step inquiry. First, a

trial court “must determine whether misconduct actually occurred.” Jerido at 6.         If the trial

court finds misconduct, then it must determine “if the misconduct materially affected the

[complaining party’s] substantial rights.” Id.; see also Pittock v. Kaiser Found. Health Plan,

8th Dist. Cuyahoga No. 72628, 1998 Ohio App. LEXIS 2175, 15 (May 14, 1998) (“[A] judgment

will not be reversed because of alleged juror misconduct unless prejudice to the complaining

party is shown.”).

       A. Failure to Disclose

       {¶13} In support of his assignment of error, Elsner first argues that juror No. 2 engaged in

misconduct when she failed to disclose that she was previously represented by the Reminger law

firm in a medical malpractice case after Birchall’s counsel revealed that he worked for Reminger.

 In his brief, he cites to Burton v. Unifirst Corp., 8th Dist. Cuyahoga No. 98876,

2013-Ohio-2330, and State v. Mack, 8th Dist. Cuyahoga No. 93091, 2010-Ohio-1420.

       {¶14} In Burton, we reversed the trial court’s denial of the plaintiff’s motion for a new

trial, which alleged juror misconduct. The record showed that one of the jurors, who was a
medical doctor, failed to “reveal that he had been previously sued several times, which could

have caused him to be biased in favor of the defendant.” Id. at ¶ 9. We found that the juror

“did not merely fail to disclose the fact that he was sued in the past, he affirmatively made a

misrepresentation by boasting that ‘I’m proud to say in 33 years of practice I’ve never been sued

for malpractice.’” Id. at ¶ 11. As a result, we found that it was “not a case where the juror

merely forgot to disclose a material fact[, but was] a case where a juror answered a voir dire

question dishonestly.” Id.

       {¶15} In Mack, the defendant moved for a new trial after a jury convicted him of rape and

kidnapping. Immediately after the jury read its verdict, the court held a hearing concerning

alleged juror misconduct, specifically concerning a conversation that a jury member had with the

defendant’s wife about the defendant’s character and her belief that her husband was innocent.

The trial court questioned both the juror and the defendant’s wife, but ultimately denied the

defendant’s motion, finding that while the juror engaged in misconduct, that misconduct was

harmless and not prejudicial to the defendant. On appeal, we reversed the trial court’s ruling

because it deprived the defendant of “an opportunity to meet his burden of establishing prejudice

due to Juror Number 12’s misconduct[.]” Id. at ¶ 14. We stated that the trial court, after

finding that the jury member engaged in misconduct, “should have then allowed [the defendant]

to present evidence of prejudice[,]” including the opportunity to question the defendant’s wife

and members of the jury. Id. at ¶ 33 and 35.

       {¶16} In this case, during voir dire, the court introduced both parties, Birchall and Elsner,

as well as the parties’ attorneys, and asked the jurors if they knew or recognized any of them.

None of the jurors indicated that they did. During those introductions, the court did not identify

the law firms where the attorneys worked.
       {¶17} Later, the court asked whether any of the jurors had been involved in a medical

malpractice case, to which juror No. 2 indicated she had. Juror No. 2, who was an adult nurse

practitioner at the Cleveland V.A. Medical Center, explained, “I have been deposed numerous

times in cases as part of hospital staff.     I was not named in them.     I was named along with the

physician in private practice. It was a malpractice suit for a patient in a nursing home. The

family brought suit.   We were dismissed from the case.” Despite this, juror No. 2 informed the

trial court that she could be fair and impartial to both sides. Although not precluded from doing

so, neither Elsner’s nor Birchall’s counsel further questioned juror No. 2 as to those lawsuits.

       {¶18} During trial, Birchall’s counsel, who was from the Reminger law firm, called Dr.

Keith Armitage to the stand and asked the doctor if he had reviewed cases for Reminger in the

past. The doctor responded that he had and explained that “Reminger is a big firm with lots of

offices over Ohio” and that during his 22 years of practicing medicine, he was “sure” that he

reviewed some of Reminger’s cases.          Elsner did not object or move for a mistrial at that time.

       {¶19} After review, we find that both of Elsner’s cases are distinguishable from the

instant case. Unlike Burton, there is no proof in the record that juror No. 2 answered any of the

voir dire questions asked by the trial court or by counsel dishonestly.               Burton, 8th Dist.

Cuyahoga No. 98876, 2013-Ohio-2330. Unlike Mack, the information that was potentially

prejudicial to Elsner’s case could have properly been examined during voir dire.              Mack, 8th

Dist. Cuyahoga No. 93091, 2010-Ohio-1420.

       {¶20} Further, “the overriding purpose of voir dire is to question prospective jurors and

determine whether a potential juror meets both the statutory qualification of a juror and is ‘free

from bias or prejudice for or against either litigant.’” State v. Barker, 6th Dist. Wood No.

WD-15-035, 2016-Ohio-8006, ¶ 37, quoting Vega v. Evans, 128 Ohio St. 535, 191 N.E. 757
(1934). “‘[C]ounsel is in the best position to determine whether any potential juror should be

questioned and to what extent.’”     State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767

N.E.2d 678, ¶ 111, quoting State v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001). “Voir

dire is largely a matter of strategy and tactics.” State v. Lindsey, 87 Ohio St.3d 479, 489, 721

N.E.2d 995 (2001).

        {¶21} Here, as noted by the trial court, Elsner’s “counsel had ample opportunity to

question Juror No. 2 as well as other jurors [and] was able to explore anything he felt might be

relevant or detrimental to his case. Counsel failed to question Juror No. 2 as to her prior

counsel during the lawsuit which she referenced.” Elsner’s counsel did not ask juror No. 2 the

name of the law firm or of the individual attorneys that represented her and did not challenge

juror No. 2 after voir dire.

        {¶22} Elsner also has not shown that the court would have granted the for-cause

challenge and, therefore, has not shown prejudice.          Counsel’s prior representation of a

prospective juror does not always constitute grounds for a for-cause challenge. See Mullet v.

Wheeling & Lake Erie Ry. Co., 8th Dist. Cuyahoga No. 81688, 2003-Ohio-3347, ¶ 41 (“We

cannot find that the court abused its discretion in denying the motion for a new trial solely

because an attorney failed to recall that five years earlier he had litigated a case in which the

railway’s law firm acted as counsel for one of at least two codefendants.”); State v. Schwable,

6th Dist. Ottawa No. 90-OT-042, 1992 Ohio App. LEXIS 2306, 13 (May 1, 1992) (“[I]t is clear

that the prosecution’s representation of Diefenthaler had concluded and that at the time of this

trial she did not consider the prosecutor to be her attorney. [As a result,] we cannot find that the

trial court abused its discretion by failing to discharge juror Diefenthaler for cause.”); State v.

Hollis, 3d Dist. Wyandot No. 16-86-16, 1989 Ohio App. LEXIS 1568, 4-5 (Apr. 18, 1989)
(affirming the trial court’s finding that “the fact that the prosecuting attorney had represented the

two prospective jurors in previous legal matters was not of a character which would justify

sustaining a challenge on suspicion of prejudice against, or partiality for, the defendant.”); Bietzel

v. Mizer, 5th Dist. Tuscarawas No. 1378, 1980 Ohio App. LEXIS 11207, 2 (Dec. 3, 1980)

(“[T]he fact that a lawyer in the case represents a venireman in an unrelated matter is not, per se,

grounds for cause.”).

       {¶23} Here, Birchall’s counsel, while from the same law firm as the one that previously

represented juror No. 2 in a medical malpractice case, were not the attorneys who represented

juror No. 2. Further, during voir dire, juror No. 2 stated that she was eventually dismissed from

a malpractice suit brought against her and, besides that, only took part in depositions in cases

against the hospital’s staff. Based on those limited dealings and without further evidence of

bias or prejudice, we find that Elsner has failed to show how juror No. 2’s service on the jury

prejudiced him.

       {¶24} In sum, after review of the record, we find that the trial court did not abuse its

discretion when it concluded that no misconduct or prejudice occurred as to juror No. 2’s

previous representation by the Reminger law firm.

       B. Word Puzzles and Bullying

       {¶25} Also as part of his assignment of error, Elsner argues that the trial court erred in

denying his motion for a new trial based on juror misconduct because juror No. 2 worked on

word puzzles “hidden in her juror notebook during the presentation of trial testimony” and

bullied the other jurors.
         {¶26} When allegations of juror misconduct arise after the verdict, courts look to Evid.R.

606(B), which governs the type of evidence that may be considered when analyzing a verdict’s

validity.   The rule states in pertinent part:

         Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
         as to any matter or statement occurring during the course of the jury’s
         deliberations or to the effect of anything upon his or any other juror’s mind or
         emotions as influencing him to assent to or dissent from the verdict or indictment
         concerning his mental processes therewith. * * * His affidavit or evidence of any
         statement by him concerning a matter about which he would be precluded from
         testifying will not be received for these purposes.

“This evidentiary rule embodies [an] aliunde rule which requires the introduction of evidence

from a competent source other than a juror to impeach a jury verdict.”       Cleveland Hts. v. Reed,

8th Dist. Cuyahoga No. 67714, 1995 Ohio App. LEXIS 4521, 10 (Oct. 12, 1995), citing State v.

Lewis, 70 Ohio App.3d 624, 591 N.E.2d 854 (4th Dist.1990). The aliunde rule states that

“affidavits of jurors will not be received to impeach their own verdict unless foundation for their

introduction is first laid by competent evidence aliunde, i.e., by evidence from some other

source.” Lund v. Kline, 133 Ohio St. 317, 319, 13 N.E.2d 575 (1938).

         {¶27} In Reed, this court affirmed the trial court’s denial of the defendant’s motion for a

new trial. We noted that “[t]he record * * * only contains the affidavit of one juror, made after

the jury had been discharged, that she had changed her mind.” Id. at 12. Besides one jury

member’s testimony that she was pressured into finding the defendant guilty, “[n]o independent

proof of the alleged misconduct was made available to the trial court[.]” Id. As a result, we

found that the trial court did not abuse its discretion in denying the defendant’s motion for a new

trial.   Id. at 13.

         {¶28} We reach a similar conclusion in this case.      Here, Elsner supports his argument

with affidavits from two jurors.     The first is from a member of the jury who alleged that juror
No. 2 pressured other jury members to find that Birchall was not liable, ignored the court’s

instructions concerning pertinent legal definitions, explained that she was previously represented

by the Reminger law firm and complimented their legal services, discussed information

concerning medical procedures that was not presented at trial, and played word puzzles during

trial. The second affidavit is from Shaun Crum, who “was responsible for displaying all of

exhibits for the Plaintiff[.]” According to his affidavit, Crum observed juror No. 2 taking

extensive notes and told Elsner’s attorney that “she might become the foreperson.”

        {¶29} Like Reed, Elsner has not provided “independent proof of the alleged misconduct.”

 The first affidavit is from a member of the jury, which is not a competent source upon which to

impeach a verdict according to the aliunde rule.         While it is not clear, it appears that Elsner

offered the second affidavit to constitute independent proof of misconduct; however, that

affidavit states nothing more than an observation that juror No. 2 took extensive notes, which is

permitted.   Therefore, after review, we find that the trial court did not abuse its discretion in

denying Elsner’s motion for a new trial based on the attached affidavits alleging misconduct on

the part of juror No. 2.

        C. Manifest Weight of the Evidence

        {¶30} Elsner also argues that the trial court erred in denying his motion for a new trial

based on the manifest weight of the evidence.       Elsner finds error with the trial court’s failure to

address his motion for a new trial based on the manifest weight of the evidence and blames the

trial judge for failing to order and review the trial transcript.

        {¶31} A party’s failure to provide a transcript to the trial court defeats that party’s motion

for a new trial and argument that the verdict was against the manifest weight of the evidence.

See Thornton v. Conrad, 194 Ohio App.3d 34, 2011-Ohio-3590, 954 N.E.2d 666, ¶ 20 (8th Dist.)
(holding that the trial court erred in granting the plaintiff’s motion because the plaintiff “did not

supply the trial transcript to the judge, [and therefore,] there was no evidence to support his

motion[.]”). Here, Elsner failed to provide the trial court with a transcript of the proceedings to

support his manifest weight argument.

       {¶32} On appeal, Elsner also failed to provide this court with a transcript of the

proceedings.     Under App.R. 9(B) “it is the obligation of the appellant to ensure that the

proceedings the appellant considers necessary for inclusion in the record * * * are transcribed”

and to “order the transcript in writing and [] file a copy of the transcript order with the clerk of

the trial court.” Additionally, App.R. 16(A)(7) requires an appellant to include “citations to the

authorities, statutes, and part of the record” supporting the arguments in his appellate brief.

“‘When portions of the transcript necessary for resolution of assigned errors are omitted from the

record, the reviewing court has nothing to pass upon and thus, as to the assigned errors, the court

has no choice but to presume the validity of the lower court’s proceedings, and affirm.’” Carter

v. Meyer, 8th Dist. Cuyahoga No. 93457, 2010-Ohio-1868, ¶ 11, quoting Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980); see also Ali v. Vargo, 8th Dist.

Cuyahoga No. 85244, 2005-Ohio-3156, ¶ 22 (finding that the appellant failed in his duty to

provide the reviewing court with a transcript to demonstrate his assignments of error).

       {¶33} Here, Elsner failed to provide this court with a copy of the transcript of the entire

proceedings and failed to identify the parts of the transcript that the trial court did not review that

were relevant to its decision. See State v. Spurlock, 2d Dist. Montgomery No. 17954, 2000

Ohio App. LEXIS 4490, 13 (“Motions for new trial must be supported by evidence which

portrays operative facts demonstrating the grounds for relief alleged. If that evidence, in the

form of affidavits, depositions, or transcripts, fails to portray such operative facts, no further
hearing to determine their existence is required.”).    The only portions of the transcript that were

made available to this court were that of the voir dire and of the defendants’ direct examination

of Dr. Armitage.

       {¶34} As a result, we find that it was not the trial court’s duty to order the remainder of

the transcript, and we reject Elsner’s manifest weight argument based on his failure to provide

the trial court and this court with a transcript of the proceedings.

       D. The Original Trial Judge’s Ruling

       {¶35} Finally, Elsner argues that it was error for the original trial judge to rule on his

motion for a new trial because she had previously ordered that the visiting judge would rule on

post-trial motions, the original trial judge was not present for the trial, and “[t]he visiting judge

was in a much better position” to rule on his motion for a new trial.

       {¶36} Contrary to Elsner’s argument, “[i]t is well-established that a successor judge may

rule on a motion for a new trial when a different judge presided at trial [as long as] the successor

judge [has] the proper evidence before him to decide the motion.” Thornton, 194 Ohio App.3d

34, 2011-Ohio-3590, 954 N.E.2d 666, at ¶ 14, citing Potocnik v. Sifco Indus., 103 Ohio App.3d

560, 567, 660 N.E.2d 510 (8th Dist.1995). Here, the original trial judge did not preside over the

trial and did not review the trial transcript before ruling on Elsner’s motion for a new trial

because Elsner did not provide it.      Nevertheless, the original trial judge properly denied the

motion because, as stated above, the original trial judge reviewed the transcript of voir dire,

which showed that Elsner’s counsel failed to fully examine juror No. 2 and because Elsner failed

to provide the remainder of the transcript.

       {¶37} Judgment affirmed.

       It is ordered that appellees recover from appellant the costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR