Mannion v. Sandel - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Mannion v. Sandel, 91 Ohio St.3d 318, 2001-Ohio-47.]

MANNION ET AL., APPELLANTS, v. SANDEL, APPELLEE.
[Cite as Mannion v. Sandel (2001), 91 Ohio St.3d 318.]
Torts -- Medical malpractice -- Civil procedure -- New trial -- Civ.R. 59(A) --
Standard of specificity that trial court must meet as that court articulates
the reasons behind the determination that a new trial is warranted on the
ground that the verdict is against the manifest weight of the evidence.
(No. 00-903 -- Submitted February 7, 2001 -- Decided April 11, 2001.)
APPEAL from the Court of Appeals for Summit County, No. 19433.
__________________

ALICE ROBIE RESNICK, J. This case involves a trial court's decision in a
medical malpractice action to grant a motion for a new trial after the jury had
rendered a verdict in favor of one of the parties. The particular issue that arises in
the circumstances before us concerns the standard of specificity that the trial court
must meet as that court articulates the reasons behind the determination that a new
trial is warranted on the ground that the verdict is against the manifest weight of
the evidence.
I
Facts and Procedural History

This case is a medical malpractice action for damages brought by plaintiff-
appellant Michelle L. Mannion and includes a loss-of-consortium claim of her
husband, plaintiff-appellant Thomas Mannion. The defendant is appellee, Allan J.
Sandel, M.D. Appellants' complaint against Sandel was filed on October 9, 1996,
in the Summit County Court of Common Pleas. The case proceeded to jury trial
on November 10, 1997.

The testimony presented at trial established that Mrs. Mannion was
diagnosed with breast fibroadenomas and benign tumors in 1988. On January 17,

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1989, appellee performed a bilateral mastectomy and subcutaneously placed
polyurethane-foam-covered breast implants. Subsequently, appellant experienced
infection, pain, and drainage to the left breast, and the left nipple sloughed off,
exposing the implant. Appellee performed a second surgery to remove
appellant's infected left breast implant. On July 18, 1989, appellee again
performed surgery to subcutaneously reinsert a new polyurethane-foam-covered
left breast implant. Within a few months, appellant's left breast implant
developed an open lesion, resulting in drainage, infection, and pain, and
warranting emergency room visits. On September 20, 1990, appellant was
admitted to the hospital and administered intravenous antibiotics, which were
ineffective. Appellee again performed surgery to remove the implant.

From 1990 to 1993, the wound on appellant's left breast failed to heal,
resulting in pieces of polyurethane foam coming to the surface and emerging
through the lesion. Appellee contended that there was no reason to remove the
remaining polyurethane foam from the left breast implant, since it was working its
way out on its own.

Appellant continued to experience difficulties with the breast implant, and
in August 1993, she went to see Zaheer Shah, M.D. Shah told her that both the
right implant and the residual polyurethane foam on the left side needed to be
removed immediately. The right breast implant and residual polyurethane foam
from the left breast area were removed by Shah, leaving appellant with no
implants and virtually no breast tissue.

Appellants' expert witness, Dr. Philip Lipkin, testified that the standard of
care required submuscular rather than subcutaneous implants for appellant. He
further testified that this submuscular procedure had been in place since the early
1980's because of concern about compromised blood supply to the skin. Lipkin
opined that appellee's decision to use subcutaneous placement rather than
submuscular was not up to the standard of care in 1989. Moreover, Lipkin
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January Term, 2001
testified as to the standard of care involved in removing a polyurethane-coated
implant. He further testified that due to appellee's use of subcutaneous placement
(as opposed to submuscular implantation), appellant suffered skin loss, infection,
and implant exposure, which ultimately required total removal of the implants.

Appellee's expert, Dr. Brian Windell, similarly testified that the standard
of care that existed in 1989 would have required appellee to attempt to remove all
of the polyurethane foam fragments during the removal of the infected implant.

After the jury returned a verdict in favor of appellee, appellants filed a
motion for judgment notwithstanding the verdict, or, in the alternative, for a new
trial. The trial court overruled the motion for judgment notwithstanding the
verdict and granted the motion for a new trial under Civ.R. 59(A)(6), finding that
the judgment was not sustained by the weight of the evidence. Appellee appealed
the granting of the motion for a new trial to the Ninth District Court of Appeals,
which, in a two-to-one decision, reversed the order of the trial court.

This cause is now before this court pursuant to the allowance of a
discretionary appeal.
II
Specificity Pursuant to Civ.R. 59(A)

Civ.R. 59(A) provides:

"A new trial may be granted to all or any of the parties and on all or part
of the issues upon any of the following grounds:

" * * *

"(6) The judgment is not sustained by the weight of the evidence * * *."

Civ.R. 59(A) goes on to provide that "[w]hen a new trial is granted, the
court shall specify in writing the grounds upon which such new trial is granted."

The order granting the new trial at issue in this case provided:

"The Court has reviewed the testimony of the experts who appeared at the
trial of this matter. The Plaintiff[s'] and Defendant's experts testified that certain
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of the Defendant's conduct violated the standard of care. Both doctors testified
that by failing to remove the polyurethane foam coating of Plaintiff's left breast
implant upon removal of the implant, the Defendant violated the standard of care
as it existed at the time.

"Therefore, there is evidence that, on at least one of Plaintiff[s'] claims
regarding the negligent removal of Plaintiff's left implant, the jury should have
found that the Defendant did not meet the standard of care. In order to correct a
manifest injustice, the Plaintiff[s'] Motion for a New Trial is granted."

The issue before this court is whether the order of the trial court in
granting the motion for a new trial complied with Civ.R. 59(A) as the rule was
interpreted by this court in Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio
St.3d 144, 9 OBR 392, 459 N.E.2d 223.

In assessing the propriety of the trial court's compliance, we are guided by
Rohde v. Farmer (1970), 23 Ohio St.2d 82, 52 O.O.2d 376, 262 N.E.2d 685,
paragraph one of the syllabus:

"Where a trial court is authorized to grant a new trial for a reason which
requires the exercise of a sound discretion, the order granting a new trial may be
reversed only upon a showing of abuse of discretion by the trial court."
In
Antal, 9 Ohio St.3d at 147, 9 OBR at 395, 459 N.E.2d at 226-227, the
court stated:

"The question remains as to how specific must a trial court be when
granting a new trial on the ground that the verdict is against the manifest weight
of the evidence. The record of the case at bar reveals that the trial court
articulated no reasons whatsoever, other than stating generally that the jury's
verdict was not `sustained by the weight of the evidence.' While the
determination of whether a trial court's statement of reasons is sufficient should
be left to a case-by-case analysis, we can say with a reasonable degree of certainty
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January Term, 2001
that such reasons will be deemed insufficient if simply couched in the form of
conclusions or statements of ultimate fact. [Citation omitted.]

"Consequently, we hold that, when granting a motion for a new trial based
on the contention that the verdict is not sustained by the weight of the evidence,
the trial court must articulate the reasons for so doing in order to allow a
reviewing court to determine whether the trial court abused its discretion in
ordering a new trial." See id. at syllabus.

In its entry the trial court stated that both experts "testified that by failing
to remove the polyurethane foam coating of Plaintiff's left breast implant upon
removal of the implant, the Defendant violated the standard of care as it existed at
the time." The foregoing language of the trial court cannot be construed as being
"simply couched in the form of conclusions or statements of ultimate fact," as was
found inadequate in Antal. There can be no hard-and-fast rule set forth by this
court as to sufficiency of the grounds specified by a trial court in support of the
determination that a new trial is warranted. We adhere to the necessity of case-
by-case determinations as set forth in Antal.

The majority of the court of appeals stated in the opinion below that it was
appropriate to apply a more stringent standard when dealing with the setting aside
of a jury verdict as against the weight of the evidence than for other new trial
orders under Civ.R. 59(A). However, courts of appeals are required to follow the
law as it is interpreted by this court. We decline to extend the rule of Antal to
require a more stringent standard of specificity in setting forth reasons for
granting a new trial in a situation such as the case sub judice.

The trial court decision to grant a new trial in this case is subject to the
same abuse-of-discretion standard discussed in Antal. "[A] reviewing court
should view the evidence favorably to the trial court's action rather than to the
jury's verdict. The predicate for that rule springs, in part, from the principle that
the discretion of the trial judge in granting a new trial may be supported by his
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having determined from the surrounding circumstances and atmosphere of the
trial that the jury's verdict resulted in manifest injustice." Jenkins v. Krieger
(1981), 67 Ohio St.2d 314, 320, 21 O.O.3d 198, 202, 423 N.E.2d 856, 860.

It is not the place of this court to weigh the evidence in these cases. In
reviewing the order of the trial court, we first find that sufficiently detailed
reasoning was specified in writing to allow an appellate court to conduct a
meaningful review to determine whether the trial court abused its discretion in
ordering a new trial.

Furthermore, after a thorough review of the record, we find that there has
been no showing that the trial court's order was unreasonable, arbitrary, or
unconscionable. See Rohde, 23 Ohio St.2d at 87, 52 O.O.2d at 378-379, 262
N.E.2d at 689; Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31
N.E.2d 855, paragraph two of the syllabus. Therefore, we find no abuse of
discretion.
III
Conclusion

The trial court's order articulated reasons for granting a new trial
sufficient for appellate review in accordance with the requirements of Civ.R.
59(A) and of Antal. In addition, the trial court's order did not constitute an abuse
of discretion. We reverse the judgment of the court of appeals and remand this
cause to the trial court for a new trial on all counts.
Judgment reversed
and cause remanded.

MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
__________________

Chattman, Gaines & Stern, John V. Scharon, Jr., Dale A. Nowak and
Michael B. Michelson, for appellants.
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January Term, 2001

Gallagher, Sharp, Fulton & Norman, Lynn L. Moore and Marie L.
Perella; Edminster & Associates and Michael E. Edminster, for appellee.
__________________
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