Kittis v. Cleveland Clinic Found.
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Opinion
[Cite as Kittis v. Cleveland Clinic Found., 2026-Ohio-828.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
GERALDINE KITTIS, :
Plaintiff-Appellant, : No. 114990 v. :
THE CLEVELAND CLINIC FOUNDATION, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 12, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-920144
Appearances:
Elk & Elk Co., Ltd., James M. Kelley, III, Marilena Disilvio, and Antonia Mysyk, for appellant.
Roetzel & Andress, LPA, Stephen W. Funk, Emily K. Anglewicz, and Joseph E. Herbert, for appellee.
SEAN C. GALLAGHER, P.J.:
Geraldine Kittis (“Kittis”), individually and as the administrator for
the estate of Mr. Dennis Kittis (“Mr. Kittis”), appeals the jury verdict in favor of the Cleveland Clinic Foundation (“the Clinic”) following a trial on wrongful-death and
medical-malpractice claims. For the following reasons, we affirm.
There is an overarching issue framing this appeal: whether the cause
of a specific condition, bowel ischemia, was part of the proximate cause element of
the claims presented at trial. In an earlier appeal, as will be further discussed, the
panel concluded that summary judgment was improperly granted to the Clinic
because Kittis presented genuine issues of material fact that had the Clinic
completed a second surgery earlier, Mr. Kittis’s death would have been avoided.
Kittis v. Cleveland Clinic Found., 2024-Ohio-659, ¶ 40 (8th Dist.) (“Kittis I”). The
inability of the plaintiff’s expert to opine to a reasonable degree of medical certainty
about the cause of a condition in the bowel, called ischemia, was deemed irrelevant.
Id. at ¶ 43. According to Kittis I, which is the law of this case, in granting summary
judgment the Clinic (and the trial court) incorrectly “focused on the cause of
[Mr. Kittis’s] ischemic bowel and thereby neglected to address the actual issue of
proximate causation.” Id. As expressly concluded, “The focus should have been on
. . . the Clinic’s failure to recognize the meaning of [the] acidosis and renal
dysfunction and initiate a second surgery[,]” which was “the proximate cause of
[Mr. Kittis’s] injuries and death.” Id.
The cause of the bowel ischemia was deemed irrelevant to the
question remaining for trial, which was whether the applicable standard of care was
breached by the Clinic’s failure to initiate a surgery earlier in the day than when the
surgery was performed. According to the trial record, Mr. Kittis was hospitalized for a bowel
obstruction and had a preexisting heart condition. He underwent surgery to remove
the obstruction, during which one of the surgeons unintentionally punctured
Mr. Kittis’s intestines, a complication that was not part of Kittis’s allegations against
the Clinic. The wound was addressed during the surgery, which was deemed
successful. One day later, Mr. Kittis began experiencing low blood pressure and high
lactate levels initially thought to be caused by dehydration, which was treated with
IV fluids. Lactate is produced when tissue in the body is not getting sufficient
oxygen. There were also issues with his urine output. When his symptoms did not
improve, a computerized tomography scan (“CT scan”) was ordered. The CT scan
was cancelled by Dr. Julia Muntean, who was under the authority of Dr. Toms
Augustin, Mr. Kittis’s treating physician. Dr. Augustin testified that in his opinion,
the CT scans were not proper because “it’s actually a bad idea to give someone who
is anuric, not making urine, to get a CT scan with IV contrast.” The following day,
Mr. Kittis exhibited an even lower blood pressure that was treated with intubation
and two vasopressors.
In light of the worsening conditions, Mr. Kittis underwent a
laparotomy performed by Dr. Augustin. The laparotomy was an exploratory surgery
used to potentially identify the root cause of Mr. Kittis’s declining condition,
believed to have been caused by complications with the earlier bowel surgery.
Although Dr. Augustin observed what he described as a “moderately dusky bowel,”
which according to him, indicates a mild form of ischemia caused by the lack of blood flow to the bowel, he found no evidence of a surgically repairable condition
causing that ischemia. He maintained that Mr. Kittis was experiencing global
hypoperfusion, which causes decreased blood flow to all organs and would also
cause mild ischemia in the bowel. Ischemia is a condition caused by the lack of or
decrease in blood flow to an organ. Mr. Kittis tragically succumbed to his
deteriorating condition at the age of 74.
Kittis’s theory of negligence centered upon her allegation that the
Clinic should have ordered a CT scan or performed an exploratory surgery
immediately after Mr. Kittis began to show signs of low blood pressure to rule out a
surgically correctable bowel ischemia, instead of cancelling the CT scans and waiting
to perform the exploratory surgery until later in the day. As previously mentioned,
this theory was the focus of the earlier appeal with regard to the expert testimony
Kittis anticipated presenting at trial. Kittis I.
The first appeal involved the granting of summary judgment in favor
of the Clinic based on Kittis’s expert’s then failure to opine to a reasonable degree of
medical certainty as to the cause of bowel ischemia, which again, is caused by
inadequate blood flow to the bowel. Kittis believed that the cause of the bowel
ischemia was surgically correctable and the failure to detect that led to Mr. Kittis’s
worsening condition and death. The trial court granted a motion in limine to
preclude Dr. David Brooks, Kittis’s expert, from testifying at trial because he
failed to state with a reasonable degree of medical probability that (1) one of the etiologies [causes] — torsion, a blood clot, or venous obstruction — were findable, identifiable, and repairable causes of [Mr. Kittis’s] bowel ischemia or (2) one of the three named etiologies was the most probable cause of [Mr. Kittis’s] bowel ischemia and that with surgical intervention earlier than midnight on January 6, 2018 the cause would have been findable, identifiable, and surgically repairable.
Id. at ¶ 10. Summary judgment was then granted in favor of the Clinic because
ultimately, “Kittis’s expert witness, Dr. Brooks, failed to provide expert testimony to
a reasonable degree of medical probability that the alleged breach in the standard of
care by the Clinic proximately caused death or injury to [Mr. Kittis].” Id. at ¶ 12.
The Kittis I panel disagreed and concluded “that Dr. Brooks’s expert
testimony was sufficient to establish that the Clinic’s failure to recognize in a timely
fashion the progressive acidosis and renal dysfunction was the proximate cause of
[Mr. Kittis’s] injuries and death,” and that further, “Dr. Brooks’s report stated the
inability to identify the cause of [Mr. Kittis’s] bowel ischemia did not impact his
conclusions.” Id. at ¶ 27. Based on Kittis’s arguments, the Kittis I panel recognized
and concluded that
Dr. Brooks testified that the three potential etiologies [causes] he would attribute to causing [Mr. Kittis’s] bowel ischemia were torsion, a blood clot, or venous obstruction. Dr. Brooks could not testify within a reasonable degree of medical probability which etiology caused [Mr.
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[Cite as Kittis v. Cleveland Clinic Found., 2026-Ohio-828.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
GERALDINE KITTIS, :
Plaintiff-Appellant, : No. 114990 v. :
THE CLEVELAND CLINIC FOUNDATION, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 12, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-920144
Appearances:
Elk & Elk Co., Ltd., James M. Kelley, III, Marilena Disilvio, and Antonia Mysyk, for appellant.
Roetzel & Andress, LPA, Stephen W. Funk, Emily K. Anglewicz, and Joseph E. Herbert, for appellee.
SEAN C. GALLAGHER, P.J.:
Geraldine Kittis (“Kittis”), individually and as the administrator for
the estate of Mr. Dennis Kittis (“Mr. Kittis”), appeals the jury verdict in favor of the Cleveland Clinic Foundation (“the Clinic”) following a trial on wrongful-death and
medical-malpractice claims. For the following reasons, we affirm.
There is an overarching issue framing this appeal: whether the cause
of a specific condition, bowel ischemia, was part of the proximate cause element of
the claims presented at trial. In an earlier appeal, as will be further discussed, the
panel concluded that summary judgment was improperly granted to the Clinic
because Kittis presented genuine issues of material fact that had the Clinic
completed a second surgery earlier, Mr. Kittis’s death would have been avoided.
Kittis v. Cleveland Clinic Found., 2024-Ohio-659, ¶ 40 (8th Dist.) (“Kittis I”). The
inability of the plaintiff’s expert to opine to a reasonable degree of medical certainty
about the cause of a condition in the bowel, called ischemia, was deemed irrelevant.
Id. at ¶ 43. According to Kittis I, which is the law of this case, in granting summary
judgment the Clinic (and the trial court) incorrectly “focused on the cause of
[Mr. Kittis’s] ischemic bowel and thereby neglected to address the actual issue of
proximate causation.” Id. As expressly concluded, “The focus should have been on
. . . the Clinic’s failure to recognize the meaning of [the] acidosis and renal
dysfunction and initiate a second surgery[,]” which was “the proximate cause of
[Mr. Kittis’s] injuries and death.” Id.
The cause of the bowel ischemia was deemed irrelevant to the
question remaining for trial, which was whether the applicable standard of care was
breached by the Clinic’s failure to initiate a surgery earlier in the day than when the
surgery was performed. According to the trial record, Mr. Kittis was hospitalized for a bowel
obstruction and had a preexisting heart condition. He underwent surgery to remove
the obstruction, during which one of the surgeons unintentionally punctured
Mr. Kittis’s intestines, a complication that was not part of Kittis’s allegations against
the Clinic. The wound was addressed during the surgery, which was deemed
successful. One day later, Mr. Kittis began experiencing low blood pressure and high
lactate levels initially thought to be caused by dehydration, which was treated with
IV fluids. Lactate is produced when tissue in the body is not getting sufficient
oxygen. There were also issues with his urine output. When his symptoms did not
improve, a computerized tomography scan (“CT scan”) was ordered. The CT scan
was cancelled by Dr. Julia Muntean, who was under the authority of Dr. Toms
Augustin, Mr. Kittis’s treating physician. Dr. Augustin testified that in his opinion,
the CT scans were not proper because “it’s actually a bad idea to give someone who
is anuric, not making urine, to get a CT scan with IV contrast.” The following day,
Mr. Kittis exhibited an even lower blood pressure that was treated with intubation
and two vasopressors.
In light of the worsening conditions, Mr. Kittis underwent a
laparotomy performed by Dr. Augustin. The laparotomy was an exploratory surgery
used to potentially identify the root cause of Mr. Kittis’s declining condition,
believed to have been caused by complications with the earlier bowel surgery.
Although Dr. Augustin observed what he described as a “moderately dusky bowel,”
which according to him, indicates a mild form of ischemia caused by the lack of blood flow to the bowel, he found no evidence of a surgically repairable condition
causing that ischemia. He maintained that Mr. Kittis was experiencing global
hypoperfusion, which causes decreased blood flow to all organs and would also
cause mild ischemia in the bowel. Ischemia is a condition caused by the lack of or
decrease in blood flow to an organ. Mr. Kittis tragically succumbed to his
deteriorating condition at the age of 74.
Kittis’s theory of negligence centered upon her allegation that the
Clinic should have ordered a CT scan or performed an exploratory surgery
immediately after Mr. Kittis began to show signs of low blood pressure to rule out a
surgically correctable bowel ischemia, instead of cancelling the CT scans and waiting
to perform the exploratory surgery until later in the day. As previously mentioned,
this theory was the focus of the earlier appeal with regard to the expert testimony
Kittis anticipated presenting at trial. Kittis I.
The first appeal involved the granting of summary judgment in favor
of the Clinic based on Kittis’s expert’s then failure to opine to a reasonable degree of
medical certainty as to the cause of bowel ischemia, which again, is caused by
inadequate blood flow to the bowel. Kittis believed that the cause of the bowel
ischemia was surgically correctable and the failure to detect that led to Mr. Kittis’s
worsening condition and death. The trial court granted a motion in limine to
preclude Dr. David Brooks, Kittis’s expert, from testifying at trial because he
failed to state with a reasonable degree of medical probability that (1) one of the etiologies [causes] — torsion, a blood clot, or venous obstruction — were findable, identifiable, and repairable causes of [Mr. Kittis’s] bowel ischemia or (2) one of the three named etiologies was the most probable cause of [Mr. Kittis’s] bowel ischemia and that with surgical intervention earlier than midnight on January 6, 2018 the cause would have been findable, identifiable, and surgically repairable.
Id. at ¶ 10. Summary judgment was then granted in favor of the Clinic because
ultimately, “Kittis’s expert witness, Dr. Brooks, failed to provide expert testimony to
a reasonable degree of medical probability that the alleged breach in the standard of
care by the Clinic proximately caused death or injury to [Mr. Kittis].” Id. at ¶ 12.
The Kittis I panel disagreed and concluded “that Dr. Brooks’s expert
testimony was sufficient to establish that the Clinic’s failure to recognize in a timely
fashion the progressive acidosis and renal dysfunction was the proximate cause of
[Mr. Kittis’s] injuries and death,” and that further, “Dr. Brooks’s report stated the
inability to identify the cause of [Mr. Kittis’s] bowel ischemia did not impact his
conclusions.” Id. at ¶ 27. Based on Kittis’s arguments, the Kittis I panel recognized
and concluded that
Dr. Brooks testified that the three potential etiologies [causes] he would attribute to causing [Mr. Kittis’s] bowel ischemia were torsion, a blood clot, or venous obstruction. Dr. Brooks could not testify within a reasonable degree of medical probability which etiology caused [Mr. Kittis’s] ischemic bowel, nor could he testify with the necessary probability that if the Clinic looked for these problems during a second surgery that such a problem would have been found. However, it was not necessary for Dr. Brooks to proffer this additional medical testimony once he opined, to a reasonable degree of medical probability, that (1) the Clinic’s failure to recognize in a timely fashion [Mr. Kittis’s] progressive acidosis and renal dysfunction was the proximate cause for his eventual demise, and (2) [Mr. Kittis] had a surgically correctable problem had he undergone a second surgery on January 6, 2018.
(Emphasis added.) Id. at ¶ 29. From that, the panel concluded that the Clinic’s and the trial court’s focus
on the cause of the bowel ischemia was in error because the cause of the bowel
ischemia was not relevant to the question posed on proximate cause, which was the
Clinic’s failure to initiate the surgery earlier in the day. Id. at ¶ 43. Thus, Kittis
advanced a claim that the cause of the bowel ischemia was not relevant to her theory
of the case, that a surgically correctable problem existed and the Clinic failed to
timely diagnose it. According to Kittis, Dr. Brooks’s inability to opine as to the cause
of the bowel ischemia was not relevant, making the general cause of the bowel
ischemia not relevant. Id. The panel accepted that argument and reversed the
granting of summary judgment.
At trial, Kittis maintained that same theory — that the Clinic failed to
timely diagnosis a surgically repairable cause of the ischemia in the bowel, but with
a renewed focus on the cause of the bowel ischemia, which Dr. Brooks initially
believed to be caused by torsion (twisting of the intestine), a blood clot, or other
venous obstruction, and that the delay in seeking a surgical correction led to the
worsening condition leading to Mr. Kittis’s death. Tr. 1006:24-1007:10; but see
Kittis I at ¶ 43 (concluding that the trial court erred by focusing on the cause of the
bowel ischemia). Unlike the opinions offered preceding summary judgment,
Dr. Brooks stated that his trial opinions, as to the cause of the bowel ischemia, were
to a reasonable degree of medical certainty. Despite rendering this opinion,
Dr. Brooks contradicted his testimony, later ruling out two of the three causes
during his direct examination. Kittis, through counsel, called Dr. Augustin to testify on cross-
examination in her case in chief and questioned him about the ischemia noted in the
medical records: “And they didn’t write any qualification to this ischemia. They
wanted to rule out a problem in the gastrointestinal area, and they were questioning
a bowel perforation or hole in the bowel/or ischemia, correct?” Tr. 660:8-11.
Dr. Augustin answered:
I will read through that from my own lens as a surgical expert. I’ve been operating for 14 years at this point. What we found in the operating room, generalized small bowel ischemia, would not have shown up on a CAT scan, right? That’s just -- so because you’re trying to connect this to the operative report. What was found in the OR will be found in every patient who is hypotensive and on pressors. You will, if you operate on patients who are hypotensive and on pressors, they will always have small bowel ischemia. They are talking about a GI source, so ischemia in that sense is either related to a vascular issue, so you have, for example, a blood clot in the artery, a blood clot in the vein. Those issues will cause a significant abdominal examination. Those patients are not at all comfortable. So I think that this probable GI source ischemia within that context is what they’re referring to. Not what I found in the operating room a day later.
Tr. 660:12-661:4.
Despite the nonresponsive nature of the answer, Kittis’s counsel
expressly asked him on follow-up, after a few other questions: “Okay. Now, you just
brought up something new, so I have to ask you about it. You just brought up that
you think vasopressors had something to do with this picture here, right?”
Tr. 661:17-21. Dr. Augustin unequivocally answered in part: “Vasopressors were
used to treat shock[,]” a general condition brought on by decreased blood flow to
the organs (hypoperfusion). (Emphasis added.) Id. That statement is supported by the medical records Kittis obtained during discovery. Mr. Kittis was on vasopressors
to treat hypoperfusion. Further, Dr. Augustin’s nonresponsive answer aligned with
his findings following the exploratory surgery, that the bowel was mildly ischemic,
a condition not unexpected based on the hypoperfusion.
Kittis used that line of questioning as a form of impeachment,
suggesting that Dr. Augustin was varying his testimony in his defense at trial; for
example, Kittis’s counsel asked Dr. Augustin after discussing the vasopressors, “So
you needed the experts to help you come in today to change your testimony from
your deposition to be able to defend yourself here?” Tr. 750:3-5. Immediately after
asking about the vasopressors, Kittis’s counsel was prepared to, and did present,
Dr. Augustin’s various deposition statements as demonstrative evidence, going
through the previous statements, line by line, to demonstrate his failure to mention
vasopressors. Tr. 663.
Following that exchange, Kittis’s counsel also asked Dr. Augustin,
“[D]id you call in any experts when you took care of Mr. Kittis to help you?” Tr.
749:11-12. In response, Dr. Augustin broached the topic of the mortality and
morbidity conference, a peer-review procedure generally shielded by privilege.
Upon request from Kittis’s counsel, the trial court provided a curative instruction to
disregard Dr. Augustin’s unprompted reference.
During Dr. Muntean’s cross-examination in the plaintiff’s case,
Kittis’s counsel attempted to impeach her by asking about her opinion on what
caused Mr. Kittis’s worsening condition. Tr. 818:1-2. During that exchange, Dr. Muntean was told that “I do not care if you change your deposition testimony,
okay” because “I want to know when you do it so I can tell [the jury] that one day
under oath you told me one thing, and another day under oath you’re going to tell
them something different.” Tr. 815:1-7. At her deposition, as one of the treating
physicians, Dr. Muntean did not offer an opinion on the cause of Mr. Kittis’s decline
and ultimate death. Over the Clinic’s objection to the line of questioning, Kittis’s
counsel was permitted to ask whether Dr. Muntean formed an opinion about
causation that she did not provide during her discovery deposition. Id.
Following those exchanges, during Dr. Brooks’s testimony, Kittis’s
counsel cited Dr. Augustin’s vasopressor testimony as a basis to expand the scope of
Dr. Brooks’s trial testimony to discuss hypoperfusion and the results of an
echocardiogram taken post-surgery, neither of which were contained in his reports
produced in discovery in violation of Civ.R. 26(E), and both of which addressed the
Clinic’s experts’ previously disclosed opinions. His testimony was also the first time
that an issue with Dr. Augustin’s cross-examination testimony was articulated. The
purpose of Dr. Brooks’s disputed testimony was to suss out the cause of the bowel
ischemia, an issue deemed not relevant and an improper focus as to the causation
issue in Kittis I at ¶ 43. The Clinic’s objection to Dr. Brooks’s testimony was the
subject of extended sidebar discussions.
Dr. Brooks was permitted to testify about the echocardiogram to
rebut Dr. Augustin’s theory about global hypoperfusion, or the heart’s inability to
adequately send blood to the body’s organs, despite not being a cardiologist or otherwise qualified to opine on the subject matter. According to Kittis’s counsel, the
testimony regarding the hypoperfusion and related to the echocardiogram was “not
an opinion as to the standard of care, [it is] not an opinion as to cause”; instead, it
was “an explanation of the medical condition” that was already introduced through
records at trial. Tr. 1018-1120. According to that argument, because those were
“medical fact[s]” and not an opinion on causation or the standard of care, Dr. Brooks
was not required to disclose that opinion in his pretrial report, and therefore, the
testimony was admissible on the limited basis that Dr. Brooks did not render an
ultimate opinion. Kittis’s argument was similar to the one the Clinic made regarding
Kittis’s exploration of the vasopressors through Dr. Augustin’s cross-examination.
Tr. 1032:25-1033:2.
Ultimately, the trial court permitted Dr. Brooks to testify about his
reading of the echocardiogram as a medical fact but not offer his opinion
interpreting the results — which aligned with the argument Kittis’s counsel
presented to the trial court in overruling the Clinic’s objection. Thus, the limitations
on Dr. Brooks’s testimony were self-imposed. Despite the ruling, and Kittis’s
counsel’s earlier declaration, Dr. Brooks was asked to interpret the meaning of
echocardiogram as applied to Mr. Kittis: “And what does that [the echocardiogram
results] tell us about whether or not the heart is perfusing adequately or supplying
the body with adequate perfused blood to the organs? A. That means that it
[Mr. Kittis’s heart] was adequately perfusing various parts of the body.” Tr. 1038:5- 9. The Clinic did not object despite the testimony exceeding the scope of the trial
court’s ruling.
Dr. Brooks also extensively discussed vasopressors and their impact
on the body in further detail, which ensued without interruption. Importantly,
Dr. Brooks told the jury that the vasopressors administered would not reduce the
blood flow to the bowels, countering Dr. Augustin’s earlier testimony to the contrary.
Tr. 1040-1041 (explaining to the jury that one of the vasopressors would not impact
the bowel to any degree, and the other was only administered minutes before the
exploratory surgery). Again, that testimony focused on the cause of the bowel
ischemia. But see Kittis I at ¶ 43.
The Clinic’s expert, Dr. William Schirmer, maintained in both his
expert report and trial deposition testimony that Mr. Kittis’s preexisting heart
condition caused global hypoperfusion, resulting in multisystem organ failure. In
other words, Dr. Schirmer agreed with the treating physicians’ conclusions that an
earlier surgery would have revealed nothing. Because Dr. Schirmer’s trial testimony
was presented through recorded deposition testimony, he could not rebut
Dr. Brooks’s new testimony on the echocardiogram results.
After extended discussions near the close of trial with respect to a
motion to declare a mistrial based on Dr. Augustin’s vasopressor testimony, the trial
court offered the opportunity to recall Dr. Brooks to permit him to testify again on
the vasopressor issue. That request was declined by Kittis’s counsel. In her closing remarks, Kittis reiterated that the Clinic breached the
standard of care because the CT scan or exploratory surgery that the Clinic failed to
timely perform would have revealed a surgically repairable condition, which when
left unresolved caused Mr. Kittis’s death. According to Kittis, the Clinic did not get
Mr. Kittis to “the operating room fast enough, and as a consequence, all of his organs
started to shut down.”
Ultimately, Kittis did not present any evidence that an earlier surgical
intervention would have prevented or resolved the declining condition, and in
particular Kittis maintained that the cause of the declining condition was the
ischemic bowel. On that misplaced focus (see Kittis I at ¶ 43), Dr. Brooks conceded
during his direct examination that there was no evidence of blood clot (concluding
that the superior mesenteric artery was open) and no evidence of venous obstruction
— two of the three theories he posited as causing the ischemic bowel, which
according to him was surgically repairable. Tr. 1013:1-14; 1014:24. According to
Dr. Brooks, “[W]e have no evidence of either of the other two processes [referencing
the clot or venous obstruction] as the cause of the problem” and therefore the most
likely cause was torsion. Id.
The only evidence Dr. Brooks cited as demonstrating the necessity of
earlier surgical intervention, however, was notations in the medical record
indicating the treating medical providers’ belief that torsion of the bowel could be
causing the localized bowel ischemia. Tr. 1013:18-25. Notwithstanding, Dr. Brooks
agreed during cross-examination that the post-exploratory surgery notations that the bowel appeared “moderately dusky” indicated that surgical intervention was not
possible. His conclusion was based on the lack of necrotic tissue (dead tissue) that
would have been present had the decreased blood flow to the bowel been caused by
a torsion. Tr. 1081:12-15. This aligned with his earlier statements that he could not
“testify with the necessary probability that if the Clinic looked for these problems
during a second surgery that such a problem would have been found.” Kittis I at
¶ 29. Although Dr. Brooks also testified that he “believed” a partial torsion could
cause ischemia in the bowel, tr. 1041, the Clinic’s expert and Dr. Augustin both
agreed that no surgically correctable condition was discovered in the exploratory
surgery conducted.1
After hearing the evidence, the jury rendered a verdict in favor of the
Clinic, expressly concluding that Kittis failed to demonstrate that the Clinic
breached the standard of care. This timely appeal followed.
In this appeal, in two assignments of error, Kittis claims that
Dr. Augustin’s and Dr. Muntean’s testimony constituted an impermissible trial by
ambush because Dr. Augustin was extensively asked on cross-examination about his
belief that mild bowel ischemia was an expected condition for patients who are
administered vasopressors to treat hypoperfusion, the inadequate blood flow to all
organs, and Dr. Muntean formed a new theory on causation not disclosed in her
1 Dr. Brooks later conceded that he had not seen any reports in any medical
literature discussing his theory of a partial torsion, and if that was occurring with Mr. Kittis, it would have been a “novel” event. Tr. 1102:10-13. discovery deposition. Further, Kittis claims the trial court erred by “limiting”
Dr. Brooks to testifying about his reading of the echocardiogram as it related to
hypoperfusion as a medical fact, and not being able to render an opinion — which
aligned with the argument Kittis’s counsel presented to the trial court in overruling
the Clinic’s objection to Dr. Brooks’s testimony.2 To support that “trial by ambush”
claim, Kittis cites O’Connor v. Cleveland Clinic Found., 2005-Ohio-2328, ¶ 17 (8th
Dist.), and Cox v. MetroHealth Med. Ctr. Bd. of Trustees, 2012-Ohio-2383 (8th
Dist.), both of which reversed a trial verdict because a defendant offered a new
causation theory at trial without first supplementing the discovery record.
Neither O’Connor nor Cox are relevant based on the invited-error
doctrine, and therefore, we need not delve into that line of authority. Although Kittis
claims that Dr. Muntean’s testimony regarding her new theory of causation was
impermissible, Kittis’s counsel asked the question of Dr. Muntean over the Clinic’s
objection. Tr. 814. Further, the trial court’s initial limitation on Dr. Brooks’s
testimony regarding hypoperfusion and the echocardiogram, as it related to the
vasopressor question, was at Kittis’s counsel’s request: the argument against the
Clinic’s objection was based on Dr. Brooks’s testimony not being considered an
2 In this appeal, Kittis also claims “the trial court’s decision to bar Dr. Brooks from
testifying about general medical facts—like background facts on lactate levels and Dennis’ echocardiogram—was arbitrary.” That statement is not supported by any citation to the record, and from our review of the trial transcript, it is clear the trial court, over the Clinic’s objection, permitted Dr. Brooks to testify about the general medical facts regarding the lactate levels and the echocardiogram, the latter of which was expressly at Kittis’s counsel’s request. Tr. 998; 1038. opinion on causation or the standard of care, and therefore, the testimony was
limited to the medical facts. It is axiomatic that a party cannot base any appellate
error on their chosen trial tactics.
Thus, the only potential error upon which a new trial could be based
in this case stems directly from the testimony by Dr. Augustin, testimony elicited
by Kittis on cross-examination in her case-in-chief. The issue in this appeal relates
to the admissibility of evidence, not a general claim for mistrial or a discovery
violation caused by a defendant’s offering a new causation theory at trial.
“‘One of the purposes of the Rules of Civil Procedure is to eliminate
surprise.’” O’Connor, 2005-Ohio-2328, at ¶ 17 (8th Dist.), quoting Jones v. Murphy,
12 Ohio St.3d 84, 86 (1984). If a discovery violation under Civ.R. 26(E) occurs
through the defendant’s conduct, the remedy is to exclude the evidence at trial. See,
e.g., Vaught v. Cleveland Clinic Found., 2003-Ohio-2181, ¶ 28 (trial court correctly
excluded expert testimony based on the Civ.R. 26(E) violation); Beard v. St. Vincent
Charity Hosp., 2017-Ohio-7608, ¶ 10 (8th Dist.). That was a ruling Kittis never
sought until attempting to use Dr. Augustin’s vasopressor testimony to expand the
scope of Dr. Brooks’s testimony.
Notwithstanding, because the question raised is one of admissibility
of certain evidence, plain error and forfeiture must be considered as it relates to
the initial testimony from Dr. Augustin relating the vasopressors to the bowel
ischemia. See Evid.R. 103(A)(1) and (D). In general, “Evid.R. 103(A)(1) requires
that a party timely object when allegedly inadmissible evidence is introduced at trial. A timely objection is, typically, one made at the time the error complained of
occurred.” Hyams v. Cleveland Clinic Found., 2012-Ohio-3945, ¶ 17 (8th Dist.). But
in addition to that, on the evidentiary question, Kittis invited any potential error
by asking numerous follow-up questions exploring the vasopressor’s impact on the
bowel after failing to seek a curative instruction after Dr. Augustin mentioned the
vasopressors in the nonresponsive answer to a question posed on cross-
examination. The invited-error doctrine establishes that a litigant may not “take
advantage of an error which he himself invited or induced.” Hal Artz Lincoln-
Mercury, Inc. v. Ford Motor Co. Lincoln-Mercury Div., 28 Ohio St.3d 20 (1986),
paragraph one of the syllabus.
The Clinic did not elicit Dr. Augustin’s vasopressor testimony, nor
did Kittis object when Dr. Augustin referenced the vasopressors. Further, that
testimony, regarding the cause of the ischemic bowel, was irrelevant to the
question left for trial according to Kittis I at ¶ 43.
Nevertheless, instead of objecting and seeking a limiting instruction,
as Kittis had requested after Dr. Augustin broached the topic of the peer-review
conference, Kittis asked Dr. Augustin to go into depth and detail on why he off-
handedly mentioned vasopressors in answering a general question. Tr. 660:8-21.
Kittis expressly asked him on follow-up: “Okay. Now, you just brought up
something new, so I have to ask you about it. You just brought up that you think
vasopressors had something to do with this picture here, right?” Tr. 661:17-21.
Dr. Augustin unequivocally answered in part: “Vasopressors were used to treat shock.” (Emphasis added.) Id. That statement is supported by the medical records
Kittis obtained during discovery and supported by Dr. Augustin’s opinion that
Mr. Kittis suffered from hypoperfusion, which is the decreased blood flow to all
organs. Mr. Kittis was on vasopressors to treat the general condition he was
experiencing. Kittis, however, did not stop with a single question but probed deeper,
eliciting a further discussion on vasopressors and their impact of decreasing the
blood flow to the bowel, a condition that everyone agrees existed to some degree.
Any error in Dr. Augustin’s mention of vasopressors was then forfeited.
In fact, his testimony was used in an attempt to impeach Dr. Augustin
at trial, and to expand the scope of Kittis’s expert’s trial testimony to include topics
beyond his area of expertise and the scope of his pretrial disclosures, which would
have been in violation of Civ.R. 26(E). In addition, Dr. Brooks fully testified as to
his belief about vasopressors not causing bowel ischemia to rebut Dr. Augustin’s
beliefs. Any error in delving into the vasopressor issue was instigated by Kittis, and
any error in Dr. Augustin’s initial mention of vasopressors as a cause of the ischemic
bowel was forfeited by Kittis in failing to object and seek a curative instruction. For
this reason, the first two assignments of error are overruled.
But even if not invited or forfeited error, the vasopressor testimony
was not relevant to Kittis’s trial theory, such that any presumed error would be
harmless. See Civ.R. 61. The sole issue for trial regarding the standard of care was
whether the bowel ischemia, regardless of the cause of it, was surgically
correctable, which according to Kittis, would have prevented Mr. Kittis’s declining condition that led to his death. See, e.g., Kittis I at ¶ 28 (“Dr. Brooks also opined
that Mr. Kittis had a surgically correctable problem causing his bowel ischemia, and
if the Clinic had initiated the second surgery on January 6, 2018, it would have
discovered the problem, and Mr. Kittis could have been salvaged.”); but see id. at
¶ 29 (“Dr. Brooks could not testify within a reasonable degree of medical probability
. . . that if the Clinic looked for these problems during a second surgery that such a
problem would have been found.”). The cause of the bowel ischemia was not
relevant to that standard of care or the breach. Id. In fact, the Kittis I panel chastised
the trial court for focusing on the cause of the bowel ischemia and Dr. Brooks’s then
lack of an opinion as to the cause. Id. at ¶ 43.
In simplistic terms, Kittis’s trial theory was that Clinic failed to timely
diagnosis a surgically correctable condition in the bowel, believed to be caused by
torsion (twisting of the intestine), a blood clot, or other venous obstruction, and that
the delay in seeking a surgical correction led to the worsening shock condition. Id.
at ¶ 8 (noting that “Dr. Brooks stated to a reasonable degree of medical probability
that Mr. Kittis had a surgically correctable problem on January 6, 2018, if the Clinic
had completed a second surgery on that day”). Even if that focus was misplaced
based on Kittis I at ¶ 43, at trial, Dr. Brooks ruled out the blood clot or venous
obstruction, leaving only the bowel torsion as a possibility. On that question,
however, Dr. Brooks agreed that the post-exploratory surgery notations that the
bowel appeared “moderately dusky” would indicate that earlier surgical intervention
to prevent the ischemic bowel was not possible, and he agreed that no evidence of torsion was discovered in the exploratory surgery conducted. Thus, the
determination of whether a surgically repairable condition existed was well within
the province of the jury to resolve; it came down to competing testimony by both
parties.
Mr. Kittis’s death is tragic and arose from an unfortunate situation,
but not all such outcomes necessarily imply the existence of medical malpractice.
Kittis was unable to present to the jury any evidence that a surgically repairable
condition existed that would have been discovered earlier than when the exploratory
surgery was conducted, which was the sole issue remaining following Kittis I. Even
if we presumed the existence of error and disregarded the invited-error doctrine,
any such error would be harmless because it did not impact a substantial right. Kittis
was able to rebut the vasopressor evidence through her expert, who testified to
subject matters not contained within his expert report and outside of his area of
expertise on that topic to rebut Dr. Augustin’s vasopressor testimony.
The jury’s verdict is affirmed.
It is ordered that appellee recover of appellant 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.
_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE
DEENA R. CALABRESE, J., CONCURS; KATHLEEN ANN KEOUGH, J., DISSENTS (WITH SEPARATE OPINION)
KATHLEEN ANN KEOUGH, J., DISSENTING:
I respectfully dissent from the majority and would have reversed and
remanded this matter for a new trial, finding that the Clinic violated Civ.R. 26(E),
ultimately causing a domino effect that subjected Kittis to an unfair trial. The
majority’s reliance on this court’s prior summary judgment ruling ignores the fact
that the jury heard prejudicial information during trial, ultimately spoiling the trial’s
fairness. I will also take this opportunity to address the recent relaxation of the
discovery rules to the detriment of ensuring a fair trial.
“The purpose of the discovery rules is to ‘prevent surprise and the
secreting of evidence favorable to one party’ in order to ‘produce a fair trial.’” In re
E.S., 2020-Ohio-3598, ¶ 25 (8th Dist.), quoting Lakewood v. Papadelis, 32 Ohio
St.3d 1, 3 (1987). The duty to supplement expert testimony is necessary because
preparation for effective cross-examination is particularly compelling when it
involves expert testimony. Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio
St.3d 367, 370 (1986). Civ.R. 59(A) provides that a new trial “may be granted” when there is
“[i]rregularity in the proceedings of the court . . . or prevailing party, or abuse of
discretion, by which an aggrieved party was prevented from having a fair trial”
and/or “[m]isconduct of the . . . prevailing party[.]” Civ.R. 59(A)(1) and (2). While
this appeal is premised on the granting of a mistrial, Civ.R. 59(A) provides grounds
for a new trial that I believe are both implicated herein.
Throughout the pendency of this matter, Kittis and the Clinic
maintained competing theories regarding Mr. Kittis’s case. Dr. David Brooks,
Kittis’s expert, testified as to his theory of the case. Dr. Brooks opined that the Clinic
deviated from the standard of care in failing to perform an exploratory laparotomy
at an earlier time based on Mr. Kittis’s condition.
On the Clinic’s side, Dr. Augustin, the treating doctor, changed his
theory between his August 3, 2021, deposition and February 2025 trial. When asked
during his deposition “[w]hat was the likely cause of the ischemia?” Dr. Augustin
responded that it was “global hypoperfusion.” (Augustin Dep. tr. 21.) When
questioned why “hypoperfusion” does not appear within his operative note,
Dr. Augustin explained that of the “hundreds” of cases of bowel obstructions he had
treated, “not one person in recent memory [] had a clinical course like [Mr.
Kittis]’s[.]” (Augustin Dep. tr. 27.) When, at his deposition, he was asked whether
there were any other causes of Mr. Kittis’s ischemia, Dr. Augustin responded that
“[g]lobal hypoperfusion was all that I can tell.” (Augustin Dep. tr. 21.) When asked
if he knew the “mechanism of that global hypoperfusion,” he responded: I just don’t know. I don’t know. All I can tell you is that every possible reversible cause was worked up to the greatest depth possible. He did not have a reversible cause.
He did not have sepsis. He did not have a bowel perforation. He did not have hemorrhage. He did not have a cardiac event. He did not have a stroke. He did not have a urinary tract infection. He did not have pneumonia. He did not have DVTs. He had no reversible causes. That’s your top 20 causes.
(Augustin Dep. tr. 26-28.)
Dr. Augustin’s deposition transcript does not contain any testimony
about vasopressors and their effect on Mr. Kittis’s ischemic condition or global
hypoperfusion. His testimony during the 2025 trial, however, centered on the role
of the vasopressors and their contribution to Mr. Kittis’s ischemia. During trial,
Kittis asked Dr. Augustin on cross-examination about the cancelled CT scans and
whether the CT scans were originally ordered for suspected bowel ischemia. His
response was, “What I found in the OR [operating room] is medical ischemia related
to shock, related to two vasopressors. He was on two vasopressors at the time.”
(Feb. 26, 2025 tr. 659.) Dr. Augustin linked the vasopressors to Mr. Kittis’s ischemia
and hypoperfusion at least three more times during his cross-examination.
“Patients who are hypotensive and on pressors, they will always have small bowel ischemia. You will, if you operate on patients who are hypotensive and on pressors, they will always have small bowel ischemia.” (Feb. 26, 2025 tr. 660-61.)
“We’re talking about a patient who is hypotensive and in shock on vasopressors.” (Feb. 26, 2025 tr. 721.)
“That does not take away from the fact that a patient in shock on two pressors will have ischemia everywhere.” (Feb. 26, 2025 tr. 739.) It is undisputed that Dr. Augustin did not mention vasopressors or
identify vasopressors as a cause of Mr. Kittis’s ischemia or global hypoperfusion in
his deposition or at any time prior to trial and in fact testified to the contrary: he
was unable to determine the factor or factors contributing to Mr. Kittis’s condition.
The Clinic’s counsel acknowledged this deviation from the deposition testimony on
numerous occasions:
[KITTIS’S COUNSEL]: I think [the Clinic’s counsel] will agree that Dr. Augustin offered new opinions yesterday. He even said, Your Honor, it was based on reading my expert’s opinions.
[THE CLINIC’S COUNSEL]: So he did talk about many of the same things that he said in deposition, but there were — there was a comment about vasopressors.
(Feb. 26, 2025 tr. 751-752.)
[KITTIS’S COUNSEL]: Where were vasopressors in his depo?
[THE CLINIC’S COUNSEL]: He did not say vasopressors specifically in his depo.
...
[THE CLINIC’S COUNSEL]: Sorry. That was not something that I anticipated he was going to bring up. I didn’t know he was going to bring it up. It was on cross-examination.
(Feb. 26, 2025 tr. 1031.)
THE COURT: Do you concede what she just said, this connection between vasopressors and the ischemia was brought up for the first time in trial?
[THE CLINIC’S COUNSEL]: So the vasopressors, first time he said it was in trial.
(Feb 26, 2025 tr. 1033.) [THE CLINIC’S COUNSEL]: Nothing about the vasopressors was presented by me. It came out on their cross.
[KITTIS’S COUNSEL]: That is a lie . . . You’re telling this judge on the record that you had no idea that your doctor, if asked on cross- examination, would offer a new theory?
[THE CLINIC’S COUNSEL]: I did not.
[KITTIS’S COUNSEL]: He surprised you too?
[THE CLINIC’S COUNSEL]: [Kittis’s Counsel], did we not go into the M&M? He surprised me several times.
[KITTIS’S COUNSEL]: But did he surprise you on vasopressors?
[THE CLINIC’S COUNSEL]: Yes.
(Feb. 26, 2025 tr. 1035-1036.)
In response to Dr. Augustin’s new testimony adding vasopressors as
a variable that caused Mr. Kittis’s ischemia, Kittis cross-examined him about this
change. Dr. Augustin admitted that during his deposition, he testified that Mr. Kittis
passed away from “unknown” shock. He explained, however, that since that time,
“[W]e now know that the cause of his shock . . . was related to a [systemic
inflammatory response syndrome] related to global hypoperfusion, which . . . caused
third spacing of all of his fluids.” (Feb. 26, 2025 tr. 744.) He explained that Mr.
Kittis passed from a specific type of shock – “hypovolemic shock” related to “the
resuscitation not getting to and staying inside his blood vessels.” (Feb. 26, 2025 tr.
747.) He further testified that “[s]ince [his deposition] . . . I have reviewed his chart
extensively . . . with a lot more depth than I have ever reviewed . . . a chart.” (Feb.
26, 2025 tr. 748.) At his deposition, Dr. Augustin was asked whether he “published [Mr.
Kittis]’s clinical case as the unique case study that it is so that others can learn about
it, study it and perhaps make roadway into treating this unique and rare condition?”
(Augustin Dep. tr. 31.) Dr. Augustin responded with “No.” id. At trial,
approximately four years later, his answer to this question differed:
[KITTIS’S COUNSEL]: Now, given that he stumped you, given that this case was so rare and so unusual, I take it you educated the medical community and published an article about this extraordinary case so that you could educate other physicians in training about this phenomenon?
[DR. AUGUSTIN]: Yeah, I think you asked me that question in my depo, and I think that it is – it’s my job to educate residents. It’s my job to educate folks who might not have seen this situation. But typically when we do that, we base it off of objective findings.
In this case, there was no autopsy. I couldn’t — you know, it’s difficult to take hypotheticals, put it into a report that the rest of the world reads without really, you know, having the evidence from objective testing.
So I did not think it was to the point where I would have written about it. And I write a lot, as you know from my CV, you know, I’ve published a lot. But this case per se did not — now having said that, you know, we do talk about every mortality, every complication that we have at our surgical mortality and morbidity conference. And as I’ve said, there’s 15 surgeons, 30, 40 trainees in the room, there’s a lot of people. So we do educate short of writing a paper, so that did happen.
Immediately after this surprising testimony, Kittis’s counsel called a
sidebar and noted that Dr. Augustin had opened the door to morbidity and mortality
(“M&M”) conferences concerning this patient that he referenced to bolster his
testimony. In response, the Clinic’s counsel argued that Dr. Augustin did not specify
whether he brought this specific case to an M&M conference and that Kittis invited the testimony by asking Dr. Augustin whether he had published any articles — not
presenting this at a conference. Kittis accordingly requested (1) receipt of the M&M
file or (2) a ruling that the testimony about the conference be stricken from the
record. It was at this point that Kittis’s counsel alluded to the impropriety of the
M&M conference testimony and suggested that it was grounds for granting a
mistrial. The trial court ultimately advised the jury to disregard the information
about the M&M conference.
Kittis renewed her objection to the trial court giving a curative
instruction to the jury rather than granting Kittis’s request, and the trial court
advised the jury as follows:
Okay. So, ladies and gentlemen of the jury, there was some discussion about what the doctor did in educating his peers after the fact. There’s something that’s called a mortality and morbidity conference. Sometimes you get instructions from the judge in the middle of trial. So these things are privileged and confidential. What I am going to tell you is that there is, I’m going to explain to you as a matter of law, so to speak, which translates into facts which you are not allowed to consider in your deliberation. Seems kind of weird, I’m asking you to unring a bell a little bit. But it’s a point that I want to make that you are not to accept as fact or not fact, so that it did or did not exists, that this was ever presented at what they call an M&M conference, mortality and morbidity conference. . . .There’s no evidence one way or the other that this was ever discussed at a morbidity and – M&M conference, and you are to erase that from your minds and we’re not going to be asking any questions or answering, or it’s not going to be included in any answers. I’m instructing the witness not to include it in any of his answers. Does that make sense to everybody? Anybody have any questions about that instruction?
Okay. So there’s no evidence one way or the other whether or not this was brought into an M&M conference.
(Feb. 26, 2025 tr. 767-768). Dr. Brooks testified as to his theory of the case, opining that the Clinic
deviated from the standard of care in untimely performing an exploratory
laparotomy or taking CT scans, either of which would have revealed Kittis’s
ischemia.
On direct examination, Dr. Brooks was asked to address Dr.
Augustin’s testimony and references to vasopressors. Specifically, Kittis asked him
to explain the medically significant differentiation between the lactate levels in the
venous system versus the arterial system. The Clinic’s counsel objected and argued
that this difference was not addressed prior to trial in deposition or in Dr. Brooks’s
expert report. A lengthy sidebar ensued wherein the court attempted to understand
how the difference between these levels related to Dr. Brooks’s “ultimate opinion”
regarding standard of care and causation.
After the sidebar concluded, the trial court reminded every party to
remain consistent with what information had been provided before trial, either in
the expert reports or at deposition. Kittis’s counsel expressed discontent with this
ruling, arguing in response that “Dr. Augustin got on that stand and Dr. Augustin
offered all sorts of new opinions . . . He offered all sorts of information . . . that he
had never offered before. And now our expert is not [allowed to respond] because,
not surprisingly, he relied on Dr. Augustin’s deposition.” (Feb. 26, 2025 tr. 979-
980.) Ultimately, the trial court ordered Dr. Brooks to “continue on with exactly
what his opinions were before, what everybody’s been saying up to this point[.]”
(Feb. 26, 2025 tr. 994.) In other words, he was precluded from testifying about anything beyond the contents of his expert report, including offering an opinion on
Dr. Augustin’s previously undisclosed testimony.
The issue arose once again the following day, while Kittis’s direct
examination of Dr. Brooks continued. While Kittis was questioning Dr. Brooks
about Mr. Kittis’s heart symptomology and condition, the Clinic objected. At
sidebar, the Clinic again argued that the question asked was outside of the scope of
Dr. Brooks’s expert report and had not been disclosed prior to trial. Following this
discussion, the court allowed Kittis to question Dr. Brooks about vasopressors
generally, but precluded Dr. Brooks from giving an “ultimate opinion” as to the
vasopressors causing ischemia, as opined by Dr. Augustin during trial. (Feb. 26,
2025 tr. 1036.) Brief questioning about vasopressors ensued without interruption,
but later in trial, Kittis complained and maintains now on appeal that because of the
trial court’s ruling, she was not able to elicit the ultimate opinion testimony from Dr.
Brooks to properly rebut the new vasopressor theory.
The Clinic’s expert, Dr. William Schirmer, maintained in both his
expert report and prerecorded trial testimony that Mr. Kittis’s preexisting heart
condition caused global hypoperfusion, resulting in multisystem organ failure. In
his prerecorded testimony, Dr. Schirmer did not discuss vasopressors as a cause of
Mr. Kittis’s ischemia, which also could have caused the global hypoperfusion
according to Dr. Brooks’s testimony, and did not testify about them in any form.
Because it was prerecorded, however, Kittis was unable to cross-examine Dr.
Schirmer about the role of the vasopressors. At the close of her case, Kittis moved for a mistrial, arguing that the
Clinic violated Civ.R. 26(E) and did not supplement discovery, including Dr.
Augustin’s deposition testimony, with the previously undisclosed information about
vasopressors causing ischemia. Second, she argued that the court’s various rulings
collectively barred her from rebutting or impeaching the vasopressor theory.
According to Kittis, these rulings collectively prevented her expert from addressing
the ultimate issues relating to the vasopressors.
In response, the Clinic contended that Dr. Brooks testified about
vasopressors anyway, despite the trial court’s admonition to keep testimony within
the scope of the discovery. The Clinic argued that Dr. Brooks “testified that those
vasopressors would not essentially have caused hypoperfusion. So I did not object.
There was a ruling at sidebar, but that testimony came in.” (Feb. 26, 2025 tr. 1215.)
The Clinic’s counsel did, however, admit that “from my perspective it was
unfortunate that [Dr. Augustin] mentioned vasopressors, but at the same time I
forgo[ed] the cross-examination of Dr. Brooks on that point because he was
wrong[.]” (Feb. 26, 2025 tr. 1216.) Kittis’s counsel maintained that she was unable
to develop the full scope of Dr. Brooks’s testimony that vasopressors caused Mr.
Kittis’s ischemia because of the court’s ruling. The Clinic also suggested that
vasopressors were in the record the entire time and that all experts looked at those
records in forming their opinions.
The trial court denied the mistrial, giving multiple reasons for doing
so but relevantly explained that it felt that Kittis ignored the ruling and elicited opinion testimony from Dr. Brooks anyway — stating, “[I]f you didn’t go past what
I said, maybe I would have granted [the mistrial].” (Feb. 26, 2025 tr. 1221.) The
trial court also agreed with the Clinic’s argument that the vasopressors were not
“new” opinions because the vasopressor variable did not change the Clinic’s theory
of the case. The trial court explained that both parties were given a fair opportunity
to rebut each side’s theory of the case.
Along with denying the mistrial, the trial court offered that Dr. Brooks
could return and continue testifying, whether in person or over Zoom. Regardless,
the trial court felt that Kittis ignored the trial court’s ruling because her counsel
elicited testimony from Dr. Brooks that went beyond the scope of his expert report
and deposition. When Kittis expressed concerns with how bringing Dr. Brooks back
would appear to the jury, the trial court stated, “I’ve done this before. I’ll take
responsibility. I made a ruling, I rereviewed it. I’m incorrect in my ruling — I don’t
mind taking responsibility for any of that in front of the jury.” (Feb. 26, 2025 tr.
1227.) It added, “I had time to rereview one of the objections, I changed my mind,
and so we’re going to bring back Dr. Brooks for a couple questions. I have no
problem doing that.” (Feb. 26, 2025 tr. 1227.)
The next day, the trial court again offered that Dr. Brooks could return
to testify, but Kittis’s counsel responded:
It’s not something — one, it’s not something we want, but two, it’s not something we can, you know, logistically we can pull off the way we would want. I appreciate it. As it pertains to, it’s hard to unring the bell, so, you know what I mean, because it’s out there. So we think the evidence is what it is . . . I don’t think it fixes it. For him not to argue it in a point where you’re going to tell the jury it’s not evidence doesn’t change the evidence, and I don’t think we can be limited from addressing the evidence.
(Feb. 26, 2025 tr. 1266.)
As the majority stated, when trial concluded, the jury returned a
verdict in favor of the Clinic, finding that the Clinic did not violate the requisite
standard of care. I believe that this verdict originated from an objectively unfair trial
and should be vacated.
The chain of events giving rise to the unfair trial began with the
Clinic’s Civ.R. 26(E) violation. Civ.R. 26(E)(1) and (2) provide that “[a] party is
under a duty seasonably to supplement discovery responses with respect to any
question directly addressed to . . . the identity of each person expected to be called
as an expert witness at trial and the subject matter on which he is expected to
testify.” “This duty to supplement responses on the subject matter of expert
testimony is necessary because preparation for effective cross-examination is
especially compelling where expert testimony is to be introduced.” Shumaker, 28
Ohio St.3d at 370 (1986). This has been interpreted to include deposition testimony,
not just interrogatory responses. O’Connor, 2005-Ohio-2328, ¶ 17 (8th Dist.). See
also Walker v. Holland, 117 Ohio App.3d 775, 783 (2d Dist. 1997). “‘One of the
purposes of the Rules of Civil Procedure is to eliminate surprise.’” Id., quoting
Jones, 12 Ohio St. 3d 84 at 86 (1984). Further, Civ.R. 26(E) is “to provide opposing
counsel with updated and complete discovery regarding the substance of expert
testimony.” Id. And, “[t]his duty to supplement responses on the subject matter of expert testimony is necessary because preparation for effective cross-examination is
especially compelling where expert testimony is to be introduced.” Id., citing Smith
v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980); Scott & Fetzer Co. v. Dile, 643
F.2d 670 (9th Cir. 1981). Civ.R. 26(E) “imposes a continuing duty to update [expert
reports] should the expected scope or opinion of the expert testimony change.”
Peffer v. Cleveland Clinic Found., 2011-Ohio-450, ¶ 30 (8th Dist.), citing Vaught,
2003-Ohio-2181, ¶ 14-21. Kittis argues that Dr. Augustin’s newfound reliance on
vasopressors in contributing to Mr. Kittis’s bowel ischemia was never supplemented
or provided to Kittis before trial. Kittis thus argues that this failure to supplement
violated Civ.R. 26(E). I agree.
Before trial, Dr. Augustin had not relied on vasopressors as one of the
causes of Mr. Kittis’s ischemia. This is largely undisputed as indicated by the
transcript. At trial, Dr. Augustin mentioned the role of the vasopressors in causing
ischemia four times, and he acknowledged that he did not discuss vasopressors prior
to trial. Dr. Augustin’s numerous references to vasopressors suggest that
vasopressors are relevant to Mr. Kittis’s symptomology and condition and should
have informed his medical decision-making. The Clinic’s counsel likewise conceded
on several occasions that the vasopressor testimony was “new” and had not been
discussed at deposition nor supplemented. But the testimony and role of
vasopressors was not unknown to the Clinic’s counsel. The Clinic’s opening
statement specifically described vasopressors and their precarious use because of
the many interactions and side effects caused by the drugs. In O’Connor, this court reversed a jury verdict in favor of the
defendant, ordering a new trial because at the treating doctor’s deposition, the
doctor could not answer “why the injury was not discovered during the operation.”
2005-Ohio-2328, ¶ 16 (8th Dist.). When asked the same question at trial, he
acknowledged that it was “more likely than not that he caused the [injury], and
offered an opinion that the [injury] was . . . not immediately detectable.” Id. at ¶ 9.
Noting that “[a]ppellants were surprised and prejudiced by the new theory advanced
by” the treating doctor, this court found that the Clinic violated Civ.R. 26(E) by
failing to supplement discovery with the previously undisclosed causation theory
prior to trial and reversed the jury’s defense verdict for a new trial, citing unfair
surprise. Id.
Similarly, in Cox, 2012-Ohio-2383 (8th Dist.), this court found a
violation of Civ.R. 26(E) and reversed for a new trial where a jury heard an expert’s
previously undisclosed trial testimony and because of the procedural posture in Cox,
the plaintiffs were unable to cross-examine and impeach this expert witness. The
Cox Court held that because the plaintiff was “unfairly surprised” by the information
revealed during trial, he could not adequately prepare a cross-examination. Id. at
¶ 39. This decision was based on the “constitutional right to present rebuttal
testimony on matters that are raised for the first time in an opponent’s case-in-chief
and should not be brought in the rebutting party’s case-in-chief.” Id. at ¶ 32, citing
Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410 (1994). Cox found an abuse of discretion because the issue “[went] to the heart of the claim,” which was ultimately
prejudicial to the plaintiff. Id. at ¶ 43.
I acknowledge that O’Connor and Cox both found that the trial court
erred in allowing the jury to hear impermissible testimony that it should not have
heard, which is distinguishable in substance from the case herein. In this case, the
jury heard previously undisclosed and impermissible testimony, but the trial court’s
rulings and the circumstances of the case, i.e., that Dr. Schirmer’s testimony was
prerecorded and he could not be adequately cross-examined, forbade Kittis from
eliciting rebuttal testimony from her own expert, resulting in an unbalanced ruling.
As stated in O’Connor, failure to disclose the new theory “distorted the level playing
field.” Id. at ¶ 49. Likewise, here, our analysis is premised on the same fairness
concepts — allowing the jury to hear undisclosed information without an
opportunity to address that information is prejudicial and distorts the level playing
field. The same considerations about “unfair surprise” and “trial by ambush”
underpin the procedure that occurred in this case.
I would therefore find, consistent with O’Connor and Cox, that the
Clinic violated Civ.R. 26(E) in failing to disclose Dr. Augustin’s new theory regarding
the role of vasopressors in Mr. Kittis’s treatment — an issue that goes to the “heart
of the claim,” as was the undisclosed information in Cox. The Clinic did not
supplement discovery after Dr. Augustin’s deposition or after Dr. Augustin
presented the case to the M&M conference. These violations effectively ambushed
Kittis and were further exacerbated by the trial court when it forbade her from eliciting rebuttal testimony from Dr. Brooks. As stated in Cox, “Fundamental
principles of fairness dictate that each party be given the opportunity to present their
case on the merits.” Cox, 2012-Ohio-2383 at ¶ 35 (8th Dist.).
In my view, the Clinic’s Civ.R. 26(E) violation started a chain of events
that ultimately caused the trial court to abuse its discretion by barring Kittis from
fully and completely rebutting the previously undisclosed testimony. The trial court
itself acknowledged this error and offered to bring Dr. Brooks back to testify. Here,
Kittis could not cross-examine Dr. Schirmer because his testimony was pre-
recorded, leaving her only Dr. Brooks to rebut this testimony — which was then
impeded by the court’s rulings.
While the Clinic’s Civ.R. 26(E) violations by themselves may not be
grounds for a mistrial, the violations coupled with the trial court’s evidentiary
rulings and the posture of specific witnesses such as Dr. Shirmer and Dr. Brooks
combined to create an unfair trial. Likewise, the M&M conference testimony in and
of itself does not constitute an abuse of discretion because of the limiting instruction
given. State v. Garner, 74 Ohio St.3d 49, 59 (1995) (“A jury is presumed to follow
the instructions, including curative instructions given by a trial judge.”). This
presumption is overcome, however, when it is shown that the evidence could not
have been ignored and that serious prejudice likely occurred. State v. Westwood,
2002-Ohio-2445, ¶ 42 (4th Dist.) (collecting cases). In my opinion, serious
prejudice occurred in totality, especially given the implications of the M&M
conference, suggesting that a group of doctors from the conference essentially informed Dr. Augustin’s “new” theory. I would find that the Civ.R. 26(E) violation,
the M&M conference testimony, Dr. Augustin’s vasopressor testimony, Kittis’s
inability to cross-examine Dr. Schirmer, and the trial court’s rulings combine to
collectively prejudice Kittis.
Accordingly, I would have found that this case presents a unique
situation where the cumulative effect of the errors created an unfair trial, and the
mistrial motion should have been granted.
I also take this opportunity to emphasize that Civ.R. 1(B) provides
that the Civil Rules “shall be construed and applied to effect just results[.]”
(Emphasis added.) The very purpose of the Civil Rules is to foster predictability and
prevent unfair trials. When these rules are relaxed or violated, it is the trial court’s
duty to ensure that fairness is restored and balanced. Indeed, “the existence and
effect of prejudice resulting from noncompliance with the [Civil Rules] is of primary
concern, not just the intent or motive involved.” Huffman v. Hair Surgeon, Inc., 19
Ohio St.3d 83, 85 (1985). Even if a discovery failure is “produced by neglect, a
change in defense strategy or an inadvertent error,” such as here concerning Dr.
Augustin’s testimony about the M&M conference and vasopressor theory, it is still
necessary to examine the resulting prejudice and fashion an adequate remedy. Id.
There have been a concerning number of cases where Civ.R. 26
violations affecting fairness are excused and regarded as harmless. These decisions
go against the trial court’s “responsibility to ensure that there [is] no unfair prejudice or surprise[.]” Vaught, 2003-Ohio-2181, ¶ 27. As indicated by the forthcoming
examples, the relaxed enforcement of Civ.R. 26 permeates numerous Ohio courts.
At the forefront, this court recently dismissed a matter for rehearing
en banc, finding that it was improvidently granted. In Gerace, defendant the Clinic
did not provide a privilege log to the court as required by Civ.R. 26. Gerace v.
Cleveland Clinic Found., 2024-Ohio-2708 (8th Dist.), jurisdiction declined,
01/06/2026 Case Announcements, 2026-Ohio-13. This court reasoned that “we are
asked to answer an inapplicable en banc question because the Cleveland Clinic did
not follow the mandates of Civ.R. 26 to even allow the trial court to determine
whether an in camera inspection or evidentiary hearing is necessary.” Journal Entry
9/3/2025, Motion No. 587286, Keough, J., concurring. A similar, potential Civ.R.
26 violation was deemed harmless after determining that it was not prejudicial in
Talani v. Manorcare, Inc., 2013-Ohio-4295 (11th Dist.). In my view, generally
withholding any evidence that shall be produced under Civ.R. 26 is prejudicial in
and of itself.
In Branch v. Cleveland Clinic Found., 2012-Ohio-5345, the Ohio
Supreme Court found that the trial court did not abuse its discretion when faced
with a Civ.R. 26 violation. In Branch, the Clinic, at trial, used a demonstrative
exhibit that recreated the at-issue surgery. Plaintiff’s counsel had not been afforded
the opportunity to review this demonstrative exhibit until ten minutes prior to the
Clinic’s expert’s testimony. While this is a Civ.R. 26 violation and the demonstrative
evidence was considered “important,” the Ohio Supreme Court deferred to the trial judge’s decision to not exclude the demonstrative exhibit, reasoning that “we defer
to the trial court’s judgment that [Plaintiff’s counsel] had adequate opportunity to
cross-examine clinic doctors with respect to the exhibit despite the minimal notice.”
Id. at ¶ 18.
In Beard v. St. Vincent Charity Hosp., 2017-Ohio-7608, ¶ 7 (8th
Dist.), this court did not find that it was an abuse of discretion when the trial court
allowed an expert to testify about a CT scan that was not reviewed in the expert’s
initial report. In finding no abuse of discretion, this court concluded that because
there was no unfair surprise or willful noncompliance with the rule, such testimony
was not prejudicial. The Beard Court also deemed the testimony nonprejudicial
because plaintiffs were able to cross-examine the expert. Once again, even if a party
cross-examines a witness after surprise testimony does not excuse the fact that the
subject of the cross-examination was improperly undisclosed prior to trial.
In Rush v. Univ. of Cincinnati Physicians, 2016-Ohio-947, ¶ 18 (1st
Dist.), the First District found no error where two experts identified rib fractures in
an MRI for the first time at trial. The rib fractures were not identified prior to trial
in either the expert’s report or deposition testimony. On appeal, the First District
acknowledged that the rib fractures were not identified prior to trial but found no
error because it was not a new theory of causation nor did it constitute “new”
testimony. While these statements are true, the court did not consider the effect of
the surprise on the fairness of trial — the paramount concern in enforcing discovery
rules. Most of the aforementioned cases share a similar underlying
conclusion: that Civ.R. 26(E) violations are excusable as long as counsel is afforded
an opportunity to either cross-examine, impeach, or rebut the testimony, or if the
court concludes that the violation was harmless. Neither outcome changes the fact
that trial counsel was unfairly surprised and forced to address testimony that it had
not prepared for because it was not disclosed prior to trial. Typically, a day-of cross-
examination does not compare to having the information while preparing for trial.
And this has been long recognized. In 1989, this court specifically recognized that
“the failure of a party to supplement discovery when its expert witness formulates
or changes an opinion may be grounds for reversible error.” Long v. Isakov, 58 Ohio
App.3d 46, 51 (8th Dist. 1989), citing Shumaker, 28 Ohio St. 3d 367 (1986); Jackson
v. Booth Mem. Hosp., 547 N.E.2d 1203 (8th Dist. 1988).
The Rules of Civil Procedure delineate a clear process for disclosure
of expert testimony specifically because of the preparation needed to address expert
testimony at trial. Similarly, Civ.R. 37(C)(1) provides that failing to disclose
information as required by Civ.R. 26(A) or (E) can be sanctioned by disallowing that
party from using the undisclosed information at trial. This again indicates that the
goal of the Rules of Civil Procedure is fairness and balance. The recent trend of
softening the mandates of Civ.R. 26, especially as it relates to expert testimony,
improperly suggests that strict compliance with the civil rules is not necessary and
may even inure to the benefit of the party who does not fully comply with disclosure
requirements or discovery rules. The Rules of Civil Procedure exist to provide predictability, efficiency,
and fairness. I remind courts and litigants that the legal system is not the venue for
gamesmanship and trickery but rather for the fair and just resolution of disputes.
No party is excused from adhering to the civil rules, no matter the size or influence
of the party.
Related
Cite This Page — Counsel Stack
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