author: HALL, J.

text:
    Nancy J. BUCKINGHAM, Plaintiff-Appellant v. Jay A. BUCKINGHAM, Defendant-Appellee
    No. 2017-CA-41
    Court of Appeals of Ohio, Second District, Greene County.
    Rendered on May 25, 2018
    MICHAEL P. MCNAMEE, Atty. Reg. No. 0043861, and ALEXANDER W. CLOONAN, Atty. Reg. No. 0095690, 2625 Commons Boulevard, Beavercreek, Ohio 45431, Attorney for Plaintiff-Appellant
    KENT J. DEPOORTER, Atty. Reg. No. 0058487, 7501 Paragon Road, Dayton, Ohio 45459, Attorney for Defendant-Appellee
   HALL, J.

{¶ 1} Nancy J. Buckingham appeals from the Civ.R. 12(B)(1) dismissal of her tort complaint against appellee Jay A. Buckingham, her ex-husband, by the general division of the Greene County Common Pleas Court.

{¶ 2} Nancy advances two assignments of error. First, she contends the trial court erred in relying on the jurisdictional-priority rule to dismiss her complaint. Second, she claims the trial court erred in finding that the domestic relations division of the Greene County Common Pleas Court had exclusive jurisdiction over the issues raised in her complaint.

{¶ 3} The record reflects that Nancy and Jay obtained a final judgment and divorce decree from the domestic relations division in November 2013. Thereafter, in May 2016, Nancy filed a complaint, which she later amended, against Jay in the general division, alleging fraudulent concealment and spoliation of evidence. The claims in the amended complaint are based on allegations that Jay had hidden money from Nancy during the pendency of the divorce proceedings "that should have been included as marital property in Plaintiff and Defendant's divorce proceedings." (Doc. # 10, # 28). In his answer, Jay raised lack of subject-matter jurisdiction as a defense. (Doc. # 15). After briefing by the parties, the trial court dismissed Nancy's complaint for lack of subject-matter jurisdiction. (Doc. # 74). The trial court cited two reasons for its decision. First, it concluded that, as between courts of concurrent jurisdiction, the jurisdictional-priority rule obligated Nancy to bring her claims in the domestic relations division, whose power had been invoked first, rather than the general division. (Id. at 5-6). Second, the trial court concluded that Nancy's claims came within the exclusive statutory jurisdiction of the domestic relations division. (Id. at 6-10). This appeal followed.

{¶ 4} In her two assignments of error, Nancy challenges both of the trial court's conclusions. First, she contends the jurisdictional-priority rule does not apply because the issues raised in her case are not the same as the issues raised in the domestic relations case, the claims involved in the two cases are different, and the two cases do not involve the same "whole issue." Second, Nancy challenges the trial court's determination that the domestic relations division had exclusive statutory jurisdiction. She argues that the domestic relations division does not have sole jurisdiction over all cases involving husbands and wives, that she is not seeking the remedies provided by domestic relations statutes, and that even true domestic relations cases may be heard by a general-division judge for "some special reason," which exists here.

{¶ 5} We begin our analysis with Nancy's second assignment of error, which addresses whether the domestic relations division had exclusive statutory jurisdiction over her claims. Because the trial court dismissed Nancy's complaint for lack of subject-matter jurisdiction, we review its decision de novo. Mosley v. Dayton Power and Light Co. , 86 N.E.3d 910, 2017-Ohio-985, ¶ 7 (2d Dist.).

{¶ 6} Pursuant to R.C. 2301.03(O )(1), the domestic relations division of the Greene County Common Pleas Court "shall be assigned all divorce, dissolution of marriage, legal separation, annulment, * * * and all other cases related to domestic relations, except cases that for some special reason are assigned to some other judge of the court of common pleas." This court has recognized that "[a] statutory assignment to one division of a court confers on that division exclusive jurisdiction to determine the matters assigned, and deprives the court's other divisions, including its general division, of jurisdiction to determine those same matters." Keen v. Keen , 157 Ohio App.3d 379, 2004-Ohio-2961, 811 N.E.2d 565, ¶ 12 (2d Dist.), citing Comer v. Bench , 2d Dist. Montgomery No. 19229, 2003-Ohio-2821, 2003 WL 21267232. The rule "has been applied to limit jurisdiction over all cases of divorce or dissolution to a common pleas court's domestic relations division when it has one." Id. , citing Bantz v. Bantz , 2d Dist. Greene No. 92-CA-0073, 1993 WL 32002 (Feb. 10, 1993).

{¶ 7} In Keen , this court affirmed the general division's dismissal of the plaintiff-former wife's complaint against her former husband. The complaint contained claims for conversion and unjust enrichment and sought a declaration regarding the plaintiff's right to a portion of her husband's retirement benefits. The basis for the complaint was that, through inadvertence or otherwise, the plaintiff improperly had been deprived of a share her ex-husband's retirement benefits, which were not divided during the parties' divorce years earlier. In affirming the trial court's dismissal of the complaint, this court reasoned:

The claims for relief pleaded in the complaint that Ingrid filed in the action she commenced in the general division of the court of common pleas are a collateral attack on the decree of dissolution that the domestic relations division of that court granted in 1978, to the extent that the relief for which Ingrid prayed would necessarily vacate or modify the relief that was granted by the domestic relations division in its decree of dissolution with respect to ownership of Paul's retirement benefits.
The trial court, which is in the general division, correctly found that it lacked jurisdiction to determine the claims for relief that Ingrid's complaint presented. The nature of these claims notwithstanding , the relief prayed for is available only through the domestic relations division, not the general division.
Res judicata bars a new action on the same claims for relief which were adjudicated in a prior action between the parties and on related claims that could have been presented in the prior action but were not. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226. Therefore, as the trial court observed, Ingrid's only avenue of relief on her claims is through a Civ.R. 60(B) motion filed in the court's domestic relations division. Such relief is available where consent or mutuality did not exist when the parties entered into the separation agreement underlying the dissolution decree because of fraud or material mistake or misrepresentation. * * *

(Emphasis added) Keen at ¶ 13-15.

{¶ 8} In our view, Keen is not meaningfully distinguishable from the present case. As in Keen , Nancy asserts tort claims predicated on events that occurred in prior divorce proceedings in the domestic relations division. In Keen , the plaintiff alleged that she had been deprived of a share of her ex-husband's retirement benefits, which had not been divided. Here Nancy alleges that she has been deprived of a share of her husband's hidden funds, which were not divided. As in Keen , we conclude that notwithstanding the nature of the claims Nancy asserts (i.e., tort claims), the damages she seeks effectively would modify the relief that was granted by the domestic relations division in the divorce decree (to wit: its property division). Therefore, we conclude that Nancy's present lawsuit is an improper collateral attack on the divorce decree, that the domestic relations division has exclusive statutory jurisdiction over the subject matter of her complaint, and that her only potential remedy is a Civ.R. 60(B) motion in the domestic relations division.

{¶ 9} In opposition to the foregoing conclusion, Nancy asserts that she cannot bring a Civ.R. 60(B) motion in the domestic relations division because the time for doing so has expired. Even if that assertion is accurate, we note that potential unavailability of relief under Civ.R. 60(B) in the domestic relations division cannot confer jurisdiction on the general division where it does not exist. Comer at ¶ 16. If anything, the potential unavailability of Civ.R. 60(B) relief in the domestic relations division supports a determination that the general-division lacked subject-matter jurisdiction over Nancy's tort complaint. If the rule were otherwise, a plaintiff could vitiate Civ.R. 60(B) and circumvent its time bar by seeking similar relief in the general division, which is what Nancy essentially is trying to do. That would render the Civ.R. 60(B) fraud one-year time meaningless.

{¶ 10} Finally, Nancy contends the general division had subject-matter jurisdiction over her complaint because R.C. 2301.03(O )(1) grants the domestic relations division jurisdiction over all domestic relations cases except those "that for some special reason are assigned to some other judge of the court of common pleas." Nancy argues that a "special reason" exists here for assigning her case to the general division, namely that she cannot obtain relief in the domestic relations division under Civ.R. 60(B). We remain unpersuaded, however, that potential unavailability of relief under Civ.R. 60(B) is a "special reason" bestowing jurisdiction on the general division to do what Nancy claims no longer can be done in the domestic relations division.

{¶ 11} We note too that the special-reason language in R.C. 2301.03(O )(1) permits a case to be assigned to a general-division judge. The language suggests that the Greene County Common Pleas Court must make the special-reason determination itself. The statute does not permit a party to determine that a "special reason" exists for bypassing the domestic relations division and filing an otherwise-improper complaint in the general division. Thus, the trial court correctly held that the exception "does not apply in this matter, because there has not been an assignment of this case 'for some special reason' to some other judge of the common pleas court; on the contrary, it was the Plaintiff who took the step of filing this action in the General Division." (Doc. # 74 at 6-7).

{¶ 12} Having determined that the domestic relations division enjoyed exclusive jurisdiction over Nancy's complaint, we need not dwell on her argument about the jurisdictional-priority rule. Although the trial court addressed the rule, it involves determining which of multiple courts with concurrent jurisdiction may proceed. "The jurisdictional-priority rule provides that 'where there are two courts of concurrent jurisdiction the court in which jurisdiction is first invoked obtains jurisdiction of the entire matter and other courts are excluded therefrom.' " State ex rel. Dailey v. Dawson , 149 Ohio St. 3d 685, 2017-Ohio-1350, 77 N.E.3d 937, ¶ 15, quoting State ex rel. Coss v. Hoddinott , 16 Ohio St.2d 163, 165, 243 N.E.2d 59 (1968). Even when the causes of action and relief requested are not the same, the jurisdictional-priority rule applies "if the suits present part of the same 'whole issue.' " (Citations omitted.) State ex rel. Otten v. Henderson , 129 Ohio St.3d 453, 2011-Ohio-4082, 953 N.E.2d 809, ¶ 29.

{¶ 13} Here the jurisdictional-priority rule did not apply because the domestic relations division had exclusive jurisdiction over Nancy's complaint. But even if we assume, arguendo, that the general division and the domestic relations division shared concurrent jurisdiction, as Nancy asserts, we agree with the trial court that the jurisdictional-priority rule would favor the domestic relations division.

{¶ 14} Nancy argues that the pre-existing domestic relations case, which remained open due to the filing of post-decree motions, does not preclude the general division from exercising jurisdiction over her tort complaint because the two suits do not involve part of the same "whole issue." The trial court held otherwise, reasoning:

In this matter, the parties, Nancy Buckingham and Jay Buckingham, are the same parties as in the divorce action in the Greene County Domestic Relations Court, and the divorce proceedings between Nancy Buckingham and Jay Buckingham were initiated well before the filing of the instant case on May 24, 2016. Since Nancy Buckingham alleges, in this case, that Jay committed fraud and deceit in connection with the divorce proceedings in the Domestic Relations division, the suits present part of the same "whole issue." Therefore, the jurisdictional priority rule applies * * *.

(Doc. # 74 at 6).

{¶ 15} In opposition to the trial court's conclusion, Nancy argues that her tort claims differ from the claims involved in the divorce action and that a ruling in her favor in the tort case will not affect or interfere with the resolution of any issues in the divorce case. She asserts that her tort complaint does not seek to modify or vacate the divorce decree or any finding made in the divorce case. Rather, she claims the general division can award her damages not contemplated in the divorce action if it finds that her ex-husband fraudulently concealed assets during the divorce proceedings. In support of her argument, Nancy primarily discusses State ex rel. Judson v. Spahr , 33 Ohio St.3d 111, 515 N.E.2d 911 (1987), Robinson v. Robinson , 6th Dist. Lucas No. L-94-095, 1994 WL 573803 (Oct. 14, 1994), and this court's opinion in Keen .

{¶ 16} Judson involved a complaint for a writ of prohibition. The plaintiff-husband sought to preclude a common pleas court from proceeding on his wife's complaint involving the proceeds of an insurance policy following a wrongful-death settlement. Although ownership of the proceeds was at issue in a pending divorce action between husband and wife in another county, the Ohio Supreme Court found the jurisdictional-priority rule inapplicable because the two cases involved different causes of action and different parties. The wife's lawsuit involved issues and third-parties that properly would not be involved in the divorce case. The Judson court also found the jurisdictional-priority rule inapplicable because the common pleas court was a court of general jurisdiction, whereas the divorce case involved a court with limited, domestic relations jurisdiction. Finally, the Ohio Supreme Court found a writ of prohibition inappropriate because the plaintiff-husband had an adequate remedy at law through an appeal of a holding that the common pleas court had jurisdiction over the wife's complaint.

{¶ 17} In Robinson , a husband and wife were parties to a pending divorce action in the domestic relations division when wife filed a separate lawsuit in the general division. Her lawsuit named her husband, other individuals, and a partnership as defendants. She asserted that she had an ownership interest in the partnership and the stream of income it generated. The defendants moved to dismiss the lawsuit on the basis that the domestic relations division had subject-matter jurisdiction over it. Applying the jurisdictional-priority rule, the trial court dismissed the lawsuit. The Sixth District Court of Appeals reversed. It noted that the wife was seeking to be named a partner in the partnership and to be awarded an ownership interest therein. The Sixth District found that these issues fell outside the authority of the domestic relations division and within the exclusive jurisdiction of the general division.

{¶ 18} Finally, as noted above, this court in Keen affirmed the dismissal of an ex-wife's general-division lawsuit against her ex-husband based on her failure to obtain a share of his retirement benefits in a prior divorce proceeding. This court reasoned that her claims for conversion, unjust enrichment, and declaratory judgment were an improper collateral attack on the divorce decree insofar as they would have the effect of vacating or modifying the relief granted in the decree.

{¶ 19} Nancy argues that her present lawsuit is similar to the lawsuits in Judson and Robinson but dissimilar to the lawsuit in Keen . We disagree. Of the three cases, we believe Nancy's lawsuit most closely resembles Keen . The present case is distinguishable from Judson , which involved issues and parties not properly part of the domestic relations case. Unlike Judson , Nancy's lawsuit involves only her and her ex-husband, the same parties to the divorce case. It also involves an issue properly addressed in the divorce case, namely her entitlement to a share of certain marital funds allegedly hidden by Jay. Although the present case raises tort claims not brought in the divorce case, the Ohio Supreme Court more recently has recognized that identity of claims or causes of action is not always necessary for the jurisdictional-priority rule to apply. See , e.g. , State ex rel. Dunlap v. Sarko , 135 Ohio St.3d 171, 2013-Ohio-67, 985 N.E.2d 450, ¶ 11 ("Nevertheless, we have also recognized that the jurisdictional-priority rule can apply even when the causes of action and relief requested are not exactly the same, as long as the actions present part of the same "whole issue."). Finally, we note that Judson involved a complaint for a writ of prohibition. The Ohio Supreme Court found the writ inappropriate, noting that the husband had an adequate remedy at law through an appeal if the common pleas court found that it had jurisdiction over the wife's complaint. The present case does not involve a writ of prohibition. Rather, it is an appeal of a common pleas court's ruling on the question of subject-matter jurisdiction.

{¶ 20} Nancy's reliance on Robinson is equally unavailing. Robinson involved parties and partnership issues that properly could not be addressed in the domestic relations division. Conversely, Nancy's lawsuit involves the same two parties involved in the divorce case, and the issue she raises is properly brought in the domestic relations division. In fact, domestic relations statutes expressly address the issue Nancy's lawsuit implicates. Under R.C. 3105.171(B), the domestic relations division had jurisdiction over all property of either spouse, including Jay's allegedly concealed assets. Under R.C. 3105.171(E)(3), the parties were required to make a full disclosure of their assets in the divorce case. Under R.C. 3105.171(E)(4), the domestic relations division had the power to compensate Nancy for Jay's concealment or non-disclosure of assets. Finally, R.C. 3105.171(E)(5) provides a specific remedy when a spouse "substantially and willfully" fails to disclose assets. As in Keen , we believe the only proper procedure would be for Nancy to seek Civ.R. 60(B) relief in the domestic relations division and to pursue a remedy there for Jay's alleged concealment of assets.

{¶ 21} Based on the reasoning set forth above, we overrule Nancy's assignments of error and affirm the judgment of the Greene County Common Pleas Court, General Division.

WELBAUM, P.J. and TUCKER, J., concur.

      For clarity and convenience, we will refer to the parties by their first names.

      In Mosley , 86 N.E.3d 910, 2017-Ohio-985, we recognized that the existence of subject-matter jurisdiction does not turn on whether claims are "couched in tort or contract terms." Id. at ¶ 9. " 'Instead, courts must look beyond the language used in the complaint and examine the underlying nature of the claims.' " Id. , quoting Russell v. AT & T Corp. , 2d Dist. Montgomery No. 22373, 2008-Ohio-3489, 2008 WL 2698653, ¶ 8 ; see also Lawton v. Howard , 10th Dist. Franklin No. 13AP-878, 2014-Ohio-2660, 2014 WL 2809305, ¶ 10 (affirming the general division's Civ.R. 12(B)(1) dismissal of the appellant's tort and breach-of-contract claims against his ex-wife because "in actuality, his complaint serv[ed] to contest the prior judgment and decree of divorce issued by the domestic relations division of the court of common pleas"); Estate of Dombroski v. Dombroski , 7th Dist. Harrison No. 14 HA 3, 2014-Ohio-5827, 2014 WL 7475178, ¶ 1-2 ("[A]ppellants assert that a suit for fraud, conspiracy to commit fraud, and negligence does not fall within the probate court's exclusive jurisdiction, urging that such claims are regularly heard in the general division. * * * However, the entire basis for this suit deals with the contents of the summary release from administration filed in the probate court, and the damages sought essentially depend on whether the estate would have been distributed differently, which in turn involves the application of various probate laws. We adopt the evolving case law position that a probate court can award monetary damages, and we conclude that this case falls within the exclusive jurisdiction of the probate court[.]").

      But see Pula v. Pula-Branch , 129 Ohio St.3d 196, 2011-Ohio-2896, 951 N.E.2d 72, ¶ 6 (describing R.C. 2301.03's grant of all power in domestic relations cases to the domestic relations division as "a specific grant of authority," but not a limitation on the domestic relations division's jurisdiction "over other cases," and noting that the domestic relations division retains the "same powers and jurisdiction" as other common pleas court judges).


source: Caselaw Access Project

author: MAYLE, P.J.

license: Public Domain

text:
    Alexander ROBINSON, Jr., BY his mother and next friend Ishonda PETTAWAY, et al., Appellants v. MERCY ST. VINCENT MEDICAL CENTER, et al., Appellee
    No. L-17-1102
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: May 25, 2018
    Gary W. Osborne, and Jack S. Leizerman, Toledo, for appellants.
    John C. Barron, and Katherine S. Decker, Toledo, for appellee Alphonsus Obayuwana, M.D.
    DECISION AND JUDGMENT
   MAYLE, P.J.

{¶ 1} Plaintiffs-appellants, Alexander Robinson, Jr., by his mother and next friend Ishonda Pettaway, Ishonda Pettaway in her individual capacity, and Alexander Robinson, Sr. (collectively, "Robinson"), appeal the March 31, 2017 judgment of the Lucas County Court of Common Pleas, denying their motion for a new trial. For the reasons that follow, we affirm, in part, and reverse, in part, the trial court judgment.

I. Introduction

{¶ 2} Ishonda Pettaway ("Ishonda") and Alexander Robinson, Sr. ("Alexander") are the parents of Alexander Robinson, Jr. ("A.J."). A.J. was born on February 1, 2013, at Mercy St. Vincent Hospital where he was delivered by defendant-appellee, Alphonsus Obayuwana, M.D., an obstetrician. A.J. suffered a severe brachial plexus injury that has left him permanently impaired. At issue in this lawsuit is whether Dr. Obayuwana negligently caused this injury when he delivered A.J.

{¶ 3} The case was tried to a jury from January 17-24, 2017. A number of witnesses testified who were present for the delivery, including Ishonda; Alexander; Ishonda's mother, Shevella Pettaway; Ishonda's cousin, Tierra Brown; Dr. Obayuwana; Thomas Kopp, M.D., an emergency medicine resident who was there to observe the delivery as part of his obstetrics-gynecology rotation; and Colleen Schade, the labor and delivery nurse who cared for Ishonda during A.J.'s delivery. Several medical experts also testified, including Edith Gurewitsch, M.D., an associate professor of obstetrics and gynecology at Johns Hopkins University School of Medicine, retained by Robinson; and Mark Landon, M.D., a professor and chair of the department of obstetrics and gynecology at The Ohio State University College of Medicine, retained by Dr. Obayuwana.

{¶ 4} The parties agree that during delivery, A.J.'s shoulder became impacted behind his mother's pubic bone, a complication known as shoulder dystocia, and that the umbilical cord was wrapped twice around his neck. They dispute a number of other facts, however, including which shoulder was impacted and whether Dr. Obayuwana responded appropriately to this obstetric emergency.

{¶ 5} Simply stated, Robinson claims that when A.J.'s right shoulder became stuck at Ishonda's pubic bone, Dr. Obayuwana forcefully pulled and tilted the baby's head, permanently damaging the right brachial plexus, the network of nerves that supply movement and sensation to the shoulder down to the hand. This injury has rendered A.J. unable to use his right arm.

{¶ 6} Dr. Obayuwana contends that he performed a fourth-degree episiotomy-making an incision from Ishonda's vagina to her rectum-to make enough room to allow him to put his hand into Ishonda's vagina, grab the baby's hand, and pull it through the vagina, freeing the baby's shoulder. This is a maneuver known as a posterior arm extraction. He claims that it was the baby's left shoulder that became impacted, but claims that there was also an impaction of the right shoulder at the sacral promontory-a projection at the end of the spine at the beginning of the formation of the tail bone. He insists that the injury to A.J.'s right brachial plexus occurred because of the natural forces of labor and the impaction at the sacral promontory.

{¶ 7} The parties' experts both agree that when faced with a shoulder dystocia, it is a breach of the standard of care for an obstetrician to pull forcefully on the baby's head, to instruct the mother to continue to push once the shoulder dystocia has been recognized, and to fail to perform maneuvers to free the baby's shoulder. They also agree that performing a fourth-degree episiotomy is not itself a maneuver.

II. Background

{¶ 8} We briefly summarize the events leading to the delivery as set forth in Ishonda's birth records, admitted at trial as Joint Exhibit A. We then outline the pertinent facts elicited from the parties and their witnesses at trial. Because the issues on appeal are limited, a full recitation of the facts is unnecessary.

A. Overview of the Labor and Delivery.

{¶ 9} Ishonda Pettaway was 23 years old and 39 weeks pregnant with her second child. She had a history of gestational diabetes. She presented to Mercy St. Vincent Medical Center at 8:53 a.m. on February 1, 2013, for a scheduled induction. When she arrived, she was 50 percent effaced and dilated to five centimeters. Her water was artificially broken at 10:45 a.m. Pitocin was administered beginning at 11:40 a.m. By 2:02 p.m., Ishonda was fully dilated. She was completely effaced at 2:25 p.m. and was prepared for delivery. She began pushing at this time, and Dr. Obayuwana was called to the delivery room. He arrived one minute later. The NICU team was called to the delivery at 2:35 p.m. At that time, it was documented that Ishonda was pushing with contractions. Three minutes later, at 2:38 p.m., A.J. was delivered, weighing nine pounds, seven ounces. Dr. Obayuwana recorded the following delivery note at 3:30 p.m.:

I was called to deliver this patient who was pushing and after a few pushes the head of the baby came out. Patient who had declined epidural anesthesia became very intolerant of the pain that ensued from perineal stretching. She became uncooperative and moved up so far up the bed. With mild-moderate dystocia the baby was delivered after making a generous 4th degree episiotomy. Cord was twice around the neck of the baby x 2 (tight).

B. The Defense Witnesses' Recollection of the Delivery.

{¶ 10} Dr. Obayuwana testified that he arrived in the delivery room just as Ishonda began to push. He said that Ishonda had declined an epidural and was experiencing significant pain to the point of becoming uncooperative. Dr. Obayuwana described that as A.J.'s head began to emerge from Ishonda's vagina, Ishonda moved up the bed and sat forward onto the baby's head. Ishonda was coaxed back down to the end of the bed and was repositioned. The baby was facing maternal left, and Dr. Obayuwana could feel that the umbilical cord was wrapped twice around the baby's neck, very tightly. He tried to deliver the baby's shoulder, but he met with resistance because A.J.'s anterior, or top, shoulder was stuck at the pubic bone. The baby's face was turning blue.

{¶ 11} Dr. Obayuwana described this as an "emergency times three." He said that he quickly decided to use the scissors to make a fourth degree episiotomy, thereby allowing enough space to insert his hand into Ishonda's vagina. He did so, and could feel the baby's hand positioned at his chest. Dr. Obayuwana explained that at this point, he performed a posterior arm extraction. He grabbed the baby's right hand and pulled it out, disimpacting the shoulder. The baby's body was delivered at 2:38 p.m. and handed off to the nurses. At 3:30 p.m., Dr. Obayuwana recorded the note in Ishonda's chart.

{¶ 12} Also in the room for the delivery were Dr. Kopp, an emergency medicine resident, and nurse Colleen Schade. Nurse Schade was positioned at Ishonda's left and was holding her left leg during the delivery. Dr. Kopp was standing at the foot of the bed near Dr. Obayuwana's right.

{¶ 13} Both Dr. Kopp and Nurse Schade recalled that Ishonda had a difficult time tolerating the pain of the delivery and they had a hard time keeping her down at the edge of the bed. They said she moved away from the edge of the bed more than once. Nurse Schade did not recall seeing the baby's head make contact with the bed, and Dr. Kopp did not recall the position of the head at the time Ishonda moved up the bed. He did not recall her sitting on her baby's head.

{¶ 14} Dr. Kopp recalled that the baby was facing maternal left and that the cord was wrapped around his neck, but did not recall the baby turning blue. He heard Dr. Obayuwana say "this is no joke," and tell the patient that she needed to push. At Dr. Obayuwana's request, Dr. Kopp handed Dr. Obayuwana the scissors for the episiotomy. Dr. Kopp did not recall seeing Dr. Obayuwana stick his hand into Ishonda's vagina, and Nurse Schade was not in a position where she would have been able to see. Dr. Kopp did not see Dr. Obayuwana deliver the baby's posterior arm. He did see him pull on the baby's head with his hands.

{¶ 15} Dr. Obayuwana did not inform Dr. Kopp or Nurse Schade that he had encountered a shoulder dystocia. Dr. Kopp recalled thinking that it took longer than normal between the delivery of the head and the rest of the body, but it did not cross his mind that it was a shoulder dystocia. Nurse Schade testified that nurses practice shoulder dystocia drills. Upon learning that there is a shoulder dystocia, they are expected to keep time so they know how much time has passed after the head has been delivered. Nurse Schade was not informed until after the delivery that Dr. Obayuwana had encountered a shoulder dystocia. She estimated that the baby's head and body were delivered within about one minute of another. Dr. Kopp testified that it was "minutes" between delivery of the head and delivery of the body, but he could not be any more specific than that.

C. Ishonda and Her Family's Testimony.

{¶ 16} Ishonda and her family agreed with the defense witnesses that Ishonda experienced significant pain during labor, but they maintain that she twice asked for an epidural. The first time, they say that she was dissuaded by one of the nurses who suggested Nubaine instead. The second time, she was told that it was too late for an epidural.

{¶ 17} Shevella, Alexander, and Tierra described that they were all positioned to Ishonda's right. When it came time to push, Alexander held Ishonda's right leg, and a nurse held her left leg. They said that when the baby's head emerged, he was facing Ishonda's right and they could see that the cord was wrapped around his neck twice. Dr. Obayuwana tried to loosen the cord, but it was too tight.

{¶ 18} Dr. Obayuwana called for help. The family could see that the baby was starting to turn blue and purple, and Alexander and Tierra described that at this point, they noticed a change in Dr. Obayuwana's demeanor. He had been calm, but now seemed fearful and panicked. Ishonda's family described that Dr. Obayuwana forcefully pulled on the baby's head and neck to the point that Shevella told him, "you're going to break his neck." They maintained that Dr. Obayuwana told Ishonda to push like her and her baby's lives depended on it. At that point, Shevella moved Alexander out of the way and held her daughter's leg. She told Ishonda that if she did not push, she was going to die. Dr. Obayuwana never directed Ishonda to stop pushing.

{¶ 19} Alexander agreed that Ishonda had moved up the bed, but he denied that she sat on the baby's head. He said that she went up the bed before the baby's head emerged. Tierra maintained that Ishonda had never moved up the bed, and neither Shevella nor Ishonda recalled her doing so. Alexander described that Dr. Obayuwana made a "circular motion" with his right hand around Ishonda's vagina, like he was trying to stretch it to make room for the baby's head to come out. But Alexander, Ishonda, and Tierra disputed that Dr. Obayuwana put his hand inside Ishonda's vagina. Alexander also denied that Dr. Obayuwana used scissors to make an episiotomy-he maintained that Ishonda had torn. Neither Tierra nor Shevella recalled Dr. Obayuwana making an incision.

{¶ 20} When the baby was delivered, he was not crying and had bruises on his body. His arm was limp. Alexander and Ishonda both testified that they asked Dr. Obayuwana about the bruises on the baby and he told them the bruises would go away.

D. The Experts' Opinions.

1. Dr. Gurewitsch

{¶ 21} Dr. Gurewitsch explained that shoulder dystocia occurs when the baby's head is delivered, but the baby's anterior (i.e., top) shoulder becomes impacted at the mother's symphysis pubis. It is dangerous because the umbilical cord can be compressed, preventing the flow of oxygen to the baby. She said that once a shoulder dystocia is recognized, the physician has approximately four minutes to deliver the baby's body. She described a number of maneuvers that may be employed to dislodge the shoulder and safely deliver the baby; a proctoepisiotomy-another term for a fourth-degree episiotomy-is not a maneuver. She explained that the doctor cannot just bend the baby's head down, and then up, as would be done in an ordinary delivery because there is a risk of stretching the nerves that control the baby's arm. The baby's head must be kept in line with the spine.

{¶ 22} Dr. Gurewitsch testified that once the physician meets resistance in delivering the baby, he or she must stop and perform maneuvers. He or she should apply no more force than is applied in a normal delivery. If one maneuver does not work, another maneuver should be attempted. She said that it is rare that the baby's shoulder would remain impacted after multiple maneuvers are performed.

{¶ 23} Dr. Gurewitsch explained that the standard of care requires an obstetrician to recognize the occurrence of shoulder dystocia, to limit the amount and direction of traction applied, and to apply one or more maneuvers appropriate for the circumstances. Continued pushing will force the baby's shoulder further into the pelvic bone, increasing risk of injury, so this should be avoided.

{¶ 24} Dr. Gurewitsch was asked to assume that the family was positioned to the right of the mother; the baby was facing the family, so that the right shoulder was anterior; the doctor did not do any of the maneuvers she described; the family said that the doctor became panicked and was pulling on the baby's head excessively; the doctor told the mother to push like the baby's life depends on it; the doctor did not document having performed any maneuvers; and no one in the room witnessed the doctor perform any maneuvers. Under these circumstances, Dr. Gurewitsch opined that the standard of care was not met.

{¶ 25} Dr. Gurewitsch testified that all five of A.J.'s nerve roots were stretched and torn to the point of not conducting, and he has no use of his right arm despite multiple attempts to repair the damage. This is the most severe stretch injury possible. She explained that this type of stretch injury does not occur without the application of force of about 40-50 pounds-about four times the necessary force-and bending of the head 60 degrees away from the effected side. She testified that excessive lateral traction is the only way this injury could have occurred.

{¶ 26} Dr. Gurewitsch was asked to comment on the defense's contentions that (1) the left shoulder was anterior; (2) Dr. Obayuwana reached his right hand in and performed a posterior arm extraction; (3) injury was due to maternal forces of labor and an obstruction at the sacral promontory; and (4) injury resulted when Ishonda moved up the bed during the delivery.

{¶ 27} Dr. Gurewitsch testified that whether the baby's left arm was anterior or posterior, her explanation of the injury is the same: the baby's head was titled more than 60 degrees and the doctor applied excessive force to the head. As to Dr. Obayuwana reaching his hand in, she said that it would be noticeable to observers of the delivery if Dr. Obayuwana reached his hand in to extract the posterior arm. As to the theory that the injury was caused by the maternal forces of labor and an obstruction at the sacral promontory, Dr. Gurewitsch said that this was not biomechanically possible. And as to Dr. Obayuwana's contention that the injury occurred when Ishonda moved up the bed, Dr. Gurewitsch testified that while she had seen laboring mothers move up the bed during delivery, it does not make sense that this caused the injury because the head would have had to have bent over 60 degrees. She was skeptical that the head could have been protruding out enough for this to have happened, and she said that if Ishonda had sat on the baby's head, he probably would not have survived that.

{¶ 28} Dr. Gurewitsch explained that only temporary brachial plexus injury has ever been shown to have resulted from an obstruction at the sacral promontory. There have been no reported cases of a permanent stretch injury to all five nerve roots.

{¶ 29} Finally, Dr. Gurewitsch described that certain information should be contained in a delivery note where the physician has encountered a shoulder dystocia, including the time the head is delivered; which shoulder was anterior; and what maneuvers were used. This information does not appear in Dr. Obayuwana's note. Dr. Gurewitsch said that she would expect a physician of Dr. Obayuwana's experience to provide proper documentation, especially given that one of Dr. Obayuwana's duties is to instruct residents.

2. Dr. Landon

{¶ 30} Dr. Landon did not dispute that there was a shoulder dystocia in this case, but he explained his theory of the cause of A.J.'s brachial plexus injury: that A.J.'s right shoulder became caught at Ishonda's sacral promontory. The baby has to clear the sacral promontory to be delivered vaginally, and this area is a zone of risk for the safe passage of the posterior shoulder. When the posterior shoulder becomes hung up on the sacral promontory, this event occurs before the anterior shoulder becomes hung up on the pubis symphysis. A physician would generally not know until the head is delivered that the posterior shoulder is caught on the sacral promontory.

{¶ 31} Dr. Landon testified that the record shows that Dr. Obayuwana made a fourth-degree episiotomy. He agreed that a generous episiotomy is not a maneuver in and of itself to relieve a shoulder dystocia, and he said that there is no reason to do this other than for purposes of performing a posterior arm extraction. Dr. Landon described that if the baby is facing maternal left, the physician would use his or her right arm to do a posterior arm extraction. If the baby is facing maternal right, the physician's left arm would be used. He testified that the right-sided bruising on the baby is consistent with the baby facing maternal left and Dr. Obayuwana performing a right posterior arm extraction. The right-hand bruising would have resulted when Dr. Obayuwana grasped the baby's hand. Dr. Landon would not expect to see bruising on the right hand if Dr. Obayuwana had simply used great force to pull the baby out.

{¶ 32} Dr. Landon explained that it has been shown that a brachial plexus injury can occur without shoulder dystocia. He said that it cannot simply be concluded that excessive force was used just because there has been a permanent brachial plexus injury. Dr. Landon testified that there is no clear line as to how much force is too much force, and injury can be caused by the force of labor itself. What may severely injure one baby may not injure, or may only mildly injure, another baby. He described this as biologic variability. Dr. Landon was unable to quantitate what role Ishonda moving up the bed played in causing A.J.'s injury, but he opined that it probably did contribute overall.

{¶ 33} Dr. Landon acknowledged that he could not tell only from the records whether Dr. Obayuwana had met the standard of care because the delivery note did not indicate what maneuvers he performed, which way the baby was facing, how much force was applied, and how much time passed between the emergence of the baby's head and delivery of the body. He agreed that it is recommended that all this information be included in the delivery note.

{¶ 34} Dr. Landon conceded that if Dr. Obayuwana performed no maneuvers and if he told Ishonda to push like her life depends on it, this would violate the standard of care. It would also violate the standard of care to pull or yank on the baby's head. Dr. Landon agreed that if Dr. Obayuwana did not do a posterior arm extraction, the right shoulder was anterior and became stuck, and Dr. Obayuwana only pulled on the baby's head, it would be more likely than not that this conduct caused the baby's injury. Dr. Landon agreed that in performing a posterior arm extraction, the doctor's hand would be inserted into the vagina up to the wrist. If Dr. Obayuwana performed no maneuvers, then the only way to get the baby out would be to pull hard. Finally, Dr. Landon acknowledged that there is no case reported in the literature where all five nerves have been ripped due to an impaction at the sacral promontory, and that such injury would usually be temporary.

E. The Jury's Verdict.

{¶ 35} The jury rendered a verdict in favor of Dr. Obayuwana. Robinson filed a motion for new trial under Civ.R. 59(A)(9), arguing that the trial court made errors of law at trial in two of its evidentiary rulings. In a judgment journalized on March 31, 2017, the trial court denied Robinson's motion. Robinson appealed and assigns the following errors for our review:

A. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANTS' REQUEST TO PRESENT REBUTTAL TESTIMONY REGARDING DEFENSE EXPERT'S CLAIM THAT THE BABY'S RIGHT HAND BRUISING PROVED THAT THE BABY WAS FACING MATERNAL LEFT AT DELIVERY AND ERRED IN DENYING A NEW TRIAL ON THIS ISSUE.
B. THE TRIAL COURT ERRED IN OVERRULING TRIAL COUNSEL'S OBJECTION TO ALLOWING APPELLEE TO TESTIFY REGARDING THREE PRIOR INCIDENTS WHERE HE SAFELY DELIVERED SHOULDER DYSTOCIAS WITHOUT INJURY.
C. THE TRIAL COURT ERRED IN FAILING TO STRIKE DEFENSE EXPERT'S TESTIMONY THAT HE COULD NOT QUANTITATE WHAT ROLE THE MOTHER MOVING UP THE BED PLAYED IN CAUSING THE BABY'S INJURY BUT THAT IT CONTRIBUTED.

III. Law and Analysis

{¶ 36} Robinson argues that the trial court erred in denying his motion for a new trial under Civ.R. 59(A)(9). He contends that the trial court erred in (1) prohibiting rebuttal evidence pertinent to bruising observed on A.J.'s right hand and wrist; (2) allowing Dr. Obayuwana to testify about three prior instances where he successfully managed shoulder dystocia deliveries without causing injury to the babies; and (3) refusing to strike testimony from Dr. Landon about the effect of Ishonda moving up the bed during delivery.

{¶ 37} The admission of evidence lies within the broad discretion of the trial court and is reviewed for an abuse of discretion. State v. Patton , 6th Dist. Lucas No. L-12-1356, 2015-Ohio-1866, 2015 WL 2329173, ¶ 53. An abuse of discretion connotes that the trial court's attitude in reaching its decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 38} We address Robinson's assignments of error out of order.

A. The trial court's failure to strike defense expert's testimony.

{¶ 39} In his third assignment of error, Robinson argues that the trial court erred in allowing Dr. Landon to testify that Ishonda moving up the bed played a role in the baby's injury even though he was unable to "quantitate" how much of a role it played. Dr. Obayuwana points out that Robinson failed to raise this objection in his motion for a new trial, and has, therefore, waived the argument for purposes of appeal. We agree with Dr. Obayuwana.

{¶ 40} A litigant's failure to raise an issue before the trial court waives that party's right to raise the issue on appeal. Estate of Hood v. Rose , 153 Ohio App.3d 199, 2003-Ohio-3268, 792 N.E.2d 736, ¶ 10 (4th Dist.). While Robinson objected at trial to the admission of Dr. Landon's opinions regarding the effect of Ishonda moving up the bed, he failed to raise this issue in his motion for a new trial. Given that his appeal is based on the denial of that motion, he has therefore waived this argument for purposes of appeal. See Baugh v. Carver , 3 Ohio App.3d 139, 142, 444 N.E.2d 58 (1st Dist.1981).

{¶ 41} We find Robinson's third assignment of error not well-taken.

B. The trial court's decision allowing specific testimony about other deliveries.

{¶ 42} During Dr. Obayuwana's case-in-chief, the trial court allowed defense counsel to elicit testimony from Dr. Obayuwana about three prior incidents where he encountered shoulder dystocia in other patients but delivered the babies without causing injury. In his second assignment of error, Robinson claims that the trial court erred when it allowed this testimony.

{¶ 43} On direct examination, defense counsel asked Dr. Obayuwana to describe for the jury "prior experiences that [he has] had with very difficult shoulder dystocia deliveries that [he has] dealt with and succeeded in delivering[.]" Counsel for Robinson immediately objected on relevance grounds, and defense counsel responded that the testimony was relevant to refute Robinson's contention that Dr. Obayuwana panicked when he encountered shoulder dystocia during Ishonda's delivery. The trial court allowed the testimony. Dr. Obayuwana then went on to describe in detail three prior deliveries complicated by shoulder dystocia and the specific maneuvers employed to resolve the condition.

{¶ 44} The first delivery about which Dr. Obayuwana testified allegedly took place while he was at Adventist Hospital in Bethesda, Maryland. He recalled that the patient's husband and mother were present, as well as two to three nurses. He said that when he encountered the shoulder dystocia, he first tried a maneuver called McRoberts, then tried another maneuver called Woods screw, and then yet another maneuver called Rubin. He said that after these three maneuvers proved unsuccessful, he performed a proctoepisiotomy and a posterior arm extraction, ultimately delivering the baby without injury.

{¶ 45} The second delivery described by Dr. Obayuwana took place at Virginia Medical School. He said that he was called to help a mid-wife and the mid-wife's supervising physician. Dr. Obayuwana recalled that they had attempted the McRoberts maneuver, then the Rubin. When these maneuvers failed, they looked to Dr. Obayuwana for guidance. He performed a maneuver called an axillary manipulation, or Menticoglou, and succeeded in delivering the child without injury. He described the surprise of the residents, students, and attending physicians who witnessed him perform this lesser-known maneuver.

{¶ 46} Dr. Obayuwana did not specify where the third delivery took place, but he recounted being called by a patient's physician who encountered difficulty during delivery. The baby's head was delivered, the physician performed downward traction, and the cord was around the baby's neck. The doctor clamped the cord in two places and cut it, a risky decision because the baby is no longer being supplied with oxygen. The physician then discovered that the baby's shoulder was stuck. He tried the McRoberts, Rubin, Woods screw, and posterior shoulder maneuvers to no avail. These maneuvers having failed, the doctor pushed the baby's head back in and intended to perform a C-section, a time-consuming prospect that could result in damage to the baby. At this point, Dr. Obayuwana suggested putting the patient on her hands and knees-a Gaskin maneuver. Once again, Dr. Obayuwana successfully delivered the baby without injury. Ultimately, Dr. Obayuwana was permitted to testify that he is aware of no cases where babies he delivered suffered a brachial plexus injury.

{¶ 47} Robinson argues that this evidence was not relevant and its admission violated Evid.R. 403(A) and 404(B). He maintains that evidence of these prior incidents was offered only to show action in conformity therewith, a purpose prohibited by Evid.R. 404(B). He insists that even if relevant, Evid.R. 403(A) mandated the exclusion of the evidence because its probative value was substantially outweighed by the danger of unfair prejudice.

{¶ 48} Dr. Obayuwana responds that the trial court properly allowed Dr. Obayuwana to testify to prior shoulder dystocia deliveries because (1) the evidence was necessary to refute Robinson's claim that Dr. Obayuwana was inexperienced and had panicked during the delivery; (2) the evidence was not barred under Evid.R. 404(B) because it was offered to demonstrate knowledge and ability to assess shoulder dystocia and to act without panicking; (3) Robinson opened the door to the evidence by eliciting evidence that Dr. Obayuwana panicked and by questioning him about his prior experience in dealing with shoulder dystocia ; (4) the evidence was admissible under Evid.R. 406 to show habit or routine practice, and the evidence here highlighted his regular practice of assessing a shoulder dystocia patient and identifying the maneuver best-suited to resolve it; and (5) Robinson cannot identify how he was unfairly prejudiced by the admission of the evidence because it did not arouse the jury's emotional sympathies, evoke a sense of horror, or appeal to an instinct to punish.

1. Relevance

{¶ 49} Ishonda's cousin, Tierra, described that once A.J.'s head was delivered, Dr. Obayuwana's demeanor changed and he seemed panicked. She described: "He was clearly calm, confident in what he was doing. And once AJ's head popped out, he's just-what's the word-his demeanor just changed. It went-he became fearful. More anxious to really get the baby out." She said that he became very focused and concerned, his voice got deeper, and he became very serious. Alexander similarly testified that Dr. Obayuwana started to panic. Dr. Obayuwana argues that the evidence of other deliveries was relevant to dispute Robinson's claims that he was inexperienced and that he panicked during Ishonda's delivery.

{¶ 50} Robinson denies arguing that Dr. Obayuwana was inexperienced. He explains that it was not his position that Dr. Obayuwana did not know what to do when faced with a shoulder dystocia-it was that he did not do what he should have done. And although Robinson does not dispute that he offered testimony indicating that Dr. Obayuwana's demeanor changed and he appeared to panic, he maintains that it was for the jury to decide whether Dr. Obayuwana, in fact, panicked in this case, and whether his panic led him to use inappropriate force during A.J.'s delivery. He insists that evidence that Dr. Obayuwana safely delivered babies in other cases does not mean that he did not panic in the present case. Moreover, he argues, there was no way to independently verify the truth of Dr. Obayuwana's claims.

{¶ 51} Evid.R. 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Relevant evidence is generally admissible, whereas "evidence which is not relevant is not admissible." Evid.R. 402.

{¶ 52} We agree with Robinson that evidence of other shoulder dystocia deliveries was not relevant and should not have been allowed. In the absence of testimony indicating that Ishonda's delivery was in all respects similar to these other deliveries (e.g., there was a second impaction at the sacral promontory, a baby with the cord wrapped around his neck twice, and a mother who did not have an epidural, poorly tolerated the pain of delivery, and moved up the bed with her baby's head protruding from her vagina), that Dr. Obayuwana successfully managed these three other shoulder dystocia deliveries does not make it more or less probable that he did not panic and that he properly managed the shoulder dystocia encountered during Ishonda's delivery. Dr. Obayuwana could have rebutted Robinson's assertion that he panicked during delivery with testimony from his own witnesses-including Dr. Kopp, Nurse Schade, and Dr. Obayuwana himself-that he did not panic during the delivery. He was not free to rebut Robinson's assertions with unverifiable information about unrelated prior deliveries involving different facts and circumstances. Simply put, Dr. Obayuwana's testimony regarding all of his successful deliveries involving shoulder dystocia was not probative of the relevant issue: Dr. Obayuwana's demeanor in Ishonda's delivery room when presented with the unique circumstances at issue in this case.

{¶ 53} We find that these other purportedly successful deliveries were not relevant to refute Robinson's contention that Dr. Obayuwana panicked during Ishonda's delivery. The trial court erred in failing to exclude this evidence.

2. Evid.R. 404(B)

{¶ 54} While we have already determined that the evidence of prior deliveries was not relevant, and, therefore, not admissible, we also address Robinson's argument that the evidence was barred under Evid.R. 404(B). He contends that just as evidence of prior instances of alleged malpractice is inadmissible to show that a physician was negligent with respect to a plaintiff's care, so too is evidence of prior instances offered to show that the physician was not negligent. Dr. Obayuwana responds that the evidence of other acts here was admissible to show his knowledge and ability to assess shoulder dystocia during a delivery without panicking. He claims that Robinson opened the door to this testimony with evidence that Dr. Obayuwana appeared panicked.

{¶ 55} Evid.R. 404(B) provides, in pertinent part, that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

{¶ 56} Robinson correctly points out that in Malcolm v. Duckett , 2013-Ohio-2806, 996 N.E.2d 988 (6th Dist.), we found that evidence proffered by the plaintiff of other instances where the physician-defendant made mistakes similar to those forming the basis for her claim of malpractice was properly excluded under Evid.R. 404(B). In Malcolm, the plaintiff alleged that the defendant-surgeon caused a bowel perforation (an enterotomy) and failed to recognize it, resulting in severe infection. She sought to present evidence of other instances where the surgeon had done the same thing. She insisted that the information was being offered not to establish that prior acts of malpractice made it more probable that the surgeon had been negligent in her care, but to show that the surgeon did not practice with the same degree of care as the physicians represented in studies described by the surgeon's expert witness.

{¶ 57} We held that (1) evidence of other unrecognized enterotomies did not tend to make it more or less probable that the surgeon perforated plaintiff's bowel without recognizing it unless the other patients presented with substantially similar medical histories, symptoms, complaints, etc., and were in all other ways substantially the same; (2) in the absence of a credible allegation that the surgeon intentionally caused and failed to recognize a perforation, prior enterotomies would not establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," as required for its admission under Evid.R. 404(B) ; and (3) the evidence was inadmissible under Evid.R. 403(A) because its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

{¶ 58} As we recognized in Malcolm, the Second District has held similarly. In Lumpkin v. Wayne Hospital, 2d Dist. No. 1615, 2004-Ohio-264, 2004 WL 102860, the plaintiff intended to present evidence that the surgeon who allegedly transected her bile duct during gall bladder surgery had made an identical mistake in a surgery performed on another patient. Plaintiff claimed that this demonstrated that the physician was on notice that his surgical technique was flawed. The court held that plaintiff failed to proffer evidence establishing that the circumstances of the prior occurrence were substantially similar to the circumstances of her surgery. It concluded that the evidence was properly excluded.

{¶ 59} Dr. Obayuwana claims that Malcom is inapplicable here because in Malcolm , the evidence was offered to bolster the plaintiffs' claim that the physician had been negligent by offering evidence of complications suffered by the physician's other patients, whereas here, the evidence was offered to rebut Robinson's "strategically crafted trial theme" that Dr. Obayuwana was inexperienced with shoulder dystocia and simply panicked. Robinson counters that past-acts evidence is not permissible to demonstrate a "general fund of knowledge regarding medical practices." He again denies having attacked Dr. Obayuwana's knowledge base or having claimed that Dr. Obayuwana was inexperienced. He emphasizes that his position was not that Dr. Obayuwana did not know what to do when faced with a shoulder dystocia-it was that he did not do what he should have done.

{¶ 60} Despite Dr. Obayuwana's characterization to the contrary, it is clear from Dr. Obayuwana's closing argument that the purpose of offering evidence of those other deliveries was to show action in conformity therewith:

You heard yesterday Dr. Obayuwana in exquisite detail describe the three worst shoulder dystocias that I think he's ever had in his life. Much more difficult than this one to manage.
In one case I remember he telling you about another doctor having been involved. I think maybe in that case there was a midwife involved. They were so at a loss, they were going to try this extreme measure of a Zavanelli maneuver where they basically just give up on delivering the child from below, out the vagina and they want to push the baby's head up back into the womb and do a C-section. And Dr. Obayuwana explained how risky and extreme that is. And what did Dr. Obayuwana do when he got to the room? I think that was the case in which he remembered this pretty obscure maneuver called the Menticoglou. What I do vividly remember is that he explained that he came up with another maneuver and it worked. This baby was not forced back up into the womb. This baby was saved from brain damage.
And Dr. Obayuwana by cool, calm thinking, deep knowledge, saved that baby.
He told you about another case in which it was one of his posterior arm extractions. And he explained to you how that was actually a more difficult posterior arm extraction because he explained to you that sometimes the arm is flat against the baby's side. Sometimes it's like on the abdomen and sometimes it's on the chest. And in that case, it was more difficult because it was on the abdomen and so he had to get the arm bent more before he could grab the wrist and pull the arm out.
And he contrasted it to this case as being relatively easy because the hand was up here on the chest. There was quit [sic] a bit of flex already at the elbow and all he needed to blindly locate where the arm was, what the configuration it was in, and was able to just deliver the arm.
And thirdly, he told you about another crisis that he got pulled into and that was a situation where they tried a bunch of maneuvers. Nothing worked. And he thought the best thing under those circumstances was this what he called the Gaskin maneuver, where with a cooperative mother, he was able to get the mother on all fours. Hands and knees. And that released the shoulder dystocia.
Does-how for the love of anything fair can they claim that such a man when confronted with this shoulder dystocia, he panicked; he didn't know what to do?
* * *
[Robinson's counsel] asked Dr. Gurewitsch to assume nothing was done other than just pull the baby out. Dr. Gurewitsch was asked to assume that Dr. Obayuwana panicked. How can it be possible that a doctor in these three prior much more complicated shoulder dystocias figured out what the other doctors weren't even able to figure out and save those babies just like he saved this baby?

{¶ 61} These statements at closing argument make clear that the evidence of prior deliveries was offered not to show knowledge, but to show that Dr. Obayuwana successfully managed other "much more difficult" and "much more complicated" shoulder dystocia cases and, therefore, it can be inferred that he successfully managed the shoulder dystocia in the present case, which was "relatively easy" by comparison. That is, the evidence was offered to show that Dr. Obayuwana "save[d] those babies just like he saved this baby."

{¶ 62} The evidence was therefore inadmissible under Evid.R. 404(B), and the trial court abused its discretion in admitting Dr. Obayuwana's testimony.

3. Evid.R. 403

{¶ 63} We have already determined that evidence of other shoulder dystocia deliveries performed by Dr. Obayuwana was irrelevant and improper under Evid.R. 404(B). But Evid.R. 403(A) also required its exclusion.

{¶ 64} Evid.R. 403(A) provides that "[a]lthough relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Moreover, "even if a court finds that the other acts evidence was offered for a valid purpose under Evid.R. 404(B), the court must still consider whether the evidence is substantially more prejudicial than probative[.]" State v. Primeau , 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, 2012 WL 5463019, ¶ 47.

{¶ 65} In at least two other cases involving medical malpractice claims premised on mismanagement of shoulder dystocia, we found that Evid.R. 403(A) precluded other-acts evidence. In House v. Swan, 6th Dist. No. L-09-1232, 2010-Ohio-4704, 2010 WL 3820372, plaintiffs alleged that the defendant-obstetrician caused a brachial plexus injury when he mismanaged a shoulder dystocia during delivery. Plaintiffs sought to introduce evidence of the obstetrician's prior similar errors. We concluded that the trial court properly excluded this evidence because its probative value was substantially outweighed by the danger of unfair prejudice under Evid.R. 403(A).

{¶ 66} In D'Amore v. Cardwell, 6th Dist. No. L-06-1342, 2008-Ohio-1559, 2008 WL 852791, the trial court had granted the defendant physician's motion in limine to preclude testimony of permanent brachial plexus injuries suffered by other children delivered by the defendant-obstetrician. We held that the trial court was within its discretion under Evid.R. 403(A) to exclude evidence of two pending malpractice claims because there had been no finding of negligence in either of those cases and consideration of the other negligence claims would have been highly prejudicial and would have risked confusing the issues for the jury.

{¶ 67} The Second District held similarly in Lumpkin, 2d Dist. No. 1615, 2004-Ohio-264, at ¶ 23. There the court found that even if the plaintiff had established that the circumstances of her surgery were substantially similar to a case where the defendant had made a prior surgical mistake, the evidence would have been excluded under Evid.R. 403(A) because "[p]roof of one bad result in a previous, similar surgery, without more, promotes an improper inference that because a doctor has had one bad result on a previous occasion, the doctor is incompetent."

{¶ 68} We reach the same conclusion here. Evidence that Dr. Obayuwana successfully managed shoulder dystocia deliveries in the past would promote an improper inference that he did so in the present case. Evid.R. 403(A) mandated exclusion of the evidence.

4. Evid.R. 406

{¶ 69} Finally, Dr. Obayuwana contends that the evidence of the prior deliveries was admissible under Evid.R. 406 as evidence of habit. Evid.R. 406 provides, in pertinent part, that "[e]vidence of the habit of a person * * *, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person * * * on a particular occasion was in conformity with the habit * * *." "A habit is defined as a person's regular practice of meeting a particular kind of situation with a specific type of responsive conduct."

Mulford-Jacobs v. Good Samaritan Hosp. , 1st Dist. Hamilton No. C-950634, 1996 WL 667833, at *2 (Nov. 20, 1996), citing McCormick, Evidence, Section 195 at 825 (4th Ed.Strong Ed.1992).

{¶ 70} The rationale for the admission of habit evidence is that "habitual acts may become semi-automatic and may tend to prove one acted in the particular case in the same manner." Cardinal v. Family Foot Care Ctrs., Inc. , 40 Ohio App.3d 181, 182, 532 N.E.2d 162 (8th Dist.1987). To be admissible as evidence of habit, the occurrence of the stimulus and the responsive behavior must occur frequently enough to constitute a pattern. See Pappas v. Ippolito , 177 Ohio App.3d 625, 2008-Ohio-3976, 895 N.E.2d 610, ¶ 28 (8th Dist.) ("Examples of habitual acts are locking the door of a house or traveling home from work by the same route every day."). "Evidence as to one or two isolated occurrences does not establish a sufficient regular practice for admission pursuant to Evid.R. 406." Gerke v. Norwalk Clinic, Inc. , 6th Dist. Huron No. H-05-009, 2006-Ohio-5621, 2006 WL 3041095, ¶ 42, citing Bollinger, Inc. v. Mayerson , 116 Ohio App.3d 702, 715, 689 N.E.2d 62 (1st Dist.1996). To hold otherwise would defeat the purpose of Evid.R. 404(B) which prohibits the admission of other-acts evidence to show action in conformity therewith. Cardinal at 182, 532 N.E.2d 162.

{¶ 71} Dr. Obayuwana maintains that the testimony about prior deliveries "highlighted his regular practice of assessing a shoulder dystocia and identifying the maneuver best suited to resolve the shoulder dystocia." He insists that the evidence was admissible to contradict Robinson's allegation that he panicked and began pulling on A.J.'s head rather than assessing the situation and performing the appropriate maneuver.

{¶ 72} Robinson does not dispute that Dr. Obayuwana properly identified that there was a shoulder dystocia-he complains that Dr. Obayuwana did not respond to it appropriately. Robinson also points to testimony by Dr. Obayuwana indicating that of 4,000 deliveries he has performed over a 30-year career, he has encountered only approximately five cases of shoulder dystocia. Robinson claims that Dr. Obayuwana cannot show habit based on only five out of 4,000 cases over 30 years.

{¶ 73} We find that this evidence is not admissible under Evid.R. 406 for a number of reasons. First, Dr. Obayuwana's testimony made clear that each shoulder dystocia presents a unique situation calling for an individual assessment of the circumstances, a reasoned decision as to the most appropriate maneuver to perform, and variation in how each mother and child responds to the maneuver. This suggests something other than a "semi-automatic" response to a repeated stimulus.

{¶ 74} Second, Dr. Obayuwana's testimony went well beyond simply explaining that he routinely assesses for shoulder dystocia and determines which maneuver to perform; he supplied very specific details about these three prior deliveries. Beyond the fact that each involved a shoulder dystocia, there was no suggestion that any of them presented the same challenges that he faced during Ishonda's delivery: e.g., a second impaction at the sacral promontory, a baby with the cord wrapped around his neck twice, and a mother who did not have an epidural, poorly tolerated the pain of delivery, and moved up the bed with her baby's head protruding from her vagina. Without some indication that the other deliveries presented these same challenges, we cannot say that Dr. Obayuwana exhibited responsive behavior to a repeated stimulus.

{¶ 75} Finally, Dr. Obayuwana testified himself that "[s]houlder dystocia is very rare." We agree with Robinson that five of 4,000 deliveries is too infrequent an occurrence to establish a sufficient regular practice necessary for admission under Evid.R. 406. Dr. Obayuwana's testimony about these prior deliveries was not proper evidence of habit.

5. Prejudice

{¶ 76} Dr. Obayuwana claims that even if evidence of other shoulder dystocia deliveries was improperly admitted, a new trial is not warranted because the result of the proceedings would have been the same.

{¶ 77} Civ.R. 61 provides that "No error in either the admission or the exclusion of evidence * * * is ground for granting a new trial * * * unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." In determining whether a substantial right of a party has been affected, "the reviewing court must decide whether the trier of fact would have reached the same decision had the error not occurred." Berger v. Berger , 2015-Ohio-5519, 57 N.E.3d 166, ¶ 9 (11th Dist.), citing Petti v. Perna , 86 Ohio App.3d 508, 514, 621 N.E.2d 580 (3d Dist.1993).

{¶ 78} Dr. Obayuwana maintains that the jury's verdict hinged on his credibility and whether he performed a posterior arm extraction, and he insists that there was more than enough evidence to support the jury's conclusion that he did. But this was an issue of much debate. No one in the delivery room saw Dr. Obayuwana insert his hand into Ishonda's vagina to extract the arm, and there was competing evidence from eyewitnesses as to which way the baby was facing. The jury may well have swayed by the evidence of prior instances where Dr. Obayuwana employed various maneuvers to dislodge impacted shoulders.

{¶ 79} In addition to this, we observe that Dr. Obayuwana's examination concerning these prior deliveries was lengthy and detailed, and much emphasis was placed on this evidence during closing argument, further demonstrating its importance to his case. We cannot say that the jury's verdict would have been the same had the evidence been excluded or that Robinson's substantial rights were not affected by its admission. See State v. Walls , 6th Dist., 2018-Ohio-329, 104 N.E.3d 280, ¶ 51 (finding that state's actions in emphasizing the improper testimony for the jury contributed to prejudice to defendant).

{¶ 80} Accordingly, we conclude that the trial court abused its discretion in admitting Dr. Obayuwana's testimony concerning other shoulder dystocia deliveries, and we find Robinson's second assignment of error well-taken.

C. The trial court's denial of request to present rebuttal testimony.

{¶ 81} In his first assignment of error, Robinson argues that the trial court erred when it excluded rebuttal testimony offered to establish that what appeared to be bruising on A.J.'s right hand was not bruising at all, but rather, a birthmark. He argues that the issue of this "bruising" and its significance was first presented in Dr. Obayuwana's case-in-chief when his expert, Dr. Landon, testified that the bruising must have occurred when Dr. Obayuwana reached in to grab A.J.'s right hand. This was offered as proof that (1) Dr. Obayuwana delivered A.J.'s posterior right arm, and (2) Robinson's observation that A.J. was facing maternal right could not be true.

{¶ 82} Robinson sought to present testimony that while it initially appeared that A.J. had bruises on his arm and hand, these bluish spots did not disappear like a bruise would. At some point Ishonda asked A.J.'s pediatrician about this and was told that the markings are a type of birthmark known as Mongolian spots that would fade over time; this is not documented in A.J.'s medical records, however. Ishonda claimed that she discovered that this is a Pettaway family trait, and that both she and her other son had them as babies. To rebut Dr. Landon's testimony that the bruising on A.J.'s right hand and arm proved that his right arm was posterior, Robinson asked that Ishonda and her mother be permitted to testify about these birthmarks on rebuttal.

{¶ 83} Dr. Obayuwana objected to Robinson's proposed rebuttal evidence, arguing that the delivery nurses noted the bruising on A.J.'s skin, and no medical provider had made a diagnosis of Mongolian spots. He characterized Robinson's proposed evidence as testimony by lay witnesses who were not qualified to refute the original diagnosis that the discoloration on A.J.'s skin was bruising. Robinson countered that testimony that the discoloration persisted long after a bruise would have disappeared was not a medical opinion, but rather a mere observation that any lay person could make. Robinson proffered photographs for the court's review.

{¶ 84} The trial court reviewed A.J.'s pediatrician's records. It observed that while numerous skin issues were addressed in the records, the presence of Mongolian spots was never noted. The court took the position that testimony from Ishonda or Shevella about the continued presence of this discoloration would necessarily call into question the cause of the discoloration and invite improper lay testimony as to medical causation. Robinson asked to proffer Ishonda's testimony.

{¶ 85} The Ohio Supreme Court has recognized that "[a] party has an unconditional right to present rebuttal testimony on matters which are first addressed in an opponent's case-in-chief and should not be brought in the rebutting party's case-in-chief." Phung v. Waste Mgt. , 71 Ohio St.3d 408, 410, 644 N.E.2d 286 (1994). "Generally, the admission of rebuttal testimony is a matter within the trial court's discretion, and a decision admitting or excluding such testimony will not be reversed absent an abuse of that discretion." Brothers v. Morrone-O'Keefe Dev. Co., LLC , 10th Dist. Franklin No. 05AP-161, 2006-Ohio-1160, 2006 WL 620894, ¶ 6.

{¶ 86} Dr. Obayuwana contends that Robinson's rebuttal evidence was properly excluded because (1) Ishonda, as a lay witness, lacked the competence to testify as to the cause of the discoloration or the diagnosis of Mongolian spots; (2) Robinson offered no independent evidence that the nurse's note regarding the presence of bruising present immediately after A.J.'s delivery was inaccurate; and (3) Robinson first introduced the issue of A.J.'s bruising during their case-in-chief.

{¶ 87} Robinson maintains that the difference between a bruise and a birthmark is within the common knowledge of a lay witness and does not require medical testimony. While Ishonda and Shevella may not be permitted to testify that these markings were "Mongolian spots," they could properly testify to their observations of A.J.'s hand and wrist. Robinson denies that such testimony challenges the nurses' capability to distinguish between bruising and Mongolian spots. And while Ishonda testified that she saw bruising on A.J. after his delivery, it was Dr. Landon who first raised the significance of this bruising as evidence that a posterior arm extraction had been performed-an opinion he failed to disclose during his discovery deposition. Robinson claims, therefore, that rebuttal testimony should have been allowed.

{¶ 88} "[T]he issue to be resolved in considering whether medical evidence is required is whether the questions of cause and effect involve matters of common knowledge, or whether they involve scientific inquiry beyond the understanding of the average layman." White Motor Corp. v. Moore , 8th Dist. Cuyahoga No. 34185, 1975 WL 182959, at *3-4 (Oct. 30, 1975). Courts have held that the existence of a bruise is a matter within the common knowledge of the average layman. Id. at *3-4 ; see also Reed v. MTD Prods., Midwest Indus. , 111 Ohio App.3d 451, 462, 676 N.E.2d 576 (6th Dist.1996) (whether plaintiff suffered bruise to right arm as a result of accident was not a matter necessitating expert testimony); State v. Higgins , 12th Dist. Clinton No. CA91-10-023, 1992 WL 107350, at *5 (May 18, 1992) (that the victim suffered bruises on arms was a matter within the common, ordinary, and everyday knowledge of the average person).

{¶ 89} Here, Robinson asserts that "whether a bluish discoloration to the child's hand and lower arm was a bruise and behaved like a bruise is something that is clearly within the observational capacity and experience of a parent, who was present and able to observe the bluish discoloration at all times following birth." While we agree with this general proposition, the proffered testimony went beyond merely describing that the bluish discoloration on the baby's hand and arm did not disappear as a bruise normally would. Ishonda, in her proffered testimony, sought to explain the true cause of the discoloration. ("And my mom actually stated to me that they were Mongolian spots. And I was like, well, what is Mongolian spots? And she said that I had it when I was a child and that they were pretty much in the form of like discoloration of the-different parts of the skin.").

{¶ 90} We agree with Dr. Obayuwana that rebuttal testimony suggesting that the discoloration was actually a congenital birthmark known as a Mongolian spot went beyond the everyday knowledge of an average person and crossed the line into medical opinion requiring expert testimony. Accordingly, we find that the trial court did not abuse its discretion in excluding Robinson's proffered rebuttal testimony.

{¶ 91} We find Robinson's first assignment of error not well-taken.

IV. Conclusion

{¶ 92} We find that the trial court did not err when it excluded rebuttal evidence from Robinson to counter Dr. Obayuwana's expert's testimony that bruises on A.J.'s right hand was evidence that Dr. Obayuwana had performed a right posterior arm extraction. We find Robinson's first assignment of error not well-taken.

{¶ 93} We agree with Robinson that the trial court erred in allowing Dr. Obayuwana to testify to details concerning three specific instances where he safely delivered babies after encountering shoulder dystocia. We find his second assignment of error well-taken.

{¶ 94} And because he failed to raise the issue in his motion for a new trial, Robinson waived any error in the trial court's admission of Dr. Obayuwana's expert's opinions as to the effect of Ishonda moving up the hospital bed during delivery. We find his third assignment of error not well-taken.

{¶ 95} We affirm, in part, and reverse, in part, the March 31, 2017 judgment of the Lucas County Court of Common Pleas. Because of our resolution of Robinson's second assignment of error, we find that his motion for new trial should have been granted. We, therefore, remand this matter for a new trial. The costs of this appeal, including the costs of transcripts, are assessed to Dr. Obayuwana under App.R. 24.

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

Mark L. Pietrykowski, J.

James D. Jensen, J.

CONCUR.

      We observe that in two out of three of these prior deliveries, Dr. Obayuwana was not the attending obstetrician; he had been consulted to assist with the deliveries.

      Dr. Kopp actually acknowledged on cross-examination that there was a change in Dr. Obayuwana's demeanor at some point. Counsel for Dr. Obayuwana did not pose any questions to Dr. Kopp about Dr. Obayuwana's demeanor or whether he appeared to panic.


text:
    R.C. COSTELLO & ASSOC., INC., Plaintiff-Appellee v. ENERGY TECHNOLOGIES, INC., et al., Defendants-Appellants
    No. 17CA103
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT: May 25, 2018
   ALEXANDER V. DATTILO, 600 Superior East, Suite 600, Cleveland, OH 44114, For Plaintiff-Appellee

BENEJAMIN D. KITZLER, Richland Bank Building, Suite 803, Mansfield, OH 44902, For Defendants-Appellants

JUDGES: Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, Jr., J.

Wise, E.

{¶ 1} Defendant-appellant Energy Technologies, Inc., et al. (ETI), appeals the November 17, 2017 judgment of the Richland County Court of Common Pleas striking appellant's motion for summary judgment, and granting appellee's motion for summary judgment. Appellee is R.C. Costello & Assoc., Inc. (Costello).

FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant Dan Madden of ETI, during the course of this proceeding, was the principal of an Ohio company seeking investment funding in order to create a process for reforming hydrogen using a base facilitated system. Appellee Costello is a California company which provides engineering design and construction supervisions to the chemical and biofuels industries.

{¶ 3} According to Costello's January 10, 2017 complaint, in February 2015, Madden, contacted Costello on behalf of ETI to request Costello perform various tasks and projects for ETI's use in an effort to attract a particular client. Costello built five computer programs (ChemCad Models) for ETI, assisted with one of ETI's PowerPoint presentations, and participated in a presentation for ETI's potential client. For these services, Costello billed ETI $16,930 and ETI refused to pay. Costello alleged breach of implied contract, unjust enrichment, and restitution.

{¶ 4} ETI filed an answer on February 2, 2017 denying the allegations contained in Costello's complaint.

{¶ 5} On August 31, 2017, Costello filed a motion for summary judgment.

{¶ 6} On September 19, 2017, ETI filed a memorandum contra to summary judgement and a motion for summary judgment. According to ETI, Costello was asked to provide an estimate of the cost of preliminary engineering for the project and nothing more as ETI had yet to acquire funding for the project. The hiring of Costello, according to ETI, was contingent on the acquisition of funding for the project. Costello provided ETI with a contract, but ETI never signed the same, and claimed no work was requested of Costello beyond the preparation of an estimate. ETI further claimed that Costello never provided any services or benefit to ETI.

{¶ 7} ETI's motion for summary judgment was filed out of time, and without leave of the trial court to file out of time.

{¶ 8} On September 26, 2017, Costello filed a reply to ETI's motion and memorandum contra and a motion to strike ETI's motion for summary judgment.

{¶ 9} On November 17, 2017, the trial court issued a judgment entry granting Costello's motion for summary judgment and further granting Costello's motion to strike ETI's motion for summary judgment. The trial court granted judgment in favor if Costello in the amount of $16,930.

{¶ 10} ETI now brings this appeal, raising one assignment of error:

I

{¶ 11} "THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT THAT PRECLUDE SUMMARY JUDGMENT."

{¶ 12} In its sole assignment of error, ETI argues the trial court erred in granting Costello's motion for summary judgement. We disagree.

{¶ 13} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996) :

Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.

{¶ 14} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).

{¶ 15} As explained by this court in Leech v. Schumaker , 5th Dist. Richland No. 15CA56, 2015-Ohio-4444, 2015 WL 6460079, ¶ 13 :

It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293[ 662 N.E.2d 264] : "* * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." The record on summary judgment must be viewed in the light most favorable to the opposing party. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150[ 309 N.E.2d 924].

{¶ 16} There is no dispute that ETI never signed a contract with Costello. Costello argues, however, the contract between itself and ETI was implied-in-fact.

{¶ 17} In F & J Welding, Inc. v. Emery , 5th Dist. Tuscarawas No. 91AP060025, 1992 WL 89971 (April 20, 1992) we explained:

To show a contract implied-in-fact, services must be rendered, work performed, or materials furnished by one party under circumstances such that the party to be charged knew or should have known that the services were given with the expectation of being paid their reasonable worth. Terex Corp. v. Grim Welding Co. (1989), 58 Ohio App.3d 80, 568 N.E.2d 739, syllabus 2; Tanski v. White (1952), 92 Ohio App. 411, 416, 109 N.E.2d 319, 322-23. Therefore, under Ohio law, recovery for a contract implied-in-fact is the reasonable value of the services rendered * * *

{¶ 18} Here ETI argues the trial court erred in grating Costello's motion for summary judgement because the following genuine issues of material fact exist: (1) What if anything did ETI request of Costello; (2) Did ETI know Costello was preforming work and expected to be paid; (3) Did Costello actually preform services for ETI; and (4) Did any of the services performed by Costello benefit ETI.

{¶ 19} We have examined the emails and affidavits in this matter. Contrary to ETI's argument that it asked for nothing beyond an estimate, never requested services from Costello, and never requested ChemCAD computer simulations, the emails demonstrate otherwise. ETI asked Costello to participate in a meeting with a potential client, edit a PowerPoint presentation for that meeting, and to "* * * bring the ChemCAD terminal to show the dynamic interactive features for the modeling we have done to that point. We can also use that to illustrate the ability to factor various run rates." Moreover, on March 9, 2015, Costello emailed ETI a computer simulation chosen by ETI. While ETI claims it received no benefit, these tasks appear to have been performed in an attempt by ETI to land a client or an investor. Simply because that apparently did not happen does not mean ETI received no benefit as a result of Costello's labor. Finally, there further appears to be an indication in an April 13, 2015 email that ETI understood that Costello expected to be paid for work performed, as ETI advised Costello "Phil and I have been busy applying a different kind of pressure to would be investors, so hang in there."

{¶ 20} Based on the forgoing, we find an implied-in-fact contract existed between the parties and thus find no error in the trial court's decision granting Costello's motion for summary judgment. Because we find an implied-in-fact contract, we do not reach the issue of unjust enrichment.

{¶ 21} The judgment of the Richland County Court of Common Pleas is affirmed.

Wise, John, P.J. and Delaney, J. concur.