Opposition Brief — Figgie v. Moskovitz

No. 94-781

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

HARRY E. FIGGIE III, M.D.,

Petitioner,

AARON MOSKOVITZ,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE OHIO SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

CHARLES KAMPINSKI

(Counsel of Record)

CHARLES KAMPINSKI CO., L.P.A.

1530 Standard Building

Cleveland, Ohio 44113

(216) 781-4110

Attorney for Respondent,

Aaron Moskouttz.

Washington, 0.C. « THIEL PRESS « (202) 328-3286

(:)

Page

TABLE OF CONTENTS

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SUMMARY OF THE ARGUMENT. .............--ee08. 2

ARGUMENT AND AUTHORITIES FOR

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No Federal Constitutional Issues are Presented In This

Case and Therefore a Writ of Certiorari Should Not

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APPENDIX — Decision of the Ohio Supreme Court...... App.1

TABLE OF AUTHORITIES

Cases:

Bishop v. Grdina, (1985) 20 Ohio St. 3d 26, 20 OBR

Der cue eek eb ee he eee eee voeere 5

Preston v. Murty, (1987) 32 Ohio St. 3d $34, 512

Dk A he a oe oe ea hg ee 86 0 4 $,4,5,6

Richard v. Hunter, (1949) 151 Ohio St. 185, 39 0.0.

SE fae ae a 5

Shimola v. Nationwide Ins. Co., (1986) 25 Ohio St. 3d

ee eer ee 5

TXO Production Corp. v. Alliance Resources Corp., 113

eR Ear are eer ee Pee ee eee 4

No. 94-781

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

HARRY E. FIGGIE III, M.D.,

Petitioner,

AARON MOSKOVITZ,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE OHIO SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

TO THE HONORABLE SUPREME COURT:

Respondent Aaron Moskovitz respectfully requests

that the Court deny the Petition for a Wnit of Certiorari.

STATEMENT OF THE CASE

On October 2, 1986, Margaret Moskovitz went to

Petitioner, Harry E. Figgie, III, M.D., with a lump on the

back of her left ankle and a history of having two prior

1

POR Led F2

2

tumors removed from her leg. There was no dispute that

the standard of medical care required an immediate

biopsy of the lump. Figgie did not biopsy the lump on

that visit, nor on any of the 17 subsequent visits to his

office spanning a period of thirteen months. When Figgie

finally did the biopsy, the cancer had spread throughout

Mrs. Moskovitz’s body. After having her leg amputated

and undergoing a period of pain and suffering and eleven

hospital admissions, she died on December 5, 1988.

After the biopsy revealed that the lump was cancer

Figgie falsified his office records, destroying some, whit-

ing out others and creating ‘“‘telephone entries” in his

secretary’s notebooks. Figgie repeatedly denied that

the lump was brought to his attention in October 1986,

claiming instead that Mrs. Moskovitz did not complain

of it until February 1987. He also claimed that he recom-

mended a biopsy to her on several occasions and she

refused to have it done. The falsifications of the medical

records provided the basis for these claims.

However, original unaltered records from other health

care providers were found by Respondent during the dis-

covery process. “hose records corroborated the testi-

mony of Mrs. Moskovitz’s family that Figgie was aware

of the lump in October 1986, and did nothing about it

for thirteen months.

SUMMARY OF THE ARGUMENT

Petitioner, Harry E. Figgie, III, M.D. was adjudged in

the state courts to have committed malpractice causing

Margaret Moskovitz’s death, and acting with malice in

an attempted cover-up of his conduct by the alteration

and destruction of her medical records. Figgie’s intent

in falsifying the records was to shift the blame for her

death away from himself and onto Mrs. Moskovitz.

3

Despite his egregious conduct, Figgie received an

abundance of due process in the state courts. Prior to

trial, the case was submitted to a medical arbitration

panel. That panel, including Figgie’s own handpicked

arbitrator, found against him and found that his altera-

tions to the medical record “were subsequent changes of

the record done to justify Dr. F iggie’s conduct.”

The case was then heard by a jury who found that

Dr. Figgie’s records were altered and that he acted

maliciously. The jury was charged according to the

standards set forth in Preston v. Murty, (1987) 32 Ohio

St. 3d 334, 512 N.E. 2d 1174, requiring them to find

that Figgie acted with actual malice before punitive

damages could be awarded. The jury returned both

compensatory damages and an award of punitive damages

of Three Million Dollars ($3,000,000.00).

The jury’s verdict was reviewed by the trial court

judge pursuant to a Motion for New Trial and for Judg-

ment Notwithstanding the Verdict filed by Dr. Figgie.

The trial court judge upheld the jury’s verdict.

The case was appealed to the Ohio Court of Appeals,

Eighth District and then the Ohio Supreme Court. The

propriety and amount of punitive damages were reviewed

at each level. The Ohio Supreme Court found that puni-

tive damages were properly awarded based on Dr. F iggie’s

malicious conduct, but required Appellant Mr. Moskovitz

to choose between a remittitur of two million dollars

or a new trial only to determine the amount of punitive

damages to be awarded.

Petitioner chose to have this case decided by a jury,

which found in accordance with clear standards that

Petitioner acted with actual malice and imposed punitive

damages. That determination was subsequently judicially

4

reviewed by three separate tribunals and upheld by the

Ohio Supreme Court. Therefore the due process require-

ments of the Fourteenth Amendment were met in this

case.

ARGUMENT AND AUTHORITIES

FOR DENIAL OF THE WRIT

NO FEDERAL CONSTITUTIONAL ISSUES ARE PRE-

SENTED IN THIS CASE AND THEREFORE A WRIT OF

CERTIORARY SHOULD NOT BE GRANTED.

This court held in TXO Production Corp. v. Alliance

Resources Corp, 113 S.Ct. 2711 (1993) that where

there has been judicial review of a jury’s award of puni-

tive damages and the award was not the result of an

unfair procedure that the due process requirements of

the Fourteenth Amendment have been satisfied.

Petitioner does not assert that the amount of punitive

damages is excessive or that the award resulted from an

unfair procedure. The grounds relied upon in the Petition

for Writ of Certiorari are that the award is contrary to

Ohio common law or that Petitioner has not been found

to have committed the malicious acts.

Neither of these grounds are true nor do they pose a

federal constitutional question. Petitioner is merely

seeking to have this court make different factual deter-

minations than those already made by the jury -

upheld by the Ohio Supreme Court.

The common law of Ohio has always recognized that

the commission of a tort aggravated by the malicious

conduct of the Defendant may result in the imposition of

punitive damages. Preston v. Murty, (1987) 32 Ohio St.

5

3d 334 512 N.E. 2d 1174. Richard v. Hunter (1949)

151 Ohio St. 185, 39 0.0. 24, 85 N.E. 2d 109.

Preston defines malice as:

Actual malice, necessary for an award of punitive

damages, is (1) that state of mind under which a

person’s conduct is characterized by hatred, ill

will or a spirit of revenge, or (2) a conscious dis-

regard for the rights and safety of other persons

that has a great probability of causing substantial

harm. Preston syllabus (emphasis in original).

The jury was charged in accordance with this definition.

Petitioner raised these same issues in the Ohio Supreme

Court where they were reviewed in depth and soundly

rejected. Petitioners reliance upon the precedents of

Shimola v. Nationwide Ins. Co. (1986) 25 Ohio St. 3d

84, 25 OBR 136, 495 N.E. 2d 391 and Bishop v. Grdina

(1985) 20 Ohio St. 3d 26, 20 OBR 213, 485 N.E. 2d

75 is misplaced.

Shimola and Bishop, supra, stand for the age-old

proposition that proof of actual damages in an

underlying cause of action is a necessary predicate

for an award of punitive damages.

* * *

AR AE IP 5 A eee oom.

Punitive damages are awarded as a mere incident

of the cause of action in which they are sought.

Id. Thus, compensable harm stemming from a

cognizable cause of action must be shown to exist

before punitive damages can be considered.

(App. 21).

In both Bishop and Shimola no compensatory damages

were awarded on the tort claims underlying the punitive

claim. In the case at bar there was a compensatory

award on the underlying tort claim thus satisfying the

6

common law requirement of proof of actual damages

in the underlying cause of action.

Additionally, the Ohio Supreme Court expressly

rejected the notion that a separate cause of action for

spoliation of evidence is the only manner in which

Figgie’s conduct could be addressed and remedied. (App.

23).

Figgie’s entire Petition is premised on three misstate-

ments of fact. Petitioner represents to this court that

“No determination was ever made, however, that the

claimed behavior did in fact occur.” (Petition page 28).

This is totally false, the jury made a specific finding as

to this fact. The Ohio Supreme Court was convinced

that there was sufficient evidence that “medical records

were altered, destroyed or concealed by Figgie in an

effort to conceal his medical negligence.” (App. 26).

Figgie’s alteration of records exhibited a total

disregard for the law and the rights of Mrs. Mos-

kovitz and her family. * * * We find that the evi-

dence adduced at trial fully supported an award

of punitive damages under the standards set forth

in the Preston syllabus. (App. 26).

Petitioner also misrepresented the state court proceed-

ings by representing to this court that his malicious

conduct was “wholly unconnected to the tortious or

actionable conduct that is the subject of the lawsuit.”

(Petitioner page 10).

The Ohio Supreme Court concluded:

In our judgment, Figgie’s alteration of records was

inextricably intertwined with the claims advanced

by Appellant for medical malpractice, and the

award of compensatory damages on the survival

claim formed the necessary predicate for the award

of punitive damages based upon the alteration of

medical records. (App. 23-24).

7

In addition to the findings of the Ohio Supreme Court,

Petitioner himself admitted that the maintenance of a

patient’s medical record was part and parcel of the care

and treatment rendered to the patient and that alteration

of medical records exhibits a flagrant disregard for the

rights and safety of others. Therefore by his own testi-

mony his conduct was malicious as defined by Preston,

supra, and was inextricably intertwined with the under-

lying tort.

Finally, Petitioner misrepresents that the award of

punitive damages in this case “markedly, and danger-

ously, departs from the common law.” (Petition page 7).

The Ohio Supreme Court held:

We hold that in a case involving medical malpractice

where liability is determined and compensatory

damages are awarded, punitive damages pled in

connection with the claim for malpractice may be

awarded upon a showing of “actual malice” as that

term is defined in the syllabus of Preston v. Murty,

supra, An intentional alteration, falsification or

destruction of medical records by a doctor, to avoid

liability for his or her medical negligence, is suffici-

ent to show actual malice, and punitive damages

may be awarded whether or not the act of altering,

falsifying or destroying records directly causes

compensable harm. (App. 27).

There is nothing in this holding that departs from

common law and far from being dangerous, it protects

the innocent victims of malpractice from any attempt by

the wrongdoer to deprive the victim of compensation for

the harm they have suffered.

Petitioner asks this Court to condone the alteration

and falsification of records after the fact, to cover-up

hbsbdndiddetadentedpaienant naltee bt eae

8

negligence. That is not the law of Ohio. The Ohio Sup-

reme Court held:

If the act of altering and destroying records to

avoid liability is to be tolerated in our society, we

can think of no better way to encourage it than to

hold that punitive damages are not available in this

case. We believe that such conduct is particularly

deserving of punishment in the form of punitive

damages and that a civilized society governed by

rules of law can require no less. Figgie’s conduct of

altering records should not go unpunished. We

should warn others to refrain from similar conduct

and an award of punitive damages will do just that.

(App. 24).

CONCLUSION

Petitioner’s complaint can not be with the amount of

due process he received in the state courts. His com-

plaint is with the result causing him to live up to the

consequences of his malicious conduct. Dissatisfaction

with the result achieved in state court is not grounds for

review by the United States Supreme Court. Therefore,

Respondent respectfully requests that the petition be

overruled.

CHARLES KAMPINSKI

CHARLES KAMPINSKI CO., L.P.A.

1530 Standard Building

Cleveland, Ohio 44114

(216) 781-4110

Attorney for Respondent.

App. 1

APPENDIX

The Supreme Court of Ohio

1994 TERM To wit: July 27, 1994 |

Aaron Moskovitz, :

Appellant, :

7 : Case No. 93-278

Mt. Sinai Medical Center =: JUDGMENT ENTRY

et al. : APPEAL FROM THE

{Harry E. Figgie III, COURT OF APPEALS

M.D., et al., :

Appellees.] :

This cause, here on appeal from the Court of Appeals

for Cuyahoga County, was considered in the manner

prescribed by law. On consideration thereof, the judg-

ment of the court of appeals is reversed and the cause is

remanded consistent with the opinion rendered herein.

It is further ordered that the appellant recover from

the appellees his costs herein expended; and that a man-

date be sent to the Court of Common Pleas for Cuyahoga

County to carry this judgment into execution; and that a

copy of this entry be certified to the Clerk of the Court of

Appeals for Cuyahoga County for entry.

COSTS:

Docket Fee, $40.00, paid by Charles Kampinski.

Printing of Record, $4,590.49, paid by Charles

Kampinski.

(Cuyahoga County Court of Appeals; Nos.

60464 & 61166)

/s/ Thomas J. Moyer

: R

Chief Justice

Ee TARE COCR 1 HTT U I LT 2

Ap. 2

(Cite as: 69 Ohio St.3d 638, 635 N.E.2d 331)

MOSKOVITZ, Exr., et al., Appellants,

v.

MT. SINAI MEDICAL CENTER et al.;

Figgie et al., Appellees.

No. 93-278.

Supreme Court of Ohio.

Submitted March 2, 1994.

Decided July 27, 1994.

Syllabus by the Court

1. In a case involving medical malpractice where

liability is determined and compensatory damages are

awarded, punitive damages pled in connection with the

claim for malpractice may be awarded upon a showing of

“actual malice” as that term is defined in the syllabus of

Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d

1174. An intentional alteration, falsification or destruction

of medical records by a doctor, to avoid liability for his or

her medical negligence, is sufficient to show actual mal-

ice, and punitive damages may be awarded whether or

not the act of altering, falsifying or destroying records

directly causes compensable harm.

2. In prejudgment interest determinations pursuant

to R.C. 1343.03(C), the phrase “failed to make a good

faith effort to settle’ does not mean the same as “bad

faith.” (Kalain v. Smith [1986], 25 Ohio St.3d 157, 25 OBR

App. 3

201, 495 N.E.2d 572, followed; Villella v. Waikem Motors,

Inc. [1989], 45 Ohio St.3d 36, 543 N.E.2d 464, modified.)

3. Inan R.C. 1343.03(C) proceeding for prejudgment

interest, neither the attorney-client privilege nor the so-

called work product exception precludes discovery of the

contents of an insurer’s claims file. The only privileged

matters contained in the file are those that go directly to

the theory of defense of the underlying case in which the

decision or verdict has been rendered.

4. An order compelling or denying discovery in an

R.C. 1343.03(C) proceeding for prejudgment interest does

not meet the definition of “final order” set forth in R.C.

2505.02. Such an order does not determine the action or

prevent a judgment, nor is it rendered in a special pro-

ceeding. Thus, an appeal from such an order must await

final judgment in the prejudgment interest proceeding.

(Bell v. Mt. Sinai Med. Ctr. [1993], 67 Ohio St.3d 60, 616

N.E.2d 181, modified.)

This is a case involving medical malpractice and the

death of an elderly woman, Mrs. Margaret Moskovitz.

The facts giving rise to this appeal involve the conduct of

Dr. Harry E. Figgie III, appellee, who failed to timely

diagnose and treat a malignant tumor on Moskovitz’s left

leg and altered certain records to conceal the fact that

malpractice had occurred.

In 1978, Moskovitz was treated by Edward H. Gabel-

man, M.D., for a tumor on her left leg. The tumor was

removed and found to be benign. In 1984, Gabelman

completely and successfully removed a second mass from

Moskovitz’s left leg. This mass was found to be a low-

App. 4

grade malignant dermatofibrosarcoma protuberans. Gab-

elman performed the 1984 surgery at Mt. Sinai Medical

Center (“Mt. Sinai”).

In 1985, Moskovitz was referred to Dr. Figgie, an

orthopedic surgeon, for treatment of a degenerative

arthritic condition in her knees. Figgie was employed by

University Orthopaedic Associates, Inc. (“University

Orthopaedic”), and specialized in prosthetic joint replace-

ments and degenerative diseases. In October 1985, Figgie

performed surgery upon Moskovitz at University Hospi-

tals of Cleveland (“University Hospitals”), replacing

Moskovitz’s knee joints with artificial knee joints. In May

1986, Moskovitz underwent additional knee surgery per-

formed by Dr. Figgie. Between May and August 1986,

Moskovitz visited Figgie’s office on a number of occa-

sions due to complications arising from the knee sur-

geries.

On October 2, 1986, Moskovitz visited Dr. Figgie’s

office, complaining of a lump on her leg. Figgie examined

Moskovitz and detected “a small calcified lesion along

the tendoAchilles.” Figgie did not recommend a biopsy of

the lesion and reassured Moskovitz that nothing was

wrong. Figgie was aware that tumors had been removed

from Moskovitz’s left leg in 1978 and 1984.

On November 3, 1986, Moskovitz was admitted to

University Hospitals for a right knee revision. Prior to

surgery, Moskovitz was examined by Rick Magas, a regis-

tered nurse. Magas’s written report of the examination,

signed by Dr. Figgie, noted the existence of a firm nodule

measuring one centimeter by one centimeter on

Moskovitz’s left Achilles tendon. Figgie performed the

App. 5

right knee revision on November 5, 1986. Following sur-

gery, Moskovitz was examined on Figgie’s behalf by Dr.

G. Balourdas, a resident physician at University Hospi-

tals. A discharge summary prepared by Balourdas (and

signed by Figgie) noted the existence of a “[l]eft Achilles

tendon mass, [1] x 1 cm. nodule.” The report indicated

that the mass had been present for some time.

Moskovitz continued to see Dr. Figgie through

November 1987: On November 10, 1987, Figgie finally

removed the mass that had been growing on Moskovitz’s

left leg. On November 13, 1987, the tumor was found to

be an epithelioid sarcoma, a rare form of malignant soft-

tissue cancer. A bone scan revealed that the cancer had

metastasized to Moskovitz’s shoulder and right femur.

Immediately following the diagnosis of cancer,

Moskovitz’s care was transferred to Figgie’s partner at

University Orthopaedic, Dr. John T. Makley, an ortho-

pedic surgeon specializing in oncology. At that time,

Makley received Figgie’s original office chart, which con-

tained seven pages of notes documenting Moskovitz’s

course of treatment from 1985 through November 1987.

Makley thereafter referred Moskovitz to radiation ther-

apy at University Hospitals. Apparently, in November

1987, without Figgie’s knowledge, Makley sent a copy of

page seven of Figgie’s office notes to the radiation

department at University Hospitals.

1 The record reveals that in November 1986, the mass mea-

sured approximately one centimeter by one centimeter in size.

The tumor had doubled in size by September 1987 and contin-

ued to grow until it was finally removed in November 1987.

App. 6

In December 1987, Figgie or someone on his behalf

requested that Dr. Makley return Figgie’s office chart

pertaining to the care of Moskovitz. In December 1987,

Makley was Moskovitz’s primary treating physician and

Figgie was no longer directly involved in Moskovitz’s

care and treatment. On December 14, 1987, Makley’s sec-

retary forwarded the chart to Figgie’s office. Figgie’s

secretary then sent a copy of the chart to Dr. Zev Ashen-

berg, Moskovitz’s psychologist. The copy was received by

Ashenberg sometime between December 14 and 18, 1987.

In January 1988, Makley’s secretary requested that Fig-

gie’s office return the chart to Makley. At this time, it was

discovered that the original chart had mysteriously van-

ished, never to be seen again.

In February 1988, Makley amputated Moskovitz’s left

leg. In May 1988, while obtaining a prosthesis for her leg,

Moskovitz accidentally fell and broke her right hip due to

the cancer having spread to her hip bone. Moskovitz was

taken to Hillcrest Hospital and was treated for her inju-

ries. Thereafter, Moskovitz underwent chemotherapy at

Hillcrest Hospital.

On October 21, 1988, Moskovitz filed a complaint for

discovery in the Court of Common Pleas of Cuyahoga

County, seeking to ascertain information relative to a

potential claim for medical malpractice. On November 4,

1988, Moskovitz and her husband, Aaron Moskovitz,

filed an amended complaint against, inter alia, Figgie,

Makley, University Orthopaedic, University Hospitals,

Gabelman and Mt. Sinai. The amended complaint set

forth allegations of medical malpractice against Figgie

and others for failing to timely diagnose and treat

Moskovitz’s cancer before the cancer had metastasized.

App. 7

The amended complaint further alleged that Makley com-

mitted medical malpractice by unnecessarily removing

Moskovitz’s left leg after the cancer had already spread.

In addition, Moskovitz and her husband set forth claims

of negligent hiring against University Hospitals and Mt.

Sinai.

On December 5, 1988, Moskovitz died as a result of

the cancer. Prior to her death, Moskovitz’s testimony was

preserved by way of videotaped deposition.

Makley was deposed on January 30, 1989. At his

deposition, Makley produced a copy of page seven of

Figgie’s office chart. (That copy was identical to the copy

ultimately recovered by plaintiff’s counsel from the radi-

ation department records at University Hospitals.) The

copy produced by Makley contained a typewritten entry

dated September 21, 1987, which states: “Mrs. Moskovitz

comes in today for her evaluation on the radiographs

reviewed with Dr. York. He was not impressed that this

[the mass on Moskovitz’s left leg] was anything other

than a benign problem, perhaps a fibroma. We [Figgie

and York] will therefore elect to continue to observe.”

However, the photostatic copy revealed that a line had

been drawn through the sentence “We will therefore elect

to continue to observe.” The copy further revealed that

beneath the entry, Figgie had interlineated a handwritten

notation: “As she does not want excisional Bx [biopsy] we

will observe.” The September 21, 1987 entry was followed

by a typewritten entry dated September 24, 1987, which

states: “I [Figgie] reviewed the x-rays with Dr. York. |

discussed the clinical findings with him. We [Figgie and

York] felt this to be benign most likely a fibroma. He

[York] said that we could observe and I concur.” At some

App. 8

point, Figgie had also added to the September 24, 1987

entry a handwritten notation, “see above,” referring to

the September 21 handwritten notation that Moskovitz

did not want an excisional biopsy.

éiggie was deposed on March 2, 1989. At his deposi-

tion. riggie produced records, including a copy of page

seven of his office chart. As his original chart had been

lost in December 1987 or January 1988, Figgie had had

this copy made from the copy of the chart that had been sent

to Ashenberg in December 1987. The September 21, 1987

entry in the records produced by Figgie did not contain

the statement “We will therefore elect to continue to

observe.” Apparently, that sentence had been deleted

(whited-out) on the original office chart from which Ash-

enberg’s copy (and, in turn, Figgie’s copy) had been

made, in a way that left no indication on the copy that the

sentence had been removed from the original records.

During his deposition, Figgie maintained that he did

not discover the mass on the left Achilles tendon until

February 23, 1987, and that Moskovitz had continually

refused a workup or biopsy. To support these claims,

Figgie produced copies of his secretary’s notebooks,

which contained messages of telephone calls received by

Figgie’s office from Moskovitz during the course of her

treatment. One entry appearing in the telephone logs

indicates that Moskovitz called Figgie on February 26,

1987. The secretary’s entry in the notebook states:

“Moskovitz, right foot, coming in today.” (Emphasis

added.) Dr. Figgie’s pencilled-in notation beside that

message reads: “Patient seen, refuses workup, left foot,

workup left foot.” (Emphasis added.) The telephone logs

also contained an entry for May 5, 1987, indicating that

App. 9

Moskovitz had called Figgie’s office that day complaining

of pain in her left leg. Figgie’s pencilled-in notation

regarding the May 5 entry states that Moskovitz refused

to have the tumor biopsied. However, an entry in the

telephone logs for September 11, 1987, indicates that

Moskovitz had called Figgie, complaining of the lump on

her left leg. Figgie’s pencilled-in notation next to that

entry states that Moskovitz had agreed to a workup on

September 11, 1987. The September 11 notebook entry

was directly contradictory to the handwritten alterations

made by Figgie to the September 21 entry on page seven

of the office chart.

During discovery, another copy of page seven of

Figgie’s office chart (identical to the copy produced by

Makley during his deposition) was recovered from the

radiation department records at University Hospitals.2

This copy had been received by the radiation department

in November 1987, when Moskovitz was referred to radi-

ation therapy by Dr. Makley. Therefore, it became appar-

ent that the final sentence in the September 21, 1987 entry

had been deleted (whited-out) from Figgie’s original

office chart sometime between November 1987 (when the

radiation department obtained a copy of the record) and

mid-December 1987, when Ashenberg received a copy of

the record from Figgie’s office. Presumably, that alter-

ation occurred in December 1987 while the original chart

was in the possession of Dr. Figgie.

2 We surmise from the information before us that the copy

of page seven Makley produced at his deposition was made

from the copy in the radiology department records at University

Hospitals.

App. 10

All versions of the September 21, 1987 entry obtained

during discovery contained the handwritten notation by

Figgie “As she does not want excisional Bx [biopsy] we

will observe.” That sentence clearly suggested that it was

Moskovitz’s choice not to have the tumor biopsied during

the course of her treatment with Figgie, whereas the

typewritten text as it originally appeared in the Septem-

ber 21, 1987 entry indicated that it was Figgie’s decision

to observe the growth because the tumor was thought to

be benign.

Eventually, Figgie’s entire office chart was recon-

structed from copies obtained through discovery. The

reconstructed chart contains no indication that a workup

or biopsy was recommended by Figgie and refused by

Moskovitz at any time prior to August 10, 1987.5 Entries

in the reconstructed chart for October 2, ‘986, February

23, 1987 and May 7, 1987, refer to the mass, but do not

mention a suggested biopsy or the refusal of a biopsy.

Additionally, none of the typewritten entries appearing in

the reconstructed chart indicates that a workup or biopsy

was recommended or refused after August 10, 1987, with

the exception of a September 29, 1987 entry, which states

that Figgie recommended a biopsy and Moskovitz “did

not want to proceed” with a biopsy at that time.

3 An August 10, 1987 entry in the reconstructed chart

states: “Mrs. Moskovitz returns today. She has had some

increase in that swelling and that mass behind her ankle. She is

not particularly tender and it appears to be calcific. She did not

want to proceed with radiographs or work-up today. We did

discuss the possibility of needle or incisional biopsy but she

deferred on this.”

App. 11

In her videotaped deposition, Moskovitz claimed that

she never refused to have the tumor biopsied. According

to Moskovitz, Figgie had repeatedly assured her through-

out the course of her treatment that the lump on her left

Achilles tendon was merely “tendons.”

Following Moskovitz’s death, Aaron Moskovitz,

executor of Moskovitz’s estate, appellant, was designated

as plaintiff in the lawsuit in his capacity as executor. In

April 1989, a second amended complaint was filed

(against all the defendants named in the first amended

complaint) to include claims for wrongful death and sur-

vivorship. Additionally, appellant asserted allegations

against Figgie and University Orthopaedic for punitive

damages based upon the alteration of records.

The matter was referred to nonbinding “arbitration”4

in accordance with R.C. 2711.21 and local rules of court.

However, the trial court ordered that the issue of punitive

damages was not to be considered at the “arbitration”

hearing. On December 7, 1989, the three-member “arbi-

tration” panel issued its findings and “award.” The panel

found in favor of all defendants participating in that

proceeding (including Makley), with the exception of Fig-

gie and University Orthopaedic. The panel made the

following findings regarding Figgie:

* In Schaefer v. Allstate Ins. Co. (1992), 63 Ohio St.3d 708, 711,

590 N.E.2d 1242, 1245, the plurality opinion stated that: “ ‘Non-

binding arbitration’ is a contradiction in terms. For a dispute

resolution procedure to be classified as ‘arbitration,’ the deci-

sion rendered must be final, binding and without any qualifica-

tion or condition as to the finality of an award *** .”

PURI emma nensn n

App. 12

“3.) * * * The evidence supported a finding that

plaintiffs’ [sic] decedent had a very good chance of long

term survival if the tumor was found to be malignant at a

time when it was les: than one centimeter in size. The

evidence supported the fact that the tumor had not

grown in size as of May 7, 1987. If Dr. Figgie had per-

formed a biopsy prior to this date, the cancer would not

have metastasized and the decedent would have recov-

ered.

“4.) Dr. Figgie failed to recommend at the appropri-

ate time that the growth on the decedent’s left ankle be

worked up to determine whether or not it was a malig-

nant tumor. The plaintiff testified [by videotaped deposi-

tion] he never made such a recommendation to her. Dr.

Figgie’s office chart, which is the primary reference mate-

rial in analyzing a physician’s conduct, is filled with

contradictions and inconsistencies. The panel did not find

Dr. Figgie’s deposition persuasive in explaining or pro-

viding a basis for justifying these irregularities. His secre-

tary’s telephone notes were of questionable probative

value.

“5.) Even if Dr. Figgie was first informed of the

growth on February 23, 1987, he still fell below acceptable

standards of care because he did not conduct further

investigation till [sic] x-rays performed in September

1987. All handwritten entries which appear on or prior to

September 24, 1987, indicating that a biopsy was recommended

or that the decedent refused further work-up were subsequent

changes of the records done to justify Dr. Figgie’s conduct. The

sentence ‘We will therefore elect to continue to observe’

on the September 21, 1987 entry was whited out and the

handwritten entry ‘as she dose [sic] not want excisional

App. 13

biopsy we will observe’ was a subsequent alteration of

the records.” (Emphasis added.)

Two of the three members of the panel “awarded”

appellant $1,352,881.20 in compensatory damages against

Figgie and University Orthopaedic. The third member of

the panel dissented on the basis that that “award” was

too low. The dissent suggested that an “award” of not

less than $2 million was warranted and that an award of

$5 million would be justified “in light of the facts pre-

sented on liability as well as damages.” In addition to this

award of compensatory damages, the panel separately

“awarded” over $2.9 million in hedonic damages.

Figgie and University Orthopaedic filed notices of

nonacceptance of the “award.” Appellant filed a notice of

nonacceptance concerning the panel’s findings in favor of

Makley. On December 9, 1989, appellant filed a third

amended complaint, naming, as defendants, Figgie,

Makley and University Orthopaedic. The case proceeded

to trial on the third amended complaint. Without objec-

tion from any party, the jury was informed of the out-

come of the “arbitration” proceeding and a copy of

relevant portions of the “arbitration” decision was admit-

ted into evidence for the jury’s consideration.5

5 Although no party has raised the issue, R.C. 2711.21 was

amended, effective October 20, 1987, to provide that a decision

rendered in an “arbitration” proceeding authorized by that stat-

ute is not admissible into evidence at trial. See Am.Sub.H.B. No.

327, 142 Ohio Laws, Part II, 3338-3339. Note that R.C. 2711.21 as

it appears in Page’s Ohio Rev.Code Ann. (1992) contains a mis-

print. Specifically, the final paragraph of R.C. 2711.21 should be

designated subsection (D).

App. 14

At trial, Figgie claimed that he first discovered the

tumor on Moskovitz’s left leg on February 23, 1987, at

which time he recommended a workup in order to con-

sider a biopsy. According to Figgie, Moskovitz refused to

have the tumor worked up until September 1987 or biop-

sied until October or November 1987. However, Figgie’s

reconstructed office chart indicated that the mass had

been discovered by Figgie as early as October 2, 1986.

Additionally, the hospital records from Moskovitz’s

November 1986 knee surgery suggested that the tumor

should have been discovered by Figgie before February

23, 1987. Specifically, the report of the preoperative exam-

ination by nurse Rick Magas (plaintiff's Exhibit 3) and the

discharge summary prepared by Dr. Balourdas (plaintiff's

Exhibit 5), both of which were signed by Figgie, noted the

existence of the lump on Moskovitz’s left Achilles tendon

in November 1986. The discharge summary also stated

that the mass had been present for some time. Moreover,

a February 23, 1987 entry in Figgie’s reconstructed office

chart contains no references to a suggested biopsy or the

refusal of a biopsy.

Figgie was questioned extensively concerning the

alteration of medical records. Figgie claimed that after the

September 21, 1987 entry had been typed from his dic-

tated notes, he reviewed that entry and found it to be

inaccurate. Therefore, according to Figgie, he drew a line

through the sentence “We will therefore elect to continue

to observe,” and added a handwritten notation to reflect

that Moskovitz had, in fact, refused to have the tumor

biopsied. Figgie denied whiting-out any portion of the

typewritten text and claimed to have no knowledge con-

cerning who might have altered the chart in that manner.

App. 15

Figgie admitted that his original office chart had been lost

and that certain slides of Moskovitz’s tumor had disap-

peared from Makley’s teaching file. Figgie denied any

involvement in the loss of any records. Figgie was also

questioned concerning the discrepancy between his hand-

written notation in the September 21, 1987 entry and the

entry appearing in the telephone journals for September

11, 1987. At one point, Figgie admitted that the two

entries were “directly contradictory.”

Figgie denied that his February 26, 1987 and May 5,

1987 pencilled-in notations in the telephone journals had

been fabricated by him to avoid liability. While those

notations indicated that Moskovitz had refused a biopsy

in February and May 1987, none of the typewritten

entries in the chart for February or May 1987 contained

any reference to a suggested biopsy or the refusal of a

biopsy. Figgie testified that defacing and destroying med-

ical records reflects a conscious disregard for the rights

and safety of a patient. Figgie never sought to have the

telephone journals admitted into evidence, although he

characterized the entries in the journals as part of his

medical records pertaining to the care and treatment of

Moskovitz.

Figgie’s secretary, Linda Kennedy, testified at trial

that she may have whited-out the portions of the Septem-

ber 21, 1987 entry to clean up the records before sending

copies to other doctors. However, Kennedy had testified

at her deposition that she never whited-out any informa-

tion on Moskovitz’s medical records.

The jury viewed Moskovitz’s videotaped deposition

in which Moskovitz claimed that she never refused to

App. 16

submit to a biopsy. According to Moskovitz, Figgie had

continually reassured her during the course of her treat-

ment that the lump on her left leg was merely “tendons.”

Aaron Moskovitz also testified that Figgie consistently

reassured the decedent that the lump on her leg was just

“tendons.” According to Aaron, Figgie never recom-

mended a biopsy at any time prior to October or Novem-

ber 1987 and Figgie never informed Mrs. Moskovitz that

the lump could be cancerous.

John F. Burke, an economist, testified concerning the

value of Moskovitz’s services to her family. Burke con-

cluded that the net present value of the loss of services

was between $67,506 and $282,614. Burke also testified

concerning the loss of income to Aaron Moskovitz as a

result of Mrs. Moskovitz’s death. According to Burke, the

present value of Social Security benefits the decedent

would have received over Aaron’s remaining projected

life span and the value of a yearly stipend the decedent

had been receiving from Germany amounted to $22,891

and $30,521, respectively.

Moskovitz’s family members testified concerning the

losses they suffered and will continue to suffer as a result

of Moskovitz’s death. Moskovitz’s husband and children

witnessed the ravaging effects of the cancer during the

final year of Moskovitz’s life. As a result of the cancer,

Moskovitz underwent an amputation of her left leg and

was confined to a wheelchair. She suffered a broken hip

due to the cancer having spread to her hip bone. She was

a patient at Hillcrest Hospital ten times between May

1988 and the date of her death. Moskovitz underwent

extensive radiation therapy and chemotherapy, without

success. The medical records, the testimony of

App. 17

Moskovitz’s family members and Moskovitz’s videotaped

deposition documented a thirteen-month period of

extreme suffering and hardship for the decedent and her

family. Appellant’s economic damages alone were esti-

mated at approximately $437,749.

Appellant’s medical expert, Dr. Charles Bart

Engleberg, an oncologist, testified at trial that whether

the tumor was discovered by Figgie in October 1986 or

February 1987, Figgie deviated from accepted standards

of care by failing to remove the tumor prior to the end of

March 1987. Engleberg testified that had the tumor been

removed during the first few months of 1987, before it

had exceeded approximately one centimeter by one and a

half centimeters in size, Moskovitz would have fully

recovered and the cancer would not have metastasized.

Dr. Michael Simon, an orthopedic surgeon, and Dr.

Makley testified as medical experts for the defense. Based

upon a later review of x-rays taken during Moskovitz’s

November 1986 hospital admission, these doctors testi-

fied that the cancer had metastasized prior to November

1986, rendering the decedent’s death imminent. On rebut-

tal, Dr. Ralph J. Alfidi, a radiologist, stated that there

were no indications in the x-rays taken in November 1986

that the cancer had metastasized by that time. According

to Dr. Alfidi, dark spots on the x-rays such as those

identified by Simon and Makley as evidence of the spread

of cancer generally indicate loss of bone density com-

monly occurring in postmenopausal women.

During the trial, Makley was granted a directed ver-

dict, as no expert medical testimony had been presented

App. 18

against him. Additionally, appellant dismissed all claims

against University Orthopaedic.

On December 20, 1989, the jury returned its verdict in

favor of appellant and against Figgie. The jury awarded

appellant $2 million on the survival claim, $1.25 million

on the claim for wrongful death, $5,000 for funeral and

burial expenses and $3 million in punitive damages. In

response to an interrogatory concerning its finding of

liability, the jury stated:

“Dr. Figgie’s records indicate that he was aware of a

lesion on the decedent’s tendo achilles on 10/2/86. Plain-

tiff’s Exhibits 3 and 5 indicate that, as of 11/3/86, Dr.

Figgie was aware of the decedent’s left tendo achilles

mass and that it had been present for some time. Even

with consideration of the decedent’s past medical history,

Dr. Figgie did not biopsy the tumor at the point of discov-

ery. Hospital records indicate that the decedent’s tumor

had not metastisized [sic] by 11/3/86. We believe the

decedent had a very good chance of long term survival if

the tumor was found to be malignant before it exceeded

one centimeter in size.

“Also, Dr. Figgie did not maintain his records as

according to medical standards.” ,

The trial court entered judgment in accordance with

the jury’s verdict. Figgie filed a motion for judgment

notwithstanding the verdict or, alternatively, a motion for

a new trial. Figgie’s motion was denied, as was a motion

by appellant for prejudgment interest.

Figgie appealed to the court of appeals. Appellant

cross-appealed on the issue of prejudgment interest. On

App. 19

January 2, 1991, during the pendency of the appeal, the

trial court granted a motion by Makley for Civ.R. 11

sanctions against appellant's trial counsel, Charles Kam- -

pinski. The trial court awarded Makley $4,000 and Kam-

pinski appealed. The appeals were thereafter

consolidated.

The court of appeals upheld the finding of liability

against Figgie on the wrongful death and survival claims.

However, in a split decision, the court of appeals found

that the award of compensatory damages was excessive

and that appellant was not entitled to punitive damages

as a matter of law. Therefore, by a two-to-one vote, the

court of appeals reversed the judgment of the trial court

as to the award of damages and remanded the cause for a

new trial only on the issue of compensatory damages.

Additionally, by a divided vote, the court of appeals

affirmed the judgment of the trial court denying appel-

lant’s motion for prejudgment interest and affirmed the

award of Civ.R. 11 sanctions against Kampinski.

The cause is now before this court pursuant to the

allowance of a motion to certify the record.

Charles Kampinski Co., L-P.A., Charles Kampinski, Chris-

topher M. Mellino and Donna Taylor-Kolis, for appel-

lants.

Fritz Byers; Jacobson, Maynard, Tuschman & Kalur Co.,

L.P.A., John V. Jackson II, Robert Seibel and Steven Hupp,

for appellee.

App. 20

Steven S. Zaleznik, Michael R. Schuster and Bruce B.

Vignery; Patton, Boggs & Blow and Steven M. Schnee-

baum, urging reversal for amicus curiae, American Ass'n

of Retired Persons.

Jeffrey R. White, urging reversal for amicus curiae, Ass’n

of Trial Lawyers of America.

Nurenberg, Plevin, Heller & McCarthy Co., L.P.A.,

Andrew P. Krembs and Kathleen J. St. John, urging rever-

sal for amicus curiae, Ohio Academy of Trial Lawyers.

DOUGLAS, Justice.

This appeal presents four issues for our consider-

ation. Were punitive damages, and the amount awarded,

appropriate and proper on the facts of this case? Were the

compensatory damages awarded for the survival action

and for wrongful death excessive? Should prejudgment

interest have been allowed? Was it proper to sanction

appellant’s attorney under Civ.R. 11? Figgie has not

appealed and, thus, the finding that Figgie was negligent

in his care and treatment of Moskovitz is not at issue.

I

Punitive Damages

The jury’s award of punitive damages was based upon

Figgie’s alteration, falsification or destruction of medical

records. The punitive damages were awarded in connec-

tion with the survival action. The court of appeals’ major-

ity vacated the award of punitive damages for two

reasons. First, the court of appeals’ majority determined

that punitive damages were not available under the cir-

cumstances of this case, since Figgie’s act of altering and

App. 21

destroying records did not directly cause actual harm to

appellant — i.e., records disappeared and were altered

after the diagnosis of terminal illness and the alteration

and disappearance of the records did not adversely affect

appellant's claims. Second, the court of appeals’ majority

found that appellant failed to establish a right to punitive

damages under the standards set forth in Preston v. Murty

(1987), 32 Ohio St.3d 334, 512 N.E.2d 1174. We disagree.

The court of appeals held that for punitive damages

to be awarded, appellant was required to prove “a harm

distinct from the medical negligence claim and attributa-

ble solely to the alleged alteration of medical records.” To

support this conclusion, the court of appeals relied upon

Shimola v. Nationwide Ins. Co. (1986), 25 Ohio St.3d 84, 25

OBR 136, 495 N.E.2d 391; Bishop v. Grdina (1985), 20 Ohio

St.3d 26, 20 OBR 213, 485 N.E.2d 704; and Rouse v. Riverside

Methodist Hosp. (1983), 9 Ohio App.3d 206, 9 OBR 355, 459

N.E.2d 593. However, nothing in these cases suggests that

the malicious intent necessary to sustain an award of

punitive damages must itself proximately result in some

compensable harm.

Shimola and Bishop, supra, stand for the age-old

Proposition that proof of actual damages in an underly-

ing cause of action is a necessary predicate for an award

of punitive damages. See, also, Seasons Coal Co. v. Cleve-

land (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273,

and Richard v. Hunter (1949), 151 Ohio St. 185, 39 O.O. 24,

85 N.E.2d 109. In Ohio, no civil action may be maintained

simply for punitive damages. Bishop, supra, 20 Ohio St.3d

at 28, 20 OBR at 214, 485 N.E.2d at 705. Rather, punitive

damages are awarded as a mere incident of the

App. 22

cause of action in which they are sought. Id. Thus, com-

pensable harm stemming from a cognizable cause of

action must be shown to exist before punitive damages

can be considered.

Bishop was a case involving an award of punitive

damages where no compensatory damages were awarded

on the underlying cause of action. In Bishop, we held that

proof of actual damages on the underlying claim is a

necessary predicate for an award of punitive damages. Id.

at 28, 20 OBR at 214, 485 N.E.2d at 705. In so holding, we

relied upon Richard, supra, which also involved a situa-

tion where punitive damages were found to be improper

in the absence of an award of compensatory damages on

an underlying claim. The court of appeals in the case at

bar seized upon the statement in Bishop that “[p]unitive

damages are awarded as punishment for causing compens-

able harm and as a deterrent against similar action in the

future.” (Emphasis added.) Id. at 28, 20 OBR at 214, 485

N.E.2d at 705. However, that statement in Bishop does not

require the conclusion that malicious conduct giving rise

to punitive damages must produce some compensable

harm. Again, the matter at issue in Bishop was whether an

award of punitive damages is legally supportable where

no actual harm is shown in the underlying cause of

action.

In Shimola, supra, 25 Ohio St.3d 84, 25 OBR 136, 495

N.E.2d 391, an insured sued his insurer for the tort of bad

faith. The insured sought an award of punitive damages

in connection with that claim. The jury awarded no actual

damages on the claim, but awarded the insured $160,000

in punitive damages. We held that the award of punitive

damages could not be sustained absent proof of actual

App. 23

damages stemming from the underlying claim for bad faith.

Id. at 86, 25 OBR at 138, 495 N.E.2d at 393. Shimola clearly

does not support the conclusion reached by the court of -

appeals’ majority.

Here, appellant was awarded compensatory damages

in the survival claim for Figgie’s medical malpractice and

that award formed the necessary foundation for the

award of punitive damages. Figgie suggests that his alter-

ation of medical records constitutes a separate claim

requiring proof of actual damages, that no actual dam-

ages were shown to flow from the alteration, and that

punitive damages were therefore improper. In this

regard, we have recently held that “[a] cause of action

exists in tort for interference with or destruction of evi-

dence * * * .” Smith v. Howard Johnson Co., Inc. (1993), 67

Ohio St.3d 28, 29, 615 N.E.2d 1037, 1038. However, nothing

in Smith can be interpreted to say that a separate cause of

action for spoliation of evidence is the only way such

conduct can be addressed and remedied. We expressly

reject any such notion. If appellant were constrained to

bring a separate cause of action for spoliation of evi-

dence, that claim would inevitably fail, since there is no

damage flowing directly from the alteration of records.

Therefore, no punitive damages could be awarded to

punish the unlawful conduct. Thus, if Figgie’s argument

is taken to its logical conclusion, litigants and prospective

litigants could alter and destroy documents with impu-

nity so long as no actual damage was caused thereby. Of

course, if the damning evidence were destroyed without

trace, no liability would attach on any claim, since no

evidence would remain to implicate the spoliator. In our

judgment, Figgie’s alteration of records was inextricably

App. 24

intertwined with the claims advanced by appellant for

medical malpractice, and the award of compensatory

damages on the survival claim formed the necessary

predicate for the award of punitive damages based upon

the alteration of medical records.

The purpose of punitive damages is not to compen-

sate a plaintiff, but to punish and deter certain conduct.

See, e.g., Preston, supra, 32 Ohio St.3d at 335, 512 N.E.2d at

1176; Detling v. Chockley (1982), 70 Ohio St.2d 134, 136, 24

O.0.3d 239, 240, 436 N.E.2d 208, 209; and Calmes v. Good-

year Tire & Rubber Co. (1991), 61 Ohio St.3d 470, 473, 575

N.E.2d 416, 419. See, also, Bishop and Richard, supra.

Therefore, it would make no sense for this court to estab-

lish a rule requiring that malicious conduct giving rise to

a claim for punitive damages must independently cause

compensable harm before punitive damages may be

awarded. If the act of altering and destroying records to

avoid liability is to be tolerated in our society, we can

think of no better way to encourage it than to hold that

punitive damages are not available in this case. We

believe that such conduct is particularly deserving of

punishment in the form of punitive damages and that a

civilized society governed by rules of law can require no

less. Figgie’s conduct of altering records should not go

unpunished. We should warn others to refrain from simi-

lar conduct and an award of punitive damages will do

just that.

We recognize that certain language in Rouse, supra, 9

Ohio App.3d at 208-209, 9 OBR at 358, 459 N.E.2d at 597,

lends some support to Figgie’s and the court of appeals’

position that later concealment or destruction of evidence

App. 25

of negligence cannot render an act of negligence mali-

cious and, thus, punitive damages are unavailable in such

a case absent proof of actual harm stemming from the

concealment or destruction. However, we are more per-

suaded by the case of Spadafore v. Blue Shield (1985), 21

Ohio App.3d 201, 21 OBR 215, 486 N.E.2d 1201. In Spada-

fore, Judge Moyer (now Chief Justice Moyer) concurred in

the following statement of the law concerning punitive

damages and the alteration of documents:

“[T]here was some additional evidence, although not

substantial, of possible intentional alteration of docu-

ments. Such conduct is the type of intentional and decep-

tive behavior more indicative of actual malice. If such

evidence is believed, the jury could award punitive dam-

ages. With the proper caution exercised in instructing the

jury as to when punitive damages are proper, the issue of

punitive damages should have been submitted to the

jury.” Id. at 204-205, 21 OBR at 218, 486 N.E.2d at 1205.

Moreover, in Calmes, supra, 61 Ohio St.3d at 473, 575

N.E.2d at 419, this court stated that “[p]unitive damages

in this state are available upon a finding of actual malice.”

(Emphasis added.) The term “actual malice” has been

defined in the case of Preston, supra, 32 Ohio St.3d 334, 512

N.E.2d 1174, and the definition does not include an ele-

ment of actual harm. In Preston, syllabus, we held that:

“Actual malice, necessary for an award of punitive

damages, is (1) that state of mind under which a person’s

conduct is characterized by hatred, ill will or a spirit of

revenge, or (2) a conscious disregard for the rights and

App. 26

safety of other persons that has a great probability of

causing substantial harm.” (Emphasis sic.)

Figgie’s alteration of records exhibited a total disre-

gard for the law and the rights of Mrs. Moskovitz and her

family. Had the copy of page seven of Figgie’s office chart

not been recovered from the radiation department

records at University Hospitals, appellant would have

been substantially less likely to succeed in this case. The

copy of the chart and other records produced by Figgie

would have tended to exculpate Figgie for his medical

negligence while placing the blame for his failures on

Moskovitz. We find that the evidence adduced at trial

fully supported an award of punitive damages under the

standards set forth in the Preston syllabus.

The court of appeals’ majority also determined that

there was no evidence that Figgie altered or destroyed

records to conceal his medical negligence. However, upon

a thorough review of the record, we are convinced that

the jury was presented with sufficient evidence which, if

believed, supported the inference that records were

altered, destroyed or concealed by Figgie in an effort to

conceal his medical negligence. A unanimous panel of

“arbitrators” determined that records were altered with

bad motive, and that Figgie was the responsible party.

Further, having awarded punitive damages, the jury,

which heard the evidence and observed the demeanor of

the witnesses, apparently, also so found. A competent

and respected trial judge upheld the award of punitive

damages and denied a motion for a new trial. With all

due respect to the court of appeals’ majority, we believe

that the appellate court simply substituted its judgment

for that of the jury and, thereby, invaded the province of

, '

q

:

“

App. 27

the finder of fact. Further, as we stated in Myers v. Garson

(1993), 66 Ohio St.3d 610, 614, 614 N.E.2d 742, 745, “we

have often noted in the past, where the decision in a case

turns upon credibility of testimony, and where there

exists competent and credible evidence supporting the

findings and conclusions of the trial court, deference to

such findings and conclusions must be given by the

reviewing court.” In our judgment, the court of appeals’

majority erred in holding that, as a matter of law, appel-

lant was not entitled to an award of punitive damages.

Accordingly, we reverse the judgment of the court of

appeals on the issue of punitive damages. We hold that in

a case involving medical malpractice where liability is

determined and compensatory damages are awarded,

punitive damages pled in connection with the claim for

malpractice may be awarded upon a showing of “actual

malice” as that term is defined in the syllabus of Preston

v. Murty, supra. An intentional alteration, falsification or \

destruction of medical records by a doctor, to avoid lia-

bility for his or her medical negligence, is sufficient to

show actual malice, and punitive damages may be

awarded whether or not the act of altering, falsifying or

, destroying records directly causes compensable harm.

However, we reiterate that the purpose of punitive dam-

ages is to punish and deter. The jury’s reaction in award-

ing $3 million in punitive damages may be

understandable, given its findings of Figgie’s activities,

but it is wrong. Punishment does not mean confiscation.

Figgie’s net worth (depending on who is believed) is

somewhere between $2.1 million and $3 million. We find

that a portion of that net worth will send the message.

App. 28

In determining the appropriate amount of punitive

damages to be awarded, we are guided by the perspi-

cuous observations of Judge John W. McCormac in Shoe-

maker v. Crawford (1991), 78 Ohio App.3d 53, 603 N.E.2d

1114. In ordering a remittitur in Shoemaker for an award

of compensatory damages found to be excessive, Judge

McCormac stated:

“Determining the amount of damages which is the

maximum for adequate compensation is not an easy task.

No simple mathematical formula can be applied as to

either a minimum or a maximum, and there is a wide

range between those figures. The decision rests as much

on policy considerations as it does anything else and

some degree of arbitrariness cannot be totally divorced

from the decision, whether made by us or by the jury.” Id.

at 66, 603 N.E.2d at 1121-1122.

Much the same can be said in the case at bar with

regard to a determination of the appropriate amount of

punitive damages. Upon a review of the record, we find

that $1 million in punitive damages is the appropriate

amount to be awarded. Therefore, with respect to the

jury’s verdict for $3 million in punitive damages, we

order a remittitur of $2 million. Upon remand, appellant

6 Since Shaffer v. Maier (1994), 68 Ohio St.3d 416, 627 N.E.2d

986, questions have arisen concerning the authority of an appel-

late court to order a remittitur. Where a verdict is found to be

excessive but not the result of passion or prejudice, an appellate

court may order a remittitur with the consent of the prevailing

party. In Chester Park Co. v. Schulte (1929), 120 Ohio St. 273, 166

N.E. 186, paragraphs five and six of the syllabus, this court held

that:

™ litte ns - : .

App. 29

may elect to accept the remittitur, in which case the trial

court shall enter judgment in appellant's favor for $1

million in punitive damages. Conversely, appellant may

elect to refuse the remittitur, in which case a new trial

should be conducted only on the issue of punitive dam-

ages. A jury,” if one is impanelled for this purpose, shall

be instructed that punitive damages in some amount

“S. The Court of Appeals has the same unlimited power

and control of verdicts and judgments as the trial court and may

weigh the evidence and exercise an independent judgment

upon questions of excessive damages and when no passion or

prejudice is apparent may modify and affirm the judgment by

ordering a remittitur with the consent of the prevailing party.

“6. If the Court of Appeals in an error proceeding in an

action for unliquidated damages finds that the verdict was ren-

dered under the influence of passion or prejudice it has no

alternative except to reverse and remand for a new trial.”

(Emphasis sic.)

In Duracote Corp. v. Goodyear Tire & Rubber Co. (1983), 2 Ohio

St.3d 160, 162-163, 2 OBR 704, 706, 443 N.E.2d 184, 186, we

reaffirmed the principles set forth in the fifth paragraph of the

syllabus of Schulte. See, also, Shoemaker, supra, 78 Ohio App.3d

53, 603 N.E.2d 1114.

Civ.R. 59(A) sets forth the grounds upon which a new trial

may be granted. One ground for the granting of a new trial is

that the damages awarded are inadequate or excessive, appear-

ing to have been given under the influence of passion or preju-

dice. Civ.R. 59(A)(4). Thus, if an award is excessive and appears

to be the product of passion or prejudice, a new trial is proper

and should be ordered by a reviewing court. However, where

the award is found to be excessive but not the product of pas-

sion or prejudice, a remittitur may be ordered by the appellate

court with the consent of the prevailing party. See Schulte,

Duracote and Shoemaker, supra.

7 We make no determination as to the applicability or con-

stitutionality of R.C. 2315.18 and 2315.21(C)(2).

App. 30

must be awarded and that the jury’s determination is to

be based upon the evidence presented to them which, we

fully recognize, might require a re-presentation of much

of the underlying case.

II

Compensatory Damages

The court of appeals’ majority found that the award of

compensatory damages for the survival action and

wrongful death was excessive and that the jury’s award

was influenced by passion and prejudice. Accordingly,

the court of appeals’ majority vacated the award and

remanded for a new trial only on the issue of compensa-

tory damages. We find that the court of appeals erred in

this regard.

A. Survival Action Award

With respect to the jury’s award on the survival claim, the

court of appeals’ majority found that the award of $2

million was so high that it amounted to a denial of

substantial justice, and that the award “was impermissi-

bly influenced by the jury’s erroneous consideration of

punitive damages.” In addition to finding that the jury’s

consideration of punitive damages was appropriate and

proper, we also believe that the jury’s consideration of

punitive damages cannot form the basis for vacating the

award of compensatory damages.

In Ohio, it has long been held that the assessment of

damages is so thoroughly within the province of the jury

that a reviewing court is not at liberty to disturb the

App. 31

jury’s assessment absent an affirmative finding of passion

and prejudice or a finding that the award is manifestly

excessive. See Toledo, Columbus & Ohio River RR. Co. v.:

Miller (1923), 108 Ohio St. 388, 402-403, 140 N.E. 617, 621.

In the case at bar, we make no such finding as to the

compensatory damages awarded by the jury. The jury’s

$2 million award on the survival claim is not so mani-

festly excessive that a conclusion must be drawn there-

from that the award was the product of passion and

prejudice. The bulk of the award was obviously for the

pain and suffering Moskovitz experienced in the final

year of her life, and the jury was undoubtedly in the best

position to make the assessment of damages. The record

is devoid of any evidence that the jury was wrongfully

influenced in returning a large award, and the amount of

the award itself is not so manifestly excessive at [sic] to

have warranted the court of appeals’ interference with

the province of the jury. In addition, the trial judge was in

the best position to determine whether the award on the

survival claim was manifestly excessive or influenced by

passion and prejudice. See, generally, Villella v. Waikem

Motors, Inc. (1989), 45 Ohio St.3d 36, 40, 543 N.E.2d 464,

469, and Larrissey v. Norwalk Truck Lines, Inc. (1951), 155

Ohio St. 207, 219, 44 O.O. 238, 243, 98 N.E.2d 419, 426. The

trial judge refused to set the verdict aside and denied the

motion for a new trial. That determination is entitled to

deference.

B. Wrongful Death Award

As to the jury’s $1.25 million award for wrongful death,

the court of appeals’ majority held that the award was

manifestly excessive in light of the economic damages

App. 32

proven and in light of Moskovitz’s frail condition prior to

the onset of her terminal illness. Again, the determination

of damages was a question for the jury and the court of

appeals was not at liberty to substitute its judgment for

that of the finder of fact. The jury heard evidence con-

cerning a variety of damages suffered by the wrongful-

death beneficiaries. Although the jury’s award was large,

it cannot be said with any degree of certainty that the

award was excessive. While Moskovitz may have been

frail prior to the onset of her illness, the dissent in the

court of appeals ably noted that Moskovitz “was neither

an amputee, dead, nor dying when Dr. Figgie failed to

adequately diagnose and then treat the cancer.”

Moskovitz’s family unquestionably suffered the loss of a

loving wife and mother, and the jury was in a far better

position than the court of appeals to determine the value

of the losses suffered.

The court of appeals’ majority also suggested that the

jury’s award for wrongful death may have been improp-

erly influenced by certain references at trial to

Moskovitz’s concentration camp experience and her sur-

vival of the Holocaust. However, we note that both appel-

lant and Figgie commented and presented evidence on

this matter. Moreover, upon a careful review of the entire

record, we do not find that the jury’s award was affected

by passion and prejudice.

Based upon the foregoing, we find that the court of

appeals erred in vacating the award of compensatory

damages on the claims for survival and wrongful death.

Therefore, on those issues, we reverse the judgment of

the court of appeals and reinstate the judgment of the

trial court.

App. 33

Ill

Prejudgment Interest

The issue of prejudgment interest has become a complex

question. This case is a perfect example of the problem.

Accordingly, the matter of prejudgment interest generally,

and in this specific case, needs some discussion.

A. Prejudgment Interest at Common Law

Since the 1800s, Ohio courts have recognized a common-

law right to prejudgment interest. In Hogg v. Zanesville

Canal & Mfg. Co. (1832), 5 Ohio 410, 424, this court said,

“But interest is allowed, not only on account of the loss

which a creditor may be supposed to have sustained by

being deprived of the use of his money, but on account of

the gain made from its use by the debtor.” In the last

paragraph of the syllabus of Hogg, this court said, “In

actions for torts the jury may calculate interest on the

damages actually sustained and add it to their verdict.”

In Lawrence RR. Co. v. Cobb (1878), 35 Ohio St. 94,

paragraph four of the syllabus, this court said, “In award-

ing damages for an injury resulting from a tort, compen-

sation in the nature of interest may be included.” Further,

in Cobb, at 98-99, the court stated that “[t]he rule of

damages in such case is compensation for the injury, or,

in other words, that the injured party should be made

whole. And while it is true that such a claim is not one,

which, under the statute, bears interest, nevertheless, if

reparation for the injury is delayed for a long time by the

wrong-doer, the injured party can not be made whole

unless the damages awarded include compensation, in

App. 34

the nature of interest, for withholding the reparation

which ought to have been promptly made.”

In Clevenger v. Westfield Co. (1978), 60 Ohio App.2d 1,

14 O0.0.3d 3, 395 N.E.2d 377, paragraph two of the syl-

labus, the court said that “[t]he jury may assess prejudg-

ment interest in favor of the insured under an automobile

collision insurance policy where the insurer does not

make a reasonable offer of settlement on or before the

date the loss is due and payable.” While, admittedly, that

court was dealing with a predecessor version of R.C.

1343.03, it also discussed possible recovery of interest

under common-law principles. The allowance of prejudg-

ment interest by the Hogg and Cobb courts without a

specific statutory provision and the discussion of the

common-law right to interest by the Clevenger court con-

firm that prejudgment interest was known at common

_ law.

Having established that prejudgment interest was

known at common law in Ohio, we now move to correct

our statement in Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio

St.3d 60, 63, 616 N.E.2d 181, 183, that “[a]ppellants cor-

rectly observe that an action for prejudgment interest

pursuant to R.C. 1343.03(C) constitutes a special proceed-

ing inasmuch as the right to obtain such relief is purely

statutory in nature and was unavailable at common law.”

This statement was incorrect and the cases cited as

authority for the proposition do not support it. Prejudg-

ment interest was known at common law and, conse-

quently, an action seeking prejudgment interest does not

constitute a special proceeding. See Polikoff v. Adam

(1993), 67 Ohio St.3d 100, 616 N.E.2d 213, syllabus, where

App. 35

we said that “[o]rders that are entered in actions that

were recognized at common law or in equity and were

not specially created by statute are not orders entered in

special proceedings pursuant to R.C. 2505.02.” See, also,

Dayton Women’s Health Ctr. v. Enix (1990), 52 Ohio St.3d 67,

74, 555 N.E.2d 956, 962 (Douglas, J., dissenting). Accord-

ingly, we modify Bell to correct our previous error.

B. The Statute - R.C. 1343.03(C) - Purpose

In 1982, Representative (now Judge, Tenth District Court

of Appeals) Dana Deshler, Jr., introduced and sponsored

Am.Sub.H.B. No. 189, 139 Ohio Laws, Part I, 2034. Even-

tually passed by the General Assembly and signed into

law by the Governor, the bill enacted R.C. 1343.03(C),

which permits an injured party, in certain circumstances,

to recover interest in a tort action from the date the cause

of action accrues. Thus, Ohio has created a statutory right

to prejudgment interest.

R.C.. 1343.03(C) reads:

“Interest on a judgment, decree, or order for the

payment of money rendered in a civil action based on

tortious conduct and not settled by agreement of the

parties, shall be computed from the date the cause of

action accrued to the date on which the money is paid, if,

upon motion of any party to the action, the court deter-

mines at a hearing held subsequent to the verdict or

decision in the action that the party required to pay the

money failed to make a good faith effort to settle the case

and that the party to whom the money is to be paid did

not fail to make a good faith effort to settle the case.”

App. 36

In Peyko v. Frederick (1986), 25 Ohio St.3d 164, 167, 25

OBR 207, 209, 495 N.E.2d 918, 921, we said that “[t]he

purpose of R.C. 1343.03(C) is to encourage litigants to

make a good faith effort to settle their case, thereby

conserving legal resources and promoting judicial econ-

omy.” In Kalain v. Smith (1986), 25 Ohio St.3d 157, 159, 25

OBR 201, 202, 495 N.E.2d 572, 574, this court said that

“[t]he statute was enacted to promote settlement efforts,

to prevent parties who have engaged in tortious conduct

from frivolously delaying the ultimate resolution of cases,

and to encourage good faith efforts to settle controversies

outside a trial setting.”

Thus, the purpose of the statute is clear. What are the

components of the statute?

C. Components of the Statute

The statute sets forth certain requirements. First, a party

seeking interest must petition the court. The decision is

one for the court — not any longer a jury. The motion must

be filed after judgment and in no event later than four-

teen days after entry of judgment. Cotterman v. Cleveland

Elec. Illum. Co. (1987), 34 Ohio St.3d 48, 517 N.E.2d 536,

paragraph one of the syllabus. Second, the trial court

must hold a hearing on the motion. Third, to award

prejudgment interest, the court must find that the party

required to pay the judgment failed to make a good faith

effort to settle and, fourth, the court must find that the

party to whom the judgment is to be paid did not fail to

make a good faith effort to settle the case. R.C.

1343.03(C).

App. 37

The statute uses the word “shall.” Therefore, if a

party meets the four requirements of the statute, the

decision to allow or not allow prejudgment interest is not

discretionary. What is discretionary with the trial court is

the determination of lack of good faith. Since the crux of

the statute is “good faith effort” and the ultimate decision

whether to award prejudgment interest is reposed in the

trial judge and, further, since the standard of review on

appeal is abuse of discretion, Ziegler v. Wendel Poultry

Serv., Inc. (1993), 67 Ohio St.3d 10, 20, 615 N.E.2d 1022,

1032, the obvious question becomes what is a “good faith

effort” or, conversely, when has a party “failed to make a

good faith effort to settle”?

D. Good Faith Effort

R.C. 1343.03(C) clearly requires the development of a

judicial standard of good faith. In this court’s recent case

on the question, Kalain, supra, 25 Ohio St.3d 157, 25 OBR

201, 495 N.E.2d 572, at the syllabus, we said that:

“A party has not ‘failed to make a good faith effort to

settle’ under R.C. 1343.03(C) if he has (1) fully cooperated

in discovery proceedings, (2) rationally evaluated his

risks and potential liability, (3) not attempted to unneces-

sarily delay any of the proceedings, and (4) made a good

faith monetary settlement offer or responded in good

faith to an offer from the other party. If a party has a good

faith, objectively reasonable belief that he has no liability,

he need not make a monetary settlement offer.”

While the last sentence in this syllabus has caused

some difficulty we, nevertheless, reaffirm our holding

App. 38

with the caveat that the last sentence of the syllabus

should be strictly construed so as to carry out the pur-

poses of R.C. 1343.03(C).

The effect of Kalain is to place the burden of proof on

a party seeking prejudgment interest. This is, to a degree,

unfortunate since much of the information needed to

make a case for prejudgment interest is in the possession

of the party resisting an award. Accordingly, it is incum-

bent on a party seeking an award to present evidence of a

written (or something equally persuasive) offer to settle

that was reasonable considering such factors as the type

of case, the injuries involved, applicable law, defenses

available, and the nature, scope and frequency of efforts

to settle. Other factors would include responses - or lack

thereof - and a demand substantiated by facts and fig-

ures. Subjective claims of lack of good faith will generally

not be sufficient. These factors, and others where appro-

priate, should also be considered by a trial court in mak-

ing a prejudgment interest determination. bone

Even though the burden of a party seeking an award

is heavy, the burden does not include the requirement

that bad faith of the other party be shown. Lack of a good

faith effort to settle should not be confused with bad

faith. As we noted in Kalain, supra, 25 Ohio St.3d at 159, 25

OBR at 202-203, 495 N.E.2d at 574, a party may have failed

to make a good faith effort to settle even though he or she

did not act in bad faith. In this regard, we now move to

correct a statement we made in Villella, supra. Therein, we

stated that “a lack of good faith means more than poor

judgment or negligence; rather, it imports a dishonest

purpose, conscious wrongdoing or ill will in the nature of

fraud.” Id., 45 Ohio St.3d at 42, 543 N.E.2d at 470. We now

App. 39

find that statement, as it relates to the lack of a good faith

effort to settle, does not represent the state of the law as

set forth in Kalain. Therefore, we now specifically modify

the law stated in Villella by disapproving the above-

quoted language. We hold that in prejudgment interest

determinations pursuant to R.C. 1343.03(C), the phrase

“failed to make a good faith effort to settle” does not

mean the same as “bad faith.”

In making this so-called good faith determination, a

trial court is faced with a number of difficult issues. Two

of those issues involve discovery and privilege. After a

ruling on discovery has been made by the trial court, the

question then arises as to the appealability of that deter-

mination.

E. Discovery - Privilege - Appealability

Our review of the extensive transcript of the prejudgment

interest hearing conducted in this case sheds some light

on the difficulties facing the bench and bar. Without

question, one of the most difficult problems concerns the

scope of discovery available in a proceeding for prejudg-

ment interest.

In Peyko, supra, 25 Ohio St.3d 164, 25 OBR 207, 495

N.E.2d 918, paragraphs one and two of the syllabus, this

court held that:

“1. When a plaintiff, having obtained a judgment

against a defendant, files a motion for prejudgment inter-

est on the amount of that judgment pursuant to R.C.

1343.03(C), the plaintiff, upon a showing of ‘good cause’

pursuant to Civ.R. 26(B)(3), may have access through

App. 40

discovery to those portions of the defendant's insurer’s

‘claims file’ that are not shown by the defense to be

privileged attorney-client communications.

“2. If the defense asserts the attorney-client privi-

lege with regard to the contents of the ‘claims file,’ the

trial court shall determine by in camera inspection which

portions of the file, if any, are so privileged. The plaintiff

then shall be granted access to the non-privileged por-

tions of the file.”

Peyko establishes that any determination regarding a

party’s good faith effort to settle requires a review of the

settlement efforts made by a party’s insurance carrier(s).

Id. at 166-167, 25 OBR at 209, 495 N.E.2d at 921. Most of

the information regarding the insurer’s efforts will be

contained in the claims file. In this regard, Peyko clearly

recognizes that a post-trial proceeding for prejudgment

interest is amenable to the general discovery process

established by the Civil Rules. Indeed, in Cotterman,

supra, 34 Ohio St.3d 48, 517 N.E.2d 536, paragraphs two

and three of the syllabus, this court held that:

“2. The R.C. 1343.03(C) proceeding is amenable to

the discovery process. The trial court should exercise

such governance so as to speedily resolve the post-trial

discovery.

“3. The Rules of Civil Procedure, as utilized in the

general discovery process, are applicable to R.C.

1343.03(C) proceedings.”

However, Peyko provides little guidance on the ulti-

mate question: What is a privileged communication

between an attorney and a client? We must look to the

App. 41

purposes of R.C. 1343.03(C), 2317.02 and Civ.R. 26 to

provide the answer.

The attorney-client privilege has ancient roots. The

history of the privilege can be traced back at least as far

as the reign of Elizabeth I, where the privilege was

already well established. See 8 Wigmore, Evidence

(McNaughton Rev.1961), Section 2290. See, also, Spitzer v.

Stillings (1924), 109 Ohio St. 297, 142 N.E. 365. In the

modern law, the privilege is founded on the premise that

confidences shared in the attorney-client relationship are

to remain confidential. Only in this manner can there be

freedom from apprehension in the client’s consultation

with his or her legal advisor. Wigmore, supra, at Section

2291. However, the privilege is not absolute. That is to

say, the mere relation of attorney and client does not raise

a presumption of confidentiality of all communications

made between them. Id. at Section 2311. Moreover, it is

beyond contradiction that the privilege does not attach in

a situation where the advice sought by the client and

conveyed by the attorney relates to some future unlawful

or fraudulent transaction. Advice sought and rendered in

this regard is not worthy of protection, and the principles

upon which the attorney-client privilege is founded do

not dictate otherwise. See Wigmore, supra, at Section

2298. See, also, Lemley v. Kaiser (1983), 6 Ohio St.3d 258, 6

OBR 324, 452 N.E.2d 1304, wherein Judge (now Justice)

Alice Robie Resnick, writing for this court, found that the

attorney-client privilege exists to aid in the administra-

tion of justice and must yield in circumstances where

justice so requires.

With these principles in mind, it is clear that state-

ments, memoranda, documents, etc. generated in an

App. 42

attorney-client relationship tending to establish the fail-

ure of a party or an insurer to make a good faith effort to

settle a case contrary to the purposes of R.C. 1343.03(C)

are not protected from discovery in an R.C. 1343.03(C)

proceeding for prejudgment interest. Stated otherwise, if,

through the lack of a good faith effort to settle, the

purposes of R.C. 1343.03(C) have been thwarted by a

party and/or the attorneys involved in the case, a search

for the truth of that fact cannot be hindered by claims of

attorney-client privilege. Documents and other things

showing the lack of a good faith effort to settle by a party

or the attorneys acting on his or her behalf are wholly

unworthy of the protections afforded by any claimed

privilege.

As we have stated, the purpose of R.C. 1343.03(C) is

to encourage good faith efforts to settle a case outside the

trial setting. The focus of an R.C. 1343.03(C) post-trial

hearing for prejudgment interest must be the pretrial set-

tlement efforts made between the plaintiffs and defen-

dants and/or their insurers. Often, the only way for a

party to prove another party’s failure to make a good

faith effort to settle is by obtaining the claims file of an

insurer. However, the attempt to do so is often met by

defense objections to the discoverability of matters con-

tained within the file on the basis of work product or

attorney-client privilege. If access to the file or matters

contained therein is denied on the basis of privilege, the

hearing required under R.C. 1343.03(C) may amount to

nothing less than a retrial of the entire case. The case at

bar is an example of this recurrent phenomenon,

although the insurer’s claims file in this case was not

| | )

App. 43

necessary to show that Figgie and/or those acting on his

behalf failed to make a good faith effort to settle the case.

The purpose of Civ.R. 26 is to provide a party with

the right to discover all relevant matters, not privileged,

that are pertinent to the subject of the pending proceed-

ing. Civ.R. 26(B)(1). As indicated, in some cases, nothing

is more relevant in an R.C. 1343.03(C) proceeding than

the claims file of an insurer. The file may contain mem-

oranda or other relevant matters which establish the lack

of a good faith effort to settle. At the same time, the

matters contained within the file may be privileged work

product or attorney-client comnwwnications, beyond the

scope of discovery.

The time has come for this court to define what is

and is not a privileged communication® in an insurer’s

® R.C. 2317.02(A) sets forth a testimonial privilege respect-

ing communications made between an attorney and a client.

R.C. 2317.02 provides, in pertinent part:

“The following persons shall not testify in certain respects:

“(A) An attorney, concerning a communication made to

him by his client in that relation or his advice to his client *** .

“(B)(1) A physician or a dentist, concerning a communica-

tion made to him by his patient in that relation or his advice to

his patient ** * .”

Although R.C. 2317.02 grants a privilege respecting attor-

ney-client communications, the statute does not define what is

meant by the term “communication” in that context. R.C.

2317.02(B)(3) does define “communication” in the context of the

physician/dentist and patient relationship to mean “acquiring,

recording, or transmitting any information, in any manner, con-

cerning any facts, opinions, or statements necessary to enable a

physician or dentist to diagnose, treat, prescribe, or act for a

patient.” (Emphasis added.) Thus, R.C. 2317.02 provides only

minimal guidance on the question concerning privileged

App. 44

claims file for purposes of discovery in an R.C. 1343.03(C)

proceeding for prejudgment interest. In our judgment,

only those attorney-client communications contained in

an insurer’s claims file that go directly to the theory of

defense are to be excluded from discovery. To hold other-

wise would be to undermine the entire purpose of a

hearing on the issue of prejudgment interest, i.e., to ascer-

tain the truth regarding good faith efforts to settle. Civ.R.

26(B)(3) provides, in part, that “a party may obtain dis-

covery of documents and tangible things prepared in

anticipation of litigation or for trial by or for another

party or by or for that other party’s representative

(including his attorney, consultant, surety, indemnitor,

insurer, or agent) only upon a showing of good cause

therefor.” In a prejudgment interest proceeding, the

good-cause requirement of Civ.R. 26(B)(3) is that which is

appropriate to effectuate the General Assembly’s pur-

poses of enacting R.C. 1343.03(C) - to encourage and

bring about settlements.

In our continuing efforts to provide guidance to the

bench and bar on difficult and pressing issues, we hold

that in an R.C. 1343.03(C) proceeding for prejudgment

interest, neither the attorney-client privilege nor the so-

called work product exception precludes discovery of an

attorney-client communications that may be contained in an

insurer’s claims file. However, given the definition of “commu-

nication” in R.C. 2317.02(B)(3) concerning a physician or den-

tist, it could be argued that, by analogy, a “privileged

communication” between an attorney and a client found in an

insurer’s claims file should be limited to those matters going

directly to the theory of defense of the underlying lawsuit.

App. 45

insurer’s claims file. The only privileged matters con-

tained in the file are those that go directly to the theory of

defense of the underlying case in which the decision or

verdict has been rendered. Additionally, on occasion, this

rule might also apply to the file of a party’s attorney.

Having identified the character of discoverable items

in an R.C. 1343.03(C) proceeding for prejudgment inter-

est, we reiterate our holding in Peyko, supra, 25 Ohio St.3d

164, 25 OBR 207, 495 N.E.2d 918, paragraph two of the

syllabus, that where the defense asserts a claim of privi-

lege with regard to items contained in an insurer’s claims

file, the trial court shall conduct an in camera inspection

to determine which items are privileged. Having so

stated, we now move to the question of the appealability

of a trial court’s order compelling or denying discovery

in an R.C. 1343.03(C) proceeding.

Following the ruling in Peyko, supra, this court then

decided Bell, supra, 67 Ohio St.3d 60, 616 N.E.2d 181. In

Bell, we held that the order of a trial court directing a

witness opposing a request for discovery in an R.C.

1343.03(C) prejudgment interest hearing to submit mate-

rials to an in camera inspection is not a final appealable

order. This court in Bell also, however, indicated that an

order in an R.C. 1343.03(C) proceeding permitting discov-

ery after submission of alleged privileged materials for

an in camera inspection is an order affecting a substantial

right made in a special proceeding. Id. at 64, 616 N.E.2d at

184-185. Thus, according to Bell, such an order is a final

App. 46

order subject to immediate appeal.? We now find this

statement in Bell to be incorrect. The statement was based

upon the assumption that prejudgment interest was not

known at common law and thus a prejudgment interest

proceeding was a special proceeding. As pointed out

above, prejudgment interest was known at common law

and, thus, any order made in a prejudgment interest

proceeding is not one made in a special proceeding.

Accordingly, we further modify Bell to correct our

error. In doing so, we hold that an order compelling or

denying discovery in an R.C. 1343.03(C) proceeding for

prejudgment interest does not meet the definition of

“final order” set forth in R.C. 2505.02. Such an order does

not determine the action or prevent a judgment, nor is it

rendered in a special proceeding. Thus, an appeal from

such an order must await final judgment in the prejudg-

ment interest proceeding.

9 R.C. 2505.02 reads:

“An order that affects a substantial right in an action which

in effect determines the action and prevents a judgment, an

order that affects a substantial right made in a special proceed-

ing or upon a summary application in an action after judgment,

or an order that vacates or sets aside a judgment or grants a new

trial is a final order that may be reviewed, affirmed, modified,

or reversed, with or without retrial.

“When a court issues an order that vacates or sets aside a

judgment or grants a new trial, the court, upon the request of

either party, shall state in the order the grounds upon which the

new trial is granted or the judgment vacated or set aside.”

App. 47

F. R.C. 1343.03(C) Applied to this Case

The court of appeals’ majority, citing Kalain, supra, 25

Ohio St.3d 157, 25 OBR 201, 495 N.E.2d 572, affirmed the

judgment of the trial court denying appellant’s motion

for prejudgment interest. Specifically, the court of

appeals’ majority found that Figgie was not obligated to

make a monetary settlement offer because Figgie pos-

sessed a good faith, objectively reasonable belief that he

was not liable to appellant. We find that determination to

be untenable on the facts of this case.

Figgie never made any offer to settle. If Figgie ever

had a good faith, objectively reasonable belief that he had

no liability, the fact that the “arbitration” panel unani-

mously found against Figgie should have apprised him

that a finding of liability at trial was possible, if not

probable. Given the substantial amount of conflicting

evidence in this case, the fact that medical records disap-

peared and were altered and the unanimous determina-

tion of the panel of “arbitrators,” the inescapable

conclusion is that Figgie failed to rationally evaluate his

potential liability. Appellant made monetary settlement

offers within the limits of Figgie’s malpractice insurance

coverage. One such offer was for approximately $4.3 mil-

lion — the value placed upon this case by the “arbitration”

panel, which did not consider the issue of punitive dam-

ages. Figgie refused to engage in any settlement negotia-

tions.

We find that, as a matter of law, prejudgment interest

should have been awarded on the facts of this case. The

trial court’s failure to award prejudgment interest was an

App. 48

abuse of discretion.1° We further find that the accrual

date of Moskovitz’s survival cause of action was January

1, 1988,11 and prejudgment interest at the statutory rate is

to be computed from and including that date up to and

including the date the judgment is paid. As to the wrong-

ful death portion of the judgment, interest is to be calcu-

lated from and including the date of death, December 5,

1988, up to and including the date the judgment is paid.

The amount of interest is to be computed by the trial

court upon remand.

10 The prejudgment interest proceeding concluded after a

hearing over two days and produced a transcript of three hun-

dred thirty-eight pages. The trial court, without explanation,

denied prejudgment interest.

11 For purposes of determining the accrual date of the sur-

vival action, several events that occurred between November

1987 and the end of January 1988 are significant. These events

include the removal of the tumor and the diagnosis of malig-

nancy on November 10, 1987, the identification of the type of

tumor on November 13, 1987, Moskovitz’s apparent knowledge

on November 11, 1987 that the tumor was malignant, and Fig-

gie’s receipt of the medical records in December 1987 and the

disappearance of those records possibly in January 1988 (see

Frysinger v. Leech [1987], 32 Ohio St.3d 38, 512 N.E.2d 337,

paragraph one of the syllabus). Although it is difficult to deter-

mine the precise accrual date of the survival cause of action

given the state of the record before us, we find that January 1,

1988 is the appropriate date of accrual to be used in the calcula-

tion of prejudgment interest.

App. 49

IV

Sanctions

The final issue presented for our consideration is

whether it was proper for the trial court to have sanc-

tioned appellant’s attorney, Charles Kampinski, under

Civ.R. 11. Sanctions were awarded in favor of Dr. Makley

in the amount of $4,000. This award was based upon the

fact that Kampinski did not present expert testimony

against Makley at trial to establish that Makley’s treat-

ment of Moskovitz deviated from accepted standards of

care. The trial court concluded that Kampinski did not

have good and reasonable grounds to pursue the action

against Makley, particularly after the “arbitration” panel

found in favor of Makley on the issue of liability. The trial

judge who decided this issue was not the same judge who

had presided over the case at trial.

As a preliminary matter, we note that Kampinski, in

his individual capacity, did not file a notice of appeal

from the judgment of the court of appeals affirming the

$4,000 award in favor of Makley. That is, Kampinski

currently represents the appellant in this case, and he

properly filed a notice of appeal for appellant, without

indicating that he himself was appealing from the sanc-

tions imposed upon him personally. To complicate mat-

ters, the attorneys who represented both Makley and

Figgie do not claim to represent Makley before this court.

However, as attorneys for Dr. Figgie, they have briefed

the issue of sanctions and seek to uphold the award that

was granted in Makley’s favor. The conclusion we draw is

that the issue of sanctions, which affects Kampinski indi-

vidually, has become an integral part of all other matters

App. 50

at issue in this case. We find that the notice of appeal filed

by Kampinski on behalf of his client was sufficient to

encompass the issue of sanctions and that Kampinski

may properly be considered an appellant in his individ-

ual capacity.

Turning our attention to the merits of the issue, we

believe that Kampinski should not have been sanctioned

for pursuing the action against Dr. Makley for medical

malpractice. The thrust of the allegations against Makley

in the final amended complaint was that he unnecessarily

amputated Moskovitz’s leg and informed her that the

amputation was to cure the cancer, rather than to ease her

pain. However, in the absence of competent expert medi-

cal testimony against Dr. Makley, a prima facie case of

medical malpractice could not be maintained.

In his deposition, Dr. Engleberg, plaintiff's medical

expert, testified as follows:

“Q Are you going to state at the trial of this matter

[that] * * * Dr. Makley in his care and treatment of Mrs.

Moskovitz deviated from the accepted standards of medi-

cal care?

“A I will state that if, in fact, the patient was told

that the procedure [amputation] was done in order to

cure her or if, in fact, the patient was not shown to have

had a lot of suffering and pain in that leg, then I would

say Dr. Makley deviated from the standard of care.

“Q Okay. I want to be very clear that if she - are

you talking about informed consent * * * [?]

App. 51

“A No, no. Not necessarily written informed con-

sent. If the patient understood that there was no chance

of cure by having her leg amputated and wanted it done-

anyway because she had severe intractable pain and that

can be demonstrated, then I would not say his care devi-

ated from the standard of care.

“If, on the other hand, it cannot be demonstrated that

she was having severe and intractable pain in that leg

and the patient did not fully understand that the pro-

cedure was not of a curative intent, then I will say he

deviated from the standard of care.

“I think the jury should be able to determine which

of those sets of facts, which of those scenarios would

most closely reflect reality.”

Engleberg further testified in his deposition that he

had found no evidence of informed consent or of intract-

able pain.

Engleberg’s deposition testimony established a rea-

sonable basis for Kampinski to fashion a complaint

against Makley for medical malpractice. The deposition

testimony of Aaron Moskovitz indicated that Mrs.

Moskovitz was told that the amputation was for curative

rather than palliative purposes. Thus, the factual predi-

cate for the expert medical testimony that Makley had

deviated from accepted standards of care was established

by Kampinski prior to trial. In addition, even though the

“arbitration” panel found in favor of Makley on the issue

of liability, the panel noted that there was some question

as to whether Moskovitz had been properly informed of

the purpose of the amputation. Moreover, given the con-

voluted machinations of this case, where records were

App. 52

altered, lost and/or not appropriately maintained and

where relevant portions of Makley’s teaching file had

come up missing, it might very well have been legal

malpractice for Kampinski not to have Makley available

as a defendant at trial.

Kampinski chose not to present the evidence against

Makley at trial. Why that is, we will never know. How-

ever, the purpose of Civ.R. 11 is to prohibit the filing of

groundless complaints and the evidence establishes that

the allegations asserted against Makley were asserted in

good faith. Accordingly, we reverse the judgment of the

court of appeals on this issue and vacate the $4,000 award

in favor of Makley.

V

Conclusion

For the foregoing reasons, the judgment of the court

of appeals is reversed and the award of compensatory

damages is reinstated. Appellant is entitled to prejudg-

ment interest and we remand this cause to the trial court

to calculate the amount of prejudgment interest due and

to enter judgment accordingly. The award of punitive

damages is reinstated, but we order a remittitur of $2

million on the punitive damage award. On remand,

appellant may accept the remittitur and a judgment of $1

million in punitive damages, or appellant may refuse the

remittitur, in which case a new trial should be conducted

only on the issue of punitive damages. The award of

sanctions is vacated.

Judgment reversed and cause remanded.

App. 53

RESNICK, FRANCIS E. SWEENEY, Sr. and PFEIFER,

JJ., concur.

MOYER, C.J., and A. WILLIAM SWEENEY and —

WRIGHT, JJ., dissent. |

WRIGHT, Justice, dissenting.

I must respectfully dissent, as I would affirm in large

measure the decision of the court of appeals.

I

In Part I of the majority’s opinion there is found a

scholarly discussion of the criteria for punitive damages

and an excellent discourse on the concept underlying the

tort of spoliation of evidence. I agree that any profes-

sional, whether doctor, lawyer, or accountant, found to

have committed spoliation with the intent to defraud or

otherwise injure a patient or client may be subject to a

claim for compensatory or nominal damages coupled

with a claim for punitive damages. Further, ' see no

problem combining a traditional malpractice suit with a

cause of action alleging spoliation of evidence. However,

I do not agree with the majority’s decision to permit

punitive damages in a negligence action, because the sub-

sequent spoliation of records does not make the original

act of negligence malicious.

My major concern with the majority’s opinion is its

treatment of the facts surrounding the alleged spoliation. I

agree with the suggestion in the majority’s opinion that if

“records were altered, destroyed or concealed by Dr.

Figgie in an effort to conceal his medical negligence,” an

award of punitive damages may be justified in a separate

App. 54

cause of action. However, the question whether Dr. Figgie

“altered certain records to conceal the fact that malprac-

tice occurred” was a hotly disputed issue at trial, an issue

vigorously rebutted with lengthy testimony by Dr. Figgie

and his nurse. As is true with the determination of any

significant fact, it was the province of the jury to make a

finding and return a verdict on the issue of the alleged

spoliation of evidence. Such a determination is not our

task. What the majority overlooked, presumably, is that

the trial judge did not include in his charge to the jury

one single word concerning this hotly disputed issue of

spoliation. Indeed, the entire jury charge dealt strictly

with medical malpractice. The plaintiff neither pleaded a

cause of action for spoliation nor asked for instructions

on spoliation.

I also do not agree with the majority that “[i]f appel-

lant were constrained to bring a separate cause of action

for spoliation of evidence, that claim would inevitably

fail since there is no damage flowing directly from the

alteration of records.” Some measure of damages will

flow inevitably from the alteration of records when the

alteration is done to avoid liability for the physician’s

medical negligence. At the very least, the plaintiff may

have to expend additional time and effort to reconstruct

the original records. Since the purpose of the spoliation is

to avoid liability, the plaintiff’s ability to succeed in the

negligence action may be made more difficult because of

the spoliated records. This harm can be seen in the pre-

sent case. Dr. Figgie relied on his version of the records to

claim that he was not negligent because he had advised

appellant to have a biopsy but she refused his advice. The

inclusion of this statement in his records may have made

App. 55

appellant’s claim more difficult to prove. When a physi-

cian commits spoliation of evidence to avoid liability for

his or her medica! negligence, the patient is automatically -

entitled to at least nominal damages. In some cases, for

example where the spoliation impairs the future course of

treatment of the patient, more than nominal damages

may also result.!2

Therefore, I would hold that a party must plead a

separate cause of action for the tort of spoliation of evi-

dence. The jury should be instructed that if it finds the

defendant altered or destroyed records with the purpose

of avoiding liability for his or her negligence, the jury

must award at least nominal damages. The jury may then

proceed to the question of punitive damages. In such a

situation, the test of Preston v. Murty (1987), 32 Ohio St.3d

334, 512 N.E.2d 1174, can be met as the jury can properly

find that actual malice occurred due to the defendant's

“conscious disregard for the rights and safety of other

12 To presume damages arise from the intentional tort of

spoliation of evidence is consistent with the long-standing pre-

sumption for other intentional torts such as assault, battery and

defamation. “[E]very injury imports a damage, though it does

not cost the party one farthing, and it is impossible to prove the

contrary; for a damage is not merely pecuniary, but an injury

imports a damage, when a man is thereby hindered of his right.

As in an action for slanderous words, though a man does not

lose a penny by reason of the speaking them, yet he shall have

an action. So if a man gives another a cuff on the ear, though it

cost him nothing, no not so much as a little diachylon, yet he

shall have his action, for it is a personal injury.” Ashby v. White

(King’s Bench 1703), 2 Ld.Raym. 938, 955 (Holt, C.J., dissenting).

Holt’s position prevailed, as the majority was reversed by the

House of Lords (1703), id. at 958.

App. 56

persons that has a great probability of causing substantial

harm.” The great probability of substantial harm to the

plaintiff is that an otherwise meritorious action for negli-

gence will be defeated due to the tortious conduct of the

defendant.

Suffice it to say, contrary to the conclusion reached

by the majority following its review of the record, the

jury did not make a finding that Dr. Figgie was involved

in spoliation.! Without such a finding and verdict, which

would be tantamount to a finding of malicious intent or

reckless disregard, there exists no basis for punitive dam-

ages. Thus, the court of appeals correctly found that

punitive damages were inappropriate in this case, as this

was a cause premised on negligence.

In addition to the foregoing, I note that the trial judge

was well aware that the jury’s total award of $3 million in

punitive damages at best equalled and probably far

exceeded Dr. Figgie’s net worth. I believe the punitive

damage award in this case violates the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution. See TXO Production Corp. v. Alliance

Resources Corp. (1993), 509 U.S. __, 113 S.Ct. 2711, 125

L.Ed.2d 366; Pacific Mut. Life Ins. Co. v. Haslip (1991), 499

U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1; Browning-Ferris

Industries of Vermont, Inc. v. Kelco Disposal, Inc. (1989), 492

U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219.

13 In its first paragraph, the majority asserts that Dr. Figgie

“altered certain records to conceal the fact that malpractice had

occurred,” as if the jury made a specific finding on this issue.

App. 57

II

The jury award of punitive damages having been

determined to be without basis, it is perfectly clear that,

as stated by the court of appeals, the compensatory dam-

age award was excessive and the product of passion and

prejudice. I am convinced that, as the court of appeals

pointed out, “the jury’s survivorship award [of $2 mil-

lion] was impermissibly influenced by the jury’s erro-

neous consideration of punitive damages.” I also agree

fully with the court of appeals that the jury’s wrongful

death award of $1.25 million was “manifestly excessive.”

This court consistently has ruled that where an exces-

sive verdict is the product of passion and prejudice, a

new trial must be granted. Larrissey v. Norwalk Truck Lines

(1951), 155 Ohio St. 207, 44 O.O. 238, 98 N.E.2d 419,

paragraph four of the syllabus. We have emphasized, for

example, that “[iJn a trial of a negligence action * * *

deliberate and persistent appeals to the sympathy of the

jury, either directly or indirectly, are improper, as tending

to induce either excessive or inadequate verdicts as a

result of such appeal to the passion or prejudice of the

jury.” Book v. Erskine & Sons, Inc. (1951), 154 Ohio St. 391,

43 O.O. 334, 96 N.E.2d 289, paragraph one of the syllabus.

Thus, “where the damages awarded are excessive and

appear to have been given under the influence of passion

or prejudice, the resulting prejudice cannot be corrected by

remittitur; the only recourse is the granting of a new

trial.” (Emphasis added.) Id. at paragraph two of the

syllabus. See, also, Guccione v. Hustler Magazine, Inc. (Oct.

8, 1981), Franklin App. No. 80AP-375, unreported, at 33,

1981 WL 3516.

App. 58

Even a cursory review of the record reveals that

counsel for Moskovitz leveled “deliberate and persistent

appeals to the sympathy of the jury,” referring repeatedly,

for instance, to Mrs. Moskovitz’s confinement in a Nazi

concentration camp during the Second World War. The

record also indicates that plaintiff's counsel made the

spcliation claim, not the malpractice claim, the primary

focus of the trial. Moskovitz’s counsel devoted most of

his cross-examination of Dr. Figgie, ninety pages of testi-

mony, to the alteration of Moskovitz’s medical records. In

opening statements and again in closing arguments,

counsel for Moskovitz emphasized and reemphasized the

issue of spoliation, alluding many times to Dr. Figgie’s

cover-up and the “smoking gun.” Throughout the trial,

counsel for Moskovitz repeatedly attempted to direct the

jury’s attention to the allegation that Dr. Figgie had tried

to conceal his negligent treatment of Moskovitz by subse-

quently altering the medical records. But despite this

pattern of conduct, as previously stated, the trial court

never instructed the jury on the matter of spoliation or

gave a limiting instruction thereon. Not even a sugges-

tion of the spoliation issue exists in the trial court's

charge to the jury.

In light of the foregoing, I believe the court of

appeals correctly found that the jury was wrongfully

influenced and that both the compensatory damage

award and the award of punitive damages were excessive

and the result of passion and prejudice. Therefore, I feel

the court of appeals properly remanded the case to the

trial court for a new trial on the issue of compensatory

damages.

App. 59

Il

I must also address the majority’s position on pre-_

judgment interest and the majority’s treatment of Bell v.

Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 616 N.E.2d

181.

The majority begins its discussion of this issue by

declaring that a common-law right to prejudgment inter-

est existed in Ohio and, therefore, contrary to a recent

decision of this court, a prejudgment interest proceeding

is not considered a “special proceeding” for purposes of

R.C. 2505.02. Thus the majority concludes, in paragraph

four of the syllabus, that “[a]n order compelling or deny-

ing discovery in an R.C. 1343.03(C) proceeding for pre-

judgment interest does not meet the definition of ‘final

order’ set forth in R.C. 2505.02.”

This statement by the majority attempts to modify a

decision issued by this court just last term. In Bell we

were faced squarely with the question of whether an

order for discovery in a prejudgment interest hearing was

a final appealable order.

The issue we addressed in Bell, however, is not an

issue before this court today. Rather, the question we

must answer today is whether the award of prejudgment

interest was appropriate in this case. We have not been

asked to consider the appealability of an order issued

during a prejudgment interest hearing. Hence, the

lengthy discussion engaged in by this court concerning

the appealability of an order issued during a prejudg-

ment interest hearing is nothing more than dicta. Given

the recent issuance of the Bell decision, the present case is

not the proper forum for such a discussion. Members of

App. 60

this court had ample opportunity to express any reserva-

tions concerning that issue during our consideration of

Bell, which was decided by six members of this court with

the seventh member concurring in judgment only. At a

minimum, because it does not address an issue before

this court, the dicta should be removed from the syllabus.

I also take issue with the majority’s decision of the

relevant prejudgment interest question.

It is well-settled law that the decision to award pre-

judgment interest lies within the sound discretion of the

trial court. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio

St.3d 83, 19 OBR 123, 482 N.E.2d 1248. That decision will

not be reversed by a court of appeals unless the record

reflects an abuse of discretion by the trial court. Kalain v.

Smith (1986), 25 Ohio St.3d 157, 25 OBR 201, 495 N.E.2d

572. The phrase “abuse of discretion” is a term of art

defined long ago to mean “more than an error of law or

of judgment; it implies an unreasonable, arbitrary or

unconscionable attitude on the part of the court.” Steiner

v. Custer (1940), 137 Ohio St. 448, 19 0.0. 148, 31 N.E.2d

855, paragraph two of the syllabus. Clearly then, the

decision of the trial court in this case should remain

undisturbed unless that decision was tainted by an unrea-

sonable, arbitrary, or unconscionable attitude.

In my judgment there is no evidence of any abuse of

discretion here. The trial court denied Moskovitz’s

motion for prejudgment interest only after conducting a

lengthy hearing on the matter. During the hearing both

sides had adequate opportunity to present their evidence

and arguments. Considering the strong disagreement

App. 61

between the parties with respect to several significant

facts as well as the lengthy testimony and evidence pre-

sented by Dr. Figgie in rebuttal to Moskovitz’s charges,

plainly the trial court did not abuse its discretion in

concluding that Dr. Figgie had a good faith, objectively

reasonable belief that he was not liable. Based on this

conclusion I believe the trial court properly held that Dr.

Figgie was not obligated, pursuant to Kalain, to offer

Moskovitz a monetary settlement offer, and that the fail-

ure to do so did not reflect a failure of good faith and, of

course, did not warrant an award of prejudgment inter-

est.

IV

I strongly believe that the court of appeals correctly

reversed and vacated the punitive damage award,

reversed the compensatory damage award and remanded

the compensatory damage issue for a new trial, and

affirmed the denial of the motion for prejudgment inter-

est. Thus, for the foregoing reasons I would affirm the

judgment of the court of appeals in part but remand for a

new trial on the issue of compensatory damages and the

issue of spoliation.

MOYER, C.J., and A. WILLIAM SWEENEY, J., concur

in the foregoing dissenting opinion.