[Cite as Geletka v. MetroHealth Sys., 2023-Ohio-934.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

DEBORAH GELETKA, :

Plaintiff-Appellant, :

No. 111942

v. :

METROHEALTH SYSTEMS, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 23, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-19-919242

Appearances:

Thomas J. Misny, M.D., Inc., and Thomas J. Misny, for 

appellant. 

Buckingham, Doolittle & Burroughs, LLC, Timothy A. 

Spirko, and Dirk E. Riemenschneider, for appellees. 

FRANK DANIEL CELEBREZZE, III, P.J.:

Plaintiff-appellant Deborah Geletka (“Geletka”) appeals the decision of 

the Cuyahoga County Court of Common Pleas granting a directed verdict in favor of 

defendant-appellee Kevin L. Grimes, M.D. (“ Dr. Grimes”). Geletka also appeals the 
trial court’s denial of her motion for a new trial. After a thorough review of the 

record and law, this court affirms. 

I. Factual and Procedural History

In August 2019, Geletka filed a medical-malpractice complaint seeking 

damages from MetroHealth System (“MetroHealth”) and Dr. Grimes. In the 

complaint, Geletka alleged that Dr. Grimes, who was employed by MetroHealth, was 

negligent in the treatment of a mass located on her upper left leg. Particularly, she 

alleged that Dr. Grimes erroneously diagnosed the mass as a hernia and performed 

a surgical procedure on October 18, 2018, where he inserted a four-inch by one-inch 

polypropylene mesh plug in the area. After the surgery was completed, Geletka 

noticed that the mass that she thought was the hernia was still present. An 

ultrasound was ordered, and the results demonstrated that the mass that Geletka 

was concerned about was a saphena varix, related to her varicose veins. Geletka 

alleged that the mesh insertion was unnecessary because she did not actually have a 

hernia and that the mesh may need to be removed in the future because the mesh 

will fibrose and scar. Finally, she alleged that Dr. Grimes purposely covered up his 

own medical malpractice in his office medical records. 

The parties engaged in discovery and in August 2020, MetroHealth and 

Dr. Grimes filed a motion for partial summary judgment as to Geletka’s request for 

punitive damages. Extensive briefing ensued and in November 2020, the trial court 

granted summary judgment as to the punitive damages against MetroHealth but 
denied summary judgment as to the punitive damages against Dr. Grimes, noting 

that genuine issues of material fact remained. 

Trial commenced on August 2, 2022. We will briefly summarize the 

relevant procedural discussions and evidence received at trial. 

During opening statements, Geletka’s counsel explained that the 

evidence would show that Dr. Grimes misdiagnosed a saphena varix, related to the 

body’s vascular system, as a femoral hernia. Counsel explained that after the mesh 

insertion, Geletka experienced significant bruising and pain. After the bruising and 

pain subsided, Geletka noted that the lump that the surgery was purposed to remove 

was still present on her leg. Geletka’s counsel suggested that it was below the 

standard of care for Dr. Grimes to continue to operate on Geletka after making the 

incision and finding that there was no hernia in Geletka’s body. Counsel claimed 

that because of the allegedly unnecessary mesh insertion, Geletka endured pain and 

suffering, clarifying that these were the only damages that Geletka sought in this 

case. 

During his opening statement, counsel for Dr. Grimes explained that 

Geletka is a patient with chronic pain and that Dr. Grimes met the standard of care 

every step of the way. Dr. Grimes’s counsel particularly noted that the initial exam 

of the lump in Geletka’s thigh met the standard of care in making a typical hernia 

diagnosis. After Geletka was diagnosed with a hernia by Dr. Grimes, she presented 

to the emergency room complaining of pain in that area. The emergency room 

doctor also diagnosed the lump as a hernia, though the CT scan taken in the 
emergency department reflected that there was no hernia. From these facts, Dr. 

Grimes’s counsel describes Dr. Grimes’s defense: Geletka indeed had a hernia and 

it was properly operated on and this hernia was separate and distinct from the 

saphena varix.

After opening statements, Dr. Grimes’s counsel requested a sidebar and 

brought an issue to the trial court’s attention. Dr. Grimes’s counsel stated that 

Geletka had not provided them with an exhibit list, so counsel did not know what 

records Geletka would be introducing and, therefore, was concerned that counsel 

would not be able to stipulate to the authenticity of any medical records that Geletka 

introduced at trial. The trial court informed Geletka’s counsel that he would have to 

properly authenticate the records prior to utilizing them at trial, whether that was 

by working with Dr. Grimes’s counsel to achieve a stipulation or bringing in the 

records custodian to testify. At the conclusion of the sidebar, Geletka’s counsel 

assured the trial court that he would not be using any medical records that day and 

promised the trial court that he would straighten it out by the next day of trial. 

Geletka’s first witness and her sole expert in this case, Dr. Mark 

Liberman (“Dr. Liberman”), was sworn in and testified via videoconference. Dr. 

Liberman went through his qualifications, and the court qualified him as an expert 

witness in general surgery. Dr. Liberman then discussed saphena varices and 

hernias generally. Relevant to this case, Dr. Liberman testified that hernias have 

three components: a neck, a sac, and any tissue or organ that protrudes through the 

neck into the hernia sac. (Tr. 114.) He further testified that once a hernia sac is 
pushed through the femoral ring, it is “scarred” there. (Tr. 116.) In other words, it 

does not resolve without operation, but could move further through the ring and 

become larger. He testified that if a doctor operates on a hernia, a doctor expects to 

find “[a] hernia sac through a defect.” (Tr. 117.) Dr. Liberman noted that upon 

review of Dr. Grimes’s surgical notes, Dr. Grimes did not note that he found a hernia 

sac. He then testified that because Dr. Grimes did not find a sac, Geletka must not 

have had a hernia and, therefore, the insertion of the mesh was below the standard 

of care because “the best you can hope for is no harm; but the problem is people can 

have problems with having mesh, mesh plugs, and so you put the patient at potential 

risk for having a foreign body that they don’t need and there’s no indication for.” 

(Tr. 118.) Dr. Liberman generally testified about potential risks of mesh insertion, 

including nerve entrapment and pain. 

When questioned directly about Geletka’s injuries as a result of the 

unnecessary surgery, Dr. Liberman suggested that any pain directly caused by the 

mesh would be due to the surgeon’s negligence in performing an unnecessary 

surgery, but that pain from the operation itself, including at the incision site, would 

not be part of her injuries as a result of the surgeon’s negligence. He stated, “I do 

not feel he was negligent taking her to the operating room. The negligent part was 

putting in the mesh.” (Tr. 125.) Notably, he did not specify whether Geletka herself 

suffered any specific injuries as a result of this mesh insertion. 

On cross-examination, Dr. Liberman testified that it was his 

understanding that the mesh plug was causing Geletka pain on palpation, based on 
Geletka’s own testimony, but not based on his review of any medical records. He 

also testified that had there actually been a hernia, Dr. Grimes would have met the 

proper standard of care at all points, but because he believed there was no hernia, 

he could not opine that Dr. Grimes met the standard of care in inserting the mesh.

He conceded that a saphena varix and a hernia could exist at the same time. Dr. 

Liberman did not agree that a hernia could exist without a sac, as suggested by Dr. 

Grimes’s defense counsel. Defense counsel also showed Dr. Liberman a medical 

record from January 8, 2020, where Geletka presented to Dr. John J. Como. The 

medical record indicated that Geletka had a “painful left groin lymph node” that she 

has noted since June 2019, about nine months after the hernia surgery, and that the 

lymph node is “abutting” the hernia mesh. Dr. Liberman confirmed that these 

lymph node complaints would not have been related to the hernia, stating that “[t]he 

lymph nodes are different than a hernia.” (Tr. 150.) 

On redirect examination, Geletka’s counsel asked Dr. Liberman about 

the lymph node complaints that Geletka had beginning in June 2019. Dr. Liberman 

testified that typically, lymph nodes develop when there is inflammation, and that 

inflammation typically happens in areas that are infected or irritated and can cause 

pain. He testified that the lymph node abutting the mesh indicates that the body is 

“reacting” to the mesh. (Tr. 182.) 

Geletka herself testified next. She relayed that she used to work as a 

medical lab technician at MetroHealth and has some familiarity with human 

anatomy because of her career and schooling. She testified that she presented to Dr. 
Grimes due to a lump in her thigh, which she described as a “marble blueish, marblesized-bouncy lump.” (Tr. 198.) She testified that prior to the surgery, she was only 

aware of one, marble-sized lump, and after the surgery, a second lump developed in 

the groin area that was sore and “hard” to the touch. Geletka also testified that after 

the surgery performed by Dr. Grimes, she felt severe pain in her hip and continued 

numbness. “[T]wo weeks post-op,” she finally “got brave enough to * * * touch and 

look real good [at the area where the surgery was performed]” and she found that 

the “bouncy marble” still persisted. (Tr. 222.) She testified that this “marble” still 

persisted at the time of trial. When Geletka noted her concerns about the stillpresent “marble” to Dr. Grimes, he sent her to another facility for an ultrasound, 

which revealed that the “marble” was a saphena varix. 

Geletka testified that at this point, she began investigating this matter 

on her own. She did not believe that she had a hernia at all. She felt that she was 

able to understand her medical records due to her history working at MetroHealth 

and requested them. After doing her own research and reviewing her medical 

records, Geletka noticed that the operative note did not indicate that there was a 

“sac,” which is characteristic of hernias. Armed with this knowledge, she confronted 

Dr. Grimes at her final appointment, who, by Geletka’s testimony, admitted that she 

did not have a hernia at all and that the mesh insertion was unnecessary. Geletka

then asked Dr. Grimes why he placed the mesh if there was no hernia, and he

allegedly informed Geletka that “[w]e already cut you. And you know, there was this 
little opening in the femoral canal” and that insertion would prevent a future hernia. 

(Tr. 238.)

Regarding her injuries, Geletka testified that this surgery has affected 

her because she has suffered from chronic pain ever since the surgery. She states 

that she experiences pain from the hip to the thigh and that the hard lump that 

appeared in her groin after the surgery bothers her “quite often.” She also complains 

of pain in her legs, which she attributes to the existence of her varicose veins and the 

saphena varix, both of which predated the hernia operation, but were painful items 

that she thought would resolve as a result of the surgery. Finally, she noted that she 

feels that she missed out on spending time with her husband before he succumbed 

to an illness and passed away, and that she can no longer take her pets for daily walks 

in the park.

On cross-examination, Dr. Grimes’s counsel confronted Geletka about 

her deposition testimony, including the fact that she admitted that Dr. Grimes did 

not say that there was no hernia, but said that it was tough for them to find, which 

is why he cut her further. Geletka was also questioned about her medical history, 

including a significant medical history of varicose veins that cause her pain and 

require her to constantly wear compression socks. She also has a history of 

endometriosis, pelvic pain, and fibromyalgia. Prior to presenting to Dr. Grimes, 

Geletka admitted that she had longstanding, debilitating pain and sought the 

services of a pain management physician. She also saw a vascular surgeon for pain 

in her lower left extremities, described as aching, burning, itching, and throbbing. 
The “marble” was examined by two doctors, and one, Dr. Rocco Ciocca,

recommended that Geletka go to a general surgeon because he suspected it could 

have been a hernia. It was at this point that she was referred to Dr. Grimes, who 

performed a thorough initial examination. On cross-examination, Geletka was 

shown a medical record from one of her follow-up visits with Dr. Grimes where she 

indicated that her post-operative pain was minimal. She countered the contents of 

the record by stating that the operation continues to cause her terrible hip pain, 

which only began after the surgery. She did, however, admit that her hip pain was 

later diagnosed as trochanteric bursitis and piriformis tendon syndrome. Geletka 

was also questioned about her left ovary removal in September 2019, which resolved 

some of her left-sided pain.

On redirect examination, Geletka suggested that she was able to 

distinguish all of her existing problems and pain from the pain specifically caused 

by the hernia surgery. 

Geletka’s next witness, Jill Page (“Page”), attended several medical 

appointments with Geletka. Page testified that Geletka’s final appointment with Dr. 

Grimes had many different purposes: Geletka’s concerns about the length of the 

surgery; Geletka’s concerns that her pre-surgery concerns were not addressed by the 

surgery; that Geletka was still symptomatic post-surgery; Geletka’s concerns about 

the mesh, a foreign body, being placed inside of her; that Dr. Grimes did not find a 

sac when he operated on Geletka and; whether there was a hernia in the first place. 

Page testified that Dr. Grimes admitted that there was no hernia, and when 
questioned as to why he inserted the mesh, he told Geletka that it was to prevent a 

future hernia. 

Dr. Grimes was Geletka’s final witness. Dr. Grimes testified in 

significant detail about his history and qualifications. Dr. Grimes reiterated his 

testimony from his deposition: his definition of a femoral hernia is “a defect that is 

abnormal that allows normal tissue to pass from one cavity to the other.” (Tr. 331.) 

In other words, Dr. Grimes does not believe that a hernia always has a sac. He 

maintains that he originally diagnosed Geletka with a femoral hernia and that 

remains the diagnosis to this day. Dr. Grimes maintained that the “blue marble” 

was a separate and distinct medical problem and he recommended that Geletka 

present to vascular surgeons for treatment. He also testified that days prior to the 

hernia operation, Geletka presented to the emergency room complaining of pain in 

the area of the hernia, and the emergency room took a CT scan. Dr. Grimes 

discussed the results of the CT scan and noted that the CT scan did not reveal a 

hernia. Dr. Grimes explained, however, that this does not mean that the hernia did 

not exist. He explained that Geletka was likely laying down for the CT scan, and 

Geletka’s presentation at his own examination indicated that the hernia “comes out 

when she stands up [and] goes back in when she lays down.” (Tr. 399.) When 

pressed about Geletka’s post-surgery concerns, Dr. Grimes testified that he ordered 

the ultrasound because Geletka was concerned about a lump that was farther down 

from the site where he operated. Dr. Grimes testified that he ordered the ultrasound 

after the procedure to confirm that the “marble” was vascular in nature so that he 
could send her to a vascular surgeon. Regarding the existence of the hernia, he 

testified that during the surgery, he found “an abnormally large femoral defect” and 

that he placed mesh in the area. (Tr. 437.) He also confirmed that the hernia mesh 

was inserted abutting a lymph node and that inflammation is involved in the healing 

process, usually in the first four to six weeks after an operation. He confirmed that 

the ultrasound revealed that her lymph nodes were enlarged and that the enlarged 

node was abutting the mesh, but that this was still within the normal healing 

window. 

After Geletka rested, the parties again addressed the medical records 

that would be admitted as exhibits. Geletka’s counsel indicated that he would 

provide medical records as two separate exhibits and that he would work out the 

stipulation with Dr. Grimes’s counsel. The court clarified:

THE COURT: Okay. Now, so I understand that we don’t have 

Plaintiff’s Exhibit 1 and 2 before us exactly right now, but it is 

reasonably believed we’re going to be able to reach a stipulation to 

Plaintiff’s Exhibit 1 and 2 as being authentic, right [Dr. Grimes’s

counsel]? 

[DR. GRIMES’S COUNSEL]: Yes. * * *

(Tr. 508-509.) 

At this point, Dr. Grimes’s counsel moved for a directed verdict, 

noting that Geletka failed to meet her evidentiary burden. Geletka’s counsel 

responded, and the court adjourned for the day, noting that the court was going to 

review the evidence offered so far and make a ruling the following day. The next 

day, the trial court again allowed counsel for Geletka and Dr. Grimes to bring 
anything pertinent to its attention before ruling on the directed verdict. The court 

discussed its review of the testimony and informed the parties that it was going to 

grant the directed verdict in favor of Dr. Grimes. The trial court later journalized 

this denial, which stated: 

After argument and careful consideration, the court grants the motion 

and directs a verdict against plaintiff and in favor of defendants upon 

her claims against defendants. Plaintiff’s prima facie case did not 

include any evidence — specifically, any expert testimony — that 

causally connected defendant doctor’s deviation from the appropriate 

standard of care (use of mesh plug) to any pain and suffering or other 

injury to plaintiff. Judgment in favor of defendants and against 

plaintiff is entered upon plaintiff’s complaint. Costs to plaintiff. This 

is a final judgment under R.C. 2505.02. 

After this order was journalized, Geletka timely filed a motion for new 

trial, which included a request for sanctions against Dr. Grimes’s counsel based on 

counsel’s refusal to stipulate to the medical records. In this motion, Geletka’s 

counsel noted that he had planned to use medical records from providers at the 

Cleveland Clinic that indicated that Geletka’s pain was caused by the insertion of the 

mesh, but Dr. Grimes’s counsel “obstructed” his ability to show these by refusing to 

stipulate to the authenticity of the records. Dr. Grimes’s counsel filed a brief in 

opposition and the trial court denied the motion for a new trial and declined to 

impose sanctions. The trial court’s denial noted that Geletka herself did not refer to 

or introduce these Cleveland Clinic records at trial, and the evidence received at trial 

forms the basis for directing a verdict. Regarding the request for sanctions, the court 

noted that
[p]laintiff’s motion seeks to sanction defense counsel for a failure to 

honor an imagined pretrial stipulation about the authenticity of 

Plaintiff’s medical records. At no point in trial — on the record or off —

did Plaintiff’s counsel claim there was a pretrial stipulation as to the 

records. The Court hears of this contention from Plaintiff for the first 

time in the motion for new trial. 

At the outset of trial when Plaintiff’s counsel attempted to display a 

medical record to the jury, Defendants objected and a long sidebar 

conference was held. Defense counsel complained that they had no 

idea what document Plaintiff’s counsel was showing to the jury since he 

had failed to provide them a copy of Plaintiff’s exhibits during pretrial 

discovery despite their discovery requests. Plaintiff’s counsel 

immediately countered that he was not going to introduce the medical 

records in evidence. The Court reminded him that the medical records 

would have to be in evidence in order to support the expert’s opinion 

as to Plaintiff’s medical care. Then Plaintiff’s counsel suggested the 

parties use Defendants’ Bate[s]-stamped copy of the medical records 

but defense counsel refused to provide Plaintiff with exhibits which 

Plaintiff had the burden to produce. 

The court noted during the sidebar that Plaintiff could bring in a 

medical records custodian or pursue a stipulation on authenticity but 

that in any event Plaintiff had to show defense counsel the medical 

records exhibits before displaying them to the jury so that they could 

assure themselves the exhibits were correct and authentic. Plaintiff’s 

counsel then offered to put the exhibits on the overhead screen and flip 

through them so defense counsel could visually assure they were 

authentic. The Court rejected that maneuver as taking up valuable trial 

time but suggested the parties do this on their own time after 

completion of trial for the day. 

The inaction on medical records continued with the result that no 

Plaintiff’s medical record exhibit was marked, identified or used with 

any of Plaintiff’s witnesses. Defense counsel used their copies of 

Plaintiff’s medical records as exhibits during testimony and 

understandably Plaintiff did not object. 

Plaintiff’s motion for new trial does not establish any ground under 

Civ.R. 59 for such relief. As to the motion for sanctions, this Court has 

no jurisdiction to sanction defense counsel for alleged professional 

misconduct but this is a moot point; Plaintiff bases this claim upon an 
alleged stipulation about the authenticity and admissibility of 

Plaintiff’s medical records that was never voiced during trial. 

It is from this denial that Geletka now appeals, assigning two errors 

for our review. 

I. The Trial Court abused its discretion and committed prejudicial 

error in not granting Plaintiff’s Motion for New Trial under Civ.R. 

59(A)(1) and (2). 

II. The Trial Court abused its discretion and committed prejudicial 

error in granting Defendants’ Motion for Directed Verdict. 

II. Law and Analysis

We first address Geletka’s second assignment of error because the 

motion for a directed verdict occurred prior to the motion for a new trial.

After Geletka presented her case, Dr. Grimes’s counsel moved for a 

directed verdict:

[DR. GRIMES’S COUNSEL]: * * * First, defendants would move for a 

directed verdict on the entire case based upon plaintiff’s expert 

testimony saying that the only pain that would be caused by the alleged 

negligence, i.e., putting in of the mesh when it was not necessary, was 

any pain at the site of the mesh. 

Plaintiff’s testimony, when she testified, she did not testify as to having 

any pain at the site of where the mesh was inserted or above that site. 

Also, plaintiff’s expert testified that based upon the medical records he 

could not say to a reasonable degree of medical probability that she 

suffered any pain related to the mesh. 

(Tr. 512.)

After hearing from both parties, the trial court adjourned for the 

evening. The next day, the trial court granted Dr. Grimes’s motion for a directed 

verdict. In granting the motion, the trial court explained: 
THE COURT: Now, if that is going to be evidence that the mesh caused 

the plaintiff harm, Dr. Liberman would have had to say so, and he did 

not. He said the opposite. That he saw nothing in the medical record 

to indicate harm to the plaintiff from the mesh.

Now, this is not a pleasant thing for the Court to grant a motion for 

directed verdict at the end of the plaintiff’s case, but I have a legal 

obligation to both sides of this case to examine it. 

I spent 45 minutes yesterday. I took extensive notes of all the 

testimony. I read Dr. Liberman’s testimony last night. I went back to 

it this morning. 

I read the cases cited to me by the defendants. They were helpful, not 

super helpful but — I’ve also examined the plaintiff’s testimony. And 

as you know, under Ohio law, plaintiff is incompetent to provide the 

causal link between the mesh and her pain.

So I am granting the motion for the directed verdict. * * *

(Tr. 580-581.) 

Motions for a directed verdict are governed by Civ.R. 50. “A motion 

for a directed verdict tests the legal sufficiency of the evidence to take the case to the 

jury[.]” Harris v. Ali, 8th Dist. Cuyahoga No. 73432, 1999 Ohio App. LEXIS 2433, 

11 (May 27, 1999), citing Wagner v. Midwestern Indemn. Co., 83 Ohio St.3d 287, 

294, 699 N.E.2d 507 (1998). A motion for a directed verdict “is to be granted when, 

construing the evidence most strongly in favor of the party opposing the motion, the 

trial court finds that reasonable minds could come to only one conclusion and that 

conclusion is adverse to such party.” Wawrzyniak v. Zayat, 8th Dist. Cuyahoga No. 

76487, 2000 Ohio App. LEXIS 3759, 5 (Aug. 17, 2000), citing Civ.R. 50(A)(4); 

Crawford v. Halkovics, 1 Ohio St.3d 184, 186, 438 N.E.2d 890 (1982); Ltd. Stores 

v. Pan Am., 65 Ohio St.3d 66, 73, 600 N.E.2d 1027 (1992). A trial court may not 
weigh the evidence nor test the credibility of the witnesses but must give the party 

opposing the motion the benefit of all reasonable inferences from the evidence. 

Baeppler v. McMahan, 8th Dist. Cuyahoga Nos. 74938, 75131 and 76042, 2000 

Ohio App. LEXIS 1653, 11 (Apr. 13, 2000), citing Zavasnik v. Lyons Transp. Lines, 

115 Ohio App.3d 374, 378, 685 N.E.2d 567 (8th Dist.1996). Since a directed verdict 

is a question of law, our review is de novo. Goodyear Tire & Rubber Co. v. Aetna 

Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. 

To prevail on a medical-malpractice claim, a plaintiff must establish, 

by a preponderance of the evidence, (1) the applicable standard of care; (2) a 

negligent failure by the defendant to render treatment in conformity with the 

standard of care; and (3) that the resulting injury was proximately caused by the 

defendant’s negligence. Brush v. Eisengart, 8th Dist. Cuyahoga No. 72999, 1999 

Ohio App. LEXIS 3728, 4 (Aug. 12, 1999), citing Bruni v. Tatsumi, 46 Ohio St.2d 

127, 131-132, 346 N.E.2d 673 (1976); Ulmer v. Ackerman, 87 Ohio App.3d 137, 140, 

621 N.E.2d 1315 (3d Dist.1993); Avondet v. Blankstein, 118 Ohio App.3d 357, 692 

N.E.2d 1063 (8th Dist.1997). The directed verdict in the instant matter implicates 

prong (3), that Dr. Grimes’s alleged negligence caused injury to Geletka. The causal 

connection required by prong (3) must be established by expert testimony. Martin 

v. Kelly, 8th Dist. Cuyahoga No. 44749, 1982 Ohio App. LEXIS 11319, 4 (Dec. 9, 

1982), citing Darnell v. Eastman, 23 Ohio St.2d 13, 17, 261 N.E.2d 114 (1970). The 

expert testimony establishing causation must be expressed in terms of probability, 

which is defined as “a greater than fifty percent likelihood that it produced the 
occurrence at issue.” Stinson v. England, 69 Ohio St.3d 451, 451, 633 N.E.2d 532 

(1994), syllabus, citing Shepherd v. Midland Mut. Life Ins. Co., 152 Ohio St. 6, 87 

N.E.2d 156 (1949), syllabus; Cooper v. Sisters of Charity, Inc., 27 Ohio St.2d 242, 

252, 272 N.E.2d 97 (1971). Moreover, an expert’s testimony “need not include the 

magic words ‘probability’ or ‘certainty’ but, when reviewed in its entirety, the 

testimony ‘must be equivalent to an expression of probability.’” Smith v. Dillard’s 

Dept. Stores, 8th Dist. Cuyahoga No. 75787, 2000 Ohio App. LEXIS 5820, 33 

(Dec. 14, 2000), quoting Schroeder v. Parker, 8th Dist. Cuyahoga No. 73907, 1998 

Ohio App. LEXIS 5919, 5 (Dec. 10, 1998). The expression of probability relates to 

the competence of the evidence and not the weight of the evidence. Smith at id., 

citing Stinson at 455. 

Since Geletka was not qualified as an expert and her claim requires 

expert testimony to establish a prima facie claim, we are unable to consider Geletka’s 

testimony in reviewing the evidence that informs a directed verdict. Since Dr. 

Liberman was Geletka’s sole expert during the trial, we look to his testimony to 

determine whether Geletka established sufficient evidence to overcome a directed 

verdict. On appeal, Geletka directs us to the following testimony from Dr. Liberman

that occurred during his direct examination: 

[GELETKA’S COUNSEL]: Okay. What injuries from this surgery —

and if you don’t have a complete list, I’ll give you time to think about it. 

What injuries from Dr. Grimes’ negligence is it your opinion with a 

reasonable degree of medical certainty Mrs. Geletka sustained?

* * *
[DR. LIBERMAN]: So his negligence — the injury that was caused to 

Mrs. Geletka from his negligence would be anything related to the mesh 

placement. So pain at the site of the mesh in that area would be due to 

the negligence. 

[GELETKA’S COUNSEL]: Okay. Would pain from the operation itself, 

the incision itself, be part of her injuries?

* * *

[DR. LIBERMAN]: No, I don’t believe so. 

[GELETKA’S COUNSEL]: Why not?

[DR. LIBERMAN]: Because I do not feel he was negligent taking her 

to the operating room. The negligent part was putting in the mesh.

(Tr. 123-125.) Geletka argues that this line of testimony proves that Dr. Liberman 

planned to testify “that Dr. Grimes was negligent in putting mesh into Mrs. Geletka’s 

normal femoral ring and that the negligence of putting in the mesh that caused postoperative pain at the site of the mesh was the direct and proximate cause of Mrs. 

Geletka’s post-operative pain and suffering[.]” Geletka notes, however, that because 

she was “obstructed” from utilizing any medical records on direct examination, Dr. 

Liberman avoided discussing them. The issues surrounding the medical records will 

be discussed at length in the next assignment of error. 

Despite Geletka’s contention that this line of questioning proves what 

Dr. Liberman was prepared to testify or wanted to testify, Geletka cannot avoid that 

what is in the record before us is the evidence that must be received and considered 

in determining whether a directed verdict was warranted. We note that in the above 

testimony and for the remainder of his direct examination, Dr. Liberman only spoke 
in generalities and did not offer an opinion about Geletka’s specific injuries based 

on a reasonable degree of medical probability; he noted that any pain stemming 

from the mesh in the area of insertion would be directly related to Dr. Grimes’s

negligence but failed to identify any specific injuries.

Turning to Dr. Liberman’s cross-examination, Dr. Grimes’s defense 

focused on demonstrating that Geletka actually had a hernia that required mesh, a 

medical complaint that was separate and distinct from the saphena varix. In order 

to do this, Dr. Grimes’s counsel provided some of Geletka’s medical records to Dr. 

Liberman; specifically, the medical record from Dr. Como from January 2020. 

Under Evid.R. 703, experts may testify in terms of an opinion based on facts 

perceived by the expert or admitted into evidence at trial. See also State v. Jones, 9 

Ohio St.3d 123, 124, 459 N.E.2d 526 (1984). Since the defense’s medical records 

were properly admitted into evidence, Dr. Liberman was able to offer his testimony 

based on the records that the defense provided. This line of questioning also fleshed 

out Dr. Liberman’s opinion regarding any pain caused by the mesh: 

[DR. GRIMES’S COUNSEL]: Doctor, based upon your review of the 

clinical records that you have seen up until today, you can’t say that the 

mesh plug has caused her any pain; correct? You can’t say that to a 

medical probability; correct? 

[DR. LIBERMAN]: I believe that she said that in her deposition, but I 

have not seen that in any of the medical records.

[DR. GRIMES’S COUNSEL]: Okay. So let me ask you the question 

again: Based upon the clinical records you have seen until today, you 

can’t say that the mesh plug to a reasonable degree of medical 

probability has caused her any pain; correct? 
[DR. LIBERMAN]: Not from the medical records. 

[DR. GRIMES’S COUNSEL]: So my statement is correct; true?

[DR. LIBERMAN]: True. 

[DR. GRIMES’S COUNSEL]: And when I say the mesh has not caused 

her any pain, you have not seen anything in the medical record you’ve 

reviewed that you’re basing your testimony on that you relate to the 

mesh plug; correct?

[DR. LIBERMAN]: Not from the medical record, correct. 

(Tr. 145-147.) 

During cross-examination, Dr. Liberman also admitted that the lymph 

node complaints that Geletka had in January 2020, which indicate that pain and 

discomfort in the groin area dates back to June 2019, could not have been related to 

the hernia. 

On redirect examination, Geletka’s counsel referenced the January 

2020 medical record that the defense showed Dr. Liberman. After being shown this 

record, Dr. Liberman opined that “[l]ymph nodes develop often where there’s 

inflammation”; that inflammation “can” cause pain; that the lymph nodes abutting 

the mesh were enlarged; and that the clinical significance of a lymph node next to 

the mesh “is that the body’s reacting to the mesh” because it is a foreign body and 

causing inflammation due to the fact that the mesh is “not normally there.” (Tr. 180-

182.)

Remarkably absent from this testimony is Dr. Liberman’s opinion, 

based on a reasonable degree of medical probability, that Geletka’s complaints of 
pain, including those complaints in the groin, the hip, in the site of the mesh, and 

other places, were caused by her body’s reaction to the mesh. Dr. Liberman’s 

testimony, especially when examined with his opinion on cross-examination that 

the medical records do not indicate that Geletka is experiencing any pain associated 

with the mesh insertion, did not connect Geletka’s pain and complaints to the 

insertion of the mesh. Dr. Liberman’s testimony that Geletka’s body was “reacting” 

to the mesh does not necessarily indicate that Geletka is experiencing pain, injury, 

and suffering as a direct result of the mesh insertion, and Dr. Liberman did not 

testify as much. The generalities that Dr. Liberman spoke in were insufficient to 

demonstrate that the “reaction” that Geletka’s body was having to the mesh was 

causing inflammation, which was in turn causing her pain complaints. This causal 

connection is especially critical in a case such as this one where the pain complaints

occur months after the allegedly negligent surgery and because Geletka is a patient 

with chronic pain and many other conditions in the area where the hernia mesh was 

inserted, including hip, ovarian, and vascular issues. “Complaints of persistent pain 

subsequent to medical care are insufficient to establish an inference of medical 

malpractice to circumvent the necessity of evidence from an expert.” Lyons v. 

Brandly, N.D.Ohio No. 4:03 CV 1620, 2009 U.S. Dist. LEXIS 131559, 10 (Mar. 10, 

2009), citing Buerger v. Ohio Dept. of Rehab. & Corr., 64 Ohio App.3d 394, 399, 

581 N.E.2d 1114 (10th Dist.1989). Dr. Liberman was required to opine, based on a 

reasonable degree of medical probability, that Geletka’s complaints of pain and 

suffering were caused by the mesh insertion. 
In White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 

1033, the Ohio Supreme Court addressed a medical claim dealing with informed 

consent where the trial court granted a directed verdict. White, however, also dealt 

with a causation issue, and the court ultimately suggested that an expert’s opinion 

that a surgery was the “most likely cause” of the plaintiff’s chronic pain did not rise 

to the level of “a reasonable degree of medical certainty that the surgery more likely 

than not caused the nerve damage[.]” Id. at ¶ 44. We find that a comparable 

situation exists in the instant matter. Dr. Liberman’s testimony suggests that the 

hernia mesh abutting the lymph node could cause the lymph nodes to enlarge that

is consistent with inflammation and the body reacting to the mesh, but fails to opine 

with certainty that this situation is what is causing Geletka’s pain, especially after 

indicating during cross-examination that the medical records are totally void of any 

indication that the hernia mesh is causing Geletka any pain. 

We have thoroughly reviewed the record before us, paying special 

attention to Dr. Liberman’s testimony on redirect examination that Geletka

specifically directed us to in her brief. We are unable to conclude that Dr. 

Liberman’s testimony, when examined as a whole, established that insertion of the 

mesh was causally related to Geletka’s complaints of pain. The trial court properly 

granted a directed verdict for the defense. We therefore overrule Geletka’s second 

assignment of error. 
In Geletka’s first assignment of error, Geletka argues that the trial 

court erred in denying her motion for a new trial made pursuant to Civ.R. 59(A)(1) 

and (2). 

Civ.R. 59(A)(1) and (2) pertinently provide that

[a] new trial may be granted to all or any of the parties * * * upon any 

of the following grounds: 

(1) Irregularity in the proceedings of the court, jury, magistrate, or 

prevailing party, or any order of the court or magistrate, or abuse of 

discretion, by which an aggrieved party was prevent from having a fair 

trial;

(2) Misconduct of the * * * prevailing party[.]

The standard of review applied to a trial court’s ruling on a motion for 

a new trial depends on the grounds for the motion. Robinson v. Turoczy Bonding 

Co., 8th Dist. Cuyahoga No. 103787, 2016-Ohio-7397, ¶ 23. Motions for new trial 

premised on Civ.R. 59(A)(1) and (2) are both reviewed for an abuse of discretion. 

Robinson at id.; Gateway Consultants Group, Inc. v. Premier Physicians Ctrs., Inc.,

8th Dist. Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 13. An abuse of discretion occurs 

when a court exercises its judgment in an unwarranted way regarding a matter over 

which it has discretionary authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 

2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. Such an abuse “‘“implies that the court’s 

attitude is unreasonable, arbitrary or unconscionable.”’” State v. Montgomery, 169 

Ohio St.3d 84, 2022-Ohio-2211, ___ N.E.3d ___, ¶ 135, quoting Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 

62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 
Geletka’s motion for a new trial alleged that Dr. Grimes’s counsel 

created an irregularity in the proceeding and engaged in misconduct in refusing to 

stipulate to the authenticity of the medical records, thus preventing Geletka from 

using them during the trial. Geletka claims that the trial court abused its discretion 

in (1) ignoring the evidence in both Geletka’s and Dr. Grimes’s trial briefs; and (2) 

failing to recognize that both parties were utilizing a complete set of Bates stamped 

medical records that both parties shared. We find, however, that the record does 

not support Geletka’s arguments. 

To be admissible, hospital records must be authenticated. Evid.R. 

901(A). A party may prove the authenticity of records in two ways: (1) authenticity 

may be stipulated to by the parties or (2) Evid.R. 901(B)(10) allows for 

authentication of medical records by ‘“[a]ny method of authentication or 

identification provided by statute enacted by the General Assembly not in conflict 

with a rule of the Supreme Court of Ohio or by other rules prescribed by the Supreme 

Court.’” State v. Youssef, 8th Dist. Cuyahoga No. 101362, 2015-Ohio-766, ¶ 30, 

quoting Evid.R. 901(B)(10). Relevant to the instant matter is R.C. 2317.422, Ohio’s 

statute governing the authentication of medical records. 

R.C. 2317.422 instructs that medical records may be authenticated by 

“call[ing] the custodian, person who made such records, or person under whose 

supervision they were made, as a witness” or by any such person’s endorsing on the 

records “the person’s verified certification identifying such records, giving the mode 

and time of their preparation, and stating that they were prepared in the usual 
course of business of the institution.” R.C. 2317.422(A). This method of 

authentication is only available, however, if “the party intending to offer them

delivers a copy of them, or of their relevant portions, to the attorney of record for 

each adverse party not less than five days before trial.” Id. Without either a 

stipulation or proper authentication, medical records may not be admitted into 

evidence. See Bzdafka v. Bretz, 8th Dist. Cuyahoga No. 95840, 2011-Ohio-3982, 

¶ 17.

First, contrary to Geletka’s contention that the authenticity was 

stipulated to in the trial briefs, we note that both parties’ trial briefs indicate that 

they “anticipate” that the parties will stipulate to the authenticity of the medical 

records.

1

 However, at trial, Dr. Grimes’s counsel made clear in a sidebar, before any 

witness was sworn in, that they could not reasonably stipulate to the authenticity of 

any medical records that Geletka planned to use because an exhibit list and copies 

of the records had not been provided to them. At this point, the court informed 

Geletka’s counsel that if he intended to introduce medical records as exhibits, he 

would need to obtain a stipulation from defense counsel as to the records that he 

intended to use, or bring in a records custodian who could testify regarding the 

authenticity of the records. These options were made clear to Geletka’s counsel, and 

1 Dr. Grimes’s trial brief states, “It is anticipated that the parties will stipulate to 

the authenticity of the hospital and medical records of Deborah Geletka.”

Geletka’s trial brief states, “It is anticipated that parties can stipulate on the 

authenticity of the medical records.”
a thorough review of the trial transcript indicates that neither of these options were 

undertaken. 

Second, Geletka’s contention that there was an agreement that both 

parties would use the singular shared file of documents is not supported by any 

evidence in the record. Geletka attached an email that her counsel received from 

Dr. Grimes’s counsel, prior to trial, indicating that the medical records attached to 

the email were the medical records that Dr. Grimes’s counsel planned to use at trial. 

Above that email is correspondence from Dr. Grimes’s counsel asking Geletka’s 

counsel to send his trial exhibits; a response to this email is not contained in the 

record before us. The record does not indicate that Dr. Grimes’s counsel and 

Geletka’s counsel agreed to use the same set of records nor does it appear that 

Geletka’s counsel asked Dr. Grimes’s counsel if he could utilize the records that they 

provided him with in advance of trial. Geletka’s counsel also did not file an exhibit 

list at any point prior to or during trial. 

When reviewing claims that counsel acted improperly, we consider 

the claim in the context of the whole trial. Masterson v. Brody, 8th Dist. Cuyahoga 

No. 111043, 2022-Ohio-3429, ¶ 46, citing Secrest v. Gibbs, 11th Dist. Lake No. 2003-

L-083, 2005-Ohio-2074, ¶ 77, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 

2464, 91 L.Ed.2d 144 (1986). Throughout trial, Dr. Grimes’s counsel signified their 

willingness to stipulate to the authenticity of medical records provided that they 

were given an opportunity to compare the offered records with their own set of 

records: 
THE COURT: Okay. And so, hopefully, you folks will have a moment 

to compare Defense Exhibits — the defense copies with plaintiff’s 

copies, and then down the road you might be able to stipulate that they 

are, in fact, authentic and you can withdraw the objection, correct?

[DR. GRIMES’S COUNSEL]: Absolutely. That’s all I’ve been asking 

for. 

(Tr. 71.) 

THE COURT: Okay. Do we both understand what records the other 

one wants to offer?

[GELETKA’S COUNSEL]: Right. 

[DR. GRIMES’S COUNSEL]: Yes, I understand. They’re not 

acceptable because of the form. I think we can work and make them 

acceptable. 

* * *

[DR. GRIMES’S COUNSEL]: I think if we can work together, take out 

certain pages and to [sic] make them proper exhibits that we can 

stipulate to authenticity and admissibility in the case; but as they are 

right now, we can’t do that. 

(Tr. 505.) 

From the record before us, it is evident that Dr. Grimes’s counsel was 

not purposefully or maliciously withholding a stipulation; Dr. Grimes’s counsel was 

clearly willing to stipulate to the authenticity of the medical records, and indeed 

stipulated to the authenticity of some of them by the close of trial. Dr. Grimes’s 

counsel was simply concerned with ensuring that the records they were stipulating 

to were the same as the records in their possession, which is well within their right 

to do. We cannot conclude that Dr. Grimes’s counsel engaged in misconduct or 

created an irregularity in the proceeding in refusing to stipulate to records that they 
had not seen. We further note that Dr. Grimes’s counsel was not obligated to 

stipulate to the authenticity of records and that other avenues of authentication were 

available to Geletka’s counsel that he could have undertaken to ensure that the 

medical records that he intended to use at trial were admissible. Furthermore, these 

options were made abundantly clear to him before the first witness was even sworn

in. 

Geletka directs us to Edge v. Fairview Hosp., 8th Dist. Cuyahoga No. 

95215, 2011-Ohio-2148. In Edge, the injured plaintiff repeatedly attempted to get a 

sentence from a medical record into evidence that had already been excluded by a 

pretrial motion in limine. In reviewing the case, this court noted that “defendantsappellees stipulated to the authenticity of any of the medical records/therapy 

records obtained in the course of discovery” within its trial brief and ultimately 

concluded that without any reservation to the contrary, the defendants waived their

right to object to the medical records on hearsay grounds in stipulating to the 

authenticity of the documents in full. Id. at ¶ 16. Edge is entirely distinguishable 

from the instant matter because we are unable to conclude from the record before 

us that Dr. Grimes’s counsel stipulated to the authenticity of any of the medical 

records before trial commenced. We also note that Dr. Grimes’s trial brief 

specifically reserved the right to object to any medical records “on any other basis 

allowed under Ohio law.” 

Based on the record before us, we are unable to conclude that the trial 

court erred in denying Geletka’s motion for a new trial. The trial court did not abuse 
its discretion in determining that the grounds for a new trial that Geletka specified 

were largely within Geletka’s control to prevent. We therefore overrule Geletka’s 

first assignment of error. 

III. Conclusion

Based on our review of the applicable law and facts, we are unable to 

find merit to any of Geletka’s assignments of error. The trial court did not err in 

granting a directed verdict in favor of Dr. Grimes and further did not err in denying 

Geletka’s motion for a new trial. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution.

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

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and

MICHAEL JOHN RYAN, J., CONCUR