[Cite as Southworth v. N. Trust Securities, Inc., 2013-Ohio-2917.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99250

JOHN D. SOUTHWORTH

PLAINTIFF-APPELLANT 

vs. 

NORTHERN TRUST SECURITIES, INC., ET AL. 

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

 Cuyahoga County Court of Common Pleas 

Case No. CV-688175 

BEFORE: Boyle, P.J., Celebrezze, J., and Jones, J. 

 

RELEASED AND JOURNALIZED: July 3, 2013 
ATTORNEYS FOR APPELLANT

Daniel M. Connell 

Shannon J. Polk 

Haber Polk Kabat, L.L.P. 

737 Bolivar Road 

Suite 4400 

Cleveland, Ohio 44115 

ATTORNEYS FOR APPELLEES

Patrick O. Peters 

Jeremy Gilman 

Peter N. Kirsanow 

Benesch, Friedlander, Coplan, Aronoff, L.L.P. 

200 Public Square 

Suite 2300 

Cleveland, Ohio 44114 
MARY J. BOYLE, P.J.: 

{¶1} Plaintiff-appellant, John Southworth, appeals from a judgment denying his 

motion for a new trial after a jury found in favor of defendants-appellees, Northern Trust 

Securities, Inc. (“Northern Trust”), Michael Cogan, and Scott Dille (collectively 

“defendants”), on his age discrimination claim. He raises four assignments of error for 

our review: 

1. The trial court erred in admitting evidence relating to defendants’ 

after-acquired evidence defense. Having done so, the trial court further 

erred by failing to provide a curative instruction to the jury to guide it 

regarding the proper consideration of such evidence. 

2. The trial court erred by entering judgment in favor of defendants Mike 

Cogan and Scott Dille despite the jury’s failure to return a verdict in their 

favor. 

3. The trial court erred by limiting plaintiff’s cross-examination of 

defendant Mike Cogan during defendant’s case-in-chief. 

4. The trial court erred by denying plaintiff’s motion for a new trial based 

upon the foregoing irregularities and errors of law during the trial. 

{¶2} After review, we find no error on the part of the trial court and affirm. 

Procedural History and Factual Background

{¶3} In late 2008, after the global economic downturn, Northern Trust 

announced that it would reduce its workforce beginning in early 2009. As part of 

Northern Trust’s reduction in force (“RIF”), it eliminated 450 employees worldwide — 

188 employees in the United States and three in the Cleveland office. Southworth, a 

portfolio manager, was one of the three employees eliminated in Northern Trust’s 
Cleveland office. He was 63 years old at the time. 

{¶4} Mike Cogan, president and chief executive officer of Northern Trust’s 

Cleveland office, notified Southworth on February 25, 2009, that he had been selected to 

be eliminated as part of the RIF. Cogan, who was Southworth’s direct supervisor, 

informed Southworth that his last day of employment would be April 25, 2009. Cogan 

further told Southworth that during the “60-day notification period,” Northern Trust 

expected Southworth to continue working to “transition and/or complete assignments.” 

{¶5} Southworth, however, filed an age discrimination complaint against 

Northern Trust and Cogan in mid-March 2009. Southworth later amended his 

complaint to add Scott Dille, Cogan’s supervisor and senior vice president of Northern 

Trust’s midwest region. After Southworth filed his complaint, he was no longer 

permitted to work at Northern Trust. But Northern Trust continued to pay Southworth 

his full salary and benefits until April 25, 2009. 

{¶6} The case was tried to a jury in April 2012. The jury returned a verdict for 

defendants. Southworth moved for a new trial, which the trial court denied. It is from 

this judgment that Southworth appeals. 

I. 

{¶7} In his first assignment of error, Southworth argues that the trial court erred 

when it permitted defendants to cross-examine him regarding Ex. MMMMMM, and 

when it allowed Ex. MMMMMM to be admitted into evidence through his 
cross-examination. Southworth claims that Ex. MMMMMM was “after-acquired 

evidence,” which he asserts was not applicable in this case. 

{¶8} Ex. MMMMMM was a list that Southworth created of his Northern Trust 

clients after he was notified that his position was being eliminated. The list contained 

the client’s name, the number of accounts the client had with Northern Trust, the client’s 

total account value at Northern Trust, Southworth’s estimated probability that the client 

would follow him to another company, and comments that Southworth had made 

regarding each client. 

{¶9} After Southworth was told that his position was being eliminated, he 

immediately began to look for other employment. He found employment “fairly 

quickly” at Glenmede Trust Company. He stated, 

I went to work at [Glenmede] somewhere around May 11th, I think. 

Whatever would be close to a Monday. My last day at Northern Trust 

Company was April 25th. And so I considered myself to be an employee 

and loyal to Northern Trust through the 25th of April. Although I was 

meanwhile seeking employment, I viewed myself as an employee through 

the last day. 

 

{¶10} On cross-examination, Southworth admitted that he gave a copy of his 

client list, Ex. MMMMMM, to Frank Harding, managing director at Glenmede. 

Southworth testified that he had lunch with Harding in mid-March of 2009, but said that 

he did not give the list to Harding until after April 25, 2009. Southworth acknowledged 

that in Harding’s deposition, taken by defendants just before trial, Harding stated that he 

believed Southworth had given him the client list “either just before — I think just 

before [Southworth] retired” from Northern Trust. 
{¶11} Southworth agreed that in the financial industry, there are “strict 

confidentiality requirements.” He further agreed that by violating a client’s 

confidentiality, it was “not just a minor offense,” but “it [was] a cardinal offense.” He 

also agreed that Northern Trust could face “potential liability” if the client discovered 

that his or her personal information was disclosed in some way, either intentionally or 

inadvertently. 

{¶12} Southworth moved to strike defendants’ cross-examination of him 

regarding defendants’ “after-acquired evidence defense,” claiming that it was not 

relevant because he did not give the client list to Harding until after he was terminated. 

Southworth argued that any evidence of his conduct that postdates his selection in the 

RIF should have been stricken. 

{¶13} In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 

879, 130 L.Ed.2d 852 (1995), the United States Supreme Court established the 

“after-acquired evidence” defense, which allows a defendant employer to show that an 

employee would have been terminated anyway had the employer known of wrongful 

conduct by the employee plaintiff. Id. at 362. If the defense applies, it generally bars 

the employee from obtaining front pay and reinstatement, and limits back pay. See 

Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1168 (6th Cir.1996). The Sixth 

Circuit Court of Appeals has also held that an employer is not entitled to a “McKennon 

instruction limiting damages” where the employee’s alleged misconduct arose as a direct 

result of the discriminatory act. Jones v. Nissan N. Am., Inc., 438 Fed.Appx. 388, 407 
(6th Cir.2011). 

{¶14} In denying Southworth’s motion to strike, the trial court stated: 

Respectfully, I disagree. I think that cross-examination is 

cross-examination. And I’m going to note that during the course of your 

examination of Mr. Southworth that you certainly were able to elicit that he 

was for all intents and purposes a good employee, and I think that we were 

in that area quite a bit as it related to his book of business and the client 

relationships that he had, and I think I actually noted in my notes that you 

indicated or that he indicated several times that he was good at his job and 

did a good job. So I think it’s pretty fair game to cross him on things that 

might not have been good, and that all of that encompasses part of what 

this RIF was about from the Court’s perspective[.] 

 

{¶15} Evid.R. 611(B) sets forth the “scope of cross-examination.” It provides 

that “[c]ross-examination shall be permitted on all relevant matters and matters affecting 

credibility.” 

{¶16} “Relevance, in the context of cross-examination, includes not only all facts 

in issue but also a witness’s credibility.” Fields v. Dailey, 68 Ohio App.3d 33, 42, 587 

N.E.2d 400 (10th Dist.1990), citing Evid.R. 611(B); McCormick, Evidence, Section 29, 

at 63 (3d Ed.1984). 

{¶17} The scope of cross-examination lies within the sound discretion of the trial 

court. Renfro v. Black, 52 Ohio St.3d 27, 33, 556 N.E.2d 150 (1990). The standard of 

review on such evidentiary rulings is whether the trial court abused its discretion. Id. 

An abuse of discretion is shown when a decision is unreasonable, that is, when there is 

no sound reasoning process that would support the decision. AAA Ents. v. River Place 

Community, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). 

{¶18} Southworth spends much of his brief arguing that the trial court erred when 
it permitted defendants to question him about the client list because he asserts that he 

only shared his client list with Glenmede as a result of the alleged adverse employment 

action taken against him — thus, after Northern Trust discriminated against him. He 

argues that under Jones, the trial court should have stricken all evidence related to the 

client list because it was “after-acquired evidence.” 

{¶19} But Southworth’s entire argument regarding after-acquired evidence is 

misplaced. In Jones, the Sixth Circuit found that the district court erred when it gave 

the “McKennon instruction limiting damages” to the jury. Jones, 438 Fed.Appx. at 407. 

Jones does not stand for the proposition that Nissan could not question the 

plaintiff-employee about his alleged misconduct. Indeed, the plaintiff-employee 

testified as to his alleged misconduct (that he sought new employment while on medical 

leave without Nissan’s approval, which was against Nissan’s employment policies) and 

explained his reason for doing so to the jury (he needed to support his family and he 

knew Nissan would say no if he asked them). The Jones court reversed for a new trial 

on damages without the McKennon instruction. Id.

{¶20} Here, the trial court permitted defendants to question Southworth about the 

client list to counter his testimony on direct-examination that he was loyal to Northern 

Trust until April 25, 2009. If Southworth gave the client list to Harding prior to that 

date, sharing Northern Trust’s confidential client information, then the jury could have 

considered that information to decide that he was not loyal to Northern Trust until April 

25, 2009 — as he testified he was. Southworth opened the door to this testimony. This 
matter directly reflected on his credibility. Thus, it was entirely appropriate for the trial 

court to permit defendants to cross-examine Southworth on the client list and admit the 

client list into evidence. 

{¶21} Southworth further argues that the trial court erred when it denied his 

request for a curative instruction to the jury “to guide it regarding the proper 

consideration” of the “after-acquired evidence.” We disagree. 

{¶22} During defendants’ cross-examination of Southworth, they filed a motion 

requesting the court to instruct the jury on “the after-acquired evidence doctrine.” 

When discussing proposed jury instructions at the end of trial, the trial court addressed 

defendants’ motion. The trial court indicated that it would not instruct the jury on the 

after-acquired evidence doctrine as requested by defendants. Southworth then asked 

the court to give the jury a curative instruction, explaining to the jury that evidence 

related to the “after-acquired evidence, meaning his alleged violation of Northern Trust’s 

policy, [could not] be considered for purposes of liability and really should not be 

considered for purposes at all[.]” The trial court responded: 

I think there was evidence, as I indicated previously, that that list 

may have been disclosed while Mr. Southworth was working for Northern 

Trust or may not.[1] And I think that the jury would be able to use their 

collective memories to determine whose credibility they believed in this 

particular case, and therefore I am not going to give any additional 

instructions as it relates to that after-acquired evidence. 

 1

Contrary to his deposition testimony, Harding testified (after Southworth) that he thought that 

Southworth had given him the client list sometime in April 2009, but Harding stated that he believed 

it was after Northern Trust fired Southworth. When asked if Southworth could have given Harding 

the list in mid-March, Harding replied that Southworth “might have.”
{¶23} Southworth maintains that the jury should have been given a “curative 

instruction” because it “would have informed the jury that evidence regarding [his] use 

of Ex. MMMMMM could not even be considered until after [it] had reached a finding 

on liability.” (Emphasis sic.) Southworth’s argument is unpersuasive. The trial 

court properly instructed the jury on determining defendants’ liability or lack thereof. 

The jury could and should consider all matters of credibility for all witnesses before it 

determined liability. This is an essential part of the adversary process. Thus, if the 

trial court had given the jury the curative instruction as requested by Southworth, it 

would have erred in doing so. As the trial court properly indicated, the jury was 

capable of determining the credibility of the witnesses and the weight to be given to a 

witness’s testimony. 

{¶24} Southworth’s first assignment of error is overruled. 

II. 

{¶25} In his second assignment of error, Southworth argues that the trial court 

erred when it entered judgment in favor of Cogan and Dille, despite the fact that the jury 

failed to return a verdict in their favor. 

Jury Instructions

{¶26} The trial court instructed the jury that Southworth brought the action 

against “the corporate defendants and Michael Cogan and Scott Dille in their individual 

capacity as supervisors or managers under Ohio law.” It further explained: 

Under Ohio law, the term employer includes supervisors and 
managers acting in the interest of the employer. 

Since individual liability under Ohio law extends only to an 

individual’s own actions, liability is limited to individuals who played a 

role in making an employment decision. Consequently, in order to 

establish that Mr. Cogan and/or Mr. Dille are personally liable, Mr. 

Southworth has to show that not only that they were vested with the power 

to make decisions affecting him, but also that Mr. Cogan and/or Mr. Dille 

used that authority with a discriminatory motive. 

Thus, it is not enough that defendants Cogan and Dille are officers 

or managers of the defendant corporations. Rather, you must find the 

defendants Cogan and/or Dille played a role in the decision to terminate 

the plaintiff and was or were motivated by his age. 

{¶27} The trial court then explained the verdict forms to the jury. It stated: 

I’m going to go through these verdict forms with you, and I’m going 

to just give you an explanation here. These, ladies and gentlemen, are 

entitled jury interrogatory number 1. The word interrogatory is a fancy 

lawyer word for the word question basically. Okay. 

So this is a question that you have to answer: Do you find by the 

greater weight of the evidence that Northern Trust, FSB or Northern Trust 

Corporation, Northern Trust Company, Northern Trust Bank are a single 

employer as defined in Court’s instructions, and then you would check 

either yes or no and then the foreperson signs the first spot, and each of 

you would continue to sign through. 

Now, then there [are] instructions that go to the bottom of this, all 

right. And they say if the answer of the foregoing is yes then you 

complete the verdict forms for single employer, okay? Now, you’ll see at 

the top of the verdict forms it says this would be a verdict for the plaintiff, 

single employer. Okay. So it will actually tell you which one you need 

to look at, and then it will say: We the jury in this case being duly 

impaneled and sworn, upon the concurrence of the undersigned jurors 

being not less than three fourths of the whole number thereof, do find for 

the plaintiff, and then that would explain the type of damage, economic 

compensatory damages and non-economic compensatory damages, and 

then there is an amount. Then you would check off: The above 

compensatory damages are awarded against the following defendants, and 

you would check each box, okay. Then you would sign off. 
Now if you find in favor of the defendants in the single employer 

document, you would therefore fill out the other verdict form, okay, so you 

are not going to fill out each one of these. It’s going to be sort of an 

either or proposition, but it will say this is the single employer, you can see 

it: We the Jury in this case being duly impaneled and sworn, upon the 

concurrence of the undersigned jurors, being not less than three fourths of 

the whole number thereof do find for the defendants. And that would 

include Northern Trust, Northern Trust Corporation, Company, Bank, and 

against John Southworth for the plaintiff’s claim of age discrimination. 

And then you would sign off with the foreperson, signing the front spot 

there. 

Verdict and Verdict Forms

{¶28} When the jury returned after deliberations, the court stated, “I understand 

you have reached a verdict, is that correct? Mr. Foreman, if you would hand the forms 

to the plaintiff, please.” The bailiff said, “Make sure they’re upside down, please. 

Thank you.” The court then stated, “Okay. Ladies and gentlemen, the answer to jury 

interrogatory number one is that, yes, Northern Trust is a single corporation, but this is a 

verdict in this case for defendants. Okay. Ladies and gentlemen, is that your 

verdict?” At that point, the transcript states, “Jurors: (Indicating.)” The trial court 

then polled each juror individually, asking them “is this your verdict?” Each juror 

replied, “yes.”2

 After the polling, the trial court told the jurors that it wanted to speak 

with them for a few minutes. After the jury exited the courtroom, the judge asked the 

attorneys, “Do you want to look over the verdict forms?” Southworth’s attorney 

responded, “sure.” 

 2

The verdict form for defendants is only signed by seven jurors (even though all eight 

answered “yes”), but this is still a verdict encompassing three-fourths of the jury. 
{¶29} Review of the interrogatories shows that the jurors answered interrogatory 

number 1, “yes,” finding that the various entities of Northern Trust were a single 

employer. The jurors then filled out a verdict form for “single employer” titled, 

“Verdict for defendant Northern Trust, FSB, Northern Trust Corporation, Northern Trust 

Company, Northern Trust Bank, N.A., and Northern Trust Securities, Inc.” The verdict 

form states, 

We, the jury in this case, being duly impaneled and sworn, upon the 

concurrence of the undersigned jurors, being not less than three-fourths of 

the whole number thereof, do find for Defendant NORTHERN TRUST, 

FSB, NORTHERN TRUST CORPORATION, NORTHERN TRUST 

COMPANY, AND NORTHERN TRUST BANK, N.A., and against 

plaintiff John D. Southworth on plaintiff’s claim for age discrimination. 

{¶30} The jurors left the remaining forms blank, including the forms titled: 

“Verdict for defendant Michael Cogan”; “Verdict for defendant Scott Dille”; and 

“Verdict for the plaintiff.” The verdict form for the plaintiff states, “We the jury in this 

case, being duly impaneled and sworn, upon the concurrence of the undersigned jurors, 

being not less than three-fourths of the whole number thereof, do find for Plaintiff John 

D. Southworth and award the following damages[.]” The form then lists “Type of 

Damages” as “Economic Compensatory Damages (back pay, front pay, lost benefits, 

etc.)” and “Non-Economic Compensatory Damages (pain and suffering, reputational 

damages, etc.),” and has blank lines next to each one. Below that, the form states, “The 

above Compensatory Damages are awarded against the following Defendants (check 

each defendant liable for age discrimination)[,]” and then lists Northern Trust, Michael 

Cogan, and Scott Dille separately, with blank lines next to each one. 
Failure to Object

{¶31} Initially, we note that Southworth did not object to the verdict form at trial. 

 He argues that he could not have timely raised an objection because the trial court 

discharged the jury before he had an opportunity to look at the verdict forms. He cites 

to Gugliotta v. Morano, 161 Ohio App.3d 152, 2005-Ohio-2570, 829 N.E.2d 757 (9th 

Dist.), in support of his argument that once the jury left the courtroom, went back to the 

jury room, and spoke with the trial court “presumably regarding matters related to the 

case,” the jury could not have further deliberated. While we agree that Gugliotta stands 

for the “well- established” proposition that “once a jury has returned its verdict and been 

discharged, it cannot be reconvened to alter or amend its verdict,” that is the extent of its 

relevance to the facts in this case. 

Gugliotta v. Morano

{¶32} In Gugliotta, the jury had deliberated several days without a verdict. The 

trial court sent the following question into the jury room: “Is there a possibility that after 

an additional period of time, today or tomorrow, you may reach a verdict on any count?” 

Id. at ¶ 14. The jury foreperson answered “no.” Id. The trial court then brought the 

jury back into the courtroom and asked each juror the same question, which they 

answered the same way. After polling the jury, the trial court discharged the jury after 

it determined that the jury could not reach a verdict in one or two more days of 

deliberation. 

{¶33} The judge then went to the jury room to speak with the jurors without 
counsel or the court reporter present. After speaking to the jurors, the trial court 

explained on the record that the jurors informed her that they could reach a verdict if 

they could deliberate “beyond the time period” that she had given them (i.e., beyond one 

or two more days). Id. at ¶ 17. The trial court then polled each juror on the record, 

asking them if they could reach a verdict “today, tomorrow, or beyond tomorrow,” with 

each juror responding “yes.” Id. at ¶ 19. The trial court then instructed the jury to 

continue its deliberations. 

{¶34} The plaintiff objected to permitting the jury to continue deliberations, 

arguing that it was an error to permit the jury to continue deliberations after it had been 

discharged and that the jury was tainted by the trial court’s off-the-record contact with 

them. Id. The trial court called each juror individually into the courtroom and asked 

what the juror recalled about the judge’s contact with them and whether “anything the 

judge said in the jury room outside the presence of counsel or the court reporter had 

prejudiced that particular jurors’ ability to deliberate or form an opinion of the case.” 

Id. One juror reported that the trial judge had asked what the jurors “thought of the 

case” and that the judge “said the jury was dismissed and then the jurors began asking 

questions and the judge answered the jurors’ questions.” Id. at ¶ 21. A second juror 

began crying on the witness stand and indicated that the emotional state of the jury 

changed after the judge told them they were dismissed. Id. 

{¶35} The trial judge ultimately determined, however, that her ex parte 

communications with the jury had not prejudiced the jury, and the jury was permitted to 
continue its deliberations. Id. at ¶ 22. The jury ultimately reached a verdict in favor 

of the defendant and the plaintiff appealed. Relying on “well established [law] in Ohio 

that once a jury has returned its verdict and has been discharged, it cannot be reconvened 

to alter or amend its verdict,” the Ninth District determined that the trial judge abused 

her discretion in permitting the jury to continue deliberations because the “jury in the 

instant matter was discharged in open court and without reaching a verdict.” Id. at ¶ 27. 

Analysis

{¶36} The facts in this case are distinguishable from those in Gugliotta. Here, 

the jury had reached a verdict in the case. In open court, the trial court stated, “I 

understand you have reached a verdict[,]” and then told the foreman to “hand the verdict 

forms to the plaintiff.” Further, it appears from the transcript that the foreman did, in 

fact, hand the verdict forms to the plaintiff before the trial court read the verdict in open 

court because the bailiff states, “make sure they’re upside down, please. Thank you.” 

The trial court then determined that the jury found that Northern Trust was a single 

corporation and stated, “this is a verdict in this case for defendants.” The trial court 

polled each juror, asking “is this your verdict.” All eight jurors responded “yes.” 

Once the trial court had polled each juror, it stated, “Very good. Thank you, ladies and 

gentlemen. I would like to speak with you, if I could, just for a few minutes.” The 

jury then left the courtroom. The trial court asked counsel, “do you want to look over 

the verdict forms?” Southworth’s counsel responded “sure.” 

{¶37} Thus, although Southworth contends that he did not have an opportunity to 
object until after the jury was discharged, that is not the case. The jurors had completed 

their deliberations before the trial court spoke with them. It was therefore incumbent 

upon Southworth to raise the issue with the trial court before the jury had been 

discharged. 

{¶38} Southworth has therefore forfeited all but plain error. The Ohio Supreme 

Court has held that 

In appeals of civil cases, the plain error doctrine is not favored and may be 

applied only in the extremely rare case involving exceptional 

circumstances where error, to which no objection was made at the trial 

court, seriously affects the basic fairness, integrity, or public reputation of 

the judicial process, thereby challenging the legitimacy of the underlying 

judicial process itself. 

Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997). 

{¶39} After review, we find no plain error. The trial court read the jury’s verdict 

in open court, and stated “this is a verdict in this case for defendants.” The trial court 

then polled each juror, asking “is this your verdict.” All eight jurors responded “yes.” 

Although the jurors did not complete the verdict forms indicating that Mike Cogan and 

Scott Dille were personally liable, the jury also did not complete the verdict form for 

plaintiff. The verdict form for plaintiff included blank lines for the jury to fill in the 

amount of economic and noneconomic compensatory damages that the plaintiff would 

receive if the jury had, in fact, entered a verdict for plaintiff. The verdict form for 

plaintiff also had blank lines for the jury to check next to each defendant it found liable. 

By not completing this form, it is clear that the jury intended to find all defendants not 

liable, including Cogan and Dille. 
{¶40} Accordingly, we conclude that this is not the “extremely rare case” that 

“seriously affects the basic fairness, integrity, or public reputation of the judicial 

process.” Accordingly, there is no plain error on the part of the trial court for entering a 

verdict for all defendants. 

{¶41} Southworth’s second assignment of error is overruled. 

III. 

{¶42} In his third assignment of error, Southworth argues that the trial court erred 

when it limited his cross-examination of Michael Cogan. We set forth the law and 

standard of review regarding cross-examination in Southworth’s first assignment of 

error. 

{¶43} In this case, as part of Southworth’s case-in-chief, he cross-examined 

several witnesses, including Cogan, before they testified on direct-examination for 

defendants. After Southworth completed his case-in-chief, defendants questioned 

Cogan (days after he had testified for Southworth) as part of their case-in-chief. When 

Cogan was done testifying on direct-examination, Southworth recross-examined Cogan. 

During this recross-examination, after questioning Cogan for approximately 20 minutes, 

Southworth’s counsel asked Cogan, “I’m going to ask you, sir, is it your testimony that 

you didn’t have any preconceived notions at all about who you would select as part of 

the process before you did the analysis contained in [the RIF job elimination 

worksheet].” At that point, defendants objected. The trial court sustained the 

objection, stating at sidebar: 
That is the identical question you asked, you literally asked it at 

least 20 times during the course of your cross-examination. By my 

calculations this man has been on the stand for seven plus hours. We’re 

getting to the point now where you have crossed him — you crossed him 

that first day, you crossed him almost seven hours. He’s been on the 

stand, for the record, for a few hours, so ten plus hours. I mean, this is 

enough. We have to stop. Okay. So I’m giving you ten more minutes 

to cross this man, because if you aren’t into new testimony, the same thing 

that you asked before, you’re just spinning our wheels. 

{¶44} The court went on to state, upon further argument by Southworth, that 

Southworth asked that same question “multiple times,” emphasizing “I mean, multiple 

times is an understatement.” 

{¶45} We find no error on the part of the trial court in limiting Southworth’s 

recross-examination of Cogan. Evid.R. 611(A) specifically gives trial courts discretion 

“over the mode and order of interrogating witnesses and presenting evidence,” including 

avoiding needless consumption of time. Evid.R. 611(A)(2). Southworth had already 

crossed Cogan extensively during his case-in-chief. During Southworth’s inital 

cross-examination of Cogan, the trial court did not limit Southworth’s questioning in any 

way. And as the trial court explained during recross-examination, and we have 

independently verified, Southworth asked Cogan that same question repeatedly during 

his initial cross-examination. 

{¶46} Thus, the trial court did not abuse its discretion when it limited 

Southworth’s recross-examination to new areas that were raised on direct-examination. 

{¶47} Southworth’s third assignment of error is overruled. 

IV. 
{¶48} In his fourth assignment of error, Southworth maintains that the trial court 

erred when it denied his motion for a new trial. 

{¶49} “Whether to grant or deny a motion for a new trial rests with the sound 

discretion of the trial court, and its judgment will not be disturbed absent an abuse of 

discretion.” Drehmer v. Fylak, 163 Ohio App.3d 248, 2005-Ohio-4732, 837 N.E.2d 

802, ¶ 8 (2d Dist.), citing Yungwirth v. McAvoy, 32 Ohio St.2d 285, 291 N.E.2d 739 

(1972). 

{¶50} Southworth maintains that the trial court erred when it denied his motion 

for new trial for three reasons: (1) because the trial court erred when it permitted 

defendants to introduce Ex. MMMMMM (the list of Southworth’s Northern Trust 

clients), (2) because the jury failed to complete the verdict forms for Cogan and Dille, 

and (3) because the trial court limited his recross-examination of Cogan. These are the 

same issues he raised in his first three assignments of error. Because we found no error 

on the part of the trial court in any of these areas, we also find no error on the part of the 

trial court in denying Southworth’s motion for a new trial. 

{¶51} Southworth’s fourth assignment of error is overruled. 

{¶52} Judgment affirmed. 

It is ordered that appellees 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. 

 

MARY J. BOYLE, PRESIDING JUDGE 

FRANK D. CELEBREZZE, JR., J., CONCURS; 

LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY