However, the plaintiffs claim that that evidence was relevant to demonstrate that the defendants were motivated by ill will, thus permitting the jury to infer that the defendants acted with knowledge of falsity or in reckless disregard of the truth. Cf. Katz v. Enzer (1985), 29 Ohio App.3d 118, 120, 29 OBR 133, 135, 504 N.E.2d 427, 430. However, such evidence is only relevant if it "can be linked reasonably to the defamatory statements at issue as part of a continuing course of conduct."
Plaintiff relies on the law of Ohio to support its contention that claims based on a continuing course of defamation or disparagement are viable. See Katz v. Enzer, 29 Ohio App.3d 118, 120, 504 N.E.2d 427 (1985). In addition to the fact that neither New York nor California appears to have adopted the law of Ohio in this respect, the court in Katz merely held that a defendant's subsequent words or acts tending to show malice are admissible to prove defamation so long as the subsequent statements can be "linked reasonably to the defamatory statements at issue as part of a continuing course of conduct."
Ohio Rev. Code Ann. (Page's 1981). A statement is considered defamatory in Ohio if it is made falsely and maliciously with the intent to injure a person's reputation or expose him to public hatred, contempt, ridicule, shame or disgrace, or to affect him adversely in his trade or profession. Katz v. Enzer, 29 Ohio App.3d 118, 122, 504 N.E.2d 427 (Hamilton Co. 1985); Thomas H. Maloney Sons, Inc. v. E.W. Scripps Co., 43 Ohio App.2d 105, 107, 334 N.E.2d 494 (Cuyahoga Co. 1974). Ohio has recognized the applicability of a qualified privilege in defamation cases. Smith v. Klein, 23 Ohio App.3d 146, 148, 492 N.E.2d 852 (Cuyahoga Co. 1985). A qualified or conditional privilege is a communication made in good faith on any subject matter in which the person communicating has an interest, or in referrence to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest.
A party has an unconditional right to present rebuttal testimony on matters which are first addressed in an opponent's case-in-chief and should not be brought in the rebutting party's case-in-chief. See Katz v. Enzer (1985), 29 Ohio App.3d 118, 29 OBR 133, 504 N.E.2d 427. Because the testimony of the two witnesses fulfills both of these criteria, it should have been admitted by the trial court.
See Katz v. Enzer (1985), 29 Ohio App.3d 118, 29 OBR 133, 504 N.E.2d 427." Id. at 410.
See Weimer v. Anzevino (1997), 122 Ohio App.3d 720, 726, 702 N.E.2d 940 (appellant may rebut evidence adverse to her side, but that evidence must be introduced by the opposing party and not by appellant herself). See also Katz v. Enzer (1985), 29 Ohio App.3d 118, 29 OBR 133, 504 N.E.2d 427. {ΒΆ 84} The proper scope of rebuttal testimony lies within the sound discretion of the trial court.
However, a party has an unconditional right to present rebuttal evidence on matters that are first addressed in the opponent's case in chief and should not be brought in the rebutting party's case in chief. Phung v. Waste Mgt., Inc., 71 Ohio St.3d at 410, 644 N.E.2d 286, citing Katz v. Enzer (1985), 29 Ohio App.3d 118, 123, 29 OBR 133, 504 N.E.2d 427. {ΒΆ 61} "In order to establish a claim for medical malpractice, a plaintiff must demonstrate, by a preponderance of the evidence, (1) that there existed a duty on behalf of the physician-defendant to the plaintiff; (2) the standard of care recognized by the medical community; (3) the failure of the defendant to meet that standard of care; and (4) a causal link between the negligent act and the injuries sustained.
It is error for a court to deny a plaintiff the right to explain or rebut testimony concerning a material issue which is introduced for the first time during the defendant's case-in-chief. Katz v. Enzer (1985), 29 Ohio App.3d 118, 29 OBR 133, 504 N.E.2d 427. A trial court has broad discretion in the admission or exclusion of evidence, and its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice to the defendant.
Therefore, the court prohibited any open-ended testimony by Fobes on rebuttal directed at "implications" alleged to have been made in appellee's case. Appellant relies on Katz v. Enzer (1985), 29 Ohio App.3d 118, 29 OBR 133, 504 N.E.2d 427, for the proposition that rebuttal testimony concerning all relevant matters is permissible when a material issue is introduced by the opposing party's case-in-chief. This reliance is misplaced since the court in Katz found as error the failure of the trial court to allow plaintiff to rebut a statement of defendant's witness.
Dr. Lichter's testimony could certainly lead to an inference of ill will or reckless disregard towards Schwartz, and was thus relevant in proving malice. See Katz v. Enzer, 504 N.E.2d 427, 431-32 (Ohio Ct. App. 1985) (providing for the admissibility of subsequent words tending to show ill will, spite or malice on the part of the defendant so long as the evidence can be linked reasonably to the defamatory statements at issue as part of a continuing course of conduct). Accordingly, I feel that the district court erred in excluding Dr. Lichter's testimony.