¶1 concurring.
¶2 Like Judge Edward J. Mahoney, I concur in the judgment and opinion, but I also wish to embellish the majority’s treatment of the appellant’s second and third assignments of error.
¶3 It is fundamental that counsel’s summation at the conclusion of a trial is to be based on the evidence table in the record of the proceedings. Herman v. Teplitz (1925), 113 Ohio St. 164, 170, 148 N.E. 641, 643; Jones v. Macedonia-Northfield Banking Co. (1937), 132 Ohio St. 341, 8 O.O. 108, 7 N.E.2d 544. It is also generally viewed that some license and flexibility are accorded attorneys in the tangential flights they suggest to jurors may be indulged from the evidence table based on their individual and collective common experience. Durst v. Van Gundy (1982), 8 Ohio App.3d 72, 75, 8 OBR 103, 107, 455 N.E.2d 1319, 1322; Jackson v. Booth Mem. Hosp. (1988), 47 Ohio App.3d 176, 180, 547 N.E.2d 1203, 1207.
¶4 I, too, closely scrutinized the trial testimony of Drs. Cooperman and Pollyea. That examination fails to provide any rational basis for caustic statements that one of appellants’ expert medical witnesses was professionally “incompetent and unqualified,” or that his testimony was “irresponsible or unintelli *45 gent,” or for the comment that he is a professional witness who testifies for a living.
¶5 I do not agree with the majority’s statement that “the remarks were not improper as they were warranted by the evidence or inferences properly drawn from the evidence.” More than rhetorically, I ask, where? The majority fails to point out that the $66,000 earned by Pollyea was over a five-year period of time, and that his primary income obtained from his practice of internal medicine.
¶6 With respect to the syntax employed in part by Attorney Charm with reference to appellants’ other medical witness, it is deemed most appropriate to quote briefly from the transcript certain questions submitted by Attorney Charm, and the witness’ responses from the transcript:
¶7 “Q. I am going to get to that in a minute. My question to you, though, was Dr. Olcese’s operative note specifically describes the hole as being in the posterior wall of the descending colon.
¶8 “And you would agree, him having been there, he’s in the best position to tell us where he found the hole. You would agree -with that.
¶9 “A. I would agree with that.
¶10 “Q. Now, are you telling this jury that you disbelieve his operative note when he describes the hole that he found on March 9th, 1987, as being in the posterior wall of the descending colon?
¶11 “A. I think that he simply could not have known where he was.
¶12 “I’m not — when you say 'disbelieve,’ you make it sound like I think he is lying in his note, which I don’t. But I think it’s very possible that he is erroneous in his note.”
¶13 (( …
¶14 “Q. Now, with regard to injuring the bowel, again back to this anterolateral wall injury that you believe occurred, it’s your testimony, is it not, that any competent surgeon would see that injury in front of him?
¶15 “A. Yes, it should have been recognized and repaired.
¶16 “And that’s—
¶17 “Q. Assuming it was there.
¶18 “A. Assuming it was there.
¶19 “Q. So if it wasn’t there then there is nothing to be concerned about, is there?
¶20 “A. That’s true. But if it was and it was unrecognized, it’s also substandard surgical practice.
¶21*46 “Q. Well, it would be more than that, wouldn’t it, Doctor?
¶22 “If you saw, if a surgeon saw a hole in the bowel like that, which you shouldn’t be able to miss under your original theory of how this injury occurred, it would be a lot more than substandard medical care to let that bowel fall back within the abdomen, wouldn’t it?
¶23 “A. Yes, it would.
¶24 “Q. It would be criminal, wouldn’t it?
¶25 “A. I am not going to use those words. It would be negligent.
¶26 “Q. It would be outrageous, wouldn’t it, Doctor?
¶27 “A. Outrageous is a good word.
¶28 “Q. For a board certified and recertified surgeon to let a bowel with a hole in it fall back intraperitoneal would be incomprehensible, wouldn’t it?
¶29 “A. Yes, it would be incomprehensibly poor surgical care.
¶30 “Q. I think everybody agrees with that.”
¶31 The substance and tenor of the foregoing in this writer’s estimate do not provide any basis whatsoever to state that Cooperman testified that the appellee “didn’t give a damn” or that Cooperman by his testimony wanted to leave the impression with the jury that the appellee was “barbaric” or “a maleficent, vicious killer.” Having authored Shugart v. Solyn (Aug. 30, 1984), Mahoning App. No. 83 C.A. 60, unreported, 1984 WL 5002, as well as other commentaries on this subject, this writer appreciates the delicate balance that is imposed by reviewing courts, and the exercise that must be undertaken to determine if there is a prejudicial effect to such vitriolic mouthings.
¶32 I agree that the trial court’s handling of this issue can be best described as euphemistic and bland, and that its instruction was at best a modest, boilerplate, prophylactic exercise. But like my colleagues, I am not able to conclude under the record of this case that it rises to the crest of plain error.
¶33 This writer must concede that there is a very thin line between this case and Shugart, supra. The conclusion is unequivocal, however, that this type of venomous argumentation has no place in the trial courts of this district, or any other for that matter. It is better left in a landfill that would accept it before the oracle who wishes to voice it crosses the threshold of a hall of justice. Attorneys who practice in the field in question here are not endowed with special privileges to engage in such excesses! Civility remains the hallmark of professionalism!