WM. C. HETHERINGTON, Jr., Chief Judge.

¶ 1 St. John Medical Center (Hospital) appeals an order of the trial court granting a new trial motion by Kimberly Watson-Santin (Patient) entered after a jury returned a verdict in favor of Hospital. Following review of the entire record, Hospital has not demonstrated the trial court acted arbitrarily, abused its discretion, or materially and manifestly erred in granting the new trial. The trial judge's order granting Patient's Motion for New Trial is AFFIRMED.

STANDARD OF REVIEW

¶ 2 In Capshaw v. Gulf Insurance Company, 2005 OK 5, ¶ 7, 107 P.3d 595, 600, the Court describes the appellate review for the grant of a motion for new trial:

¶ 3 "The threshold for upholding the grant of a new trial is much lower than where the motion is overruled." Ledbetter v. Howard, 2012 OK 39, ¶ 9, 276 P.3d 1031, 1034 (footnote omitted). As the Court advises in its Supplemental Opinion on Rehearing in Conyers v. Conyers, 1963 OK 75, ¶ 2, 386 P.2d 633, 638, "[t]he function of a motion for new trial is to open judicial inquiry into errors occurring during the conduct of the trial proceedings. Its office is to invoke the power of a trial court to correct and cure its own errors." (Citations omitted.) "Furthermore, where the issues raised necessitate an examination of the entire lower court record, we will examine such record to determine if the trial court, in granting the new trial, abused his discretion, acted arbitrarily, or erred on some unmixed question of law." Strubhart v. Perry Memorial Hosp. Trust Authority, 1995 OK 10, ¶ 17, 903 P.2d 263, 270 (citation omitted). "An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Spencer v. Oklahoma Gas & Electric Company, 2007 OK 76, ¶ 13, 171 P.3d 890, 895 (emphasis omitted).

FACTS

¶ 4 In her lawsuit, Patient contended Hospital committed medical negligence due to a delay in providing treatment after a cervical epidural injection caused a hematoma.1 During voir dire, the jury panel was questioned about their experiences with epidural injections. One juror, Juror J, reported she had two such procedures without any negative results. The trial judge then commented "[a]nd so you're kind of an expert about epidural injections, but I'm going to tell you that it would be inappropriate for a juror to apply any extra special knowledge that they have in deciding the case" and asked if she could set aside her prior lack of problems. Juror J assented. A few other jurors who reported they had received epidural injections also agreed to set aside their prior personal experience and to consider the evidence presented. Later in the voir dire, Juror J indicated she worked at a hospital as a certified nursing assistant. When the proceedings broke for lunch, Hospital moved for mistrial based upon the "expert" comments made by the trial judge to Juror J during the questioning about jurors' experiences with epidural procedures. Hospital's motion for mistrial was denied.

¶ 5 On the second day of trial, the trial judge questioned another juror (Juror B) after he was observed nodding off and then catching himself during the presentation of evidence. Juror B described his situation at home, told how his multiple jobs had caused him to lose sleep, and stated he would get more sleep so as to "not have anymore issues like this." The trial judge offered to take more frequent breaks and to allow Juror B to consume a helpful beverage, if necessary. The trial judge advised Juror B "it's essential that you pay attention here," cautioned him it was important to get sufficient sleep, and warned "if you can't stay awake, I will have to excuse you." Neither parties' attorney raised any further concerns about Juror B at this earlier time.

¶ 6 On the third day of trial proceedings, February 13, 2013, in response to a question by one of Hospital's two trial counsel, Mr. Santin (Husbandn2) acknowledged he had told Patient's counsel he had been convicted of a felony for possession of methamphetamine and possession of paraphernalia,3 at which point the following transpired:

Counsel approached the bench, the jurors exited on a recess, and the scope of the motion in limine was discussed. Patient's counsel contended the final question above was designed to open the door to an old warrant outstanding in California.4 Hospital's counsel admitted the charge he was referencing was a misdemeanor for obtaining merchandise under false pretenses, not a felony, and he contended he was "allowed to bootstrap backwards from the last conviction." The trial court asked Hospital's counsel what steps had been taken to identify the person whose record was used as the basis of the question and about the birth dates of the person charged and of Husband. It was revealed they were about twenty years apart. Husband identified the person with the same name as his son. In response to a question by the trial judge, Hospital's counsel admitted he was present when the order was entered on the motion in limine.

¶ 7 The trial judge noted "if we are going to mistry this case, I much rather would have done it on Monday," and indicated he needed a few moments before he "determine[d] what we're going to do. And when we come back, I'll hear whether we're going to start over again or not." When they returned from the break, the trial judge found Hospital's questioning attorney in direct contempt of court for violation of the motion in limine, but suspended a fine and jail time dependent on "good conduct during the balance of the trial, if we have a balance of this trial." The trial judge went on to explain:

Patient then moved for mistrial and Hospital suggested: "Your Honor, we believe that an admonition to the jury would be sufficient to cure the misinformation that was given to them." Both of Hospital's counsel apologized to the trial court. The trial judge indicated he "no longer consider[s] the six months in the county jail" but needed "to make a point." The trial judge took Patient's motion for mistrial under advisement and said "[w]e're half way through it. We're going to press on."

¶ 8 The trial judge admonished the jury upon its return, telling them Hospital's counsel had "made a reference to some criminal conviction of somebody that was not the witness on the stand," "the question that he asked about some other criminal conviction was a person that had a similar name but was not this witness," and they should disregard the question which had "absolutely nothing to do with the issues in this case."

¶ 9 Patient rested her case, joint exhibits were admitted into evidence, and Hospital rested without putting on any witnesses. Patient then informed the trial court the parties had agreed Hospital would call two witnesses, a doctor and a nurse, in its case if she did not require its counsel to travel to Florida and California for re-depositions. She contended she did not re-depose these witnesses or call them as witnesses based upon a specific promise to have the witnesses appear live in Hospital's case. Hospital denied entering into such an agreement and claimed an entitlement to make a strategy decision at trial not to call the witnesses. After a brief recess, Patient presented copies of e-mails she contended showed an agreement, the trial judge marked the materials as a Court's exhibit, and found there was not sufficient evidence of a promise by Hospital's counsel such as would entitle Patient to rely upon the witnesses being called in Hospital's case.

¶ 10 Hospital moved for a directed verdict and it demurred. Both requests were denied. After closing arguments, Patient moved to excuse Juror B and asked that an alternate be seated in his place because, despite the trial judge's earlier admonishments on the second day of trial, he had been observed dozing off during the prior day of trial after having been "noticeably asleep" on the first or second day of testimony. The trial judge observed that Juror B had "done better" than he did earlier, he "decline[d] to substitute . . . on the basis of the record" made at that time, and released the alternate juror.

¶ 11 Before the jury returned from its deliberations, Patient renewed her motion for mistrial and the trial court denied the motion. Eleven jurors returned a verdict in favor of Hospital, and the trial judge entered the jury's verdict.

¶ 12 Patient moved for a new trial, citing three sections of 12 O.S.2011 § 651 as warranting a new trial:

Patient raised the following as meeting these statutory criteria: (1) a suggestion by one of Hospital's counsel that Husband had committed a felony involving truth and honesty; (2) the failure to remove Juror J due to bias and experience which may have influenced other jurors and to remove Juror B, who was observed sleeping or dozing during the presentation of evidence; and (3) unfair surprise by the failure of Hospital to put on expert witnesses as agreed, thus preventing her from cross-examining those witnesses. She contended the cumulative effect of attorney and juror misconduct and the unfair surprise denied her a fair trial.

¶ 13 At hearing on her motion for new trial, Patient contended, inter alia, that the improper question about a felony tainted the proceedings from very early in the trial because Husband was a vital witness who provided considerable testimony about what occurred while they were waiting at Hospital's emergency room, during her recovery process, and about her current condition. Patient argued the challenge to his credibility was enhanced by extensive questioning about their physical locations within Hospital's facility and about what nurses had said to him at various times.

¶ 14 Hospital asserted the problems cited by Patient were adequately addressed by the trial judge during the proceedings and although it was not a perfect trial, she did not suffer any detriment constituting error justifying a new trial. The trial court granted her motion for a new trial. This appeal by Hospital followed.

THE APPEAL

¶ 15 Hospital contends the trial judge abused his discretion in granting a new trial. Hospital argues there was no error in leaving Juror J and Juror B on the jury, Patient suffered no prejudice due to the felony conviction question, and its failure to put on defense witnesses was not prejudicial.5 Hospital contends there were no individual errors and therefore there may be no cumulative error, citing Steele v. Guilfoyle, 2003 OK CIV APP 70, ¶ 12, 76 P.3d 99, 103 (which cites Alverson v. State, 1999 OK CR 21, 983 P.2d 498, for this proposition). Patient asserts Hospital has not met its burden of proof to warrant reversal. We review the entire record to assess the issues presented on appeal.

¶ 16 This case was tried over a total of five consecutive days, February 11, 2013, to February 15, 2013. The presentation of testimony and other evidence mainly occurred on the second, third and fourth days, and the first and last days primarily were devoted to voir dire, pre-emptory challenges, opening and closing arguments, and the like.

¶ 17 Hospital contends a new trial could not be granted if based upon Hospital's failure to call witnesses at trial. In other words, Hospital appears to suggest that if the grant of Patient's Motion for New Trial was based upon reversal of the trial court's ruling that she had failed to show there was an agreement she was entitled to rely upon, it was error. A request to reopen a case for additional evidence after a party has rested is addressed to a trial court's discretion and a refusal to reopen a case is not an abuse of discretion where the party has failed to use due diligence to procure testimony before resting. Johnson v. Johnson, 1983 OK 117, ¶ 19, 674 P.2d 539, 545. Following review of the record, we agree with Hospital's assessment that its failure to call witnesses would be an erroneous basis upon which to grant new trial, but not with an assumption this has occurred via the grant of a new trial.6 We will not make such an assumption based on the appellate record.

¶ 18 Next, Hospital argues the verdict in its favor would have resulted even if Juror J had been replaced. Patient contends Hospital's argument the replacement of Juror J would have made no difference in the outcome is reasoning prohibited in Parrish v. Lilly, 1993 OK 80, 883 P.2d 158. In Parrish, a juror is reported to have "repeatedly attempted to express that he had formed a preconceived opinion that was prejudicial to the case," and both the trial judge and the litigants had expressed concerns about the questioned juror's impartiality. Id., ¶ 13, 883 P.2d at 162. Based upon juror bias, the Court reversed an unanimous verdict in favor of a doctor in that medical negligence action. The defendant had argued the juror's presence was unnecessary to achieve the number of jurors necessary for a verdict, but the Court stated "the number of concurring jurors required to render a verdict is not germane" because the issue was not the number required but instead was the need for the jury to "satisfy the constitutional and statutory requirements of impartiality." Id., ¶ 15, 883 P.2d at 162. The record does not support Hospital's intimation the trial court may have found Juror J's continued presence on the jury created a lack of a constitutionally required fair and impartial jury, which served as the basis to grant Patient's Motion for New Trial.7 "Absent a record showing otherwise, this court presumes that the trial court did not err. Fidelity Laboratories v. Oklahoma City, 191 Okl. 473, 130 P.2d 834 [1942]; Seidenbach's v. Crown Drug Co., 191 Okl. 223, 127 P.2d 800 [1942]." Hamid v. Sew Original, 1982 OK 46, ¶ 6, 645 P.2d 496, 497. Reversal will not lie for this alleged error.

¶ 19 Juror B's conduct first was brought to the trial court's attention on the second day of trial and again before the jury retired for deliberation. Thus, unlike in some cases cited by Hospital, his sleeping is an issue preserved for appellate review. Hospital's cited authorities dealing with the denial of a motion for new trial do not advance our analysis because of the differing standard of review. As noted above, the threshold for affirming a grant of a new trial is much lower than that where the motion for new trial is overruled. Ledbetter v. Howard, 2012 OK 39, ¶ 9, 276 P.3d at 1034. The trial court was aware of Juror B's conduct, noted he had done "better," and expressed that the denial was based on the record made. As with Juror J, we would have to presume the retention of this juror was the basis for the trial judge's grant of a new trial. In light of the lack of any findings of fact or other indication of the basis of the order granting new trial and having reviewed the entire record, we will not presume the trial court adopted the failure to replace Juror B as a basis for its ruling but instead must assess the trial court's ruling in light of the whole record. That record does not support reversal on this single alleged basis.

¶ 20 Hospital argues the "inadvertent" violation of the motion in limine on the third day of trial, was harmless error and the grant of the motion for new trial was an impermissable substitution of the trial judge's assessment after the jury rendered its verdict in Hospital's favor. Hospital argues the trial judge's admonishment to the jury "cured any alleged error." Patient contends Husband, who had admitted to another criminal violation, did not have a "pristine" background and the effect of the question was to poison the jury with prejudice and no amount of cautionary instruction could erase the negative impression created by the question itself.

¶ 21 After admonishing the jury, the trial judge polled them, asking each if they could disregard the question and answer at issue. Each juror agreed to do so. However, as the Court states in Fields v. Saunders, 2012 OK 17, ¶ 7, 278 P.3d 577, 581:

Hospital contends the trial judge's remarks about whether Patient should have a "free ride" when discussing the alternatives available regarding the prejudicial question and the taking of Patient's motion for mistrial under advisement indicate an intent to substitute the trial judge's assessment of the evidence for that of the jury. We do not agree. The remarks must be viewed in the context of the entire circumstance surrounding the alleged prejudice being addressed8 and in light of how the trial judge was in the best position to see and hear Husband's testimony, assess the prejudicial effect, if any, to the improper questions, the effectiveness of the admonition given, and any effect on the course of the subsequent trial proceedings. The record of the trial court's comments before the jury was admonished demonstrates a continuing concern about the prejudicial effect of the felony conviction questions and an appreciation of the seriousness of the potential prejudice from those questions.

¶ 22 As the Court explains in Propst v. Alexander, 1995 OK 57, ¶ 8, 898 P.2d 141, 147:

(Footnotes omitted.)

¶ 23 "Moreover, the burden to establish a trial court's abused discretion when granting a new trial rests upon the appellant, not on the appellee." Capshaw v. Gulf Insurance Company, 2005 OK 5, ¶ 9, 107 P.3d at 600. "It is the duty of the trial court to safeguard the rights of the litigants to a fair trial and where, in the opinion of the court, a party has not been so protected, may grant a new trial to obviate the error which has occurred." Taliaferro v. Shahsavari, 2006 OK 96, ¶ 33, 154 P.3d 1240, 1249. Having reviewed this record, we cannot say the trial court acted arbitrarily, abused its discretion or manifestly erred in granting a new trial. Consequently, the trial judge's order granting Patient's Motion for New Trial is AFFIRMED.

MITCHELL, P.J., and JOPLIN, J., concur.