The opinion
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Savage et al., Appellees and Cross-Appellants, v. Correlated
Health Services, Ltd., Cross-Appellee; Sveda et al., Appellants
and Cross-Appellees; Snyder et al., Appellants.
[Cite as Savage v. Correlated Health Serv., Ltd. (1992),
Ohio St.3d .]
Malpractice -- Damages award -- Workers' compensation and
Social Security benefits fall under the definition of
"insurance" in R.C. 2305.27 and therefore do not reduce medical
malpractice damage awards.
(No. 90-2366 -- Submitted December 10, 1991 -- Decided June 17,
1992.)
Appeals and Cross-Appeal from the Court of Appeals for Summit
County, Nos. 14491 and 14498.
In 1967, appellee and cross-appellant, Edward R. Savage, was
injured at his place of employment. Subsequently, Savage sought
chiropractic treatment for relief of his injury. From 1973
through March 1987, Savage was treated by Dr. J.C. Archer, D.C.,
for periodic "flare-ups" of his condition.
On March 24, 1987, Savage was again examined by Dr. Archer,
who determined that Savage's condition was not improving as
expected. Therefore, Dr. Archer referred Savage to another
chiropractor, appellant, Dr. David W. Snyder. In April 1987,
Savage was examined by Dr. Snyder. At that time, Savage was
experiencing back pain and a "pin-prick" sensation in his legs,
feet and lower back. Dr. Snyder then arranged for Savage to be
examined by appellant and cross-appellee, Dr. Stephen J. Sveda,
M.D.
On April 7, 1987, Dr. Sveda examined Savage and concluded
that Savage was suffering from a protruded disk. Dr. Sveda
recommended that Savage continue to receive chiropractic
manipulation therapy. Thereafter, Savage received chiropractic
treatment from Dr. Snyder on a number of occasions.
On May 14, 1987, Savage arrived at the office of cross-
appellee, Correlated Health Services, Ltd. ("CHS"), for a
regularly scheduled appointment with Dr. Snyder. However,
another chiropractor, Dr. Michael Shimmel, D.C., appellant, was
covering Dr. Snyder's appointments that day. Savage received
chiropractic treatment from Dr. Shimmel and, following the
treatment, Savage began experiencing certain physical problems
such as loss of bladder and bowel control. Two days later,
Savage was taken by paramedics to Robinson Memorial Hospital.
On May 21, 1987, Savage underwent decompression surgery to
relieve the symptoms of his condition, which was diagnosed as
"cauda equina syndrome." Cauda equina syndrome has been
described as a condition resulting from a compression to a group
or bundle of nerves at the lower end of the spinal cord. These
nerves control bladder and bowel function, motor function,
sensation of the lower extremities, and sexual function in males.
The record indicates that Savage's condition was caused by the
chiropractic manipulation performed by Dr. Shimmel and that the
condition is permanent and irreversible.
On July 21, 1987, Savage and his wife, appellee and cross-
appellant, Anna Savage (collectively referred to as "appellees"),
filed a complaint and subsequently an amended complaint setting
forth negligence claims against, inter alia, CHS; Dr. Sveda;
appellant and cross-appellee, Stephen J. Sveda, M.D., Inc.; Drs.
Shimmel and Snyder; and David W. Snyder, D.C., Inc. Thereafter,
the parties commenced discovery in preparation for trial.
Dr. Kenneth Schulze is the surgeon who performed Savage's
decompression surgery and who treated Savage through July 1987.
By letter dated August 15, 1989, appellees provided opposing
counsel with a list of appellees' expert witnesses. The expert
witnesses listed in the letter are Drs. John Kustuik, Stewart
Bailey, Edward C. Sullivan and John F. Burke. The letter further
provides that appellees "* * * will also call Kenneth Schulze,
M.D., who is one of plaintiff's treating physicians. We may also
employ an expert in the field of vocational rehabilitation." Su
bsequently, appellees provided appellants herein (Dr. Sveda,
Stephen J. Sveda, M.D., Inc., Drs. Shimmel and Snyder and David
W. Snyder, D.C., Inc.) with copies of a document prepared by Dr.
Schulze wherein Dr. Schulze set forth his opinion that Dr. Sveda
should not have recommended that Savage continue chiropractic
manipulation therapy.
Appellants deposed several witnesses during the discovery
process. Dr. Schulze was deposed on October 9, 1989. In his
deposition, Dr. Schulze testified regarding his opinion that Dr.
Sveda deviated from the accepted standards of medical care by
recommending that Savage continue chiropractic manipulation
therapy. Dr. Schulze also testified that Savage's cauda equina
syndrome resulted from an acute disk herniation caused by the
chiropractic manipulation performed on May 14, 1987. Dr. Schulze
also stated that he was prepared to testify concerning the causal
connection between Sveda's recommendation and Savage's medical
problems. Appellants questioned Dr. Schulze as to whether he was
prepared to give his expert testimony at trial on any issue other
than the standard of care exercised by Dr. Sveda and the cause of
Savage's cauda equina syndrome. In response, Dr. Schulze stated,
in part: "I'm an orthopedic [surgeon] and questions that may be
asked within the realm of my care of the patient and orthopedic
care of the patient in general, I would be qualified to answer
that."
A jury trial in this case was scheduled to commence on
October 23, 1989. That morning, Dr. Schulze reexamined Savage.
Thereafter, counsel for Drs. Shimmel and Snyder and David W.
Snyder, D.C., Inc. moved the trial court to limit Schulze's
forthcoming trial testimony to those matters which Schulze had
testified to during his October 9, 1989 deposition. These
appellants claimed that Schulze was prepared to offer, at trial,
new and previously undisclosed opinions on matters such as
Savage's future employability. In response, appellees argued
that Schulze's so-called new opinions could have been discovered
during Schulze's deposition, but that appellants did not ask for
Schulze's opinions on these matters. The trial court agreed with
appellees and denied appellants' motion.
Appellants were permitted to conduct a voir dire examination
of Dr. Schulze before Schulze testified at trial. During voir
dire, Schulze testified concerning several matters which were not
covered during his October 9, 1989 deposition. Counsel for the
chiropractic appellants again moved to exclude Schulze's
testimony on these matters. This motion was denied as was a
motion for a mistrial. Thereafter, Schulze testified at trial
that he and Savage had discussed Savage's need to self-
catheterize; that Savage continued to experience loss of sensation
in his lower extremities; that a causal relationship existed
between Savage's condition and his inability to engage in sexual
relations with his wife; and that Savage could not be expected to
return to gainful employment.
In addition to these matters, Dr. Schulze testified (as he
did at his deposition) that Dr. Sveda had deviated from the
accepted standards of medical care and that Savage's cauda equina
syndrome was caused by the chiropractic manipulation performed on
May 14, 1987. Schulze also testified as to the causal
relationship between Sveda's recommendation and Savage's
condition. Thereafter, counsel for the chiropractic appellants
moved for a thirty-day continuance in order to have Savage
independently physically examined. This motion was denied.
However, the record indicates that the trial court was willing to
permit appellants to have Savage independently examined provided
that no continuance was necessary.
At the close of appellees' case-in-chief, CHS was granted a
motion for a directed verdict. Following the presentation of all
the evidence, the trial court ruled that Step
hen J. Sveda, M.D., Inc., and David W. Snyder, D.C., Inc. would
be liable for any negligence the jury might find against Drs.
Sveda and Snyder, respectively.
The jury returned its verdicts in favor of appellees and
against Drs. Sveda, Snyder and Shimmel. The total jury award of
$1,185,000 represented $535,000 in economic damages, $500,000 in
non-economic damages and $150,000 for Anna Savage's claim.
On November 28, 1989, the trial court conducted a hearing to
determine whether (and by how much, if any) the jury's award
against Dr. Sveda and Stephen J. Sveda, M.D., Inc., should be
reduced pursuant to the provisions of R.C. 2305.27 (collateral
source) and 2307.43 (medical malpractice "cap" on damages). On
December 29, 1989, the trial court issued an amended judgment
order which stated, in part:
"The Court finds that as against * * * [Dr. Sveda and
Stephen J. Sveda, M.D., Inc.], the verdict should be limited to
Five Hundred Thirty-Five Thousand Dollars ($535,000.00) economic
damages, plus Two Hundred Thousand Dollars ($200,000.00) general
damages. This amount represents a reduction of the jury's award
of One Million Thirty-five Thousand Dollars workman's [sic]
compensation benefits to be received by Edward Savage
($25,971.00) and by the present value of Social Security benefits
to be received by Edward Savage ($109,439.00). This amount also
represents a limitation on the recovery of general damages to
$200,000.00. The Court further finds that the verdict in favor
of Plaintiff, Anna Savage, is not subject to any limitation or
reduction provision."
Accordingly, the trial court entered judgment (imposing
joint and several liability) against Drs. Shimmel and Snyder and
David W. Snyder, D.C., Inc. for $1,185,000, and against Dr. Sveda
and Stephen J. Sveda, M.D., Inc. for the reduced amount of
$885,000.
Appellants appealed to the court of appeals, claiming that
the trial court erred in permitting Dr. Schulze to testify at
trial concerning Savage's impotence, inability to work, and need
to self-catheterize. The chiropractic appellants argued that the
trial court erred in failing to grant their motion to limit the
testimony of Schulze and in failing to grant their motions for a
continuance, for a mistrial or for a new trial. Appellees cross-
appealed, setting forth three assignments of error:
"1. The trial court erred in directing a verdict for
defendant Correlated Health Services, Ltd.
"2. The trial court erred in applying to the plaintiffs'
verdict the $200,000 general damages 'cap' of R.C. 2307.43.
"3. The trial court erred in applying to the plaintiffs'
verdict the damages award reduction provisions of R.C. 2305.27."
The court of appeals affirmed the judgment of the trial
court, but did not address appellees' assignments of error on
cross-appeal.
The cause is now before this court pursuant to the allowance
of motions and a cross-motion to certify the record.
Scanlon & Gearinger Co., L.P.A., Timothy F. Scanlon and Kevin P. Hardman,
for appellees and cross-appellants.
Poland & Poland and James E. Poland, for cross-appellee
Correlated Health Services, Ltd.
Jacobson, Maynard, Tuschman & Kalur, Michael M. Djordjevic and
Craig A. Grimes, for appellants and cross-appellees Stephen J.
Sveda, M.D., and Stephen J. Sveda, M.D., Inc.
Buckingham, Doolittle & Burroughs and Donald A. Powell, for
appellants David W. Snyder, D.C., David W. Snyder, D.C., Inc. and
Michael Shimmel, D.C.
Douglas, J. Appellants' appeals in this case involve Dr.
Schulze's trial testimony concerning Savage's impotence,
inability to work, need to self-catheterize, and loss of sensation
in his feet. Appellants argue that Schulze testified as an expert
witness concerning these matters and that his "opinions" on these
issues were not discoverable prior to trial. Appellants claim
tha
t they were unfairly surprised or "ambushed" by Schulze's
testimony and that, therefore, the trial court abused its
discretion in failing to grant the various motions to prohibit or
limit Schulze's "surprise" testimony, or in failing to grant a
continuance. Appellees' cross-appeal against CHS, Dr. Sveda and
Stephen J. Sveda, M.D., Inc., claiming that the court of appeals
erred in failing to address the merits of appellees' assignment
of errors in the court of appeals.
I
Appellants' Appeals
With respect to appellants' claims of "surprise" and of
"trial by ambush," we agree with the trial court and the court of
appeals that appellants were not unfairly surprised by the trial
testimony of Dr. Schulze. We find that the trial court did not
abuse its discretion in admitting Dr. Schulze's testimony at
trial or in failing to grant a continuance, a mistrial, or a new
trial.
Appellants knew of the severity and permanency of Savage's
injuries prior to trial. Savage was deposed on April 28, 1988,
and again on September 5, 1989. In his depositions, Savage
testified concerning his impotence, need to self-catheterize,
numbness in the lower extremities, and inability to walk in a
"normal way." Savage described himself as "handicapped."
Several medical witnesses were also deposed before trial
concerning the effects of cauda equina syndrome. The deposition
testimony of these witnesses informed appellants that Savage's
known medical problems associated with cauda equina syndrome were
permanent and irreversible. The injury to Savage was done (and
his prospects for recovery ended) within hours of the May 14,
1987 chiropractic manipulation. Accordingly, it is clear that
the information provided by Schulze's trial testimony did not
catch appellants by surprise.
Furthermore, it is evident that appellants were provided
with a document during discovery which indicated that Dr.
Schulze's prognosis for Savage in July 1987 was that Savage had
reached an "end stage" in terms of recovery. Schulze described
Savage's condition as severe and irreversible. This document
further indicates that Schulze's prognosis was that Savage would
never again be able to walk without the aid of a walking device.
During Schulze's October 9, 1989 deposition, appellants could have
inquired as to Schulze's opinions concerning Savage's physical
condition and his ability to return to gainful employment.
Schulze's testimony on these issues was fairly predictable. For
whatever reason, appellants chose not to inquire of Schulze
concerning these matters.
Upon a complete review of the record before us, we are
convinced that the trial court and court of appeals correctly
determined that appellants were not prejudiced by Schulze's trial
testimony. The information provided by Schulze's trial testimony
and his opinions on these matters were all discoverable prior to
trial. Accordingly, we affirm the judgment of the court of
appeals on this issue.
II
Appellees' Cross-Appeal
On cross-appeal, appellees have briefed and argued the issues
which were assigned as error in their cross-appeal to the court of
appeals. The court of appeals, relying on App.R. 12(B), did not
address the merits of appellees' assignments of error. We find
that the court of appeals erred in this regard. Under these
circumstances, we would normally remand this cause to the court
of appeals for compliance with App.R. 12(A). However, appellees'
arguments concerning the constitutionality of R.C. 2305.27 and
2307.43 have recently been addressed by this court. A remand to
the court of appeals on these issues is unnecessary.
In Morris v. Savoy (1991), 61 Ohio St.3d 684, 576 N.E.2d 765,
this court determined that R.C. 2307.43 was unconstitutional.
Savoy controls the determination of that issue in this case.
Furthermore, a majority of this court adheres to the position
that R.C. 2305
.27 is constitutional. See Savoy, supra, and Hodge v. Middletown
Hosp. Assn. (1991), 62 Ohio St.3d 236, 581 N.E.2d 529. We note,
however, that the collateral sources of recovery in this case are
workers' compensation and Social Security benefits. In this
regard, R.C. 2305.27 provides, in part: "* * * in any medical
claim, * * * an award of damages shall not be reduced by
insurance proceeds or payments or other benefits paid under any
insurance policy or contract where the premium or cost of such
insurance policy or contract was paid either by or for the person
who has obtained the award, or by his employer, or both, or by
direct payments from his employer, but shall be reduced by any
other collateral recovery for medical and hospital care,
custodial care or rehabilitation services, and loss of earned
income. * * *"
As Justice Sweeney stated in his concurring and dissenting
opinion in Savoy, supra: "The laws governing workers'
compensation establish a mandatory insurance scheme whereby
employers must pay for 'insurance' coverage to compensate their
employees for injuries sustained during the course of employment.
Thus, workers' compensation benefits constitute (within the
meaning of R.C. 2305.27) payments under an insurance policy or
contract where the premium or cost of the policy is paid for by
the employer of the person who obtains the award. Hence,
pursuant to R.C. 2305.27, workers' compensation benefits cannot
be set off against a damage award." Id., 61 Ohio St.3d at 713,
576 N.E.2d at 786. We agree with Justice Sweeney's assessment of
this issue.
Furthermore, in Hodge, supra, syllabus, we held that:
"Medicare Part A benefits fall under the definition of
'insurance' in R.C. 2305.27, and therefore do not reduce medical
malpractice damage awards." We believe that Social Security
benefits are akin to workers' compensation and Medicare Part A
benefits in that all such benefits constitute (within the meaning
of R.C. 2305.27) "* * * insurance proceeds or payments or other
benefits paid under any insurance policy or contract where the
premium or cost of such insurance policy or contract was paid
either by or for the person who has obtained the award, or by his
employer, or both * * *." Accordingly, we hold that workers'
compensation and Social Security benefits fall under the
definition of "insurance" in R.C. 2305.27, and therefore do not
reduce medical malpractice damage awards.
The final issue, whether CHS was entitled to a directed
verdict, is remanded to the court of appeals for compliance with
App.R. 12(A).
III
Conclusion
We affirm the judgment of the court of appeals in part, and
we reverse it in part. This cause is remanded to the court of
appeals to decide the issue whether the trial court erred in
directing a verdict in favor of CHS. Thereafter, we order that
the court of appeals remand this cause to the trial court for
reinstatement, in all respects, of the jury verdict as to
appellants and, if appropriate, also with respect to CHS.
Judgment affirmed in part,
reversed in part
and cause remanded
with instructions.
Sweeney and Resnick, JJ., concur.
H. Brown, J., concurs in part and dissents in part.
Moyer, C.J., Holmes and Wright, JJ., dissent.
Herbert R. Brown, J., concurring in part and dissenting in
part. I concur with Part I of the majority opinion, but cannot
join in most of Part II.
In Morris v. Savoy (1991), 61 Ohio St.3d 684, 576 N.E.2d 765,
this court determined that R.C. 2305.27 is constitutional. In
Hodge v. Middletown Hosp. Assn. (1991), 62 Ohio St.3d 236, 581 N.E.2d
529, we determined that Medicare Part A benefits are "insurance"
for purposes of the statute, and therefore do not reduce medical
malpractice damage awards.
The collateral sources of recovery in this case are workers'
compensation and
Social Security benefits. The majority holds that both are
"insurance" under the definition in R.C. 2305.27. These issues
are not before the court at this time. No party to this case has
assigned them as error, nor were they briefed and argued before
us. Only the constitutionality of R.C. 2305.27 was briefed by
cross-appellants and cross-appellees. Though tempting, it is
inappropriate to reach for issues not raised by the litigants.
Holmes, J., dissenting. I dissent from Part I of the
majority's opinion as explained in Part I of my analysis below.
Furthermore, I believe three Justices have attempted to leap-frog
to a predetermined result, although unsuccessfully, as noted in
Part II of my dissent. The primary issue before this court is
whether the trial court erred in admitting certain testimony by
Dr. Kenneth Schulze without granting appellants either a
continuance, motion to limit or exclude Dr. Schulze's testimony,
or a mistrial. For the reasons that follow, I would answer the
above query in the affirmative, and further believe that three
Justices (who comprise Part II of the lead opinion) have
attempted unwarrantedly to reach issues not properly before this
court.
I
Trial by Ambush; Civ.R. 26
The pertinent facts giving rise to the issue of Dr.
Schulze's testimony are as follows. After being treated by Dr.
Shimmel on May 14, 1987, Savage lost bladder and bowel control.
On May 16, 1987, Savage was taken to Robinson Memorial Hospital.
Thereafter, on May 21, 1987, Dr. Schulze performed decompression
surgery on Savage to relieve his symptoms associated with cauda
equina syndrome.
Dr. Schulze last treated Savage sometime in July 1987.1 In
preparation for trial, as part of the discovery process,
appellants were given a copy of what has been purported to be Dr.
Schulze's medical report dated March 3, 1989. Dr. Schulze was
deposed on October 9, 1989.
On October 23, 1989, the day the trial began, Dr. Schulze
reexamined Savage for purposes of developing a report. Prior to
the taking of evidence and jury selection, certain appellants
moved the trial court to limit the forthcoming testimony of Dr.
Schulze for the reason that they believed he was going to give
testimony concerning new opinions that were not previously
disclosed to appellants during the discovery process. Appellees
countered by noting that the new opinions could have been
discovered during the October 9, 1989 discovery deposition of Dr.
Schulze, but that counsel for appellants had chosen not to develop
this area in examining Dr. Schulze. The trial court agreed with
appellees and denied appellants' motion.
The trial court conducted a voir dire of Dr. Schulze
immediately prior to his testimony at trial, where the following
was elicited by Donald Powell, defense counsel to Drs. Snyder and
Shimmel:
"[Mr. Powell] Q. All right. Now, Doctor, when was the last
time that you saw Mr. Savage?
"[Dr. Schulze] A. On Monday of this week.
"Q. And, Doctor, did you arrive at any opinions as a result
of seeing him on Monday of this week?
"A. Well, I would have to say so, yes.
"***
"Q. *** Now, Doctor, when you last saw him in July of 1987
had you formed any opinions about this loss of sensation in his
feet?
"A. I don't recall that I addressed that consideration at
that time.
"Q. Had you formed any opinions about his need to use a
catheter in July of '87?
"A. I would have to say no.
"Q. So it's fair to assume that you formed those opinions as
a result of seeing him on Monday of this week?
"A. It's quite fair to assume that.
"Q. October 23rd of this week?
"A. That would be correct.
"Q. All right. Now, with respect to his employability have
you formed some opinion on Monday of this week concerning his
employability?
"A. I believe I testified that I had.
"Q. All right. And what is that opinion?
"A. My opinion is that *** he could not e
xpect to return to gainful employment.
"Q. Again. Doctor, in all fairness you arrived at that
opinion on October 23rd of this week?
"A. Yes sir.
"Q. You did not arrive at that opinion in July of '87?
"A. I believe it would have been inappropriate at that time.
"Q. Now, Doctor, with respect to his problems concerning his
wife you didn't have any opinions in July of '87 about that, did
you?
"A. I don't have recollection of having those kind[s] of
opinions at that time.
"Q. Again, you arrived at the opinions concerning his
relations with his wife as a result of the examination on October
23rd of this week; is that correct?
"A. That's correct."
Thus, as Dr. Schulze admitted at trial, he arrived at four
new conclusions on Savage's health that were not expressed or
held previously at his October 9, 1989 deposition. Specifically,
Dr. Schulze observed that Savage had a loss of sensation in his
feet, a need for self-catheterization, an inability to return to
employment, and difficulty in having relations with his wife.
The trial court, after hearing voir dire, denied appellants'
motion to exclude the new opinions held by Dr. Schulze. Moreover,
the court denied appellants' motion for a mistrial. Further, the
court refused to grant a thirty-day continuance in order that
appellants could provide rebuttal testimony concerning, among
other things, Savage's impotency. Thereafter, Dr. Schulze
testified at trial on the same matters covered in his voir-dire
testimony, which was not limited to opinions previously expressed
at his October 9, 1989 deposition.
With respect to the proper discovery procedure to be
followed in civil trials, Civ.R. 26(B) provides in pertinent
part:
"(4) Trial preparation: experts.
"***
"(b) As an alternative or in addition to obtaining discovery
under subdivision (B)(4)(a) of this rule, a party by means of
interrogatories may require any other party (i) to identify each
person whom the other party expects to call as an expert witness
at trial, and (ii) to state the subject matter on which the
expert is expected to testify. Thereafter, any party may
discover from the expert or the other party facts known or
opinions held by the expert which are relevant to the stated
subject matter. Discovery of the expert's opinions and the
grounds therefor is restricted to those previously given to the
other party or those to be given on direct examination at trial."
Moreover, Civ.R. 26(E) requires parties to supplement their
responses under the following conditions:
"(1) A party is under a duty seasonably to supplement his
response with respect to any question directly addressed to (a)
the identity and location of persons having knowledge of
discoverable matters, and (b) the identity of each person
expected to be called as an expert witness at trial and the
subject matter on which he is expected to testify.
"(2) A party who knows or later learns that his response is
incorrect is under a duty seasonably to correct the response.
"(3) A duty to supplement responses may be imposed by order
of the court, agreement of the parties, or at any time prior to
trial through requests for supplementation of prior responses."
This court in Jones v. Murphy (1984), 12 Ohio St.3d 84, 86, 12
OBR 73, 75, 465 N.E.2d 444, 446, stated with respect to the
purposes behind the Civil Rules:
"One of the purposes of the Rules of Civil Procedure is to
eliminate surprise. This is accomplished by way of a discovery
procedure which mandates a free flow of accessible information
between the parties upon request, and which imposes sanctions for
failure to timely respond to reasonable inquiries. ***"
In Jones, this court addressed the question of whether the
trial judge had the discretion under the Civil Rules to exclude
an expert's testimony when the party calling the expert had
failed to identify the expert by supplementi
ng the party's interrogatory responses. This court upheld the
trial judge's decision to exclude the expert's testimony under
Civ. R. 37,2 since the trial court had found an intentional
noncompliance with Civ.R. 26(E). Id. at 86, 12 OBR at 75, 465
N.E.2d at 446; see, also, Paugh & Farmer, Inc. v. Menorah Home for Jewish
Aged (1984), 15 Ohio St.3d 44, 15 OBR 142, 472 N.E.2d 704 (trial
court did not abuse its discretion in excluding an expert witness
where the expert's report was not timely filed pursuant to Rule 21
of the Cuyahoga County Local Rules of Court).
A case similar to the one at bar was brought before the
Cuyahoga County Court of Appeals in Jackson v. Booth Memorial Hosp.
(1988), 47 Ohio App.3d 176, 547 N.E.2d 1203, where the cause of
death of an alleged victim of medical malpractice was not known
at the time of discovery, but was discovered after the deposition
of defendants' expert witnesses. The defendants failed to inform
the plaintiffs of the discovery prior to trial. The Jackson
court reversed a defense verdict and reasoned:
"Thus, the elements of surprise and ambush become the focus
with regard to whether a free flow of information between the
parties has been disrupted by deliberate actions of one of the
parties.
"Herein, the record does disclose that the [plaintiffs]
appellants were surprised by the new theory of the cause of death
as advanced by the [defendants'] appellees' experts at trial. In
fact, the failure of the appellees to timely inform the
appellants of the discovery of a new theory of cause of death
smacks of ambush.
"*** Had the appellants been aware of the appellees' newly
discovered theory of death, appellants' experts would have been
able to effectively testify with regard to this counter-theory of
death.
"***
"Initially, the trial court erred by not granting the
appellants' motion in limine with regard to the testimony of the
appellees' experts as to the cause of death not described during
deposition. The trial court also erred by failing to sustain the
appellants' objections to the testimony of the appellees' experts
at trial with regard to preeclamptic shock. The appellants were
clearly surprised and damaged by the failure of the appellees to
reveal the newly discovered theory of preeclamptic shock prior to
trial pursuant to Civ.R. 26(E)(2)." Id. at 179-180, 547 N.E.2d at
1206-1207.
In reference to Civ.R. 26(E)(1), this court noted in
Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367,
370, 28 OBR 429, 431, 504 N.E.2d 44, 47, that:
"An objective of this rule is to provide opposing counsel with
updated and complete discovery regarding the substance of expert
testimony. This duty to supplement responses on the subject
matter of expert testimony is necessary because preparation for
effective cross-examination is especially compelling where expert
testimony is to be introduced."
In Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 19
OBR 123, 482 N.E.2d 1348, this court was presented with a party
who notified opposing counsel five days prior to trial that a
previously undisclosed expert witness along with a new theory
would be presented at trial. The opposing counsel moved to
exclude the expert, and the court granted the request in the
absence of any alternative sanction recommended by the parties.
Id. at 84, 19 OBR at 124, 482 N.E.2d at 1249. In affirming the
trial court's sanction, this court reasoned:
"We recognize that both Jones and Paugh & Farmer involved
instances of willful noncompliance. However, the existence and
effect of prejudice resulting from noncompliance with the
disclosure rules is of primary concern, not just the intent or
motive involved. Appellee's conduct may well have been produced
by neglect, a change in defense strategy or an inadvertent error.
Nevertheless, the trial court reco
gnized it as a breach of duty giving rise to unfair surprise and
concluded that the resulting prejudice could best be remedied by
exclusion of the evidence. Civ.R. 26(E) and 37(B)(2)(b)."
(Footnotes omitted.) Id. at 85, 19 OBR at 125, 482 N.E.2d at
1250.
Moreover, in Huffman we commented: "Additionally, although
surprise is all but eliminated under the Civil Rules relating to
discovery, an evidentiary basis has long been recognized for the
exclusion of otherwise relevant evidence if its admission would
result in 'unfair surprise' disproportionate to its probative
value. ***" Id. at fn. 2. Thus, we have recognized previously
that not only willful noncompliance but also unintentional or
inadvertent violations of Civ.R. 26 can invoke sanctions under
Civ.R. 37. Jones v. Murphy, supra, and Huffman v. Hair Surgeon, Inc.,
supra. However, not every violation of Civ.R. 26 will call for
the drastic remedy of excluding an expert witness.3 Instead, the
trial court should weigh the conduct of the party offering the
expert witness along with the level of prejudice suffered by the
opposing party attributable to the discovery violation, in order
to determine the appropriate sanction.
In the case sub judice, the primary issue before the court is
whether the trial court abused its discretion in not granting
either a motion for a continuance, a motion to limit Dr.
Schulze's testimony, or a motion to exclude Dr. Schulze
altogether due to the potential prejudice to appellants. As we
recently reiterated in Tracy v. Merrell Dow Pharmaceuticals (1991),
58 Ohio St.3d 147, 152, 569 N.E.2d 875, 880, "[a]buse of
discretion connotes more than an error of law or of judgment; it
implies that the court's attitude is unreasonable, arbitrary or
unconscionable. *** A reviewing court may not substitute its
judgment for that of the trial court absent an abuse of
discretion. ***" (Citations omitted.)
With the above standard of review noted as a threshold to
this analysis, it must be determined whether Dr. Schulze was
indeed testifying as an expert witness and/or as a treating
physician when he testified on issues that were outside his
previous deposition testimony given on October 9, 1989.
In an August 15, 1989 letter to opposing counsel, disclosing
appellees' expert witnesses, Dr. Schulze was listed as a witness
with the following explanation: "We will also call Kenneth
Schulze, M.D., who is one of plaintiff's treating physicians. We
may also employ an expert in the field of vocational
rehabilitation." Appellees' counsel stated at oral argument in
response to a query by this court that Dr. Schulze testified only
as a treating physician. However, in appellees' brief before this
court, they stated: "Dr. Schulze testified as both a medical
expert and a treating physician, as the defendants were told he
was going to so testify."4 Illustrative of the confusion as to
Dr. Schulze's status as a witness was a comment made by Dr.
Schulze at voir dire during questioning by the trial court:
"THE COURT: Doctor, are you the treating physician now for
this Defendant or Plaintiff?
"THE WITNESS: I don't know how to answer that question. I
have not treated him since July of 1987. I haven't in the
strictest sense been discharged as his physician but I don't
think I could say that I am actively treating him at this time."
After reviewing the balance of Dr. Schulze's October 9, 1989
deposition, voir dire, and trial testimony it is abundantly clear
that he testified in pertinent part as an "expert" witness at
trial. This conclusion is premised in part on Dr. Schulze's
response to the following question by attorney Powell (counsel
for Drs. Snyder and Shimmel) at trial:
"[Mr. Powell] Q. Your role now is not to be -- no, my question
was: Your role is not to be a treating physician at this point in
time, it's to be an expert in
this courtroom, isn't it?
"[Dr. Schulze] A. Yes, I think that's fair."
In reviewing the record I find that Dr. Schulze clearly
testified at voir dire that he did not form certain opinions
until the day trial began. Moreover, Dr. Schulze testified that
it would have been inappropriate for him to have formed certain
opinions at any time prior to the first day of trial. Therefore,
there was no way for appellees to adequately prepare for Dr.
Schulze's new opinions. Appellants had no opportunity to conduct
an effective cross-examination of Dr. Schulze regarding his newly
formed opinions. Clearly, Dr. Schulze's testimony came as a
surprise to appellants and was highly prejudicial.
Even though appellees provided expert testimony touching
some of the same issues Dr. Schulze discussed, appellants were
caught off guard by some of the new opinions not previously held
by Dr. Schulze. As admitted by appellees, Dr. Schulze's
testimony was the linchpin of their case and without it they
could not proceed. Appellants requested both a continuance and
an order in limine to limit these new opinions; however, the trial
court unreasonably overruled both motions. Although I believe
that Dr. Schulze should not have been excluded from the
proceedings, clearly the trial court did abuse its discretion in
not granting either appellants' motion in limine or motion for a
continuance.
The majority's reliance on the fact that the trial court was
willing to permit appellants to have Savage independently
examined, provided that no continuance was granted, is totally
misplaced. First, appellants could not have reasonably been
expected to come up with an expert on such short notice. Also,
it placed appellants at a disadvantage in having to prepare for
cross-examination that was unexpected prior to trial.
The majority additionally has misconstrued the purpose
behind Civ.R. 26 by its statement that "*** it is clear that the
information provided by Schulze's trial testimony did not catch
appellants by surprise." Again, the main objective of Civ.R. 26
is not to inform opposing counsel of the victim's condition, but
instead is to specifically "provide opposing counsel with updated
and complete discovery regarding the substance of expert
testimony. This duty to supplement responses on the subject
matter of expert testimony is necessary because preparation for
effective cross-examination is especially compelling where expert
testimony is to be introduced." (Emphasis added.) Shumaker, supra, 28
Ohio St.3d at 370, 28 OBR at 431, 504 N.E.2d at 47. The mere fact
that Savage's condition may have been discoverable prior to trial
in no way negated the obligation on the part of Savage's counsel,
pursuant to Civ.R. 26(E), to seasonably notify appellants'
counsel of the additional topics on which Dr. Schulze would
testify at trial.
Therefore, I would reverse the court of appeals on this
issue and remand for a new trial.
II
Jurisprudence
I agree that the issue with respect to the directed verdict
in favor of CHS must be resolved by the court of appeals. On the
cross-appeal concerning the constitutionality of R.C. 2307.43, my
position would be to uphold the statute as I previously indicated
in my dissenting opinion in Morris v. Savoy (1991), 61 Ohio St.3d
684, 695-700, 576 N.E.2d 765, 774-777 (Holmes, J., concurring in
part and dissenting in part). However, regarding this issue, by
virtue of stare decisis, I must recognize that this court has
already decided the unconstitutionality of the statute and
consequently there is no need to remand the action for that
purpose.
In reaching the issues of whether workers' compensation and
Social Security benefits constitute "insurance" for purposes of
R.C. 2305.27, three Justices have attempted to go too far. These
issues were not treated in the court of appeals and have never
been addresse
d by a majority of this court. As Justice Wright stated in his
concurring opinion in Schaefer v. Allstate Ins. Co. (1992), 63 Ohio
St.3d 708, 723, N.E. 2d , (Wright, J., concurring in judgment
only), "[e]ach time this court *** decides cases based upon
issues neither raised by the parties nor considered by the courts
below, we tread upon jurisprudential quicksand, and the more we
thrash, the deeper we sink." It is incumbent upon this court to
remand the issues concerning R.C. 2305.27 to the court of appeals
for determination. However, since there is no majority among this
court to either treat or remand to the court of appeals the
collateral source issues, the appellees are now foreclosed from
further challenging the trial court's decision to apply R.C.
2305.27 to reduce their award. See H. Brown, J., concurring in
part and dissenting in part, supra, at 63 Ohio St.3d at , N.E.2d
at .
III
Workers' Compensation and Social Security
Benefits under R.C. 2305.27
I believe some observations are necessary in light of the
dictum contained in Part II of the lead opinion (which is only
joined by three Justices). First, in reaching their conclusion
that "[w]orkers' compensation and Social Security benefits fall
under the definition of 'insurance' in R.C. 2305.27, and
therefore do not reduce medical malpractice damages awards,"
three Justices have misapplied the result reached in Hodge v.
Middletown Hosp. Assn. (1991), 62 Ohio St.3d 236, 581 N.E.2d 529, in
order to annihilate R.C. 2305.27. In fact, Hodge never addressed
these issues. Instead, this court held in Morris v. Savoy (1991),
61 Ohio St.3d 684, 693, 576 N.E.2d 765, 773, with respect to R.C.
2305.27, that:
"*** The language of the statute requires that '*** an award
of damages *** shall be reduced by any other collateral recovery
for medical and hospital care, custodial care or rehabilitation
services, and loss of earned income.' (Emphasis added.) R.C.
2305.27. The sole issue is the impact of the language on future
workers' compensation payments the plaintiff could reasonably
expect to receive and whether there should be an equivalent
reduction in the jury's award *** for future lost wages. Reading
the language of the statute consistent with our finding that the
legislature intended to eliminate certain types of double
recovery, we find that future payments, to the extent they can be
determined with a reasonable degree of certainty, can and should
be deducted from the jury's verdict for future lost wages. Such
was the case here."
Furthermore, this court noted in Hodge, supra, that "R.C.
2305.27 was enacted as part of sweeping reform, as a response to
a perceived malpractice insurance crisis." Id., 62 Ohio St.3d at
240, 581 N.E.2d at 532; see, also, Morris v. Savoy, 61 Ohio St.3d at
693, 576 N.E.2d at 772; Holaday v. Bethesda Hosp. (1986), 29 Ohio
App.3d 347, 348, 29 OBR 475, 477, 505 N.E.2d 1003, 1005.
However, the effect of Part II of the lead opinion in this case
would be to render R.C. 2305.27 impotent.
IV
Conclusion
Accordingly, for the foregoing reasons I agree with the
majority in reversing the judgment of the court of appeals and
remanding this cause to decide whether the trial court properly
directed a verdict in favor of CHS. Furthermore, I would order
that a new trial be held after that determination, in accordance
with Part I of this dissent. Since Morris v. Savoy decided that
R.C. 2307.43 is unconstitutional, the trial court would be
prohibited from capping the damages. However, with respect to
the collateral source issues under R.C. 2305.27, I would include
them among the issues to be decided by the court of appeals on
remand, on the authority of App.R. 12(A).
Moyer, C.J., and Wright, J., concur in the foregoing
dissenting opinion.
FOOTNOTES:
1
Appellants were provided with a copy of a document during
discovery which dated back to July 1987, when Dr. Schulze was
still treating Savage. During this period Dr. Schulze met with
appellees' counsel, Timothy F. Scanlon. Dr. Schulze relayed his
prognosis for Savage as follows (as recorded by attorney
Scanlon):
"From an orthopaedic standpoint, he believes Savage is
probably at an 'end stage.' He describes the damage as 'severe
and irreversible.' He is not going to recover much more muscle
strength. Schulze has him going to physical therapy but he
doesn't think it is going to do much good. He thinks Savage is
always going to require a walker to get around."
2 Civ. R. 37 states in relevant part:
"(B) Failure to comply with order.
"(1) If a deponent fails to be sworn or to answer a question
after being directed to do so by the court, the failure may be
considered a contempt of that court.
"(2) If any party or an officer, director, or managing agent
of a party or a person designated under Rule 30(B)(5) or Rule
31(A) to testify on behalf of a party fails to obey an order to
provide or permit discovery ***, the court in which the action is
pending may make such orders in regard to the failure as are just,
and among others the following:
"***
"(b) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting
him from introducing designated matters in evidence;
"(c) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party[.]"
3 As noted in Civ. R. 37, the trial court has far less
drastic remedies available to it for discovery violations than
excluding a party's expert witness. For example, the court could
grant a continuance; or limit the testimony of the expert to items
previously available during discovery that were timely provided to
the opposing party.
4 In appellees' brief before this court it is ambiguous as
to what Dr. Schulze's status (treating physician or expert
witness) was when he testified at trial. Appellees attempted to
make a legal distinction between a "treating physician" and an
"expert medical" witness, and claim that Dr. Schulze's testimony
was not subject to discovery since he was Savage's treating
physician. However, appellees conceded in their brief and in
their list of witnesses that at least for some purposes Dr.
Schulze was an expert witness.