applying Cuyahoga County Loc.R. 21.1, the appeals court concluded that it is within the trial court’s purview to assess the prejudice presented by the evidence which is sought to be excluded
How later courts described this case
- applying Cuyahoga County Loc.R. 21.1, the appeals court concluded that it is within the trial court’s purview to assess the prejudice presented by the evidence which is sought to be excluded
- ‘“In order to have an “abuse” in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’”
- defining “abuse of discretion”
Written by the judges who cited it.
Distinguished
Distinguished by Longbottom v. Mercy Hospital Clermont, 137 Ohio St. 3d 103 (2013)
For this reason, Huffman is distinguishable on its facts, because in that case, this court considered whether a new substantive right to prejudgment interest could be applied retroactively to misconduct occurring before the effective date of the statute.
The opinion
Holmes, J.,
concurring in part and dissenting in part. I concur with the majority on the issue of prejudgment interest, but must dissent from the decision to uphold the motion in limine which excludes appellee’s sole expert witness.
As the majority recognizes, this case does not involve a willful noncompliance or willful violation of Civ. R. 26(E), unlike Jones v. Murphy (1984), 12 Ohio St. 3d 84 , or Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St. 3d 44 . Consequently, the query must be whether appellee’s supplemental response within the ambit of Civ. R. 26(E)(1)(b) constituted unfair surprise to its party-opponent.
Unfair surprise occurs when a party is taken unawares by actions of opposing counsel on a material point or circumstance when such actions could not reasonably have been anticipated. While appellee’s decision to call the expert witness was unexpected, there was no surprise by the subject matter of the testimony. Appellants called three expert witnesses who gave lengthy, detailed testimony on the issues of appellee’s degree of negligence, the amount of resulting damage, and the need for corrective plastic surgery. Appellee’s expert witness would have testified only on *89 these limited issues. Since there was no new subject matter in the proposed testimony, counsel for appellants claims that the mere introduction of new testimony would cause his clients added time and expense. However, mere inconvenience to counsel hardly rises to the level of either surprise or prejudice.
Civ. R. 26(E)(1)(b) requires counsel to “seasonably supplement” his responses to interrogatories relating to the identity of expert witnesses. Appellee’s decision to use the testimony of one expert witness was made five days before trial. He informed opposing counsel immediately thereafter. Since there was no pretrial order violated, nor evidence of intentional “sand bagging,” appellee’s supplemental response can only be deemed “seasonable.”
Finally, the trial court had available far less drastic remedies than exclusion of appellee’s entire case in chief. He might simply have granted a continuance. Also, the trial court could have admitted the testimony subject to an objection at trial and, if appellants could prove an intentional delay on the part of appellee’s counsel, the trial court could order reimbursement for time and expenses thereby expended. Civ. R. 37(B) and (C), 36(A) and 26(B). Instead, however, appellee was stripped of its only means of controverting appellants’ various experts on vital issues within the litigation.
Therefore, in my view, the trial court’s decision to exclude appellee’s witness amounted to an abuse of discretion.
Wright, J., concurs in the foregoing opinion.