Huffman v. Hair Surgeon, Inc.

Wright, J.,

concurring in part and dissenting in part. I concur with the majority on the issue of prejudgment interest and I concur in Justice Holmes’ dissent. I would also like to make the following comments.

The majority acknowledges that both Jones v. Murphy (1984), 12 Ohio St. 3d 84 , and Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St. 3d 44 , involved “instances of noncompliance.” Jones and Paugh & Farmer both recognize that Civ. R. 37 permits the exclusion of expert testimony as a sanction for the violation of Civ. R. 26(E)(1)(b). Both cases, however, are distinguishable from the instant case. In both Jones and Paugh & Farmer, the trial court expressly found an intentional or willful noncompliance with Civ. R. 26(E). As noted by the majority, the record in the instant case does not reveal a noncompliance. In Paugh & Farmer, the party seeking admission of the expert witness testimony did not comply with an established expert report filing deadline. No such deadline was established in the instant case. Most importantly, in both Jones and Paugh & Farmer, there was evidence of unfair surprise. The record in the instant case discloses no surprise sufficient to warrant the “severe sanction” of the exclusion of evidence. See Nickey v. Brown (1982), 7 Ohio App. 3d 32, 34 .

Appellants argue that they suffered unfair surprise because they claim that the issue that would have been covered by appellee’s proposed expert was previously uncontested and was not developed in the examination of appellants’ experts. A review of the record illustrates that these claims are incorrect. Appellee’s expert would have testified on the following issues: (1) the role of the permanent wave solutions applied to appellant in producing allergic reactions; (2) the effect of these solutions on human skin; and (3) the necessity of surgery to correct the injuries suffered by appellant. Appellants in their brief concede that these matters were in issue “from the outset” of the case. Further, each of these issues was essentially examined by appellants’ counsel in the direct examination of appellants’ medical witnesses. Thus, the surprise suffered by appellants would have been minimal and could have been dealt with in a manner less severe than exclusion.

Civ. R. 37(B)(2), the rule apparently relied on by the trial court in excluding appellee’s expert, provides that if a party fails to comply with discovery procedures, the court “may make such orders in regard to the failure as are just.” The trial court in the instant case excluded the testimony of appellee’s only witness. I strongly support the view of the court of appeals that “the peremptory application of the draconian remedy that resulted in the emasculation of * * * [appellee’s] case and denied it a full and effective hearing upon those limited issues” was unwarranted. Any problems presented by the testimony of appellee’s expert could have been corrected by less severe measures, such as granting a brief continuance to allow appellants to depose appellee’s expert or even monetary sanctions coupled with a continuance of the proceeding with the caveat *92 that appellants could renew their motion when and if surprised by the testimony of the witness. A continuance could not have prejudiced appellants in any substantial way and would have allowed appellee to present its case. After all, whether reviewing the actions of a plaintiff or defendant, it should be the primary purpose of our rules to allow both parties to have their day in court. Thus, for the reasons discussed, the trial court’s exclusion of the expert constituted an abuse of discretion and reversible error. Accordingly, I must respectfully dissent.