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Yaeger v. Fairview General Hospital3/11/1999
ermitting Dr. Grauel to testify as an expert at trial although appellee failed to comply with Loc.R. 21.1, which required appellee to furnish Dr. Grauel's expert report to appellant prior to offering testimony. Appellant herein contends that the trial court's decision to deny his motion in limine and to allow the testimony of Dr. Grauel amounted to an abuse of discretion. As stated above, the record demonstrates that Dr. Grauel offered only a single opinion. He opined that appellee met the requisite standard of care in her interpretation of the December 23rdx-ray, wherein she diagnosed decedent with pneumonia. Appellees contend that because Dr. Grauel did not render any opinion with respect to the causation issue in this case and no plaintiff's expert testified that appellees' interpretation of the x-ray was negligent nor that her interpretation of the x-ray films proximately caused Yaeger's death, then the trial court's allowance of this testimony did not amount to an abuse of its discretion. We agree.
Loc.R. 21.1 requires each counsel to exchange written reports of medical and expert witnesses expected to testify in advance of trial. Whether a party has complied with the Loc.R. 21 requirement to produce an expert report is a matter within the discretion of the trial court. David v. Schwartzwald, Bobiner, Wolf & Rock Co., L.P.A.(1992), 79 Ohio App.3d 786, 795. Unless the trial court is shown to have abused its discretion, its determination will not be reversed on appeal. Id.
The primary purpose of Loc.R. 21 is to avoid prejudicial surprise resulting from noncompliance with the report requirement. David, id. at 795. The court's discretion must be exercised with a view to implementing the spirit and purpose of Rule 21 -- the avoidance of unfair surprise. Bryant v. Greater Cleveland Regional Transit Authority (May 1, 1997), Cuyahoga App. No. 71108. Where there is no showing of prejudice, an appellate court will affirm the denial of a motion in limine based upon failure to comply with Loc.R. 21. Reese v. Euclid Cleaning Contractors, Inc. (1995), 103 Ohio App.3d 141.
In this case, as stated above, we have determined that appellant has failed to show she was prejudiced by Dr. Grauel's testimony.
Therefore, we find appellant's fifth assigned error to be without merit.
Finally, in her second assigned error, appellant asserts that the trial court erred in instructing the jury on intervening and superseding cause. Appellant contends specifically that 1) the Trowbridge doctrine prohibits the charge, and 2) the evidence failed to support the charge because the intervening negligence was not both independent and new. Conversely, appellees argue that 1) appellant waived this asserted error by failing to object to the instruction as required by Civ.R. 51(A); 2) the instruction was appropriate and mandated by the evidence and failure to give the instruction would have been prejudicial error; and 3) because the jury never reached the issue of intervening and superseding cause, any claimed error could not be considered prejudicial.
Under Civ.R. 51(A), a party may not assign as error on appeal the giving or the failure to give any instructions unless the party objects before the jury retire to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Consequently, when a party fails to object to the giving of or the failure to give a jury instruction before the jury retires to consider a verdict, a party may not assign as error the giving of or the failure to give such instructions. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207. In addition, the reason for requiring particularity in the objection is to give
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