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Vaught v. Cleveland Clinic Foundation9/6/2001
The issue in this appeal is whether a defendant-physician who, at the eleventh hour chooses to act as his own expert in a medical malpractice action and having been previously deposed by the plaintiff as a fact witness, is required by Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County to submit an expert report identifying his opinion that he did not breach the relevant standard of care. The court held that under the circumstances just described, an expert report must be filed under Loc.R. 21.1 and therefore barred defendant Peter Brooks, M.D., from expressing any opinion relative to his treatment of plaintiff Carolyn Vaught.
Defendant is an employee of co-defendant The Cleveland Clinic (we will refer to Dr. Brooks as defendant unless otherwise noted) and performed two surgeries on plaintiff: the first was a knee replacement by way of a tibial tray; the second was a revision surgery which replaced the tibial tray inserted during the first surgery. Defendant also retracted tissue covering the knee in an attempt to give plaintiff more freedom of movement. After plaintiff continued to experience pain in her knee, defendant recommended a third surgery. Plaintiff sought out another opinion and in the course of that consultation learned that defendant had improperly sized both the original and the replacement tibial tray. Following her third surgery, plaintiff experienced significant pain relief.
Plaintiff filed suit against defendant and in interrogatories asked defendant to identify all experts that he would be using at trial. The court established a schedule for filing expert reports, and plaintiff filed her expert report in a timely fashion. On the day his report was due, defendant asked the court for an extension of time because reviewing physicians have not been able to complete their review in time to meet the current deadline. The court extended the deadline by eighteen days. Defendant did not submit an expert report. One week before trial, defendant filed a trial brief in which he listed himself as treating physician and expert witness.
Plaintiff filed a motion in limine asking the court to exclude defendant from testifying as an expert because he did not submit an expert report as required by Loc.R. 21.1. The court granted the motion in limine and precludeded defendant from rendering any opinion testimony at trial. Plaintiff's experts testified that defendant had twice used the wrong size tibial tray, and that his attempt to cut the tissue was an ill-advised, never-before-tried procedure that would leave plaintiff in permanent pain. Defendant proffered that he adhered to the applicable standard of care. Defendant was the sole witness for the defense. At the close of testimony the jury returned a verdict in plaintiff's favor.
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. Jones v. Murphy (1984), 12 Ohio St.3d 84, 86.
Loc.R. 21.1 effectuates the purpose of eliminating surprise by regulating in a comprehensive manner discovery relating to expert witnesses. The purpose of the rule is to eliminate surprise, with the existence and effect of prejudice resulting from noncompliance being the primary concern. Nwabara v. Willacy (1999), 135 Ohio App.3d 120, 133, citing David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A. (1992), 79 Ohio App.3d 786, 795.
Defendant goes to considerable effort to show that we must review his arguments under a de novo standard of review. This i
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