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Pittock v. Kaiser Foundation Health Plan of Ohio5/14/1998
re is no indication in the record that either party to this case complied with this requirement. Appellants appear to admit appellees' contention that, in fact, neither side did so. App. Reply Br. at 4.
This court has ruled that a trial court has broad discretion in deciding whether to exclude the testimony of expert witnesses who are not properly identified prior to trial. Walworth v. BP Oil Co. (1996), 112 Ohio App.3d 340, 352. In Walworth, the defendant sought to exclude the expert testimony of a psychologist who had examined the plaintiff on the defendant's behalf. Id. The defendant had chosen not to call the psychologist as a witness, in light of her adverse findings, but the plaintiff deposed the psychologist and decided to call her as plaintiff's own witness. Id.
The defendant objected on the ground that the plaintiff did not properly identify the psychologist as a witness pursuant to Loc.R. 21.1. Id.
In Walworth, we rejected a narrow reading of Loc.R. 21.1, which would have required a mandatory exclusion of expert testimony under the circumstances of that case. Id. We noted a consistent line of case law in this district holding that a trial court has discretion in applying Loc.R. 21.1. Id. (citing Downs v. Quallich , 90 Ohio App.3d 799, 803; Mina v. Southwest Gen. Hosp. [Aug. 17, 1995], Cuyahoga App. No. 67766, unreported, 1995 WL 491126). An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 (quoting State v. Adams , 62 Ohio St.2d 151, 157).
We have reasoned that he purpose behind the witness disclosure rules is to `prevent surprise to either party at the trial or to avoid hampering either party in preparing its claims or defense for trial.' Walworth, 112 Ohio App.3d at 352 (citing Jones v. Murphy , 12 Ohio St.3d 84). In Walworth, we found that the trial court did not abuse its discretion by permitting the psychologist to testify because the defendant made no showing of surprise regarding her testimony. Id. at 353.
Here, appellants object to the testimony of two witnesses. Again, as in Walworth, the existence of these witnesses was no surprise to appellants. Indeed, these two witnesses, Dr. Freedman, the emergency room doctor who initially treated Gerald Pittock, and Dr. Bryamjee, the vascular surgeon who examined him shortly before the stroke, conceivably would be among the first persons that the plaintiffs in this malpractice action would attempt to depose.
In fact, appellants did depose Dr. Bryamjee, but evidently the deposition was not thoroughly conducted. That Dr. Bryamjee, at trial, provided what appellants characterize as a completely unanticipated explanation for the rationale behind his medical decision not to operate immediately (a key factor in appellants' theory of causation), speaks for itself. App. Brief at 30. Having had the opportunity to depose the vascular surgeon, appellants should not have been surprised to hear the rationale for the surgeon's allegedly negligent actions defended by him on the stand. In fact, Dr. Bryamjee was first called to the stand by appellants. T. at 99. In light of these facts, we cannot find the trial court's decision to admit Dr. Bryamjee's testimony to have been unreasonable, arbitrary or unconscionable, and hence we do not find an abuse of discretion. Blakemore, 5 Ohio St.3d at 219.
Appellants contend that the admission of Dr. Freedman's testimony should constitute reversible error in that he was a previously unidentified witness. App. Brief at 21. Appellants point to the fact that no trial briefs or witness lists ide
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