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Pittock v. Kaiser Foundation Health Plan of Ohio5/14/1998
ntified Dr. Freedman as a defense witness. Id. However, given that Dr. Freedman was the emergency room doctor who initially treated Gerald Pittock and that his alleged negligence was, in part, the gravamen of this malpractice case, appellants can hardly claim surprise in his appearance on the stand. Appellants were certainly aware of the identity of Dr. Freedman. Common sense dictates that Dr. Freedman, too, would be among those deposed by appellants.
More importantly, however, appellants point to the significance of the fact that counsel requested that defendants make Dr. Freedman available for discovery, which request was never complied with. Id. Appellants direct our attention to a letter of November 12, 1996, in which counsel for the defendants writes to plaintiffs' counsel as follows:
* you asked for the Emergency Department physician, Dr. Friedman . At this time, I do not know where he is. He indeed may not have been an employee of the Ohio Permanente Medical Group. I will let you know. Pl. Exh. 22.
This same letter notes that depositions for Dr. Bryamjee and another physician had been scheduled for early December. Id. Appellants would have us place great significance on opposing counsel's statement that I will let you know about Dr. Freedman. Id.
Dr. Freedman was not represented by defendants-appellees' counsel, as it turned out, because Dr. Freedman was not employed by Kaiser, nor by Ohio Permanente, but by Brentwood Emergency Group, Inc., which provided emergency room physicians to Kaiser. T. at 726. Appellants lament that they did not learn this fact until trial. App. Brief at 16. This case went to trial in late April of 1997. Appellants were on notice five months earlier, by way of the November 12 letter above, that Dr. Freedman might not be an employee of the defendants, and yet appellants apparently took no further action to determine Dr. Freedman's employment status or current whereabouts.
The Supreme Court of Ohio has stated that the discovery rules give a trial court great latitude in applying sanctions for alleged abuse of discovery. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256. Civ.R. 37, for example, permits the exclusion of expert testimony as a sanction for a violation of discovery rules. Earl Evans Chevrolet, Inc. v. Gen. Motors Corp. (1991), 74 Ohio App.3d 266, 282. In Evans, the court noted that exclusion of the testimony would be appropriate here the undisclosed testimony of an expert witness creates substantial likelihood of surprise. Evans, 74 Ohio App.3d at 282 (emphasis added). As discussed above, we agree with the trial court's implicit finding that there was no substantial likelihood of surprise in the testimony of these treating physicians. T. at 721.
Our responsibility as a reviewing court is merely to review these rulings for an abuse of discretion. Nakoff, 75 Ohio St.3d at 256. In order to find an abuse of that discretion,
* the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Id.
Appellants had five months to determine Dr. Freedman's employment status or current whereabouts, but there is no indication in the record that appellants took any further action in this regard. There is no record of a request for an admission, for example, or of a motion to compel discovery. Applying the stringent review required under Nakoff, we can discern no abuse of discretion in the trial court's admission of the testimony of Dr. Freedman. Id.
We find appellants'
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