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Hores v. Weaver11/10/2005
CV-1480. The central issue at trial was whether Weaver was negligent in operating his vehicle, by failing to make his vehicle "reasonably discernible." A major point of contention between the parties with respect to the discernibility issue was whether, at the time of the accident, Weaver was operating his four-way flashers, as required by Pennsylvania law.
{ } On July 30, 2004, and August 4, 2004, Weaver and Strimbu filed two motions for protective orders, pursuant to Civ.R. 26(C). Both motions alleged that Hores failed to reply to defendants' interrogatories and, therefore, should be precluded from calling any witnesses who were not disclosed to the defense.
{ } On February 26, 2004, Hores filed a "motion in opposition to defendant's motion for a protective order." Weaver then filed a reply brief to Hores' motion in opposition.
{ } On March 26, 2004, the court held a final pre-trial hearing, and issued a judgment entry stating the following:
{ } "The Court considered Defendants, Timothy Jon Weaver and Nick Strimbu Trucking Company Inc.'s, motion for protective order, Plaintiffs' motion in opposition and Defendants' reply to Plaintiff's motion in opposition.
{ } "The court will allow Edward Brooks to be deposed. If the court determines that his testimony is materially different then his prior statements and testimony at other proceedings, the Court will not allow him to testify at trial. If the testimony is consistent with previous statements[,] he will be permitted to testify." No transcript was made of the pretrial hearing on March 26, 2004.
{ } Brooks was deposed on March 29, 2004. The matter proceeded to a five day jury trial on the same day. On March 30, 2004, Weaver filed a "Motion to Exclude Plaintiffs' Witness Edward Brooks." Pursuant to this motion, the trial court conducted an in-chambers hearing out of the presence of the jury, which was transcribed by the court reporter.
{ } At the hearing, the court ruled that Brooks would not be permitted to testify on the basis that his testimony was "materially different" from his prior sworn testimony.
{ } At trial, several witnesses were called, including expert witnesses from each side, who testified as to the issues of whether Weaver's lights were on prior to the crash and whether Weaver's vehicle would be "reasonably discernible" from a distance. The jury returned a verdict, finding that Weaver was not negligent. On April 5, 2004, the trial court filed its judgment entry pursuant to Civ.R. 54(B), and granted judgment in favor of the defendants. Hores timely appealed, asserting one assignment of error:
{ } "The trial court erred in excluding the testimony of Edward Brooks, the only non-party witness to the crash."
{ } The decision to admit or exclude testimony is within the sound discretion of the trial court. Quinn v. Paras, 8th Dist. No. 82529, 2003-Ohio-4952, at , citing State v. Long (1978), 53 Ohio St.2d 91, 98. An abuse of discretion consists of more than an error of law or judgment. Rather, it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169 (citation omitted). In applying the abuse of discretion standard, an appellate court is not free to merely substitute our judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138 (citation omitted).
{ } Relying on this court's decision in Laubscher v. Branthoover (1991), 68 Ohio App.3d 375, Hores argues that the trial court improperly granted a protective order excluding Brooks' testimony in the absence of any interrogatories on the record or a court or
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