HUFFMAN v. HAIR SURGEON, INC.

Per Curiam.

This court held in the syllabus of Jones v. Murphy (1984), 12 Ohio St.3d 84, that "Civ. R. 37 permits the exclusion of expert testimony pursuant to a motion in limine as a sanction for the violation of Civ. R. 26(E)(1)(b)." In reaching this conclusion we reasoned at 86:

"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. Appellants argue that a continuance should have been requested and granted once the expert witness' identity was discovered by appellee. An intentional violation of the rules should not be so easily disregarded, however.

"We therefore conclude that Civ. R. 37 permits the exclusion of expert testimony pursuant to a motion in limine as a sanction for the violation of Civ. R. 26(E)(1)(b). * * *"

Shortly thereafter, we similarly noted that "[t]he Jones ruling was based upon specific state Rules of Civil Procedure dealing with discovery. The reasoning in Jones is no less compelling in the instant case, in which Rule 21 of the Cuyahoga County Local Rules of Court, dealing with pretrial procedure, applies. * * *" Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 44, 45.

We recognize that both Jones and Paugh & Farmer involved instances of willful noncompliance. However, the existence and effect of prejudice resulting from noncompliance with the disclosure rules is of primary concern, not just the intent or motive involved. Appellee's conduct may well have been produced by neglect, a change in defense strategy or an inadvertent error.2 Nevertheless, the trial court recognized it as a breach of duty giving rise to unfair surprise and concluded that the resulting prejudice could best be remedied by exclusion of the evidence. Civ. R. 26(E) and 37(B)(2)(b).3

The purpose of these rules, as herein applicable, "is to prevent surprise to either party at the trial or to avoid hampering either party in preparing its claim or defense for trial. * * *" Jones, supra, Clifford F. Brown, J., dissenting, at 87. We determine that it was certainly not an abuse of discretion for the trial court to have concluded that, in order to effect a just result,4 appellants' motion to exclude appellee's surprise expert witness must be granted.5 See, also, Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64.

Accordingly, we reverse the court of appeals' decision on this issue and reinstate the trial court's judgment.

We now turn to the issue concerning the correctness of the award of prejudgment interest. We first note that such awards are within the sound discretion of the trial court. Cincinnati Ins. Co. v. First Natl. Bank (1980), 63 Ohio St.2d 220, 226 [17 O.O.3d 136]. We have repeatedly held that "[t]he term `abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Conner v. Conner (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.3d 484]." State v. Adams (1980), 62 Ohio St.2d 151, 157-158 [16 O.O.3d 169]; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

"`[A]n abuse of discretion involves far more than a difference in * * * opinion * * *. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse" in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. * * *'" State v. Jenkins (1984), 15 Ohio St.3d 164, 222.

So tested, we find that it was not an abuse of discretion for the trial court to have concluded that the pretrial circumstances in this case revealed a lack of good-faith effort by appellee to settle this dispute.6 There was ample evidence justifying the trial court's award of prejudgment interest in favor of appellants pursuant to R. C. 1343.03(C). See Cox v. Fisher Fazio Foods, Inc. (1984), 13 Ohio App.3d 336, 337. However, the court of appeals correctly determined that interest could not be awarded for the period prior to the effective date of the statute. Cf. Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, 103-104.7 Accordingly, upon remand, the trial court may compute prejudgment interest from July 5, 1982 "to the date on which the money is paid." R.C. 1343.03(C).

The judgment of the court of appeals is reversed in part and affirmed in part and the judgments of the court of common pleas are reinstated with direction that the prejudgment interest award be limited to an amount not inconsistent with this decision.

Judgment accordingly.

CELEBREZZE, C. J., SWEENEY, LOCHER and DOUGLAS, JJ., concur.

HOLMES, C. BROWN and WRIGHT, JJ., concur in part and dissent in part.

HOLMES, J., concurring in part and dissenting in part. I concur with the majority on the issue of prejudgment interest, but must dissent from the decision to uphold the motion in limine which excludes appellee's sole expert witness.

As the majority recognizes, this case does not involve a willful noncompliance or willful violation of Civ. R. 26(E), unlike Jones v. Murphy (1984), 12 Ohio St.3d 84, or Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 44. Consequently, the query must be whether appellee's supplemental response within the ambit of Civ. R. 26(E)(1)(b) constituted unfair surprise to its party-opponent.

Unfair surprise occurs when a party is taken unawares by actions of opposing counsel on a material point or circumstance when such actions could not reasonably have been anticipated. While appellee's decision to call the expert witness was unexpected, there was no surprise by the subject matter of the testimony. Appellants called three expert witnesses who gave lengthy, detailed testimony on the issues of appellee's degree of negligence, the amount of resulting damage, and the need for corrective plastic surgery. Appellee's expert witness would have testified only on these limited issues. Since there was no new subject matter in the proposed testimony, counsel for appellants claims that the mere introduction of new testimony would cause his clients added time and expense. However, mere inconvenience to counsel hardly rises to the level of either surprise or prejudice.

Civ. R. 26(E)(1)(b) requires counsel to "seasonably supplement" his responses to interrogatories relating to the identity of expert witnesses. Appellee's decision to use the testimony of one expert witness was made five days before trial. He informed opposing counsel immediately thereafter. Since there was no pretrial order violated, nor evidence of intentional "sand bagging," appellee's supplemental response can only be deemed "seasonable."

Finally, the trial court had available far less drastic remedies than exclusion of appellee's entire case in chief. He might simply have granted a continuance. Also, the trial court could have admitted the testimony subject to an objection at trial and, if appellants could prove an intentional delay on the part of appellee's counsel, the trial court could order reimbursement for time and expenses thereby expended. Civ. R. 37(B) and (C), 36(A) and 26(B). Instead, however, appellee was stripped of its only means of controverting appellants' various experts on vital issues within the litigation.

Therefore, in my view, the trial court's decision to exclude appellee's witness amounted to an abuse of discretion.

WRIGHT, J., concurs in the foregoing opinion.

CLIFFORD F. BROWN, J., concurring in part and dissenting in part. I concur in the judgment herein, except for the date from which prejudgment interest should be computed. The per curiam opinion states that "the trial court may compute prejudgment interest from July 5, 1982 `to the date on which the money is paid' * * *." This is contrary to the express language of R.C. 1343.03(C) which provides that interest on a judgment in a civil action based on tortious conduct and not settled by agreement of the parties "shall be computed from the date the cause of action accrued to the date on which the money is paid * * *." (Emphasis added.) See fn. 1 setting forth R.C. 1343.03(C) verbatim. The cause of action accrued on July 31, 1980, the date of the plaintiff's injury. The prejudgment interest statute was enacted effective July 5, 1982. If plaintiffs have a right to an award of prejudgment interest, a right to such award having been recognized by the trial court by making an award, the statute in no way authorizes this court or the court of appeals to omit prejudgment interest for the interval between the date the cause of action accrued, July 31, 1980, and the effective date of the statute, July 5, 1982.

This court in this case recognizes that R.C. 1343.03(C), the statute providing for prejudgment interest, is a remedial statute and as such is applicable to all negligence actions tried after its effective date regardless of when the cause arose. See fn. 7 herein. However, this court cites and misapplies Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, regarding the application of a remedial statute to a cause of action arising before its effective date. Contrary to the last sentence of fn. 7 herein, we did not recognize in Wilfong that the statutory benefits conferred are only available from the date of the statutory enactment. There is not a word or phrase in Wilfong that so intimates. Quite the opposite. We stated in Wilfong that "when a statute affects procedural [remedial] rights, as opposed to substantive rights, the constitutional restraints on retrospective application are lifted. * * *" (Citations omitted.) Id. at 103-104. That means all the way. All the way in this case is the date of the injury, July 31, 1980. The court of appeals cites no authority and advances no reasoning to support its erroneous determination that "upon the authority of Wilfong v. Batdorf supra, * * * [the trial] court erred in awarding interest from the date of [the] injury * * *."

I concur in the judgment of this court to uphold the motion in limine which excludes the testimony of appellee's sole expert witness. Those who disagree with this decision today and others like-minded are quick to make observations that a continuance here would not have prejudiced appellants in a substantial way or that "[a]fter all, whether reviewing the actions of a plaintiff or defendant, it should be the primary purpose of our rules to allow both parties to have their day in court," or that "there was no surprise by the subject matter of the testimony," or that the trial court had available "far less drastic remedies" than exclusion of testimony such as granting a continuance, and that as a consequence the exclusion of expert testimony was an abuse of discretion.

These same valid criticisms could have been and should have been voiced by the majority of this court, but were not, in Jones v. Murphy (1984), 12 Ohio St.3d 84, where this court unjustly sanctioned the exclusion of expert witness testimony offered by the plaintiffs in the Jones case. Those who dissent today in substance advocate a double standard of justice, one for the defendant's proposed expert in this case, and a different standard for the proposed experts for the plaintiffs in Jones.

If the majority of this court would overrule Jones v. Murphy, supra, and Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 44, thus eradicating the bad law contained therein, I would join those who dissent today pertaining to the judgment excluding the testimony of appellee's sole expert witness. See Jones v. Murphy, supra, dissent at 86-88. So long as Jones and Paugh & Farmer remain unmodified as the beacons of injustice that we must apply, then only the result reached today by the majority is justified.

Accordingly, for the foregoing reasons, I dissent from that portion of the judgment in this case which fails to award prejudgment interest to plaintiffs for the period from July 31, 1980 to July 5, 1982.

WRIGHT, J., concurring in part and dissenting in part. I concur with the majority on the issue of prejudgment interest and I concur in Justice Holmes' dissent. I would also like to make the following comments.

The majority acknowledges that both Jones v. Murphy (1984), 12 Ohio St.3d 84, and Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 44, involved "instances of noncompliance." Jones and Paugh & Farmer both recognize that Civ. R. 37 permits the exclusion of expert restimony as a sanction for the violation of Civ. R. 26(E)(1)(b). Both cases, however, are distinguishable from the instant case. In both Jones and Paugh & Farmer, the trial court expressly found as intentional or willful noncompliance with Civ. R. 26(E). As noted by the majority, the record in the instant case does not reveal a noncompliance. In Paugh & Farmer, the party seeking admission of the expert witness testimony did not comply with an established expert report filing deadline. No such deadline was established in the instant case. Most importantly, in both Jones and Paugh & Farmer, there was evidence of unfair surprise. The record in the instant case discloses no surprise sufficient to warrant the "severe sanction" of the exclusion of evidence. See Nickey v. Brown (1982), 7 Ohio App.3d 32, 34.

Appellants argue that they suffered unfair surprise because they claim that the issue that would have been covered by appellee's proposed expert was previously uncontested and was not developed in the examination of appellants' experts. A review of the record illustrates that these claims are incorrect. Appellee's expert would have testified on the following issues: (1) the role of the permanent wave solutions applied to appellant in producing allergic reactions; (2) the effect of these solutions on human skin; and (3) the necessity of surgery to correct the injuries suffered by appellant. Appellants in their brief concede that these matters were in issue "from the outset" of the case. Further, each of these issues was essentially examined by appellants' counsel in the direct examination of appellants' medical witnesses. Thus, the surprise suffered by appellants would have been minimal and could have been dealt with in a manner less severe than exclusion.

Civ. R. 37(B)(2), the rule apparently relied on by the trial court in excluding appellee's expert, provides that if a party fails to comply with discovery procedures, the court "may make such orders in regard to the failure as are just." The trial court in the instant case excluded the testimony of appellee's only witness. I strongly support the view of the court of appeals that "the peremptory application of the draconian remedy that resulted in the emasculation of * * * [appellee's] case and denied it a full and effective hearing upon those limited issues" was unwarranted. Any problems presented by the testimony of appellee's expert could have been corrected by less severe measures, such as granting a brief continuance to allow appellants to depose appellee's expert or even monetary sanctions coupled with a continuance of the proceeding with the caveat that appellants could renew their motion when and if surprised by the testimony of the witness. A continuance could not have prejudiced appellants in any substantial way and would have allowed appellee to present its case. After all, whether reviewing the actions of a plaintiff or defendant, it should be the primary purpose of our rules to allow both parties to have their day in court. Thus, for the reasons discussed, the trial court's exclusion of the expert constituted an abuse of discretion and reversible error. Accordingly, I must respectfully dissent.