Davis v. Immediate Medical Services, Inc.

684 N.E.2d 292, 80 Ohio St. 3d 10

• Court: Ohio Supreme Court
• Decided: October 8, 1997
• Docket: No. 96-203
• Status: Published

Opinions

Francis E. Sweeney, Sr., J.

In this case, we are asked to determine whether a default judgment can be entered against a defendant who was ultimately found not negligent at trial. We also look at the applicability of Civ.R. 6(B)(2) with respect to the propriety of default judgment. In addition, we examine the admissibility of evidence of bias stemming from commonality of insurance between the witness and a malpractice defendant. For the following reasons, we affirm in part and reverse and remand in part. Specifically, we affirm the court of appeals’ judgment ordering the entry of a default judgment against AIC and a new trial against EM Care. We reverse the court of appeals’ judgment to the extent that it denied a new trial against Dr. Guarnieri and IMS.

I

Appeal of AIC of Default Judgment

Three days before trial, Mrs. Davis filed a motion for default judgment against AIC, due to AIC’s failure to answer her amended complaint. On the morning of trial, Gary Bañas, the attorney representing AIC and Dr. Guarnieri, argued against the motion. Bañas claimed surprise that AIC was a party, since he had not known of the amended complaint and had not received a copy until two days before trial, although the amended complaint had been properly served upon AIC’s statutory agent thirteen months before. At trial, Bañas argued excusable neglect under Civ.R. 60(B), the rule for relief from judgment. Despite this irregularity, the judge denied the motion for default and permitted Bañas to file an answer instanter.

The answer filed by Bañas was miscaptioned “Answer of Defendant Immediate Medical Care, Inc.,” a corporation which had never been a party to the lawsuit. The plaintiff brought the error to the court’s attention at the close of the defendants’ evidence. Bañas responded that he had been confused from the beginning of the case about the names of the litigants in this action and asked that he be allowed to correct the mistake. The trial court stated that it would look at the pleadings and make a ruling. The court never directly ruled on the issue. However, the court denied plaintiff’s motion for default judgment, in effect, when it submitted verdict forms to the jury naming AIC as a defendant. On appeal, the plaintiff argued that the trial court abused its discretion in failing to grant default judgment against AIC. The court of appeals agreed, and we concur with this finding.

Default judgment may be awarded when a defendant fails to make an appearance by filing an answer or otherwise- defending an action. Civ.R. 55(A). Civ.R. 6(B)(2) allows for an extension of time to file a late pleading within the trial court’s discretion “upon motion made after the expiration of the specified period * * * where the failure to act was the result of excusable neglect.” A ruling by the trial court on such a motion will be upheld absent an abuse of discretion. Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 271, 533 N.E.2d 325, 331.

In determining whether neglect is excusable or inexcusable, all the surrounding facts and circumstances must be taken into consideration. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122, syllabus. Neglect under Civ.R. 6(B)(2) has been described as conduct that falls substantially below what is reasonable under the circumstances. State ex rel. Weiss v. Indus. Comm. (1992), 65 Ohio St.3d 470, 473, 605 N.E.2d 37, 39, citing GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 152, 1 O.O.3d 86, 89, 351 N.E.2d 113, 117.

Based upon this court’s decision in Miller v. Lint (1980), 62 Ohio St.2d 209, 16 O.O.3d 244, 404 N.E.2d 752, the court of appeals found that AIC failed to substantially comply with the Rules of Civil Procedure when it did not file an answer and then filed a deficient answer when given permission by the trial court. We agree.

In Lint, we held that although Civ.R. 6(B) grants broad discretion to the trial court concerning procedural matters, such discretion is not unlimited. Id. at 214, 16 O.O.3d at 247, 404 N.E.2d at 755. Lint involved a defendant who did not file an answer in the specified time period and made no showing of excusable neglect. In ruling against the defendant we stated that “the failure of the defendant to comply, even substantially, with the procedures outlined in the Civil Rules subjected her to the motion for a default judgment, and the plaintiffs, having complied with the Civil Rules, had a right to have their motion heard and decided before the cause proceeded to trial on its merits.” Id. at 214, 16 O.O.3d at 247, 404 N.E.2d at 755.

The trial court, based only on the statement of AIC’s counsel that he had received a copy of the amended complaint only two days before, found excusable neglect and permitted AIC’s attorney to file an answer instanter. We disagree with this determination. When viewed in its entirety, the conduct of AIC and of AIC’s counsel was unreasonable and did not constitute excusable neglect.

There was incontrovertible evidence that an amended complaint had been filed and that AIC should have been aware of its existence. To begin with, it is uncontradicted that the amended complaint had been served on AIC’s statutory agent by certified mail thirteen months before trial. Not only was AIC’s statutory agent properly served, but the certificate of service attached to the amended complaint states that AIC’s counsel was sent the amended complaint by ordinary mail. Under these specific circumstances, this conduct is not excusable neglect. Therefore, the trial court should not have allowed counsel to file a late pleading.

AIC alleges that the subsequent jury verdict in favor of AIC should preclude a default judgment against it, since AIC had been exonerated on the merits. We reject this argument. The verdict rendered by the jury in AIC’s favor is irrelevant. A plaintiff has the right to have a motion for default judgment heard and decided before trial. Lint, 62 Ohio St.2d at 214,16 O.O.3d at 247, 404 N.E.2d at 755. A defendant’s right to force a plaintiff to prove his or her claim depends upon the defendant’s compliance with the Civil Rules and the timely filing of an answer to the complaint. Otherwise, the sanctions for noncompliance would lose their deterrent effect. Even though we recognize that it is preferable to hear a case upon its merits, the rules of procedure must be applied consistently, and AIC’s noncompliance cannot be overlooked. As we stated in Lint, “However hurried a court may be in its efforts to reach the merits of a controversy, the integrity of procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment.” Id. at 215, 16 O.O.3d at 247, 404 N.E.2d at 755. Therefore, we affirm the judgment of the court of appeals regarding AIC.

II

Cross-Examination of Expert Witness

During trial, Dr. Guarnieri, the initial treating doctor, presented the expert testimony of Dr. Bruce D. Janiak. Dr. Janiak revealed during voir dire, outside the presence of the jury, that he was insured by Physician’s Insurance Exchange Company (“P.I.E.”). The parties do not dispute that although Dr. Guarnieri was not insured by P.I.E., other defendants in the case were, specifically EM Care. The plaintiff wanted to question Dr. Janiak concerning his insurance coverage to show bias. However, the trial court ruled that the insurance link could not be introduced as evidence of bias, as Dr. Janiak’s testimony was concerned solely with Dr. Guarnieri.

Plaintiff appealed, alleging that she should have been allowed to cross-examine Dr. Janiak to show bias based on similar insurance coverage. The court of appeals agreed in part and ordered a new trial against EM Care. Judge Hoffman, in his concurrence, however, stated his belief that a new trial was also warranted against Dr. Guarnieri and IMS, since Dr. Janiak’s testimony benefited them as well, and since the lack of opportunity to show bias prejudiced the plaintiff.

The issue then, is whether the trial court improperly denied plaintiff the opportunity to cross-examine a medical expert concerning commonality of insurance. We examine this issue pursuant to an abuse-of-discretion standard. Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.Bd 322, 436 N.E.2d 1008, syllabus.

In Ede v. Atrium S. OB-GYN, Inc. (1994), 71 Ohio St.3d 124, 642 N.E.2d 365, syllabus, we stated that in a medical malpractice action, “evidence of a commonality of insurance interests between a defendant and an expert witness is sufficiently probative of the expert’s bias as to clearly outweigh any potential prejudice evidence of insurance might cause.” In that case, the defendant physician and the physician testifying as an expert witness on his behalf were insured by the same malpractice insurer. Our decision in Ede was necessitated by the Pavlovian response that many judges have in assuming that prejudice will result from disclosure of insurance coverage. In discouraging such rote behavior, we stated that “[t]he legal charade protecting juries from information they already know keeps hidden from them relevant information that could assist them in making their determinations.” Id. at 127, 642 N.E.2d at 368. This reasoning is supported by Evid.R. 102, which states: “The purpose of these rules is to provide procedures for the adjudication of causes to the end that the truth may be ascertained and proceedings justly determined.” Ede is further supported by Evid.R. 411, which states that evidence of liability insurance is admissible when offered for the purpose of proving bias or prejudice of a witness. The Evidence Rules favor inclusion of relevant evidence at trial, Evid.R. 402, limiting its admissibility only in specific circumstances, such as where prejudice outweighs probativeness. Evid.R. 403(A). We held in Ede that evidence of bias based on commonality of insurance between a malpractice defendant and an expert testifying in his or her favor was sufficiently probative to outweigh any possible prejudice.

A. Appeal of EM Care

Dr. Guarnieri called Dr. Bruce D. Janiak, a physician insured by P.I.E., as a medical expert to testify on her behalf. Although Dr. Guarnieri was not insured by P.I.E, the fact that her co-defendant EM Care had the same insurance company as the expert witness is sufficient for our decision in Ede to apply. Our holding in Ede was not limited to evidence of commonality of insurance between a defendant and the expert called by that defendant. In an action for medical malpractice, an expert witness having the same malpractice insurer as another defendant is subject to inquiry concerning bias if the witness testifies favorably for that defendant.

Even though Dr. Janiak stated that he had no opinion concerning the standard of care of any other defendant, his testimony for Dr. Guarnieri benefited the other emergency care doctors at trial, and the plaintiff should have been allowed to elicit evidence of any potential bias based on commonality of insurance. Specifically, Dr. Janiak testified as to the role of the emergency physician in evaluating and deciding what further medical treatment is appropriate. Furthermore, Dr. Janiak stated that appendicitis is “one of the hardest diagnoses in medicine to make” and “about the best that the emergency physician can do [in cases of abdominal pain] is make a judgment as to whether we think the patient ought to have a surgical evaluation.” Dr. Janiak expressed that his testimony was meant to apply only to the initial evaluation made by Dr. Guarnieri. Nevertheless, such testimony has a spillover effect in bolstering the defenses of other emergency care providers in this case, and the jury could easily consider his testimony to be in favor of all such providers. Thus, there was sufficient foundation to impeach Dr. Janiak on the question of bias. We believe that the trial court abused its discretion in refusing to allow the plaintiff to cross-examine the expert witness on this issue. We recognize that Ede had not been decided at the time of this trial. However, under Ede, the trial court acted unreasonably in not allowing probative evidence concerning bias, which prejudiced plaintiffs ability to thoroughly cross-examine defendant’s medical expert. As in Ede, it is for the jury to weigh the credibility of evidence concerning bias, and the trial court should have allowed plaintiff to elicit such testimony. Therefore, the appellate court’s judgment ordering a new trial against EM Care is affirmed.

B. Cross-Appeal of Evelyn Davis

The court of appeals found that a new trial was warranted only against EM Care based on Ede. However, we believe that since Dr. Janiak’s testimony concerning the standard of care of emergency room physicians flowed to all other emergency care providers in this case, the court of appeals should have also granted a new trial against Dr. Guarnieri and IMS.

In his separate opinion below, Judge Hoffman stated that Dr. Janiak’s expert opinion may have been colored, since other defendants at trial were also insured by the same company. Specifically, he elaborated that “[o]nce it is recognized that Dr. Janiak’s opinion may be colored by his potential pecuniary bias, such opinion is necessarily colored as to all medical providers in the same lawsuit who share the same duty of care, including non-P.I.E. insured medical providers.”

Judge Hoffman concluded that while this was an extension of our holding in Ede, it was consistent with the rationale behind Ede of allowing the jury to consider whether Dr. Janiak’s opinion was biased as a result of his status as a P.I.E. insured and, if so, whether that bias affected the weight to be given to his opinion as it relates to the non-P.I.E. defendants on whose behalf it was offered (Dr. Guarnieri and IMS) and to the P.I.É.-insured emergency care provider (EM Care).

Since Dr. Janiak testified as to the standard of care for emergency room physicians, the jury should have been able to determine whether any possible bias existed which may have affected Dr. Janiak’s conclusions as to all emergency care providers similarly situated, irrespective of whether they were commonly insured. As plaintiff points out, it is a favorite tactic of medical malpractice co-defendants to have each other’s experts lend testimonial support to other defendants in the case. Where an expert has a financial incentive to be biased, the jury may determine whether that bias exists and how that bias affects all defendants who are contesting similar issues and who benefit from the expert’s testimony, regardless of commonality of insurance.

Ill

Therefore, the judgment of the court of appeals ordering a new trial against EM Care is affirmed. The court of appeals’ judgment denying a new trial against Dr. Guarnieri and IMS is reversed. We affirm the appellate court’s judgment ordering the entry of a default judgment against AIC. The cause is remanded to the trial court for further proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part and cause remanded.

Douglas, Resnick and Pfeifer, JJ., concur. Moyer, C.J., Cook and-LuNDBERG Stratton, JJ., dissent.