[Cite as Housel v. Winking Lizard Tavern, 2026-Ohio-1970.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
MARY BETH HOUSEL, :
Plaintiff-Appellant, : No. 115549 v. :
WINKING LIZARD TAVERN, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 28, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-24-105461
Appearances:
Flowers & Grube and Paul W. Flowers; Robert V. Housel Co., L.P.A., and Robert V. Housel, for appellant.
Gallagher Sharp LLP, Thomas J. Cabral, and Jennifer L. Gardner, for appellee Winking Lizard Tavern.
Sutter O’Connell Co., James M. Popson, Timothy J. Murray, and Kevin W. Kita, for appellee Cintas Corporation No. 2.
LISA B. FORBES, P.J.:
Mary Beth Housel (“Housel”) appeals following the grant of summary
judgment in favor of Winking Lizard Tavern (“Winking Lizard”) and Cintas Corporation No. 2 (“Cintas”) (“collectively, Appellees”). After a thorough review of
the facts and the law, we affirm.
I. Procedural History, Facts, and Pertinent Exhibits
A. Procedural History
This case arose from Housel’s trip and fall on a floor mat, provided by
Cintas, at a Winking Lizard restaurant in Mayfield Heights (“the Restaurant”) on
September 17, 2024. The subjects of this appeal are the timing of the parties’
exchange of expert reports and the liability of Winking Lizard and Cintas.
Housel filed a two-count complaint in the Cuyahoga County Court of
Common Pleas, raising against Appellees claims of negligence and negligence per
se.1 Housel alleged that her fall was caused by a “rumpled floor mat that was wet
and not lying flat.” Further, the “hallway and subject mat were poorly illuminated,”
and both were dark in color, rendering the water and condition of the mat “difficult
if not impossible to detect.”
On December 9, 2024, the court issued a journal entry establishing a
case-management schedule. Pertinent to this appeal, the entry imposed deadlines
for the exchange of expert reports, providing, “Plaintiff to complete and exchange
expert reports on or before 03/07/2025. Defendant to complete and exchange
1 Though Housel’s complaint named as a defendant “Cintas Corporate Services,
Inc.,” the parties later stipulated to the substitution of Cintas Corporation No. 2 as the proper party. Housel’s complaint also named several John Doe defendants, which were voluntarily dismissed from this case. expert reports on or before 04/11/2025.” In a journal entry issued April 3, 2025, the
court ordered, “Expert discovery is to be completed by 05/09/2025.”
B. Housel’s Motion to Exclude Cintas’s Expert
On April 16, 2025, Housel filed a motion in limine to preclude defense
expert Jeffrey Schroeder (“Schroeder”) from testifying at trial. Housel argued that
Cintas had violated Civ.R. 26(B)(7)(e), which provides that a discovery deposition of
an opponent’s expert witness is to occur following the mutual exchange of expert
reports, by providing an expert report after it had deposed plaintiff’s expert Richard
Zimmerman (“Zimmerman”), a professional architect. Housel attached to her
motion several documents pertinent to this appeal, including a deposition notice
indicating that Appellees scheduled Zimmerman’s deposition for March 18, 2025.
Also attached was a notice filed by Cintas on April 11, 2025, in which Cintas
represented that, on that same day, it had provided all parties an expert report that
Schroeder prepared. On June 18, 2025, the court issued a journal entry denying
Housel’s motion in limine.
C. Winking Lizard’s Motion for Summary Judgment
Winking Lizard moved for summary judgment on both of Housel’s
claims, arguing that Housel had not demonstrated a hazardous condition existed or
caused her fall. Winking Lizard argued that any water on the mat or floor did not
cause Housel’s fall because security video showed that Housel did not slip. Rather,
Winking Lizard maintained that Housel tripped after catching the toe of her open-
toed sandal under the edge of the mat. According to Winking Lizard, undisputed evidence showed that the mat was lying flat when Housel’s sandal contacted it. Any
hazard that did exist, argued Winking Lizard, was discoverable and, therefore, open
and obvious, meaning that Winking Lizard owed no duty to Housel arising
therefrom. Winking Lizard also argued that the record was devoid of evidence that
it caused, knew of, or should have known of any hazard that existed.
D. Cintas’s Motion for Summary Judgment
Cintas moved for summary judgment on both of Housel’s claims.
Cintas argued that it was entitled to judgment as a matter of law because
R.C. 2307.71(B) “abrogates all common law claims against product suppliers and
manufacturers,” which Cintas interpreted to include the negligence claims that
Housel raised against it. Further, according to Cintas, it owed Housel no duty
because she was not an intended third-party beneficiary of its contract to provide
mats to Winking Lizard. Cintas also argued that the evidence did not demonstrate
that Housel’s fall and injury resulted from any action that Cintas had undertaken.
E. Evidence to Support the Motions for Summary Judgment
Cintas and Winking Lizard proffered the following evidence to
support their motions for summary judgment.
1. Deposition of William Barbish
William Barbish (“Barbish”) testified that he was a Cintas employee
and that he delivered Cintas’s products to its customers. He delivered mats to the
Restaurant. When doing so, he “look[ed] to make sure that there’s no damages on
them, that it’s the right kind of mat . . . that it’s laying as it should when I put it down.” If a mat would not lay flat, he “wouldn’t necessarily” remove it, but would if
it had “some canyon peak” or “crinkle” that made him “feel like I couldn’t press it
down or it wouldn’t lay flat after it dried from being damp.” Barbish always unrolled
the mats that he delivered but did not know whether Winking Lizard rolled and
unrolled the mats after he delivered them.
2. Deposition of Angelique Bull
Angelique Bull (“Bull”) testified that she was a Winking Lizard
employee who was working at the Restaurant on September 17, 2024. That day,
before the Restaurant opened, Bull placed six mats on the floor of the Restaurant,
including two in the hallway where Housel later fell. Every night after the
Restaurant closed, the mats were rolled up and stored. Depending “on how the host
rolls them,” the mats were sometimes stored “standing up straight” and other times
stored “laying down.”
Bull testified that a Cintas employee delivered replacement mats
every Friday, which were “new.” Afterwards, if she was present at the Restaurant,
Bull made “sure that [the new mats] look[ed] nice,” and the Restaurant’s Friday
morning manager “would make sure that the invoice matched what we were
receiving.” Bull did not know what Cintas did with the mats that they took away
from the Restaurant.
Bull was not aware of anyone else having fallen on the mat that
Housel tripped on between when Cintas delivered the mat and when Housel fell.
She acknowledged that she did not “go around checking to see if the floors are wet,” but denied that anybody had told her there was a wet floor on the day of this incident.
She did not see Housel fall but was present in the Restaurant when she did so. After
Housel fell, Bull observed that the mat had flipped over partially. Someone other
than Bull flipped the edge of the mat back over, after which it laid flat.
3. Deposition of Housel
Housel testified that, on the day of this incident, she was at the
Restaurant to meet a friend. She was wearing open-toed sandals. Before she fell,
she did not notice the mats because she was looking straight ahead while walking to
meet her friend. She was paying attention to where she was going, looking ahead so
that she “wouldn’t hit into anybody while I was walking to the outside bar.”
Responding to various questions about whether she had observed details related to
the mats, including whether the mats had been “kinked” or “flipped up,” Housel
maintained that she did not know because she had been looking ahead. Before
falling, she was also “putting [her] phone in her purse.”
Housel testified, “I tripped over the mat.” She did not know or
remember whether her foot slipped or if she caught her foot on the mat. She agreed
that “[a]ccording to the video,” the mat was flat on the floor before she fell. She
agreed that she had observed the edge of the mat to have flipped over only after she
fell. While on the ground, she observed liquid on the floor “in front and behind” the
mat. 4. Deposition of Zimmerman
Plaintiff’s expert Zimmerman testified that Cintas’s mats were
“relatively thin,” made of “PVC,” and had “a tufted, carpeted top surface and a
relatively smooth bottom surface.” The mats “tend to be the cheapest ones on the
marketplace.” Zimmerman testified that the Cintas mats as used at the Restaurant
by the Winking Lizard created an unsafe condition, contributed to “by the nature of
the mat, the nature of the way the mat was placed and maintained, cleaned and
used.” Regarding whether Winking Lizard could have taken precautions to avoid
creating this unsafe condition, he testified that Winking Lizard should not have used
the mats that it did. According to Zimmerman, Winking Lizard should have decided,
“We’re going to have to buy mats with suckers on them, or we’re going to have to
embed mats in the floor, or we’re going to have to stop using mats, and we’re just
going to have to mop our floors more often.” He stated that Winking Lizard and
Cintas also should have checked to ensure that the mats laid flat after being placed.
Zimmerman inspected the mat that is the subject of this case on
January 3, 2025. He agreed that, on that date, the mat was not in the same condition
that it had been in when Housel fell. He agreed that he did not know what condition
the mat was in before Housel fell.
5. Deposition of Marissa Dickerson
Marissa Dickerson (“Dickerson”) testified that she was a Winking
Lizard employee who was working at the Restaurant as a waitress on September 17,
2024. She did not recall anyone else falling on mats at the Restaurant in the days between that date and Cintas’s delivery of the mats. Dickerson did not see Housel
fall. She did not remember anything about the floor being wet when Housel fell.
After Housel fell, Dickerson saw the edge of the mat flipped over, but denied
knowing of any issues with the mats.
6. Security Videos
The affidavit of Geoffrey Rose, Winking Lizard’s director of
operations, incorporated security videos recorded at the Restaurant on
September 17, 2024, that showed Housel’s fall.2 In relevant part, the videos show
Housel walking down a hallway, atop black floor mats, under lighting of moderate
brightness. Chairs nearby cast shadows, but they do not reach the mats, and
individuals in the hallway are clearly visible, as are their actions. The floor is brown;
two black mats lay flat on the floor one after the other. No water is visible on the
floor or mats.
Housel walks over the mat furthest from the security camera, moving
towards the camera. As she walks from the first mat to the next, she pulls a
cellphone from a purse that she is carrying. Housel looks ahead, not down, while
doing so. The toe of Housel’s shoe — an open-toed sandal — slides underneath the
edge of the second mat. It appears that Housel’s shoe and foot catch on the mat,
causing her to fall forward onto her hands and knees. The edge of the mat flips over
so that it is partially folded behind her after the fall. Several individuals, at least
2 During her deposition, Housel agreed that the videos appeared to be a true and
accurate representation of what occurred at the Restaurant on September 17, 2024. some of whom appear to be employees at the Restaurant, speak to Housel, who
eventually stands up again and limps down the hallway. One individual flips the
mat back over, after which it lays flat.
7. Rental Agreement
Cintas attached to its motion for summary judgment a document
entitled “Cintas Corporation National Rental Agreement. 3 The agreement
designated Cintas as the exclusive rental-service provider for every Winking Lizard
location within Cintas’s operating service areas. Cintas agreed to provide
“merchandise” to Winking Lizard locations, defined to include black mats. In its
motion for summary judgment, Cintas argued that the agreement is devoid of
language demonstrating that the contracting parties intended for the contract to
benefit a third-party, that is, patrons of the Winking Lizard, such as Housel.
F. Housel’s Opposition Briefs
Housel filed briefs opposing each of Winking Lizard’s and Cintas’s
motions for summary judgment, arguing against both that the record included
triable issues of fact, concerning, among other things, whether the condition of the
mat constituted an unreasonably dangerous hazard of which Winking Lizard and
Cintas knew or should have known. Housel argued that by failing to remedy the
hazard or warn Housel thereof, Winking Lizard and Cintas violated a duty owed to
her, as a patron of the Restaurant, to maintain the floor mat and premises in a
3 During his deposition, Barbish agreed that the document appeared to be a rental
agreement between Cintas and Winking Lizard concerning the Restaurant. reasonably safe condition. Housel also argued that there were triable issues of fact
as to whether the hazardous condition of the mat was open and obvious, including
that the hallway was poorly lit and that the mat and flooring were both dark.
Regarding Cintas’s potential liability in particular, Housel argued that
R.C. 2307.71(B) abrogates only product-liability claims, which she had not raised.
She also argued that Cintas voluntarily undertook and breached a duty of reasonable
care to Winking Lizard’s patrons. According to Housel, Cintas did so by contracting
with Winking Lizard to provide floor mats that the Restaurant’s patrons would walk
over and by providing mats that, as used at the Restaurant, constituted a hazardous
condition.
G. Evidence to Oppose the Motions for Summary Judgment
Housel proffered the following evidence in opposition to the motions
for summary judgment.
1. Zimmerman’s Expert Report
Housel attached to both of her briefs opposing summary judgment an
expert report that Zimmerman prepared related to this incident. Zimmerman
opined that the conditions at the Restaurant “violated reasonable standards, which
directly and proximately caused the trip, fall and injury of [Housel].” According to
Zimmerman, the conditions in question and Housel’s subsequent injury resulted
from Defendants’ “failure to meet the appropriate standard of care.”
In his report, Zimmerman explained that he inspected the mat on
which Zimmerman fell. He observed that the mat’s “underside is completely smooth — without any suckers, bumps, dimples, or other ‘nubbing’ or traction texture.”
Consequently, the “floor mat will easily and readily slip or slide across the floor
surface or lift off the floor surface, resulting in floor mat ripples, furls, and curls.”
Zimmerman noted that the mat had been rolled for cleaning, transport, and storage,
increasing the likelihood that the mat would curl when placed on a floor or contacted
by foot. Zimmerman claimed that he was able to recreate the conditions that led to
Housel’s fall by placing his leading foot on the mat and contacting the mat with his
trailing foot. In “nearly every test,” this resulted in “flipping, curling, and rolling
over the edge of the floor mat.”
2. Interrogatories
Housel attached to her brief opposing Winking Lizard’s summary-
judgment motion Winking Lizard’s objections and answers to interrogatories.
Concerning these, Housel raised arguments only about Interrogatory No. 21, to
which Winking Lizard responded, subject to objections, that “[t]he carpeted mats
. . . should not slide forward when walked upon.”
H. Grant of Summary Judgment and Appeal
On September 6, 2025, the court issued a journal entry granting both
Cintas’s and Winking Lizard’s motions for summary judgment.
Housel appealed, raising the following assignments of error:
1. The explicit terms of Civ.R. 26(B)(7)(E) were violated, and abuse of discretion was otherwise committed, when the trial court allowed defense counsel to submit an expert report after deposing plaintiff- appellant’s liability expert. 2. The common pleas court erred as a matter of law by summarily granting summary judgment upon plaintiff-appellant’s ordinary negligence and voluntary undertaking claims against defendant- appellee, Cintas Corporation No. 2.
3. The common pleas court erred as a matter of law by summarily granting summary judgment upon plaintiff-appellant’s premises liability claim against defendant-appellee Winking Lizard Tavern.
II. Law and Analysis
For ease of analysis, we address these assignments of error together
and out of order.
A. Assignments of Error Nos. 2 and 3 — Grant of the Motions for Summary Judgment
With her second and third assignments of error, Housel asserts that
the court erred in granting Cintas’s and Winking Lizard’s motions for summary
judgment. We disagree.
1. Standard of Review, Motion for Summary Judgment
“Under Civ.R. 56, summary judgment is appropriate when no
genuine issue exists as to any material fact and, viewing the evidence most strongly
in favor of the nonmoving party, reasonable minds can reach only one conclusion
that is adverse to the nonmoving party, entitling the moving party to judgment as a
matter of law.” Madaras v. Applebee’s Neighborhood Grill & Bar, 2025-Ohio-169,
¶ 12, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). A material
fact “‘might affect the outcome of the suit under the governing law’ of the case.” Oko
v. Cleveland Div. of Police, 2021-Ohio-2931, ¶ 23 (8th Dist.), quoting Turner v.
Turner, 67 Ohio St.3d 337, 340 (1993). “A factual dispute is ‘genuine’ only if ‘it allows reasonable minds to return a verdict for the nonmoving party.’” Huntington
Natl. Bank v. Blount, 2013-Ohio-3128, ¶ 32 (8th Dist.), quoting Sysco Food Servs.
v. Titan Devs., 1995 Ohio App. LEXIS 4762, *7 (9th Dist. Oct. 25, 1995).
The movant for summary judgment has the “initial burden of
identifying specific facts in the record that demonstrate his or her entitlement to
summary judgment.” Madaras at ¶ 12, citing Dresher v. Burt, 75 Ohio St.2d 280,
292-293 (1996). “[D]etermining whether issues of disputed fact exist is different
from making findings of facts”; when a court does the former, “the evidence . . . c[an]
not be weighed, only reviewed . . . .” Smathers v. Glass, 2022-Ohio-4595, ¶ 32.
“We review summary judgment rulings de novo, applying the same
standard as the trial court.” Madaras at ¶ 12, citing Grafton at 105. “‘De novo review
encompasses an independent examination of the record and law without deference
to the underlying decision.’” Torres v. Concrete Designs, Inc., 2019-Ohio-1342, ¶ 48
(8th Dist.), quoting Gateway Consultants Group, Inc. v. Premier Physicians Ctrs.,
Inc., 2017-Ohio-1443, ¶ 22 (8th Dist.).
Video evidence can, in some cases, be considered undisputed
evidence in ruling on a motion for summary judgment. “Where . . . the record
blatantly contradicts the plaintiff’s version of events so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on
a summary judgment motion.” Scott v. Harris, 550 U.S. 372, 374 (2007). When
“the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’” Scott at 380, quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
Scott concerned a 42 U.S.C. 1983 claim alleging that a law enforcement official had
used excessive force during a car chase. The Court determined the official was
entitled to summary judgment under Fed.R.Civ.P. 56(c), analogous to Civ.R. 56 (C),
where plaintiff’s description of events was contradicted by video evidence to an
extent that no reasonable jury could find in his favor. Scott at 380. See Oko, 2021-
Ohio-2831, at ¶ 24, 26 (8th Dist.) (discussing Scott, granting summary judgment
against plaintiff that sued a municipality, claiming unlawful taking and possession
of his vehicles, where video evidence contradicted plaintiff’s assertion that his cars
were not parked on the street and were therefore not subject to towing).
2. Elements of a Negligence Claim Based on Premises Liability
To establish a negligence claim, a plaintiff must show the existence of
a duty, breach thereof, and a resulting proximate injury. Dicarlo v. Fairview Hosp.,
2022-Ohio-75, ¶ 24 (8th Dist.), citing Mussivand v. David, 45 Ohio St.3d 314, 318
(1989). It is undisputed that Housel was a business invitee of Winking Lizard. An
invitee is a person who enters another’s property by express or implied invitation for
a purpose beneficial to the property owner. Id., citing Light v. Ohio Univ., 28 Ohio
St.3d 66, 68 (1986). “The owner owes a duty to ‘exercise ordinary care and to protect
the invitee by maintaining the premises in a safe condition.’” Id., quoting id. See
Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 204 (1985) (Business
invitees are owed a duty of ordinary care in maintaining premises in a reasonably
safe condition so that customers are not unnecessarily and unreasonably exposed to danger.). To recover for a negligence claim based on premises liability, a business
invitee must demonstrate that a defendant was “negligent in creating a hazard, had
actual notice of a hazard and failed to remedy it, or had constructive notice by
allowing a hazard to exist for an unacceptable amount of time such that the hazard
should have been remedied, but was not.” Dicarlo at ¶ 24, citing Burke v. Giant
Eagle, Inc., 2017-Ohio-4305, ¶ 7 (8th Dist.).
3. Analysis
Upon review of the record, we find no genuine dispute of material fact
exists and that Appellees are entitled to judgment as a matter of law. The record
includes no evidence from which a reasonable jury could find that a hazardous
condition existed in the Restaurant, about which Winking Lizard or Cintas knew or
should have known, as required to establish a negligence claim based on premises
liability.
As an initial matter, we note that Housel, Dickerson, and Bull were
the only witnesses in this case who testified that they were present in the Restaurant
when Housel fell. Neither Dickerson nor Bull’s testimony indicates that the mat
presented an unreasonable danger to patrons of the Restaurant prior to Housel’s
fall. Both individuals denied seeing Housel fall. Neither had noticed any
irregularities in the mat beforehand and denied knowing that anyone else had fallen
on the mat before Housel did so.
Housel’s testimony also does not indicate that the mat presented an
unreasonable danger before she fell. She testified that, while walking down the hallway, she did not notice the mats because she was looking ahead, on her way to
meet her friend. Responding to various questions about whether she had observed
details related to the mats, including whether the mats had been “kinked” or “flipped
up,” Housel maintained that she did not know because she had been looking ahead
before she fell.
The security video also does not indicate that the mat constituted a
hazard at the time Housel fell. The video reveals that the mat lay flat on the floor as
Housel approached. The video does not show the mat to be peaked, crinkled,
kinked, or otherwise raised above the floor. Though the mat folded over partially
when Housel’s foot contacted it, the mat laid flat again after an individual in the
hallway flipped its edge back onto the floor.
Despite Housel’s contrary arguments, we do not find that a genuine
dispute of material fact exists as to whether any hazardous condition was concealed
from view because the hallway was dimly lit and the mats blended into the floor.
The security video reveals the hallway to be lit moderately. Chairs nearby cast
shadows, but they do not reach the mats, and the faces and actions of individuals in
the hallway can be seen clearly. The security video also reveals the brown floor in
the hallway of the Restaurant and black mat upon which Housel tripped to be
distinctly different colors.
We also are not persuaded by Housel’s argument that there is a
genuine dispute of material fact regarding whether her fall was caused by water on
the floor or water on the mat. Although Housel testified that she saw water on the floor after she fell, none is visible in the security video. Even if there had been water
on the floor, no reasonable factfinder could conclude that it caused Housel’s fall.
The security video demonstrates that Housel did not slip, as on a wet surface, but
rather tripped when the toe of her sandal slid under the edge of the mat, catching
beneath it. Housel provided no evidence indicating that water caused this to occur.
We acknowledge that Barbish and Bull testified that the mats were
rolled, including for storage, a practice that Zimmerman opined increased the
likelihood that the mats would not remain flat when placed on the floor. However,
again, we find no evidence demonstrating that the mat in question was curled before
Housel fell, since the video shows that the mat laid flat on the floor before Housel’s
sandal and foot contacted its edge. Regarding Zimmerman’s indication that the
method by which the mats were stored and the mat’s lack of adhesive or texture
made them more likely to flip when contacted, constituting a hazardous condition,
we find no evidence that Cintas or Winking Lizard knew or should have known
thereof. Bull and Dickerson each testified that, between the time the mats were
delivered and Housel’s fall, they had not observed any irregularity regarding the
mats’ condition, nor had they observed any other patron fall on the mats.
We lastly find no merit in Housel’s argument that Winking Lizard
admitted the existence of a hazardous condition in response to Interrogatory No. 21,
in which Winking Lizard provided, “The carpeted mats . . . should not slide forward
when walked upon.” The security video demonstrates that the carpeted mat did not
slide forward when Housel fell, but rather folded over. Having found that the record includes no evidence of a hazardous
condition of which Winking Lizard knew or should have known, as required for
Housel to prevail on her negligence claims based on premises liability, we decline to
address the parties’ arguments regarding the other elements of negligence. Further,
in light of the finding that no hazard existed, we also decline to address whether
Cintas, by contracting with Winking Lizard for the provision of floor mats,
voluntarily undertook a duty of reasonable care regarding any hazardous conditions
inside the Restaurant. Finally, having found no hazard existed, we decline to
address Cintas’s assertion that Housel’s common-law-negligence claims against it
were abrogated by R.C. 2307.71(B).
Accordingly, assignments of error Nos. 2 and 3 are overruled.
B. Assignment of Error No. 1 — Denial of Housel’s Motion in Limine Regarding Cintas’s Expert Jeffrey Schroeder
With her first assignment of error, Housel asserts that the court erred
in denying her motion in limine seeking to preclude defense expert Schroeder’s
testimony. Housel argues that Cintas violated Civ.R. 26(B)(7)(e) by deposing her
expert witness, Zimmerman, before disclosing the report of its own expert,
Schroeder. This allowed Schroeder to consider Zimmerman’s deposition testimony
while creating his report.
We review a trial court’s decisions regarding motions in limine and
the admission of expert testimony for abuse of discretion. 180 Degree Solutions
L.L.C. v. Metron Nutraceuticals, L.L.C., 2021-Ohio-2769, ¶ 57 (8th Dist.); accord
Halenar v. Ameritech-Ohio SBC/Ameritech, 2011-Ohio-2030, ¶ 28 (8th Dist.). An abuse of discretion occurs when a court exercises “its judgment, in an unwarranted
way, in regard to a matter over which it has discretionary authority.” Johnson v.
Abdullah, 2021-Ohio-3304, ¶ 35. An abuse of discretion “‘implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.’” W.A.F.P., Inc. v. Sky Fuel
Inc., 2024-Ohio-3297, ¶ 13 (8th Dist.), quoting Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
The opinions of expert witnesses must be laid out in a report. The
Ohio Rules of Civil Procedure provide that the “reports of expert witnesses expected
to be called by each party shall be exchanged with all other parties.”
Civ.R. 26(B)(7)(b). With exceptions inapplicable here, “[a] party may take a
discovery deposition of their opponent’s expert witness only after the mutual
exchange of reports has occurred.” Civ.R. 26(B)(7)(e). We acknowledge that a
mutual exchange of reports did not occur before Cintas’s deposition of Zimmerman.
However, to the extent that Cintas’s disclosure of Schroeder’s expert
report contravened the civil rules, we find no prejudice. As Civ.R. 61 states, “[N]o
error or defect in any ruling or order . . . is ground . . . for vacating, modifying, or
otherwise disturbing a judgment or order, unless refusal to take such action appears
to the court inconsistent with substantial justice.” The rule further provides, “The
court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.” See
R.C. 2309.59 (“In every stage of an action, the court shall disregard any error or
defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.”). “‘Under the concept of harmless error, it is neither prudent nor
appropriate for this court to order a trial court to remedy an error that does not affect
the outcome of the case; i.e., the appellate court may not reverse the trial court
unless a substantive right is affected.’” Luri v. Republic Servs., 2014-Ohio-3817, ¶ 9
(8th Dist.), quoting Children’s Hosp. Med. Ctr. v. S. Lorain Merchants’ Assn., 2006-
Ohio-2407, ¶ 7 (9th Dist.).
Cintas did not use Schroeder’s expert report to support its motion for
summary judgment, which, as discussed above, the court did not err in granting.
Consequently, Housel has not demonstrated that any error the court committed in
denying Housel’s motion in limine to preclude Schroeder’s testimony affected the
outcome of this case.
Accordingly, assignment of error No. 1 is overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________ LISA B. FORBES, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and TIMOTHY W. CLARY, J., CONCUR