Jones v. Murphy

465 N.E.2d 444, 12 Ohio St. 3d 84, 12 Ohio B. 73, 1984 Ohio LEXIS 1172

• Court: Ohio Supreme Court
• Decided: July 11, 1984
• Docket: No. 83-1411
• Status: Published

Opinions

Locher, J.

The issue presented in this appeal is whether the Ohio Rules of Civil Procedure permit the exclusion of expert testimony pursuant to a motion in limine as a sanction for the violation of Civ. R. 26(E)(1)(b). For the reasons that follow, we answer in the affirmative, and thus uphold the court of appeals’ decision.

Appellants do not dispute the fact that they have violated Civ. R. 26(E) (l)(b)¹ by failing to supplement their response to the expert witness disclosure interrogatory. Appellants contend, however, that exclusion of the testimony of the non-disclosed experts is not permitted by the Rules of Civil Procedure or by case law. This contention is without merit.

Civ. R. 37(D) reads, in pertinent part, as follows:

“* * * If a party * * * fails * * * (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of interrogatories, * * * the court in which the action is pending on motion and notice may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (a), (b), and (c) of subsection (B)(2) of this rule. * * *” (Emphasis added.)

Civ. R. 37(B)(2)(b) permits the following sanction:

“An order * * * prohibiting him [i.e., the breaching party] from introducing designated matters in evidence.” (Emphasis added.)

It is readily apparent that the Rules of Civil Procedure permit the sanction of exclusion for failure to abide by Civ. R. 26(E).

Appellants cite Cucciolillo v. East Ohio Gas Co. (1980), 4 Ohio App. 3d 36, as support for their position. In that case, the Court of Appeals for Mahoning County held that the sanction of exclusion for a Civ. R. 26(E) violation was an “extreme” sanction, with the burden on the claiming party to show “bad faith” or “willful noncompliance” with the Rules of Civil Procedure before exclusion was granted.

In the case at bar, both lower courts expressly found an intentional noncompliance with Civ. R. 26(E). Further, reliance on Cucciolillo is misplaced as that opinion never considered the effect of Civ. R. 37. The precedential value of Cucciolillo is thus limited in scope.

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). Federal courts as well are in accord in permitting exclusion when presented with a violation of Fed. R. Civ. P. 26(e)(1)(B). See, e.g., Scott & Fetzer Co. v. Dile (C.A. 9, 1981), 643 F.2d 670; Smith v. Ford Motor Co. (C.A. 10, 1980), 626 F.2d 784, 794; Shelak v. White Motor Co. (C.A. 5, 1978), 581 F.2d 1155.

Judgment affirmed.

Celebrezze, C.J., W. Brown, Sweeney and Holmes, JJ., concur. C. Brown and J. P. Celebrezze, JJ., dissent.

1 Civ. R. 26(E) provides in pertinent part: “Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

“(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to * * * (b) the identity of each person expected to be called as an expert witness at trial * * *.”