Nakoff v. Fairview General Hospital

662 N.E.2d 1, 75 Ohio St. 3d 254
CourtOhio Supreme Court
DecidedMarch 6, 1996
DocketNo. 94-1626
StatusPublished
Cited by482 cases

This text of 662 N.E.2d 1 (Nakoff v. Fairview General Hospital) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nakoff v. Fairview General Hospital, 662 N.E.2d 1, 75 Ohio St. 3d 254 (Ohio 1996).

Opinions

Francis E. Sweeney, Sr., J.

In this case, we are asked to review several determinations made by the trial court which were reversed by the court of appeals. In passing upon the assigned errors, however, we could not help but notice that this case presents a glaring example of the lack of professionalism increasingly exhibited by some lawyers. We, therefore, take this opportunity to warn the practicing bar that we will not tolerate such behavior. While both plaintiff and defense counsel have an ethical obligation to zealously represent their clients, they must do so within the bounds of the law. Appellees’ law firm failed to do this. The discovery rules adopted by this court were cavalierly ignored. Appellees’ complaints about lack of a fair trial fall on deaf ears. If they were denied a fair trial, it was because of their own attorneys’ actions. They must now live with the consequences.

The discovery rules give the trial court great latitude in crafting sanctions to fit discovery abuses. A reviewing court’s responsibility is merely to review these rulings for an abuse of discretion. “ ‘The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations.’ ” State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264, 313, quoting Spalding v. Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810, 811-812. In order to have an abuse of that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Id. Applying this stringent review, we can discern no abuse of discretion here. With this decision in mind, we now separately address each proposition of law raised by appellant Nakoff.

[257]*257I. EXCLUSION OF DR. MATEJCZYK’S DEPOSITION TESTIMONY

Dr. Matejczyk was originally named as a party defendant. In this role, Nakoff took her deposition on November 7, 1990. In May 1991, Dr. Matejczyk was dismissed from the lawsuit. In August 1991, appellee Dr. Essig sent a letter to Nakoff listing Dr. Matejczyk as a potential expert witness.

In response to this letter, Nakoff asked several times for a new deposition date to depose Dr. Matejczyk to determine her opinions as an expert. His requests went unanswered. Additionally, in violation of Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, General Division, an expert report from Dr. Matejczyk was not turned over to Nakoff.

On December 18,1991, Nakoff moved to compel appellees to provide deposition dates for Dr. Matejczyk or to bar her from being called as an expert witness. On January 7, 1992, Nakoff filed a motion to exclude the trial testimony of Dr. Matejczyk because of the defense’s failure to comply.with Loc.R. 21.1. This motion was granted by Judge Carl Character.

Just prior to trial, the case was transferred from Judge Character to a visiting retired judge, Judge George McMonagle. Also, prior to trial, the parties agreed that Dr. Matejczyk could testify as a treating physician only. Despite this agreement, appellee Dr. Essig asked the court to reconsider Judge Character’s earlier ruling excluding Dr. Matejczyk’s trial testimony. The court stood by the original ruling and did not allow any of the doctor’s deposition to be read. Dr. Essig then proffered Exhibit F, selected portions of Dr. Matejczyk’s November 7, 1990 deposition that contained both fact testimony and opinion testimony.

The court of appeals held that the exclusion of Dr. Matejczyk’s deposition testimony was reversible error under Civ.R. 32(A)(3)(e). The court further reasoned that her testimony was crucial as to the condition of Nakoff s foot at the time of his transfer to MetroHealth and should not have been excluded.

As found by the court of appeals, Civ.R. 32(A)(3)(e) permits the use at trial of the deposition of an attending physician. However, the use of such a deposition at trial presumes that no discovery abuses have occurred — which was not the case here.

Prior to trial, Dr. Essig4 identified Dr. Matejczyk as a possible expert witness. Civ.R. 26(B)(4)(b) provides that any party may discover from an opposing party or his expert the relevant facts known or opinions held by the expert that are relevant to the issue. Loc.R. 21.1 says that an expert report must be given to the opposing side. Dr. Essig ignored both discovery rules. In light of these [258]*258discovery abuses, Nakoff asked the court to impose a sanction, i.e., the exclusion of Dr. Matejczyk’s trial testimony. Pursuant to Loc.R. 21.1, the trial court was within its discretion in imposing the sanction. See Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 44, 15 OBR 142, 472 N.E.2d 704.

Dr. Essig argues that the court abused its discretion because Dr. Matejczyk was an important fact witness with crucial testimony and it was not necessary to produce an expert report of a treating physician when that physician does not present expert testimony. Long v. Isakov (1989), 58 Ohio App.3d 46, 50, 568 N.E.2d 707, 711-712. However, the proffered Exhibit F contained mixed fact testimony and opinion testimony. Dr. Essig did not delete the opinion testimony from the exhibit. Nor was it the court’s responsibility to do so. Thus, Dr. Essig was attempting to do indirectly what the court order prohibited him from doing.

We find that the trial court imposed its sanction because of Dr. Essig’s persistent failure to present the doctor for expert deposition as allowed by Civ.R. 26(B)(4)(b) and for his violation of Loc.R. 21.1 in failing to provide an expert report outlining the expert opinions in support of Dr. Essig. This sanction was properly imposed and we find no abuse of discretion.

II. EXCLUDING USE OF MEDICAL LITERATURE FOR IMPEACHMENT PURPOSES

In Ohio, medical literature may be used for impeachment purposes if the expert witness to be impeached relied upon the literature. Stinson v. England (1994), 69 Ohio St.3d 451, 633 N.E.2d 532. In conformance with this rule, appellees sought to impeach Nakoffs expert witness but were precluded from doing so by the trial court. This action occurred because of yet another discovery abuse committed by appellees.

Six days before trial, Nakoff filed a motion in limine to exclude defendants’ use of any medical literature at trial. The motion came about after appellees failed to supplement their answers to interrogatories regarding authoritative texts and failed to cause their experts to bring those texts to their depositions, although requested, and after Dr. Essig failed to produce the texts despite Nakoffs repeated requests. Indeed, as late as January 10, 1992, Dr. Essig’s counsel had reassured Nakoff that he was in the process of receiving the materials and would forward them when he received them. ' This reassurance probably accounts for the late filing of the motion.

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Bluebook (online)
662 N.E.2d 1, 75 Ohio St. 3d 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nakoff-v-fairview-general-hospital-ohio-1996.