Cox v. Metrohealth Med. Ctr. Bd. of Trustees , 2012 Ohio 2383 ( 2012 )


Menu:
  • [Cite as Cox v. Metrohealth Med. Ctr. Bd. of Trustees, 
    2012-Ohio-2383
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96848
    JOSEPH COX, ET AL.
    PLAINTIFFS-APPELLANTS
    vs.
    METROHEALTH MEDICAL CENTER
    BOARD OF TRUSTEES
    DEFENDANT-APPELLEE
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-656202
    BEFORE: Kilbane, J., Stewart, P.J., and Cooney, J.
    RELEASED AND JOURNALIZED: May 31, 2012
    ATTORNEYS FOR APPELLANTS
    Paul W. Flowers
    Paul W. Flowers Co., L.P.A.
    Terminal Tower - 35th Floor
    50 Public Square
    Cleveland, Ohio 44113
    Michael F. Becker
    Becker Law Firm, L.P.A.
    134 Middle Avenue
    Elyria, Ohio 44035
    ATTORNEYS FOR APPELLEE
    James L. Malone
    Marilena Disilvio
    Clifford Masch
    Reminger Co., L.P.A.
    1400 Midland Building
    101 Prospect Avenue, West
    Cleveland, Ohio 44115
    MARY EILEEN KILBANE, J.:
    {¶1} Plaintiffs-appellants, Joseph Cox, a minor, and Mariann Cox, appeal the
    trial court’s judgment, rendered after jury verdict, in favor of defendant-appellee,
    MetroHealth Medical Center Board of Trustees (“Metro”), on their medical malpractice
    claims.   Finding merit to the appeal, we reverse and remand for a new trial.
    {¶2} In April 2008, Joseph Cox (“Joseph”), and his mother, Mariann Cox
    (“Mariann”) (collectively referred to as appellants), filed a medical malpractice complaint
    against Metro, alleging that Metro, through its agents and employees, was negligent in the
    care it provided to Joseph hours after his birth in 1988. Under R.C. 2305.16, if a person
    is a minor at the time the cause of action accrues, the applicable statute of limitations is
    tolled or suspended until such person reaches the age of majority. Here, Joseph was
    entitled to bring his medical malpractice claim within two years after his 18th birthday.
    {¶3} In their amended complaint filed in April 2011, appellants alleged that
    Metro’s negligence caused severe bruising to Joseph’s back, shoulder, and head, as well
    as bleeding in his brain.   They further alleged that as a direct and proximate result of the
    negligence, Joseph sustained severe and permanent injuries including significant
    cognitive and neurologic deficits.    The matter proceeded to a jury trial in April 2011, at
    which the following evidence was presented.
    {¶4} Joseph was born shortly after midnight on October 20, 1988, at Metro
    Hospital. At approximately 11:00 a.m., when Joseph was 11 hours old, Cheryl Switzer,
    R.N. (“Switzer”) conducted a newborn assessment. She noted on Joseph’s chart that his
    skin was normal, and his head and neck were normal.        However, she also noted the
    existence of a cephalohematoma (temporary swelling) and bruising on the right side of
    Joseph’s head. Switzer testified that the bruising and the cephalohematoma could be
    related to each other.
    {¶5} After giving birth to Joseph, Mariann was moved to a regular hospital room.
    Joseph was brought to her room and placed in a bassinet beside her bed. Shortly
    thereafter, Mariann picked up Joseph to change his diaper and noticed that he was “blue.”
    In a state of panic, Mariann handed Joseph to a woman whom she assumed was a Metro
    nurse. This woman, who was never identified, took him down the hall to the nursery.
    However, there was no nurse in the nursery at that time.   About a minute later, another
    hospital employee emerged from the nursery and told Mariann that Joseph was fine.     No
    one informed her that back blows had been administered.
    {¶6} Barbara Dean, R.N. (“Dean”) was the charge nurse for the nursery at Metro
    that afternoon.   The nurse’s aide who gave Joseph the back blows advised Dean that
    Joseph turned blue, and she delivered back blows for several seconds.     Dean recorded
    this incident in Joseph’s chart at 1:15 p.m. Dean acknowledged that applying too much
    force through back blows could possibly injure a baby. Dean testified that in 1988,
    nurse’s aides were responsible for taking vital signs, feeding the baby if the mother was
    unable to, and housekeeping duties.        The aides were not trained or authorized to give
    back blows and were expected to call for more experienced help whenever there was a
    problem.
    {¶7} According to Joseph’s chart, his skin looked “pink” and he was active shortly
    after the back blows were administered.         Approximately an hour later, Joseph began
    showing jitteriness and twitching. On the morning of October 21, 1988, Joseph suffered
    a major seizure and was placed on a ventilator.       Joseph was then transferred to Metro’s
    Neonatal Intensive Care Unit (“NICU”).        A complete assessment of Joseph revealed that
    the whole back of his head was bruised and the back of his right shoulder was bruised.
    In addition, his fontanel was now full and bulging. Joseph was later diagnosed with a
    brain injury caused by an intraventricular hemorrhage.
    {¶8} Patricia Fedorka, R.N., Ph.D., (“Fedorka”), professor of nursing at
    Chamberlain University and a labor and delivery nurse, testified that the back blows by
    the nurse’s aide caused the bruising noted in the NICU at the time the assessment was
    completed.       She further testified that the standard of care was violated when the nurse’s
    aide delivered the back blows and there was no nurse working in the nursery.               She
    testified that
    [the nurse’s aide should have gotten] the nurse.     Like I said, if there is one
    baby in the nursery, an RN must be in that nursery.      That covers — that’s a
    standard of care.     You cannot leave that nursery if you have even — if all
    the other babies are out with their moms and you have one baby in there,
    you have an RN in there.    For that very reason that, you know, you never
    know what’s gonna happen.      You cannot have an aide.      It has to be an
    RN.
    {¶9} Appellants also questioned various personnel at Metro about its failure to
    retain various employment records dating back to 1988.               Nancy Palmer, R.N.
    (“Palmer”), testified as an official representative of Metro.   Palmer testified that Metro
    was unable to identify the woman who delivered the back blows because Metro did not
    keep the assignment list with the aide’s name on it.
    {¶10}   At trial, appellants argued that the administration of back blows caused the
    intraventricular hemorrhage.    Metro, on the other hand, argued that the intraventricular
    hemorrhage was caused by a vein thrombosis (blood clot), which occurred during the blue
    spell and was unrelated to the back blows.
    {¶11} Dr. Robert Lerer (“Dr. Lerer”), associate clinical professor of pediatrics at
    Children’s Hospital in Cincinnati and University of Cincinnati College of Medicine,
    testified for the appellants.   Dr. Lerer testified that Joseph sustained trauma from the
    slaps to his back, and this trauma eventually led to the hemorrhage in Joseph’s brain.
    Dr. Lerer testified that imaging studies showed that subarachnoid and intraventricular
    hemorrhages had been ongoing.       Dr. Lerer also testified that Joseph would have been
    neurologically normal if he had not received the back blows from the unidentified nurse’s
    aide.   Dr. Lerer further testified that he examined Joseph in June 2006.    Joseph suffers
    from cerebral palsy and has the mentality of a child under four years of age.       His motor
    skills are significantly impaired, and he has little functional use of his left arm and hand.
    {¶12} Appellants called Dr. Matt Likavec (“Dr. Likavec”), a neurosurgeon at
    Metro, to testify. Prior to trial, both appellants and Metro identified Dr. Likavec as an
    expert witness. However, before Dr. Likavec was scheduled to testify, Metro moved the
    court to restrict appellants’ cross-examination of Dr. Likavec to matters regarding his
    treatment of Joseph and his role as a Metro employee. Metro argued that, because Dr.
    Likavec had been designated as a defense expert, it would be inappropriate for appellants
    to question Dr. Likavec in its case-in-chief. The trial court agreed with Metro, stating to
    appellants’ attorney that “[y]ou will get to cross-examine him. So you can question [Dr.
    Likavec] about his role as [a hospital representative]. [Dr. Likavec] will come in in
    [defense counsel’s] case and you can question him.”
    {¶13} At trial, Dr. Likavec testified that he treated Joseph in the NICU at Metro.
    Dr. Likavec testified that Joseph was diagnosed with a germinal matrix bleed. The
    radiologist who reviewed Joseph’s CT scan also diagnosed him with a germinal matrix
    bleed and a subarachnoid hemorrhage. Appellants’ counsel then asked Dr. Likavec the
    following question from his deposition in November 2009:
    Doctor, were you asked this question on line 2, page 46: If a newborn
    suffers some postpartum trauma, would they be more likely to suffer a
    germinal matrix bleed? What was your answer?
    Yes, sir.
    {¶14} Appellants also called Dr. Orlando Carter Snead (“Dr. Snead”), head of
    neurology at the Hospital for Sick Children in Toronto.            He testified that Joseph
    sustained damage to his germinal matrix, which is an extremely fragile portion of a
    baby’s brain.   Dr. Snead testified that the back blows to Joseph’s back caused an
    increase in his heart rate and blood pressure, which caused bleeding in his brain.       He
    further testified that Joseph suffered a germinal matrix hemorrhage, which ruptured and
    expanded into his brain. Dr. Snead opined that Joseph would have been neurologically
    normal if he had not received the back blows from the unidentified nurse’s aide.
    {¶15} At the close of appellants’ case, Metro withdrew Dr. Likavec as an expert
    witness.   As a result, appellants were denied the opportunity to present Likavec’s
    deposition testimony that the severe back blows to Joseph could have caused the bleed.
    {¶16} In its defense, Metro called Dr. Richard Martin (“Dr. Martin”), head of
    neonatalogy at Rainbow Babies and Children’s Hospital; Dr. Max Wiznitzer
    (“Dr. Wiznitzer”), a pediatric neurologist; Dr. Robert Zimmerman (“Dr. Zimmerman”), a
    pediatric neuroradiologist from Children’s Hospital in Philadelphia; and Dr. Joseph Volpe
    (“Dr. Volpe”), a professor of pediatric medicine at Harvard Medical School.
    {¶17} Metro’s witnesses agreed, when a baby turns blue and stops breathing, back
    blows may be administered to get the child breathing again.        The doctors agreed that
    Joseph’s blue spell was an initial manifestation of a seizure disorder and that the
    intraventricular hemorrhage was caused by a blood clot in his brain.               Both Dr.
    Zimmerman and Dr. Volpe testified that they observed clots in the medullar veins in
    Joseph’s CT and ultrasound scans. Dr. Martin and Dr. Wiznitzer explained that the clot
    caused the blood to back up and rupture into the ventricle and that the clot precipitated the
    chain of events that led to Joseph’s brain injury. Dr. Wiznitzer further testified the back
    blows did not cause Joseph’s brain hemorrhage.
    {¶18} At the conclusion of the trial, the jury rendered a verdict through the
    issuance of three separate jury interrogatories and a general verdict form.    In the first
    interrogatory, the jury found that Metro deviated from the standard of care and treatment
    of Joseph.     In the second interrogatory, the jurors identified the specific acts or
    omissions constituting the deviation from the standard of care as follows:
    Standard of care was not met because it is a reasonable expectation to have
    a nurse or physician available while in the care of a hospital. Lack of
    record keeping or training, employee records, and employee responsibilities
    were not properly or accurately retained.
    {¶19} In responding to the third interrogatory, six of the eight jurors answered
    “no” to the following:    “if you found by a preponderance of the evidence that Metro
    deviated from the standard of care, do you find by a preponderance of the evidence that
    any such deviation proximately caused injury to Joseph Cox.” The same six jurors
    signed the general verdict form in favor of Metro.
    {¶20}    Appellants now appeal, raising the following six assignments of error for
    review, which shall be discussed together where appropriate.
    ASSIGNMENT OF ERROR ONE
    [Appellants’] medical malpractice claim was irreparably impaired when the
    trial judge refused to allow proximate cause opinions to be elicited from a
    treating neurosurgeon, Matt Likavec, M.D., during their case-in-chief.
    ASSIGNMENT OF ERROR TWO
    The trial judge abused his discretion, to the [appellants’] substantial
    detriment, by rejecting their timely request to present selected portions of
    Dr. Likavec’s deposition to the jurors in rebuttal.
    ASSIGNMENT OF ERROR THREE
    [Appellants’] counsel was subjected to unfair surprise and precluded from
    conducting a proper cross-examination, when a defense expert, Richard
    Martin, M.D., was allowed to change his opinions without prior notice
    during the jury trial.
    ASSIGNMENT OF ERROR FOUR
    By refusing to require [Metro] to adhere to the prior written pledge that
    defense expert [Dr. Volpe] would be presented strictly for purposes of
    rebutting one of [appellants’] experts, the trial judge committed an
    unmistakable abuse of discretion.
    ASSIGNMENT OF ERROR FIVE
    The trial judge further abused his discretion when he allowed Dr. Volpe to
    relay his findings and opinions to the jurors that were based upon the
    hearsay reports of other experts and were not sufficiently reliable.
    ASSIGNMENT OF ERROR SIX
    The jurors were [misled], to [appellants’] considerable detriment, by legally
    erroneous and inapplicable jury charges.
    Cross-Examination and Rebuttal Testimony of Dr. Likavec
    {¶21} In their first assignment of error, appellants argue that their medical
    malpractice claim was irreparably impaired when the trial court refused to allow Joseph’s
    treating physician, Dr. Likavec, to testify as to the proximate cause of Joseph’s injuries.
    In their second assignment of error, appellants argue that the trial court abused its
    discretion by excluding the admission of Dr. Likavec’s deposition testimony, which they
    offered to rebut Dr. Wiznitzer’s opinion that the back blows did not cause Joseph’s brain
    hemorrhage.
    {¶22} A trial court has broad discretion in the admission or exclusion of evidence.
    Krischbaum v. Dillon, 
    58 Ohio St.3d 58
    , 66, 
    567 N.E.2d 1291
     (1991). An appellate
    court will not reverse an evidentiary ruling absent an abuse of discretion and a showing of
    material prejudice. State v. Martin, 
    19 Ohio St.3d 122
    , 129, 
    483 N.E.2d 1157
     (1985);
    Ament v. Reassure Am. Life Ins. Co., 
    180 Ohio App.3d 440
    , 
    2009-Ohio-36
    , 
    905 N.E.2d 1246
    , ¶ 31 (8th Dist.).     An abuse of discretion “‘implies that the court’s attitude is
    unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    ,
    219, 
    450 N.E.2d 1140
     (1983), quoting State v. Adams, 
    62 Ohio St.2d 151
    , 157, 
    404 N.E.2d 144
     (1980).
    {¶23} In Beard v. Meridia Huron Hosp., 
    106 Ohio St.3d 237
    , 
    2005-Ohio-4787
    ,
    
    834 N.E.2d 323
    , the Ohio Supreme recognized that decisions regarding the admissibility
    of evidence “will not be disturbed unless the abuse affected the substantial rights of the
    adverse party or is inconsistent with substantial justice.” Id. at ¶ 20, citing O’Brien v.
    Angley, 
    63 Ohio St.2d 159
    , 
    407 N.E.2d 490
     (1980). Moreover, this court, relying on
    O’Brien, recently held that error in the admission or exclusion of evidence is not grounds
    for reversal unless the error prejudiced substantial rights of the complaining party.
    Mason v. Pawloski, 8th Dist. No. 95766, 
    2011-Ohio-3699
    , ¶ 20, citing Civ.R. 61. In
    order to determine whether a substantial right has been affected, “the reviewing court
    must not only weigh the prejudicial effect of those errors but also determine that, if those
    errors had not occurred, the jury * * * would probably have made the same decision.”
    O’Brien at 165.
    {¶24} In the instant case, both parties identified Dr. Likavec as an expert witness
    prior to trial. Before Dr. Likavec was scheduled to testify, Metro moved the court to
    restrict appellants’ cross-examination of Dr. Likavec to matters regarding his treatment of
    Joseph and his role as a Metro employee. Metro argued that because Dr. Likavec had
    been designated as a defense expert, it would be inappropriate for appellants to question
    Dr. Likavec in its case-in-chief.
    {¶25}      The trial court agreed with Metro, stating to appellants’ attorney that
    [defense counsel] has a right to present his own case. You will get to
    cross-examine him. So you can question [Dr. Likavec] about his role as [a
    hospital representative]. [Dr. Likavec] will come in in [defense counsel’s]
    case and you can question him.
    The trial court further stated: “Dr. Likavec is from Metro so he’s on cross. And my
    understanding is that he’s going to be in their case, and then if the defense wants to call
    him, Dr. Likavec, back, they can do that.” Through clever trial strategy, Metro withdrew
    Dr. Likavec as an expert witness and appellants were denied the opportunity to present
    Dr. Likavec’s testimony that back blows could have caused the germinal matrix bleed.
    {¶26} Appellants contend that the trial court’s ruling allowed Metro to conceal
    critical opinion testimony from Joseph’s treating neurosurgeon.           They contend Dr.
    Likavec’s testimony was more credible than their other expert’s testimony because he
    treated Joseph in the NICU and continued to treat Joseph for the next eight years.
    {¶27}   Here, the trial court was well aware before trial that Dr. Likavec was listed
    as an expert on appellants’ and Metro’s expert witness lists.    However, the trial court
    denied appellants the opportunity to present Dr. Likavec’s expert opinions during their
    case-in-chief, stating that Dr. Likavec “will come in in [defense counsel’s] case and you
    can question him [then].” In reaching its decision, the trial court proceeded under the
    notion that appellants would have the opportunity to question Dr. Likavec further during
    Metro’s case-in-chief.
    {¶28} Based on these circumstances alone, the trial court’s decision to limit Dr.
    Likavec’s testimony was not an abuse of discretion. However, this decision, coupled
    with the trial court’s decision to deny appellants the opportunity present Dr. Livakec’s
    deposition testimony to rebut Dr. Wiznitzer’s testimony, resulted in an abuse of discretion
    by the trial court.
    {¶29} In the instant case, Metro presented testimony from Dr. Wiznitzer, who
    testified that there was no bleeding in the germinal matrix and the back blows did not
    cause the intraventricular hemorrhage in Joseph’s brain. Appellants’ counsel asked Dr.
    Wiznitzer on cross-examination the following questions:
    [Appellants’ Counsel]: I want you to assume [it] is true that Dr. Matt
    Likavec was [Joseph’s] neurosurgeon and he has given testimony under
    oath, that he will opine or has opined, that in this case with [Joseph], if
    there is a medullary vein thrombosis, it’s secondary to his germinal matrix
    bleed. Do you agree or disagree?
    ***
    [Dr. Wiznitzer]: I disagree.
    ***
    [Appellants’ Counsel]: I want you to assume [it] is true that the back
    blows were sufficient enough to cause the bruising on [the back of Joseph’s
    head, back and shoulder], * * * Dr. Matt Likavec, this child’s own pediatric
    neurosurgeon, will say if that is true[,] * * * it’s more likely than not * * *
    that that’s what caused [Joseph’s] brain bleed.
    ***
    [Dr. Wiznitzer]: If this was hypothetically said, he’s incorrect.
    {¶30} Appellants requested that Dr. Likavec be called as a rebuttal witness to
    Dr. Wiznitzer’s testimony. The trial court denied appellants’ request. The court stated
    that “I’m not going to allow [Dr. Likavec] to be called in rebuttal. And the reason I’m
    not is that I felt because — we all said he was coming back.” However, appellants were
    denied the opportunity to question Dr. Likavec because Metro withdrew Dr. Likavec as
    an expert.
    {¶31} The trial court did express a willingness, though, to consider playing to the
    jury portions of Dr. Likavec’s deposition testimony.            After reviewing the video
    deposition, the trial court refused to permit the video as rebuttal testimony, explaining
    that:
    As much as I would prefer to just play the seven-minute clip because
    you’ve been here long enough, as far as I’m concerned, it’s the decision
    between bringing Dr. Likavec back and letting everybody work it out for a
    day. And it’s not the time. It’s not the time to make a decision. I’m
    going to make a decision and I’m going to — I believe I’ve decided the
    issue already. And I’m not going to allow the clip.
    And for the record, I understand why you want it, but he was an expert and
    he has been withdrawn. So if that proves me wrong, then I will stick with
    my decision. So I am not going to play it. * * *.
    {¶32} We recognize that a party has an unconditional right to present rebuttal
    testimony on matters that are raised for the first time in an opponent’s case-in-chief and
    should not be brought in the rebutting party’s case-in-chief. Phung v. Waste Mgt., Inc.,
    
    71 Ohio St.3d 408
    , 410, 
    1994-Ohio-389
    , 
    644 N.E.2d 286
    , citing Katz v. Enzer, 
    29 Ohio App.3d 118
    , 
    504 N.E.2d 427
     (1st Dist.1985). In Nickey v. Brown, 
    74 Ohio App.3d 32
    ,
    35, 
    454 N.E.2d 177
     (9th Dist.1982), the Ninth District Court of Appeals explained that
    rebuttal evidence “is that which is given to explain, repel, counteract, or disprove facts
    given in evidence by the adverse party. It is that evidence which has become relevant or
    important only as an effect of some evidence introduced by the other side. * * *” 
    Id.,
    quoting 31 Corpus Juris Secundum, Evidence, Section 2, at 818.
    {¶33} In the instant case, it is difficult to imagine a more necessary rebuttal than
    one that offers expert opinion testimony from one of appellants’ own experts and Metro’s
    own treating neurosurgeon, which contradicts Metro’s position of proximate cause.
    During Metro’s case-in-chief, its witness, Dr. Wiznitzer, testified that Dr. Likavec would
    be incorrect if he opines that the back blows caused Joseph’s brain injury. Dr. Likavec
    treated Joseph in the NICU once the subarachnoid and intraventricular bleeds had been
    identified, and he continued to treat Joseph for the next eight years. Dr. Likavec testified
    at his deposition that Joseph sustained a germinal matrix bleed and that back blows could
    have caused the bleed.     Specifically, he summarized his opinion as to the proximate
    cause of the brain damage as follows:
    Q. I want you to assume for me that the back blows that were delivered by
    the [nurse’s aide] caused a large bruise on the back of [Jospeh’s] head, his
    back and his shoulder, it was described as covering the — almost the entire
    area by the nurse that recorded the NICU assessment, and the question that I
    have is, under that assumption, is it more likely than not that that was the
    cause of [Joseph’s] germinal matrix bleed?
    A.   Assuming severe back blows and severe bleeding, that more likely
    than not that could be the cause of it.
    {¶34}    Appellants attempted to offer this testimony to rebut Metro’s position that
    Joseph’s injuries were not proximately caused by the back blows, which was first alleged
    in Metro’s case-in-chief.     Because of his considerable experience with Joseph’s
    condition and his role as an employee of Metro, Dr. Likavec was in the best position to
    testify how the back blows could have caused the germinal matrix bleed and would have
    been the only expert physician to offer first-hand information about Joseph at the time of
    the injury. Appellants had a right to present their testimony to rebut Dr. Wiznitzer’s
    testimony that the back blows could not have caused Joseph’s brain injury. The jury,
    however, was denied the opportunity to hear the rebuttal testimony.
    {¶35} Moreover, the trial court’s reason for denying appellants’ request was that
    Dr. Likavec was “an expert and he has been withdrawn.           So if that proves me wrong,
    then I will stick with my decision.”     Dr. Likavec, however, was also listed as appellants’
    expert, yet the trial court did not allow appellants the opportunity to present him as such.
    Then, the trial court allowed Metro to discredit Dr. Likavec’s testimony, without allowing
    appellants the opportunity to rebut Dr. Wiznitzer’s testimony. Fundamental principles
    of fairness dictate that each party be given the opportunity to present their case on the
    merits. See Lakewood v. Papadelis, 
    32 Ohio St.3d 1
    , 3, 
    511 N.E.2d 1138
     (1987) (where
    the Ohio Supreme Court held that “[t]he right of defendant to present his own witnesses
    to establish a defense is a ‘fundamental element of due process of law.’ * * * The overall
    purpose is to produce a fair trial.”) See also State v. Kaplan, 8th Dist. No. 91388,
    
    2010-Ohio-508
    .     By excluding this testimony, the appellants were prevented from
    calling their expert witness and fully presenting their case. For these reasons, we find
    that the exclusion of Dr. Likavec’s deposition testimony was prejudicial to appellants, and
    therefore, was an abuse of discretion.
    {¶36} Accordingly, the first assignment of error is overruled and the second
    assignment of error is sustained.   The matter is remanded for a new trial.
    Unfair Surprise
    {¶37} In the third assignment of error, appellants argue they were subjected to
    unfair surprise and precluded from conducting a proper cross-examination, when a
    defense expert, Dr. Martin, was allowed to change his opinions during trial without prior
    notice.
    {¶38} At his deposition, Dr. Martin testified that he believed Joseph was born with
    coagulopathy (an impairment of the blood’s ability to clot) and that this condition was one
    of the “likely possibilities” that caused the hemorrhage.     At trial, when defense counsel
    questioned Dr. Martin about the events that precipitated the onset of brain damage,
    appellants objected and the court held a sidebar conference.            Appellants’ counsel
    advised the court that Dr. Martin had conceded during his deposition that he did not hold
    any opinions with regard to the etiology of the brain bleed to a probability. Defense
    counsel responded that his expert “has learned more things since then” and could be
    cross-examined about his new opinions as to when the brain bleed occurred.         The court
    permitted the testimony and noted appellants’ continuing objection. Dr. Martin then
    explained to the jury how he originally suspected coagulopathy as a possible diagnosis,
    but investigated the matter further following his deposition and reached a new opinion.
    He testified that back blows could not have caused the brain bleed.                  During
    cross-examination, Dr. Martin acknowledged that he had not notified appellants’ counsel
    of the revision of his opinion. Appellants argue that this evidence unfairly prejudiced
    their case.
    {¶39} Civ.R. 26(E)(1)(b) requires a party to seasonably supplement responses to
    any questions directly addressed to the subject matter on which an expert is expected to
    testify.        “This duty * * * is necessary because preparation for effective
    cross-examination is especially compelling where expert testimony is to be introduced.”
    Shumaker v. Oliver B. Cannon & Sons, Inc., 
    28 Ohio St.3d 367
    , 370, 
    504 N.E.2d 44
    (1986), abrogated on other grounds in State v. D’Ambrosio, 
    67 Ohio St.3d 185
    ,
    
    1993-Ohio-170
    , 
    616 N.E.2d 909
    . The purpose of Civ.R. 26(E)(1)(b) is to prevent “trial
    by ambush.” Id. at 371.
    {¶40} Loc.R. 21.1, which governs the use of expert witnesses and expert reports in
    Cuyahoga County, further provides, in pertinent part:
    A party may not call an expert witness to testify unless a written report has
    been procured from the witness and provided to opposing counsel. It is
    counsel’s responsibility to take reasonable measures, including the
    procurement of supplemental reports, to insure that each report adequately
    sets forth the expert’s opinion. However, unless good cause is shown, all
    supplemental reports must be supplied no later than thirty (30) days prior to
    trial.   The report of an expert must reflect his opinions as to each issue on
    which the expert will testify. An expert will not be permitted to testify or
    provide opinions on issues not raised in his report.
    {¶41} The trial court has discretion to determine whether there has been a violation
    of Loc.R. 21.1 and how to remedy that violation. Nakoff v. Fairview Gen. Hosp., 
    75 Ohio St.3d 254
    , 257-258, 
    1996-Ohio-159
    , 
    662 N.E.2d 1
    ; Pang v. Minch, 
    53 Ohio St.3d 186
    , 
    559 N.E.2d 1313
     (1990), paragraph one of the syllabus. Thus, a reviewing court
    should not disturb a trial court’s decision regarding a discovery sanction absent an abuse
    of discretion.   Nakoff at syllabus; see also Vaught v. Cleveland Clinic Found., 
    98 Ohio St.3d 485
    , 
    2003-Ohio-2181
    , 
    787 N.E.2d 631
    , ¶ 13.
    {¶42} In O’Connor v. Cleveland Clinic Found., 
    161 Ohio App.3d 43
    ,
    
    2005-Ohio-2328
    , 
    829 N.E.2d 350
    , ¶ 25 (8th Dist.), this court found that a party’s failure
    to disclose a critical new theory by an expert witness is a violation of Civ.R. 26(E) and
    Loc.R. 21.1.     In O’Connor, we recognized the necessity of supplementing expert
    testimony, stating that “the introduction of a new theory that has not been disclosed prior
    to trial ‘smacks of ambush’ and thwarts an opposing counsel’s ability to effectively offer
    a counter theory or to cross-examine the expert.”      Id. at ¶ 20, citing Jackson v. Booth
    Mem. Hosp., 
    47 Ohio App.3d 176
    , 178, 
    547 N.E.2d 1203
     (8th Dist.1988).                    We
    concluded that the trial court abused its discretion by allowing an expert witness to offer a
    new opinion on the possible cause of the injury, holding that “[t]he failure to disclose the
    new theory in either an expert report, as a supplement to [the doctor’s] deposition, or by
    supplementing responses to original interrogatories distorted the level playing field.” Id.
    at ¶ 23.
    {¶43} Similarly, in the instant case, appellants had a reasonable expectation, in the
    absence of a supplement to Dr. Martin’s deposition testimony, that his trial testimony
    would be consistent with the original responses provided in the discovery process.
    Metro argues that Dr. Martin’s opinion at trial was not a new or undiscussed theory as to
    the cause of Joseph’s brain bleed. Because this dispute goes to the heart of the claim,
    we find that appellants were surprised and prejudiced by Dr. Martin’s new theory that the
    back blows could not have caused the brain bleed.
    {¶44} The dissent relies on Wright v. Suzuki Motors Corp., 4th Dist. Nos. 03CA2,
    03CA3 and 03CA4, 
    2005-Ohio-3494
    , to support the argument that the trial court did not
    abuse its discretion when it allowed Dr. Martin to testify at trial because the substance of
    Dr. Martin’s deposition testimony did not change. Respectfully, our reading of this case
    reveals differences that makes Wright distinguishable from the instant case.
    {¶45} In Wright, the plaintiff’s expert was unable to opine, prior to trial, within a
    reasonable degree of scientific certainty, the proximate cause of a motorcycle accident.
    At trial, plaintiff’s counsel asked plaintiff’s expert a hypothetical question as to the
    proximate cause of the accident. Defense counsel objected and argued that before trial,
    plaintiff’s expert testified in his deposition that he could not form an opinion within a
    reasonable degree of scientific certainty as to the proximate cause of the motorcycle
    accident. The trial court then questioned plaintiff’s expert as to why his opinion now
    differed.   Plaintiff’s expert explained that now he was allowed to assume that the
    motorcycle had a wobble in the front wheel; whereas, at the deposition, he was never
    asked to assume that fact to be true.
    {¶46} The Fourth District Court of Appeals found that the trial court did not abuse
    its discretion when it allowed plaintiff’s expert to testify because the plaintiff’s expert
    opinion that
    the defective wheel was a proximate cause of the accident remained the
    same throughout the litigation. What changed, * * * was his ability to
    include additional information for his consideration and to express his
    opinion within a reasonable degree of scientific certainty. Thus, like
    [Faulk v. Internatl. Business Machines, 1st Dist. Nos. C-765 and C-778,
    
    2001 WL 1020749
     (Sept. 7, 2001)], this is not a case in which the expert
    was unable to give an opinion regarding causation during a deposition but
    did so at trial. It also is not a case in which the expert specifically changed
    his opinion or in which the substance of his testimony was revealed for the
    first time at trial and the opposing party had no reason to anticipate it.
    Wright at ¶ 87.
    {¶47} Unlike Wright where plaintiff’s expert modified his opinion in response to a
    hypothetical question, in the instant case, Dr. Martin changed the substance of his opinion
    based on information he obtained after his deposition. Dr. Martin initially could not
    identify the origin of the brain bleed with any certainty. At his deposition, he testified
    that coagulopathy was just one of the likely possibilities. At trial, defense counsel
    explained to the trial court that Dr. Martin “has learned more since [his deposition.]” He
    proceeded to testify that he originally suspected coagulopathy as a possible diagnosis, but
    investigated the matter further after his deposition and reached a new opinion.
    {¶48} This is the type of unfair surprise or trial by ambush envisioned under
    Civ.R. 26(E) and Loc.R. 21.1. Therefore, the third assignment of error is sustained.
    Dr. Volpe’s Testimony
    {¶49} In the fourth assignment of error, appellants argue that the trial court abused
    its discretion when it allowed the videotaped trial deposition of Dr. Volpe to be played for
    the jury. They contend most of Dr. Volpe’s testimony was inadmissible because he
    provided expert opinions relating to proximate cause, but never provided appellants with
    an expert report prior to trial.
    {¶50} As previously discussed, a party has an obligation to provide the opposing
    party with expert reports before trial to avoid a trial by ambush. Shumaker, 28 Ohio
    St.3d at 370, 
    504 N.E.2d 44
    ; Civ.R. 26(E)(1)(b); Loc.R. 21.1. However, the court has
    discretion in determining the appropriate remedy, if any, for a discovery violation.        Thus,
    trial courts exclude evidence only when clearly necessary to enforce willful
    noncompliance or to prevent unfair surprise. Nickey, 74 Ohio App.3d at 34, 
    454 N.E.2d 177
    .
    {¶51} Initially, Metro identified Dr. Volpe as a rebuttal witness to be called for the
    sole purpose of rebutting one of appellants’ expert’s interpretation of one of Dr. Volpe’s
    treatises. Although it is undisputed that Metro never provided appellants with an expert
    report from Dr. Volpe, the absence of a report is of no consequence because appellants
    took Dr. Volpe’s discovery deposition before trial and questioned him extensively on a
    number of issues beyond his treatise, including the crucial issue of whether back blows
    could have caused Joseph’s hemorrhage.1
    {¶52} Appellants’ counsel questioned Dr. Volpe about the pathology related to
    The parties stipulated at Dr. Volpe’s deposition that he was an expert, licensed to practice
    1
    medicine in Massachusetts.
    Joseph’s brain injury and his belief that it was likely caused by venous thrombosis. Dr.
    Volpe testified that trauma is a “really uncommon” cause of both intraventricular
    hemorrhage and venous thrombosis. He also opined that he did not think that back
    blows could cause sufficient increase in blood pressure or increase in cerebral blood flow
    to lead to a major intraventricular hemorrhage.   He testified that even if pain could cause
    an increase in cerebral blood flow, he did not think it could cause a major ventricular
    hemorrhage.    In addition, appellants’ counsel asked Dr. Volpe:
    Q: You reference an apneic episode predated the blows. Was that from
    someone’s deposition? I know Dr. Martin made that statement.
    A: No, I’ve seen babies, term babies with intraventricular hemorrhage, and
    I’ve seen infants who — in whom the first of the clinical event was apneic
    and cyanosis, so I just raised that as a possibility.
    {¶53} Later, appellants’ counsel asked Dr. Volpe:
    Q: Now, would you agree, Doctor, that if there were back blows on a
    full-term newborn sufficient enough to cause bruising on the back and on
    the back of the child’s head, hypothetically, that would be considered a
    noxious stimulation to a newborn?
    A: I’m not sure of that. I mean, I know that — I’ve certainly seen a lot
    of babies, term babies get back blows. Now, I don’t remember seeing
    babies get bruising.
    Q: Right. And I should ask on the record, your [sic] not giving an
    opinion on the standard of care in this case, true?
    A: No, I’m not.
    [Metro’s Counsel]: Well, you just asked him, I thought. If you want to
    waive that, you certainly opened the door to it, but we’re more than happy
    to hear it.
    Q:   I’m sorry, Doctor.
    A: I got lost a little bit on the question.
    Q: What was the balance of his answer?
    (Witness’s previous answer read back.)
    A:    And I hadn’t seen babies develop any hemorrhage from that.
    Q: Right. You have never seen a baby have back blows sufficient
    enough to cause bruising on the back of the head and the back of the
    shoulder, have you? * * *
    A:    I don’t remember seeing that, no.
    ***
    Q: You’re not suggesting that back blows sufficient enough to cause
    bruising is appropriate, correct?
    A: I’ve not seen back blows cause bruising —
    Q: Right.
    A: — so I don’t know.
    Q:    You’re not suggesting that back blows that cause bruising,
    hypothetically, are appropriate?
    [Metro’s Counsel]:    You want him to be a standard of care expert?
    [Appellants’ Counsel]: No.
    [Metro’s Counsel]: Well, you do with that question.
    [Appellants’ Counsel]:    I don’t remember what his question was earlier.
    [Metro’s Counsel]: But, I mean, when you ask him about the propriety of
    back blows and bruises, that is standard of care, and if you want to go there,
    I’m more than happy to take him there. You can withdraw the question or
    you can present it. I’m just giving you fair warning.
    {¶54} Appellants’ counsel did not withdraw the question. Counsel ended the
    deposition after questioning Dr. Volpe extensively on pivotal issues in this case, including
    matters related to proximate cause. As previously explained, the Civil Rules and Loc.R.
    21.1 require the exchange of an expert’s report prior to trial to prevent unfair surprise and
    to allow the opposing part to adequately prepare for cross-examination of that witness.
    Having questioned Dr. Volpe on all his opinions related to the appropriateness of back
    blows and whether back blows could have caused Joseph’s injury, appellants’ counsel
    knew his opinions, and therefore, had the opportunity to prepare for cross-examination
    before his trial deposition commenced. Based on these circumstances, we do not find
    any unfair surprise.
    {¶55} Therefore, the fourth assignment of error is overruled.
    Dr. Volpe’s Causation Opinions
    {¶56} In their fifth assignment of error, appellants argue that the trial court abused
    its discretion when it allowed Dr. Volpe to offer his opinions on causation because his
    opinions were based on hearsay. They contend that because his opinions were based on
    other expert reports, they were not sufficiently reliable.
    {¶57} Foundational requirements for admission of an expert’s opinion testimony
    are set forth in Evid.R. 703 and 705. Evid.R. 703 provides: “[t]he facts or data in the
    particular case upon which an expert bases an opinion or inference may be those
    perceived by the expert or admitted in evidence at the hearing.”       Evid.R. 705 provides:
    “[t]he expert may testify in terms of opinion or inference and give the expert’s reasons
    therefore after disclosure of the underlying facts or data.      The disclosure may be in
    response to a hypothetical question or otherwise.”      The Ohio Supreme Court has held
    that:   “[w]here an expert bases his opinion, in whole or in major part, on facts or data
    perceived by him, the requirement of Evid.R. 703 has been satisfied.” State v. Solomon,
    
    59 Ohio St.3d 124
    , 
    570 N.E.2d 1118
     (1991), syllabus.
    {¶58} In the instant case, Dr. Volpe testified at trial that he had reviewed Joseph’s
    CT and ultrasound scans as well as a portion, though not all, of his chart. He also
    reviewed the depositions of Dr. Lerer, Dr. Snead, Dr. Zimmerman, Dr. Barnes, and a
    nurse expert.    Based on his review of these items, his own literature, and personal
    experience, Dr. Volpe testified that there was no connection between Joseph’s injury and
    the administration of back blows. Although he reviewed other doctors’ opinions, his
    conclusion was primarily based on the fact that, in his review of the diagnostic studies, he
    observed a hemorrhagic infarction in the cerebral white matter, in association with
    medullary vein thrombosis. In particular, Dr. Volpe testified that Joseph’s CT scan was
    “indicative of thrombosis.”
    {¶59} We find that Dr. Volpe’s expert opinion was admissible because it was
    primarily based on his own review of the diagnostic tests. As such, the trial court did
    not abuse its discretion by allowing Dr. Volpe’s opinions into evidence.
    {¶60} Accordingly, the fifth assignment of error is overruled.
    Jury Instructions
    {¶61} In the sixth and final assignment of error, appellants argue that the court
    gave the jury erroneous and inapplicable instructions.        They contend these erroneous
    jury instructions misled the jury and warrant a new trial.
    {¶62} We note that the giving of jury instructions is within the sound discretion of
    the trial court and will not be disturbed on appeal unless the record demonstrates an abuse
    of discretion.     Prejean v. Euclid Bd. of Edn., 
    119 Ohio App.3d 793
    , 804-805, 
    696 N.E.2d 606
     (8th Dist.1997), citing State v. Wolons, 
    44 Ohio St.3d 64
    , 
    541 N.E.2d 443
    (1989). “An inadequate jury instruction that misleads the jury constitutes reversible
    error.”      (Citations omitted.)     Groob v. KeyBank, 
    108 Ohio St.3d 348
    , 355,
    
    2006-Ohio-1189
    , 
    843 N.E.2d 1170
    , ¶ 32.
    {¶63} The appellants first challenge the trial court’s jury instruction on the
    foreseeability of the injury as it relates to the standard of care Metro owed to Joseph.
    Under Ohio law, in order to present a prima facie claim of medical malpractice, a plaintiff
    must establish: (1) the standard of care, as generally shown through expert testimony; (2)
    the failure of defendant to meet the requisite standard of care; and (3) a direct causal
    connection between the medically negligent act and the injury sustained.             Bruni v.
    Tatsumi, 
    46 Ohio St.2d 127
    , 
    346 N.E.2d 673
     (1976), syllabus. The existence of a duty,
    or standard of care, depends on the foreseeability of the injury. Menifee v. Ohio Welding
    Prods., Inc., 
    15 Ohio St.3d 75
    , 77, 
    472 N.E.2d 707
     (1984). In order to determine what is
    foreseeable, a court must determine “whether a reasonably prudent person would have
    anticipated that an injury was likely to result from the performance or nonperformance of
    an act.”   (Emphasis added.)     Id. at 77.
    {¶64} Here, the trial court instructed the jury on this rule of law using similar
    language that resembles the suggested charge set forth in the Ohio Jury Instructions.
    The court charged the jury as follows:
    So, in determining whether ordinary care was used, you must consider
    whether [Metro’s] nursing assistant should have foreseen, under the
    attending circumstances, that the natural and probable result of an act or
    omission on her part would cause some injury to the plaintiff.
    The tests for foreseeability is not whether the nursing assistant should have
    foreseen the injury in its precise form, but whether in light of all the
    circumstances, the reasonable prudent person would have anticipated that
    an injury was likely to result to someone from their acts or omissions.
    {¶65} In comparison, the foreseeability instruction from Ohio Jury Instructions,
    Section 401.07, provides that:
    In deciding whether (reasonable) (ordinary) care was used, you will
    consider whether the (defendant) (either party) in question should have
    foreseen under the circumstances that the likely result of an act or failure to
    act would cause some (injury) (damage).
    The test for foreseeability is not whether a person should have foreseen the
    (injury) (damage) exactly as it happened to the specific (person) (property).
    The test is whether under all the circumstances a reasonably careful person
    would have anticipated that an act or failure to act would likely (result in)
    (cause) some (injury) (damage).
    {¶66} Appellants argue that the use of the word “likely” in the foreseeability
    charge creates a heightened and unfair burden for them to establish the duty element of
    their medical malpractice claim.       However, we have previously rejected this same
    argument in Ratliff v. Mikol, 8th Dist. No. 94930, 
    2011-Ohio-2147
    , ¶ 10. In Ratliff, the
    trial court used the word “likely” in its foreseeability jury instruction. We found that the
    instruction was proper because it mimicked the language given by the Ohio Supreme
    Court in Menifee, 15 Ohio St.3d at 77, 
    472 N.E.2d 707
    . As previously stated, the
    Menifee court defined foreseeability in terms of “whether a reasonably prudent person
    would have anticipated that an injury [is] likely to result from the performance or
    nonperformance of an act.”       (Emphasis added.) Id. at 77.     Therefore, the court’s use
    of the word “likely” in its definition of foreseeability was not an abuse of discretion.
    {¶67} Appellants next argue that the court’s definition of proximate cause was
    misleading.      The court’s charge on “proximate cause” reads as follows:
    Proximate cause is an act or failure to act which in the natural and
    continuous sequence directly produces the injury and without which it could
    not have occurred. Cause occurs when the injury is the natural and
    foreseeable result of the act or failure to act.
    But, a person is not responsible for injury to another if the negligence is a
    remote cause and not a proximate cause.
    A cause is remote when the result could not have been reasonably foreseen
    or anticipated as being a likely cause of any injury.
    {¶68} The proximate cause instruction from Ohio Jury Instructions Section 405.01
    provides that:
    1. SEPARATE ISSUE. A party who seeks to recover for (injuries)
    (death) (damages) must prove not only that the other party was negligent,
    but also that such negligence was (proximate) (direct) cause of the
    (injuries)(death)(damages).
    2. DEFINED. (Proximate)(Direct) cause is an act or failure to act that in
    the natural and continuous sequence directly produced the
    (injury)(death)(physical harm) and without which it would have occurred.
    {¶69} Ohio Jury Instructions Section 405.01 further defines proximate cause by
    defining a remote cause or condition as follows:
    1. A person not responsible for (injury)(damage) to another if his/her
    negligence is a remote (cause)(condition) and not a (proximate)(direct)
    cause.
    2. DEFINITION. A (cause)(condition) is remote when the result could
    not have been reasonably foreseen or anticipated as being the likely cause
    of any (injury)(damage).
    {¶70} The court’s instruction on proximate cause closely mirrors the suggested
    instruction provided in Ohio Jury Instructions, which this court has found to be a correct
    statement of Ohio law.    See Watkins v. Cleveland Clinic Found., 
    130 Ohio App.3d 262
    ,
    281, 
    719 N.E.2d 1052
     (8th Dist.1998). Therefore, we find no error in the instruction and
    no abuse of discretion.
    {¶71} Accordingly, the sixth assignment of error is overruled.
    {¶72} Judgment is reversed.    The matter is remanded for a new trial.
    It is ordered that appellants recover from appellee 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.
    MARY EILEEN KILBANE, JUDGE
    MELODY J. STEWART, P.J., CONCURS;
    COLLEEN CONWAY COONEY, J., DISSENTS (SEE SEPARATE DISSENTING
    OPINION)
    COLLEEN CONWAY COONEY, J., DISSENTING:
    {¶73} I respectfully dissent. I would affirm the jury verdict. This is a classic
    case of competing experts, and the jury chose to believe Metro’s experts.
    {¶74} As the majority noted, both Dr. Zimmerman and Dr. Volpe testified that
    they observed clots in the medullar veins in Joseph’s CT and ultrasound scans.        Dr.
    Zimmerman testified that he saw no evidence of trauma in Joseph’s CT or MRI scans.
    Dr. Zimmerman further testified that there was no way in which this event would have
    been secondary to back blows.
    {¶75} Appellants make no claim that Dr. Likavec’s testimony was relevant to the
    issue of whether the administration of back blows by a nurse’s aide was a violation of the
    applicable standard of care.    At his discovery deposition, Dr. Likavec testified that he
    knew nothing about the job responsibilities of a newborn nurse’s assistant in 1988 and did
    not have any role in the training of a nurse’s assistant.   Therefore, Dr. Likavec was not
    qualified to offer an opinion as to whether a nurse’s aide’s administration of back blows
    deviated from the standard of care.
    {¶76} Appellants argue that Dr. Likavec would have testified that pain or trauma
    often causes an increase in blood pressure and that an increase in blood pressure could
    induce a hemorrhage.      They claim that the exclusion of this evidence was fatal to their
    case.   However, the record indicates that Dr. Likavec actually did testify that postpartum
    trauma could induce a hemorrhage like Joseph’s.         During appellants’ questioning of Dr.
    Likavec, the court allowed appellants’ counsel to cross-examine him with his deposition,
    and the court allowed them to ask some questions regarding proximate cause, albeit as
    hypotheticals.   For example, appellants’ counsel asked:
    Q: If a newborn suffers some postpartum trauma, would they be more likely
    to suffer a germinal matrix bleed? What was your answer?
    A: Yes, sir.
    {¶77} Obviously, the jury knew counsel’s reference to “postpartum trauma”
    referred to the alleged back blows as the cause of harm in the hypothetical question,
    because that was the ultimate issue in this case.     Thus, despite their assertions on appeal,
    appellants were able to question Dr. Likavec on proximate cause.
    {¶78} Furthermore, even if the court’s limitation on Dr. Likavec’s testimony was
    error, I would find it to be harmless in this case.   This court recently held that error in the
    admission or exclusion of evidence is not grounds for reversal unless the error prejudiced
    the substantial rights of the complaining party. Mason v. Pawloski, 8th Dist. No. 95766,
    
    2011-Ohio-3699
    , ¶ 20, citing Civ.R. 61; O’Brien v. Angley, 
    63 Ohio St.2d 159
    , 164-165,
    
    407 N.E.2d 490
     (1980).      In determining whether a substantial right has been affected,
    the reviewing court must decide whether the trier of fact would have reached the same
    decision had the error not occurred. 
    Id.
    {¶79} Appellants contend that their inability to cross-examine Dr. Likavec
    “profoundly impaired” their medical malpractice claim. The majority agrees that his
    testimony held higher credibility because he was the treating physician and saw Joseph in
    the NICU.
    {¶80} However, had appellants been permitted to ask Dr. Likavec more questions
    about proximate cause, his testimony would not have added any new evidence. First, Dr.
    Likavec’s opinions, as presented in his depositions, are substantially the same as the
    opinions Dr. Snead offered in his trial      testimony.    Dr. Snead testified that, in his
    opinion, the pain and stress of the blows to Joseph’s back caused an increase in heart rate
    and blood pressure, which precipitated the hemorrhage. As previously stated, the jury
    heard Dr. Likavec admit that postpartum trauma “would more likely” cause a germinal
    matrix bleed. Having already heard this testimony, any additional testimony Dr. Likavec
    could have provided would have been cumulative and, therefore, would not have changed
    the outcome of the case. Therefore, even if the trial court abused its discretion in
    limiting appellants’ questioning of Dr. Likavec, I find it harmless error.
    {¶81} In their second assignment of error, appellants argue the trial court abused
    its discretion by excluding the admission of Dr. Likavec’s deposition testimony, which
    they offered to rebut Dr. Wiznitzer’s opinion that the back blows did not cause Joseph’s
    brain hemorrhage. The majority finds the exclusion of this necessary rebuttal evidence
    to be an abuse of discretion.
    {¶82} Appellants claim Dr. Likavec’s deposition testimony constituted rebuttal
    testimony to rebut a defense expert’s response to a hypothetical question posed by
    appellants’ counsel concerning how Dr. Likavec may testify at trial.    The testimony was
    presented during appellants’ cross-examination of the defense experts in the defendant’s
    case.     Because appellants elicited the subject matter of the proposed rebuttal testimony,
    appellants could not refute the matter with rebuttal testimony.
    {¶83} Moreover, the proposed “rebuttal” topics were addressed during appellants’
    case-in-chief. In an effort to preemptively discredit the defense’s theory, the following
    exchange took place between appellants’ counsel and Dr. Lerer, appellants’ pediatric
    expert:
    Q: Doctor, some on behalf of the defense might say that the first dusky
    episode was a sign of seizure and that was secondary to a bleed already
    underway. Do you have an opinion whether or not that is a valid position?
    A: I don’t know. I don’t think it’s a valid position for the logical fact
    that * * * if that were the first sign of a hemorrhage, I would expect Joey
    to be in a coma, to have repeated seizures, to go downhill very, very quickly
    as he did at 25 hours of age.
    {¶84} Appellants posed similar questions to Dr. Barnes, appellants’ radiology
    expert, and Dr. Snead, appellants’ pediatric neurologist. Both experts testified during
    appellants’ case-in-chief that, in their opinions, the intraventricular hemorrhage most
    likely was not present when Joseph had his first blue spell episode. Thus, the proposed
    subject matter of the rebuttal testimony, i.e., that Joseph’s hemorrhage started after the
    back blows, was first presented in appellants’ case, and the trial court did not abuse its
    discretion in excluding the proposed rebuttal evidence.
    {¶85} Moreover, as to the third assignment of error and the issue of unfair
    surprise, the instant case is analogous to Wright v. Suzuki Motor Corp., 4th Dist. Nos.
    03CA2, 03CA3, 03CA4, 
    2005-Ohio-3494
    , in which the expert witness offered an opinion
    at trial in terms of probability. The expert had previously expressed his opinion during
    deposition in terms of possibility. The appellate court held that the trial court did not
    abuse its discretion in allowing the testimony because the substance of the expert’s
    opinion had not changed. The court, relying on Faulk, 1st Dist. Nos. C-765 and C-778,
    
    2001 WL 1020749
     (Sept. 7, 2001), stated as follows:
    We additionally find the reasoning set forth in Faulk applicable. [The
    expert’s] opinion that the defective wheel was a proximate cause of the
    accident remained the same throughout the litigation. What changed,
    however, was his ability to include additional information for his
    consideration and to express his opinion within a reasonable degree of
    scientific certainty. Thus, like Faulk, this is not a case in which the expert
    was unable to give an opinion regarding causation during a deposition but
    did so at trial. It also is not a case in which the expert specifically changed
    his opinion or in which the substance of his testimony was revealed for the
    first time at trial and the opposing party had no reason to anticipate it.
    Wright at ¶ 87.
    {¶86} The substance of Dr. Martin’s testimony at trial was no different than his
    deposition testimony.    In both instances, Dr. Martin opined that coagulation was a
    possible cause of Joseph’s brain damage.       The only difference between his trial and
    pretrial testimony was the likelihood of the causation. As in Wright and Faulk, this is
    not a case in which the expert apparently had no opinion and then subsequently formed
    one, nor is it a case in which he changed the substance of his opinion.       The idea that
    coagulation was a possible cause of Joseph’s hemorrhage was not proposed for the first
    time at trial.   Therefore, I would find no abuse of discretion and affirm the jury’s verdict.
    

Document Info

Docket Number: 96848

Citation Numbers: 2012 Ohio 2383

Judges: Kilbane

Filed Date: 5/31/2012

Precedential Status: Precedential

Modified Date: 4/17/2021