Irani v. AMF Bowling Co. ( 2024 )

[Cite as Irani v. AMF Bowling Co., 2024-Ohio-2504.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Shler Irani, :
Plaintiff-Appellant, : No. 23AP-654
(C.P.C. No. 20CV-5763)
v. :
(REGULAR CALENDAR)
AMF Bowling Co. D/B/A :
AMF Sawmill Lanes et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on June 28, 2024
On brief: Mokhtari Law Firm, LLC, and Al A. Mokhtari, for
appellant. Argued: Al A. Mokhtari.
On brief: Gallagher, Gams, Tallan, Barnes, & Littrell,
L.L.P., and Mitchell M. Tallan, for appellees. Argued:
Mitchell M. Tallan.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, J.
{¶ 1} Plaintiff-appellant, Shler Irani, appeals from several judgments issued by the
Franklin County Court of Common Pleas in favor of defendant-appellee, Saha Saadati. For
the following reasons, we affirm in part, reverse in part, and remand for further
proceedings.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} According to Irani’s complaint, on or about March 27, 2016, Irani was a
business invitee at a bowling alley owned and/or operated by AMF Bowling Centers, Inc.
(“AMF”). Irani alleged that AMF overserved alcoholic beverages to Saadati, who became
intoxicated, fell out of a chair onto Irani’s leg, and caused Irani serious injury. Irani asserted
No. 23AP-654 2
a negligence claim against Saadati, and she sought recovery from AMF pursuant to the
Dram Shop Act, R.C. 4399.18.
{¶ 3} As reflected in the trial court decision and in the briefing in this court, Irani
originally filed this lawsuit on March 26, 2018, in case No. 18CV-2610, in the Franklin
County Court of Common Pleas. Saadati and AMF filed answers in case No. 18CV-2610
and conducted discovery. AMF moved for summary judgment. On the date Irani’s
memorandum in opposition was due, she moved for an extension of time to respond to
AMF’s motion. The trial court granted Irani’s motion. On February 7, 2019, Irani timely
filed her memorandum in opposition to AMF’s motion for summary judgment.
{¶ 4} On March 8, 2019, while the motion for summary judgment was pending,
Irani moved to continue the trial date, which the original case schedule had set for
March 25, 2019. Irani requested the continuance so she could complete a scheduled round
of treatment for her leg injury. The trial court responded by vacating the trial date.
{¶ 5} On August 29, 2019, the trial court issued a decision and entry that granted
AMF’s motion for summary judgment.
{¶ 6} On September 20, 2019, Saadati filed a motion seeking to exclude from the
trial medical records and bills that Irani did not disclose to Saadati until after August 14,
2019. Saadati complained that his expert witness did not have sufficient time to review the
documents before his deposition, scheduled for September 26, 2019. Saadati also protested
that Irani was late in turning over these documents, given that trial was scheduled for
October 7, 2019.
{¶ 7} On September 25, 2019, shortly before the scheduled trial date, Irani
dismissed the complaint in case No. 18CV-2610, without prejudice, by filing a notice of
dismissal pursuant to Civ.R. 41(A)(1)(a).
{¶ 8} On August 31, 2020, Irani refiled essentially the same complaint against
Saadati and AMF in Franklin County C.P. No. 20CV-5763. The trial court issued an original
case schedule that set March 15, 2021 as the date for the supplemental joint disclosure of
all witnesses. On that date, Irani disclosed several medical experts, including Dr. Robert
Magnussen, Irani’s treating orthopedist, and Dr. Scott Olenick, Irani’s treating
psychologist. Regarding both Dr. Magnussen and Dr. Olenick, Irani’s disclosure stated,
“This expert is a treating physician rather than a retained expert, who will be asked to testify
No. 23AP-654 3
consistent with the opinions and facts set forth in the treatment records of this treating
physician.” (Mar. 15, 2021 Pl.’s Disclosure of Witnesses at 3-4.) Irani did not identify any
retained medical experts in her supplemental disclosure of witnesses.1
{¶ 9} On May 24, 2021, the trial court issued an entry granting the parties’ joint
motion to continue the case scheduling deadlines. The trial court rescheduled the trial date
for January 31, 2022.
{¶ 10} On October 28, 2021, Irani voluntarily dismissed her claims against AMF.
{¶ 11} On December 17, 2021, Irani belatedly disclosed a retained expert witness,
Dr. Timothy Lubenow. Saadati immediately moved the trial court to exclude the expert
witness due to the untimely disclosure. In her motion, Saadati contended that she had
expended considerable resources to prepare for trial already. She pointed out that her
expert had just reviewed approximately 1,000 pages of supplemental discovery responses
that Irani had only produced five months previously. In response to this motion, Irani
proposed that the trial court extend the case scheduling deadlines to allow time for Saadati
to review and decide how to respond to Dr. Lubenow’s report.
{¶ 12} The trial court did not immediately rule on the motion to exclude
Dr. Lubenow. Instead, on January 10, 2022, the trial court issued an entry vacating the
previously scheduled pre-trial and trial dates. The entry explained that the Franklin County
Court of Common Pleas had limited the number of jurors entering the courthouse due to
the COVID-19 pandemic, and thus, the court had instituted a rotating schedule for all jury
trials. The trial court had to vacate the parties’ trial because the court was not available for
trial on January 31, 2022. Ultimately, the trial court rescheduled trial for October 17, 2022.
{¶ 13} On September 16, 2022, the trial court issued a judgment entry granting
Sadaati’s December 17, 2021 motion and excluding Dr. Lubenow from testifying at trial.
The trial court ruled that:
Here, it is without question that Plaintiff’s disclosure of
Dr. Lubenow as an expert witness was untimely and Plaintiff
has admitted as much. The Court is not convinced by any of
Plaintiff’s justifications for this tardiness and cannot find that
good cause existed for the late disclosure. Thus, the late
disclosure constitutes a violation of the Local Rules. Due to the
1 An expert is retained if he or she “comes to the case as a stranger and draws the opinion from facts supplied
by others, in preparation for trial.” Downey v. Bob’s Discount Furniture Holdings, Inc., 633 F.3d 1, 7 (1st
Cir.2011). When an expert is part of the ongoing sequence of events, his opinion testimony is not retained. Id.No. 23AP-654 4
belated disclosure and the prejudice it would cause to
Defendant, the Motion to Exclude is GRANTED. Timothy
Lubenow, M.D. is excluded as an expert in this matter and is
not permitted to provide testimony at trial.
(Emphasis sic.) (Sept. 16, 2022 Decision & Entry Granting Def.’s Mot. to Exclude at 3.)
{¶ 14} On September 27, 2022, the trial court issued an entry vacating the trial set
for October 17, 2022. The trial court rescheduled the trial for August 7, 2023.
{¶ 15} On June 13, 2023, Irani filed a motion asking the trial court to reconsider its
earlier decision excluding Dr. Lubenow as an expert witness. In the alternative, Irani
requested that the trial court permit her to call Dr. Lubenow as a rebuttal witness. In a
decision and entry dated July 11, 2023, the trial court denied Irani’s motion, stating,
“Dr. Lubenow will not be allowed to testify at the trial in this matter.” (July 11, 2023
Decision & Entry Den. Pl.’s Mot. to Reconsider at 2.)
{¶ 16} On July 12, 2023, Irani’s attorney caused subpoenas to issue to
Drs. Magnussen and Olenick commanding them to attend and give testimony at the
August 7, 2023 trial. Each subpoena directed the subpoenaed person to contact the law
firm of Irani’s attorney “to confirm appearance and for scheduling purposes.” (Emphasis
omitted.) (July 12, 2023 Civil Subpoenas.)
{¶ 17} On July 21 and July 23, 2023, Saadati and Irani submitted their respective
pre-trial statements. The parties primarily disagreed about Irani’s claim that she suffers
from Complex Regional Pain Syndrome (“CRPS”) and depression as a proximate result of
the incident at the bowling alley.
{¶ 18} At the July 24, 2023 pre-trial conference, Irani’s attorney told the trial court
that subpoenas to Drs. Magnussen and Olenick had been issued and he expected both
doctors to testify at trial. Subsequent to the pre-trial conference, Drs. Magnussen and
Olenick contacted the law firm of Irani’s counsel as advised by the subpoenas. Both doctors
expressed a preference for providing their trial testimony via deposition. Irani’s attorney,
therefore, deposed Dr. Olenick on August 1, 2023 and Dr. Magnussen on August 2, 2023.
At these depositions, Saadati’s attorney learned that Irani’s attorney had not offered to
compensate either witness for testifying.
{¶ 19} At an August 2, 2023 pre-trial conference, the trial court learned about the
completed deposition of Dr. Olenick and the upcoming deposition of Dr. Magnussen. The
No. 23AP-654 5
trial court stated that it was “troubled” because: (1) Irani’s attorney used Civ.R. 45
subpoenas, rather than deposition notices, to obtain the witnesses’ attendance at the
depositions, (2) Irani’s attorney did not offer to compensate Dr. Olenick prior to his
deposition, and (3) Irani’s attorney was deposing Drs. Olenick and Magnussen in an
attempt to secure expert testimony that the trial court believed it had excluded from trial.
(Aug. 2, 2023 Tr. at 23.) In response, Irani’s attorney protested he complied with the Civil
Rules of Ohio Procedure and court orders in deposing Dr. Olenick and scheduling
Dr. Magnussen’s deposition.
{¶ 20} On August 7, 2023, the scheduled trial date, the trial court began proceedings
by stating:
This matter is set for trial on today[,] however, over the past
four to five days there have been a series of developments that
the Court finds both challenging and concerning. And so what
I want to do before I address those issues that have risen over
the last four to five days, I think it’s really important for me to
read into the record kind of a procedural history and some
other information that will help to explain what it is that the
Court will do on today.
(Aug. 7, 2023 Tr. at 2-3.) The trial court proceeded to recount the procedural history of
both the original 2018 case and the refiled case. The trial court also summarized its issues
with the depositions of Drs. Magnussen and Olenick, and the court asked Irani’s attorney
to explain his decision-making regarding scheduling and conducting those depositions.
The trial court then announced that the trial would not occur that day, and instead, the
court would hold a hearing the next day so Irani could show cause why the court should not
dismiss her case under Civ.R. 41(B)(1).
{¶ 21} The show cause hearing occurred on August 8, 2023. On October 5, 2023,
the trial court issued a decision and judgment entry dismissing Irani’s complaint, pursuant
to Civ.R. 41(B)(1), for failure to prosecute. The judgment entry concludes that “Irani and
her counsel failed habitually in complying with the Rules of Civil Procedure and this Court’s
orders and, therefore, the Court hereby finds that this matter is DISMISSED WITH
PREJUDICE.” (Emphasis sic.) (Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl. with
Prejudice Pursuant to Civ.R. 41(B)(1) at 21.)
No. 23AP-654 6
{¶ 22} Irani timely appealed to this court from the judgments issued on
September 16, 2022, July 11, 2023, and October 5, 2023.
II. ASSIGNMENTS OF ERROR
{¶ 23} Irani assigns the following errors on appeal:
[1.] The trial court abused its discretion by sua sponte setting a
show cause hearing and ultimately dismissing Appellant’s
Complaint with prejudice for failure to prosecute pursuant to
Civ.R. 41(B)(1), rather than empaneling a jury and proceeding
to trial when all parties and counsel presented themselves
prepared and with every intention of proceeding with trial.
[2.] The trial court abused its discretion by precluding retained
medical expert Timothy Lubenow, M.D. from testifying in
Appellant’s case in chief, despite a lack of prejudice to Appellee.
[3.] The trial court abused its discretion by precluding retained
medical expert Timothy Lubenow, M.D. from testifying as a
rebuttal witness at trial, in response to new opinions disclosed
by the defense medical expert during his video trial deposition.
(Emphasis sic.)
III. LEGAL ANALYSIS
{¶ 24} For purposes of clarity, we shall consider the assignments of error out of
order.
A. Second Assignment of Error – Exclusion of Retained Expert Witness
{¶ 25} In her second assignment of error, Irani argues that the trial court erred when
it excluded the testimony of her retained medical expert, Dr. Lubenow, due to untimely
disclosure. We disagree.
{¶ 26} The trial court excluded Dr. Lubenow as an expert witness because Irani
failed to comply with former Loc.R. 43 of the Franklin County Court of Common Pleas,
General Division.2 Under former Loc.R. 43.01, each party, “not later than the date for
disclosure designated in the Case Schedule,” was required to “serve on all parties and file
with the court a written disclosure of all persons with relevant factual or expert knowledge
whom the party reserves the option to call as witnesses at trial.” Parties were then required
2 The Franklin County Court of Common Pleas, General Division, repealed former Loc.R. 43 on November 15,
2020 because the subject of the rule is now covered by Civ.R. 26(B).
No. 23AP-654 7
to file supplemental disclosures of witnesses by the date designated in the case schedule “of
all persons whose factual or expert knowledge did not appear relevant until the witnesses
were initially disclosed.” Former Loc.R. 43.02. Former Loc.R. 43.04 stated that “[a]ny
witness not disclosed in compliance with this rule may not be called to testify at trial, unless
the Trial Judge orders otherwise for good cause and subject to such conditions as justice
requires.”
{¶ 27} The admission or exclusion of evidence is generally within the discretion of
the trial court, so long as that discretion is exercised in line with the rules of procedure and
evidence. Vacheresse v. Paulchel, 10th Dist. No. 22AP-583, 2023-Ohio-3226, ¶ 25; Berete
v. Berete, 10th Dist. No. 20AP-478, 2021-Ohio-2941, ¶ 9. Consequently, an appellate court
will not reverse a trial court’s decision to admit or exclude evidence absent an abuse of
discretion. Vacheresse at ¶ 25; Berete at ¶ 9.
{¶ 28} In this case, Irani concedes that she did not timely disclose the identity or
opinions of her retained expert witness. She contends, however, that the trial court abused
its discretion by excluding her expert witness for her failure to comply with the disclosure
deadline. Relying on Woodruff v. Bar, 10th Dist. No. 02AP-351, 2002-Ohio-5616, Irani
argues that an appellate court will not affirm the trial court’s exclusion of an expert witness
unless the opposing party is unfairly prejudiced by the belated disclosure of that witness.
{¶ 29} In Woodruff, the trial court excluded the testimony of the plaintiff-
appellant’s medical expert witness because the plaintiff-appellant failed to file the necessary
disclosures of witnesses. On appeal, this court agreed that the plaintiff-appellant did not
file any disclosures of witnesses. We determined, however, that the defendant-appellee was
otherwise apprised of the expert witness the plaintiff-appellant intended to use at trial
because the defendant-appellee received the plaintiff-appellant’s medical records in
discovery, which named all the plaintiff-appellant’s medical providers. The plaintiff-
appellant had informed the defendant-appellee she would call her medical providers as
witnesses, and the expert witness was one of the plaintiff-appellant’s medical providers.
Consequently, the defendant-appellee suffered little prejudice or surprise from the
plaintiff-appellant’s failure to file disclosures of witnesses. Id. at ¶ 17. This court thus
concluded the sanction of excluding the plaintiff-appellant’s expert witness was not
No. 23AP-654 8
proportional to the violation, and the trial court had abused its discretion in not imposing
a less severe penalty. Id. at ¶ 18-19.
{¶ 30} Woodruff is distinguishable on its facts. Here, unlike Woodruff,
Dr. Lubenow was not involved in Irani’s medical treatment. Saadati was unaware of
Dr. Lubenow’s involvement in the case until the untimely disclosure by Irani,
approximately ten months after the supplemental witness disclosure date and two months
prior to the scheduled trial date. In Woodruff, the defendant-appellee knew that the
plaintiff-appellant intended to call the medical provider as a witness “well enough in
advance of trial to allow defendant to prepare to question plaintiff’s expert in deposition
testimony.” Id. at ¶ 19. Irani understood that her late disclosure of Dr. Lubenow did not
give Saadati’s attorney this same opportunity, as she requested postponement of the trial
date to mitigate the “ ‘time crunch’ ” caused by the belated identification of Dr. Lubenow as
an expert witness. (Dec. 24, 2021 Pl.’s Memo in Opp. to Def.’s Mot. to Exclude at 4, quoting
the Dec. 17, 2021 email from Pl.’s attorney to Def.’s attorney.)
{¶ 31} Irani argues alternatively that any prejudice to Saadati from the late
disclosure of Dr. Lubenow was alleviated by the subsequent continuances of the trial date
and seven-month delay in ruling on the motion to exclude. Irani claims that even though
the disclosure was untimely, the subsequent delay of the trial gave Saadati sufficient time
to prepare for Dr. Lubenow’s testimony. We disagree.
{¶ 32} Prior to the time the trial court ruled on the motion to exclude, Saadati was
under no obligation to spend valuable time and resources preparing for an expert witness
who was not timely disclosed and who may not be permitted to testify. Moreover, when the
trial court granted the motion to exclude Dr. Lubenow’s testimony on September 16, 2022,
the trial date was a mere month away, on October 17, 2022. Thus, even though seven
months had passed since the parties had briefed the motion to exclude, there still existed
unfair prejudice to Saadati, i.e., insufficient time before trial to review Dr. Lubenow’s
opinion with her own expert and/or depose Dr. Lubenow. Although the trial court later
postponed the trial date, that postponement occurred after the court excluded
Dr. Lubenow’s testimony, so it could not factor into the court’s prejudice determination
when ruling on the motion to exclude.
No. 23AP-654 9
{¶ 33} Under the circumstances, we cannot say that the trial court abused its
discretion by excluding Irani’s expert witness, as the untimely disclosure of Dr. Lubenow
caused Saadati unfair prejudice. Given this unfair prejudice, the trial court did not err in
determining a lack of good cause existed to allow Dr. Lubenow to testify at trial.
Accordingly, we overrule Irani’s second assignment of error.
B. Third Assignment of Error – Exclusion of Retained Expert Witness as a
Rebuttal Witness
{¶ 34} In her third assignment of error, Irani argues that the trial court erred when
it denied her motion to allow her to call Dr. Lubenow as a rebuttal witness. We disagree.
{¶ 35} Rebuttal testimony is testimony “given to explain, refute, or disprove new
facts introduced into evidence by the adverse party; it becomes relevant only to challenge
the evidence offered by the opponent, and its scope is limited by such evidence.” State v.
McNeil, 83 Ohio St.3d 438, 446 (1998). Generally, the admission or exclusion of rebuttal
testimony is a matter within the discretion of the trial court, and a ruling admitting or
excluding such testimony will not be reversed absent an abuse of discretion. Jarvis v.
Hasan, 10th Dist. No. 14AP-578, 2015-Ohio-1779, ¶ 80. However, a trial court’s discretion
over the admission or exclusion of rebuttal testimony is not absolute. Id. Rather, “[a] party
has an unconditional right to present rebuttal testimony on matters which are first
addressed 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). Consequently,
“a party possesses an unconditional right to present rebuttal testimony if: (1) the evidence
is not cumulative; (2) the evidence would not be appropriate for the party’s case-in-chief;
and (3) the evidence is first addressed in the opponent’s case-in-chief.” Brothers v.
Morrone-O’Keefe Dev. Co., 10th Dist. No. 05AP-161, 2006-Ohio-1160, ¶ 6.
{¶ 36} In this case, Irani contends that, consistent with his expert report,
Dr. Lubenow would testify that Irani: (1) suffers from CRPS as a result of the incident at the
bowling alley, (2) needs further treatment for CRPS, and (3) suffers from depression and
anxiety as a result of her injury and will likely need further treatment for that, as well. Not
only is this evidence appropriate for Irani’s case in chief, but it is also evidence she intended
to attempt to produce during her case in chief though the testimony of Drs. Magnussen and
No. 23AP-654 10
Olenick. Therefore, Irani does not have an unconditional right to present Dr. Lubenow’s
testimony on rebuttal.
{¶ 37} Additionally, we note that this court has called into question whether
Phung’s “unconditional right” to present rebuttal testimony applies to a situation where a
party wishes to call an expert witness on rebuttal even though the trial court has previously
excluded the witness from testifying in the party’s case in chief because the party failed to
timely disclose the witness. Lips v. Univ. of Cincinnati College of Medicine, 10th Dist. No.
12AP-374, 2013-Ohio-1205, ¶ 48. In Lips, the Court of Claims excluded the plaintiff-
appellant’s expert witness due to the plaintiff-appellant’s failure to timely disclose the
expert and provide an expert report as required by a local rule. The plaintiff-appellant then
sought to call the excluded expert witness to give rebuttal testimony. The trial court refused
to allow the expert witness to testify on rebuttal.
{¶ 38} On appeal to this court, the plaintiff-appellant argued that the trial court
erred by excluding the testimony of its rebuttal witness. This court agreed with the
defendant-appellee that the local rule requiring disclosure made no exception for instances
where a party intends to call an expert witness on rebuttal. This court then addressed the
plaintiff-appellant’s contention that the Supreme Court of Ohio’s decision in Phung applied
to expert witnesses:
We find it unlikely that the Supreme Court of Ohio in Phung
meant to establish an absolute rule that a plaintiff in a civil case
may completely disregard a trial court’s local rules and orders
concerning the presentation of expert evidence simply because
the plaintiff purports to “reserve” the witness for possible
rebuttal purposes, and regardless of whether the plaintiff is
surprised by the evidence first produced by the defendant at
trial, or whether that evidence concerns expert witness
opinions as opposed to testimony concerning facts.
Lips at ¶ 48.3
3 In Lips, we ultimately concluded any error regarding the exclusion of the plaintiff-appellant’s expert on
rebuttal was harmless given the fact that the plaintiff-appellant had failed to produce evidence to establish a
breach of the standard of care and the proposed expert testimony would not have rebutted the opinions of
the defendant-appellee’s expert witnesses. Id. at ¶ 60.
No. 23AP-654 11
{¶ 39} We have determined the untimely disclosure of Dr. Lubenow unfairly
prejudiced Saadati and the trial court did not abuse its discretion when it excluded Irani’s
expert witness from testifying in her case in chief. Consequently, we cannot say that the
trial court abused its discretion in prohibiting Dr. Lubenow from testifying as a rebuttal
witness. We thus overrule Irani’s third assignment of error.
C. First Assignment of Error – Failure to Prosecute
{¶ 40} In her first assignment of error, Irani contends that the trial court erred when
it sua sponte dismissed her complaint for failure to prosecute. We agree.
{¶ 41} Civ.R. 41(B)(1) provides that “[w]here the plaintiff fails to prosecute, or
comply with these rules or any court order, the court upon motion of a defendant or on its
own motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.” This
court reviews a trial court’s decision to dismiss a case under Civ.R. 41(B)(1) for an abuse of
discretion. Bates v. Merchants Holding L.L.C., 10th Dist. No. 17AP-622, 2018-Ohio-1699,
¶ 8. An abuse of discretion generally implies that the trial court’s attitude was arbitrary,
unreasonable, or unconscionable. Id. However, in Sazima v. Chalko, 86 Ohio St.3d 151,
1999-Ohio-92, the Supreme Court adopted a heightened standard of review for a dismissal
with prejudice pursuant to Civ.R. 41(B)(1):
[T]he extremely harsh sanction of dismissal should be reserved
for cases when [a party’s] conduct falls substantially below
what is reasonable under the circumstances evidencing a
complete disregard for the judicial system or the rights of the
opposing party. In other words, dismissal is reserved for those
cases in which the conduct of a party is so negligent,
irresponsible, contumacious or dilatory as to provide
substantial grounds for a dismissal with prejudice for a failure
to prosecute or obey a court order. Absent such extreme
circumstances, a court should first consider lesser sanctions
before dismissing a case with prejudice. It is a basic tenet of
Ohio jurisprudence that cases should be decided on their
merits. Thus, although reviewing courts espouse an ordinary
abuse of discretion standard of review for dismissals with
prejudice, that standard is actually heightened when
reviewing decisions that forever deny a plaintiff a review of a
claim’s merits.
(Emphasis added.) (Internal citations and quotations omitted.) Id. at 158.
No. 23AP-654 12
{¶ 42} The trial court dismissed Irani’s case under Civ.R. 41(B)(1) because she
“failed habitually in complying with the Rules of Civil Procedure and [the] Court’s orders.”
(Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl. at 21.) In the analysis portion of its
decision, the trial court recounts those incidents that it believes constitute “Irani’s pattern
and practice of flouting her obligations to comply with the rules.” Id. at 15.
{¶ 43} Initially, we note that, in actuality, the trial court criticizes Irani for multiple
actions that do not amount in a violation of the Ohio Civil Rules of Procedure or a court
order. To justify a dismissal under Civ.R. 41(B)(1), the negligent, irresponsible, or
contumacious conduct of a party must result in the violation of a civil rule or court order.
Sazima at 158. We thus do not discuss or review the conduct the trial court criticizes that
does not arise to that level.
{¶ 44} The trial court first cites two violations of a civil rule and/or court order that
occurred in case No. 18CV-2610. In dismissing an action under Civ.R. 41(B)(1), a trial court
may consider the entire history of the litigation, including a previously filed, and voluntarily
dismissed, action. Sazima at 158. However, as Saadati points out, the record in case No.
18CV-2610 is not part of the record in the case currently on appeal. Nevertheless, an
appellate court may take judicial notice of public court records readily accessible on the
internet. Estate of Coumbassa v. Hickle, 10th Dist. No. 22AP-788, 2023-Ohio-4292, ¶ 2,
fn. 1; Starner v. Onda, 10th Dist. No. 22AP-599, 2023-Ohio-1955, ¶ 15, fn. 2; Lane v. U.S.
Bank N.A., 10th Dist. No. 22AP-358, 2023-Ohio-1552, ¶ 2. Because the court filings in case
No. 18CV-2610 are publicly available on the internet, we take judicial notice of them.
{¶ 45} In the first incident the trial court refers to from case No. 18CV-2610, Irani
moved for an extension of time to file her memorandum in opposition to AMF’s motion for
summary judgment on the date her memorandum was due. The trial court granted the
extension, and Irani filed her memorandum in opposition within the time the trial court
provided. While Irani should have sought an extension earlier, she complied with Civ.R.
6(B) in moving for the extension and, because the trial court granted her the extension, she
timely filed her memorandum in opposition. We, therefore, conclude that no rule violation
occurred.
{¶ 46} In the second incident, Irani belatedly disclosed medical bills to Saadati after
the discovery cutoff date and, apparently, in violation of Civ.R. 34. Saadati moved to
No. 23AP-654 13
exclude evidence of the medical bills from trial. Irani, however, voluntarily dismissed her
complaint five days after Saadati moved to exclude the medical bills, thus mooting Saadati’s
motion and Irani’s discovery violation.
{¶ 47} Turning to this case, the trial court found more violations of the civil rules
and/or court orders. First, Irani failed to comply with the original case schedule when she
did not timely disclose her retained expert witness, Dr. Lubenow. The trial court, however,
sanctioned Irani for this failure by excluding Dr. Lubenow from testifying.
{¶ 48} Second, the trial court noted that, according to Saadati, Irani was late in
providing discovery responses, an apparent violation of Civ.R. 33 and 34. Although Irani
may not have timely produced the requested discovery, Saadati did not move to compel
production of that discovery. Saadati only informed the trial court of Irani’s discovery lapse
to buttress her motion to exclude Dr. Lubenow’s testimony.
{¶ 49} Third, Irani moved for an extension of time to file a memorandum in
opposition to a motion in limine. As the trial court did not grant Irani this extension, she
filed her memorandum in opposition late, a violation of Civ.R. 6(C)(2).
{¶ 50} The trial court primarily dismissed Irani’s case because Irani supposedly
misused the court’s subpoena power. The trial court had multiple reasons for this
conclusion: (1) Irani violated Civ.R. 45 by using subpoenas to obtain Drs. Magnussen’s and
Olenick’s attendance at their trial depositions, (2) Irani violated court orders precluding
any expert witness from testifying by attempting to obtain Dr. Magnussen’s expert opinions
at his deposition, (3) Irani implied to Drs. Magnussen and Olenick that they could be
subject to court sanction if they did not testify, and (4) Irani failed to advise the doctors that
they were entitled to payment for their expert testimony. We will address each reason in
order.
{¶ 51} The subpoenas issued to the doctors commanded them to attend and give
testimony at a jury trial on August 7, 2023. However, at the doctors’ requests, Irani’s
attorney deposed the doctors instead of insisting they appear at trial. In conducting trial
depositions of the doctors, Irani’s attorney was complying with Civ.R. 45(C)(1), which
states, “A party or an attorney responsible for the issuance and service of a subpoena shall
take reasonable steps to avoid imposing undue burden * * * on a person subject to that
subpoena.” Moreover, Civ.R. 30(A) permits a party to use a subpoena to compel a non-
No. 23AP-654 14
party witness’s deposition. Id. (“The attendance of a witness deponent may be compelled
by the use of subpoena as provided by Civ.R. 45.”). Consequently, Irani properly invoked
Civ.R. 45 to obtain the testimony of Drs. Magnussen and Olenick at their depositions.
{¶ 52} Next, the trial court contends that Irani’s attorney elicited deposition
testimony from Dr. Magnussen in violation of court orders “preclud[ing] [Irani] from
providing expert testimony based on the failure to comply with the Court’s deadline for
identification of an expert witness.” (Oct. 5, 2023 Order & Entry Dismissing Pl.’s Compl.
at 20.) In its September 16, 2022 and July 11, 2023 decisions and entries, the trial court
found that Irani failed to timely disclose Dr. Lubenow as an expert witness, and the court
excluded his testimony. However, the September 16, 2022 and July 11, 2023 decisions and
entries do not bar Irani from providing any expert testimony. The trial court’s decisions
and entries do not mention, much less exclude, the testimony of Drs. Magnussen.
Consequently, no court order precludes him from testifying as an expert witness.4
{¶ 53} The trial court also criticizes Irani for intimating to the doctors that if they
did not appear for their depositions, they would be subject to court sanction. In fact, neither
doctor testified that Irani’s attorney said or suggested to him that he could be subject to
court sanction if he did not testify. Even if the attorney had said or suggested that, however,
he would not be wrong. According to Civ.R. 45(E), “[f]ailure by any person without
adequate excuse to obey a subpoena served upon that person may be deemed a contempt
of the court from which the subpoena issued.” That warning appeared on the subpoenas
served on the doctors and may have been why the doctors believed they had an obligation
to testify.
{¶ 54} Finally, the trial court finds fault with Irani’s counsel for not advising
Drs. Magnussen and Olenick that they were entitled to compensation for their expert
testimony. Although Civ.R. 45 provides safeguards to protect unretained experts, those
safeguards do not include a requirement that an attorney advise an unretained expert of a
right to payment. Instead, an unretained expert who receives a subpoena to testify may
seek to quash or modify that subpoena under Civ.R. 45(C)(3)(c) and (C)(5), which provide:
4 Tangentially, we note that Irani timely disclosed Drs. Magnussen and Olenick as unretained expert witnesses
in her March 15, 2021 supplemental disclosure of witnesses. Therefore, former Loc.R. 43.03 does not bar their
testimony.
No. 23AP-654 15
(3) On timely motion, the court from which the subpoena was
issued shall quash or modify the subpoena, or order
appearance or production only under specified conditions, if
the subpoena does any of the following:
***
(c) Requires disclosure of a fact known or opinion held by an
expert not retained or specially employed by any party in
anticipation of litigation or preparation for trial as described by
Civ.R. 26(B)(7)(h), if the fact or opinion does not describe
specific events or occurrences in dispute and results from study
by that expert that was not made at the request of any party[.]
***
(5) If a motion is made under division (C)(3)(c) * * * of this
rule, the court shall quash or modify the subpoena unless the
party in whose behalf the subpoena is issued shows a
substantial need for the testimony or material that cannot be
otherwise met without undue hardship and assures that the
person to whom the subpoena is address will be reasonably
compensated.
{¶ 55} Civ.R. 45(C)(3)(c) is modeled after Fed.R.Civ.P. 45(d)(3)(B)(ii). 1993 Staff
Note, Civ.R. 45. Both the federal and state rule were adopted because compelling
unretained experts to give opinion testimony forces them to give up their intellectual
property without the opportunity to bargain for the value of their services. 1991 Notes of
Advisory Committee, Civ.R. 45(c)(3)(B)(ii) (because of later revisions to the Federal Rules
of Civil Procedure, the text originally located at Fed.R.Civ.P. 45(c)(3)(B)(ii) is now found at
Fed.R.Civ.P. 45(d)(3)(B)(ii)).
{¶ 56} Although there are scant Ohio cases interpreting Civ.R. 45(C)(3)(c), federal
precedent has developed applying Fed.R.Civ.P. 45(d)(3)(B)(ii). Generally, opinion
testimony is shielded by Fed.R.Civ.P. 45(d)(3)(B)(ii); factual information is not. Cable v.
Weinman, 233 F.R.D. 70, 77 (D.Mass.2006); accord Statutory Commt. of Unsecured
Creditors v. Motorola, Inc., 218 F.R.D. 325, 327 (D.D.C.2003) (“When * * * a party seeks
only factual information relating to an issue in the case, a witness cannot demand any
greater compensation than any other witness merely because he or she can claim some
expertise in a discipline or calling.”), Arkwright Mut. Ins. Co. v. Natl. Union Fire Ins. Co.,
148 F.R.D. 552, 557 (S.D.W.Va.1993), quoting 1991 Notes of Advisory Committee, Civ.R.
No. 23AP-654 16
45(c)(3)(B)(ii) (“Discovery of * * * purely factual information does not comprise the
‘intellectual property’ of [a witness] and is therefore not protected by Rule
45([d])(3)(B)(ii).”). Thus, under Fed.R. 45(d)(3)(B)(ii), the decision to quash is informed
by the degree to which the expert is called because of his knowledge of facts relevant to the
case rather than to give expert testimony. Cable at 76. In other words, the court must parse
whether the subpoenaing party seeks testimony regarding information learned through the
witness’s direct observations or information learned through the witness’s own study. In
re Schaefer, 331 F.R.D. 603, 609 (W.D.Pa.2019). We apply this same interpretation to
Civ.R. 45(C)(3)(c).
{¶ 57} Both Drs. Magnussen and Olenick could have moved, pursuant to Civ.R.
45(C)(3)(c), to limit their subpoenas so that they only had to testify regarding the facts, i.e.,
the specific events in dispute that they personally observed.5 Had the doctors filed such
motions, Irani would have had the opportunity to argue that she had a substantial need for
their opinion testimony, that she could not otherwise meet without undue hardship, and to
offer the doctors reasonable compensation for their opinion testimony. Because the
doctors did not move under Civ.R. 45(C)(3)(c) to modify the subpoenas, nothing limited
the scope of their depositions only to the facts. Additionally, the question of compensation
for Drs. Magnussen and Olenick for their expert testimony never arose under Civ.R. 45.
{¶ 58} Optimally, Irani would voluntarily pay Drs. Magnussen and Olenick for their
opinion testimony. Irani represented to the trial court that he has offered to do so.
However, Irani did not violate the civil rules by failing to advise Drs. Magnussen and
Olenick that they were due compensation for any expert testimony they gave in their trial
depositions.
{¶ 59} Having reviewed all the alleged violations of the civil rules and court orders
set forth by the trial court, we cannot conclude that Irani’s conduct evinces such a complete
disregard for the judicial system that dismissal is warranted. The trial court relied heavily
on Irani’s actions in deposing Drs. Magnussen and Olenick to justify the dismissal. Irani’s
actions, however, violated neither Civ.R. 45 nor a court order. Although Irani’s failure to
timely disclose Dr. Lubenow as an expert witness was a serious lapse, the trial court
5 The subpoenas issued to Drs. Magnussen and Olenick set forth the text of Civ.R. 45(C)(3)(c), as required by
Civ.R. 45(A)(1)(c).
No. 23AP-654 17
sanctioned Irani for that lapse by excluding Dr. Lubenow’s testimony. The remaining
violations of the civil rules and court orders do not amount to the type of misconduct that
merits the extreme sanction of dismissal.
{¶ 60} Given our standard of review, which requires heightened scrutiny of Civ.R.
41(B)(1) dismissals, we conclude it was not reasonable for the trial court to dismiss the case
on the eve of trial. Accordingly, we hold that the trial court abused its discretion by
imposing the most severe sanction of dismissal without first considering other available
sanctions. We thus sustain Irani’s first assignment of error.
IV. Conclusion
{¶ 61} For the foregoing reasons, we sustain Irani’s first assignment of error, and we
overrule Irani’s second and third assignments of error. Therefore, we affirm the Franklin
County Court of Common Pleas’ September 16, 2022 and July 11, 2023 judgments, and we
reverse the October 5, 2023 judgment. We remand this matter for further proceedings
consistent with law and this decision.
September 16, 2022 and July 11, 2023 judgments affirmed;
October 5, 2023 judgment reversed;
and cause remanded.
MENTEL, P.J., and EDELSTEIN, J., concur.
_____________