COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67612 FRED RIVACUK : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION VLADIMAR ZELITSKY, M.D., et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 22, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 242,987 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: JACK LANDSKRONER Attorney at Law 55 Public Square, #1040 Cleveland, Ohio 44113-1904 For defendant-appellees: DALE L. HEBERT Attorney at Law 1 Kennedy Square, #2006 719 Griswold Detroit, Michigan 48226 (Cont.) - 2 - For defendant-appellees (Cont.) L. STEWART HASTINGS Attorney at Law 840 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 - 3 - DONALD C. NUGENT, J.: Plaintiff-appellant Fred Rivacuk (hereinafter "Rivacuk" or "appellant") appeals from a judgment of the Cuyahoga County Court of Common Pleas rendered in favor of defendants-appellee, Vladimar Zelitsky, M.D. and Kaiser/Ohio Permanente Medical Group, Inc. (hereinafter "Zelitsky" and "OPMG," respectively). Appellant seeks review of the trial court's rulings regarding expert testimony, jury instructions and two post-trial motions. For the reasons that follow, we affirm the judgment of the trial court and the verdict of the jury. I. In early 1990, appellant noticed a small sore on the inside of his right nostril. At the time, appellant had medical health insurance with Kaiser Foundation Health Plan of Ohio through his second wife's employer. Appellant contacted Kaiser and was referred to a general practitioner, Dr. Cameron. On May 29, 1990, Dr. Cameron examined appellant and noticed a "big ulcer inside of the right lateral nostril." Upon this finding, Dr. Cameron referred appellant to a specialist in otolaryngology (ear, nose and throat), Vladimar Zelitsky, M.D. Dr. Zelitsky was employed as a physician by OPMG. - 4 - On June 5, 1990, appellant was examined by Dr. Zelitsky. Dr. Zelitsky sprayed appellant's right nostril with a decongestant and then viewed the area after it was opened with a speculum. Dr. Zelitsky also examined appellant's nasal pharynx, nasal cavities, sinuses, the back of his tongue and his vocal box. Dr. Zelitsky had X-rays taken of appellant's nose that showed a polyp on the right maxillary sinus. After examining the X-rays taken of appellant's nose, Dr. Zelitsky determined that appellant suffered from sinusitis and rhinitis. Dr. Zelitsky prescribed an antibiot- ic and decongestant for appellant's condition. In addition, Dr. Zelitsky ordered appellant to undergo an examination by a pulmo- nologist, Dr. Wang. On August 3, 1990, appellant had a follow-up examination with Dr. Zelitsky. During this second exam, Dr. Zelitsky ordered appellant to undergo a CAT scan of his sinuses. The CAT scan revealed mucosal thickening of appellant's sinuses. In Dr. Zelitsky's opinion, the CAT scan confirmed his previous diagnosis that appellant suffered from chronic sinusitis. On October 1, 1990, appellant had his third and final exami- nation with Dr. Zelitsky. During this examination, Dr. Zelitsky removed crusting which had developed in appellant's right nostril. After cleaning out the crusting, Dr. Zelitsky did not see anything behind the crusting. As a result of the third visit, Dr. Zelitsky put appellant on a wider spectrum antibiotic and recommended that appellant use Bacitracin ointment to soften the nasal tissue and - 5 - prevent erosions. During this visit, Dr. Zelitsky did not notice any distinct area of abnormality within appellant's nose. Appellant strictly adhered to the regimen prescribed by Dr. Zelitsky; however, appellant did not return for further treatment with Dr. Zelitsky. Shortly after appellant's final visit with Dr. Zelitsky, appellant's Kaiser policy was terminated. Appellant did not receive further treatment for his nose until 1992. At that time, appellant was referred to Dr. Jabal Afnan by a mutual friend. On October 6, 1992, Dr. Afnan determined that a biopsy of appellant's nose was required. The subsequent pathology report confirmed that appellant had developed squamous cell carcinoma. Shortly thereafter, Dr. Afnan performed surgery upon appellant to remove the tumor and reconstruct the affected area. The tumor removed by Dr. Afnan measured approximately two centimeters in length. After the surgery, appellant was told to report for follow-up examinations every three months. Dr. Afnan testified that, other than six months when appellant was in Florida, he had seen appellant an average of every four months. Further, Dr. Afnan testified that the chances of recurrence of appellant's cancer were forty to fifty percent. At the time of the trial in this matter, there was no medical finding that appellant's cancer had recurred. On November 23, 1992, appellant filed his complaint with the Cuyahoga County Court of Common Pleas. In his complaint, appel- lant alleged that Dr. Zelitsky committed medical malpractice by "failing to render medical care in a skilled manner" and "failing - 6 - to properly treat and diagnose plaintiff's condition." Appellant also alleged that Kaiser Permanente/OPMG was negligent in the supervision of medical records and hospital care of the plain- 1 tiff. Specifically, it is appellant's contention that OPMG failed to make available to Dr. Zelitsky the initial medical report of Dr. Cameron concerning his preliminary finding of a large ulcer in appellant's right nostril. Appellant contends that if Dr. Zelitsky had been in possession of Dr. Cameron's report, he would have known to biopsy the suspect "ulcer" in appellant's nose. Thereafter, the parties embarked on extensive pre-trial discovery. Expert medical reports were exchanged by the parties pursuant to Loc.R. 21.1. One of defendants-appellees' experts, Dr. Shan R. Baker, prepared an expert report on November 30, 1993, in which he specifically stated that "more likely than not, [appellant's] tumor was not visible at the time the patient was seen by Dr. Zelitsky." Prior to trial, Dr. Baker had a discovery deposition taken by the parties. Thereafter, on May 3, 1994, Dr. Baker was deposed via videotape for use during trial. During his videotape deposition, Dr. Baker opined that: I don't believe that [at the time of Dr. Zelitsky's examination] the patient had a big ulcer inside his right lateral nostril. 1 During the trial, the parties agreed to dismiss Kaiser Foundation Health Plan of Ohio, Inc. as a defendant. The trial proceeded with Dr. Vladimar Zelitsky and Ohio Permanente Medical Group of Ohio, Inc. as the only defendants. - 7 - The plaintiff moved to strike this portion of Dr. Baker's testimony claiming that Dr. Baker was testifying to "issues" not presented in his previously submitted medical report, thus violat- ing Loc.R. 21.1. The trial court denied plaintiff's motion. On June 16, 1994, the matter proceeded to trial. The plain- tiff and four other witnesses testified during the plaintiff's case-in-chief: to wit, Dr. Zelitsky, Dr. Afnan and plaintiff's daughters, Gloriane Maloney and Diane Botner. The plaintiff presented his medical expert, Dr. Afnan. Dr. Afnan testified that, in his opinion, if Dr. Zelitsky saw the ulceration that Dr. Cameron saw in his first examination, then he should have done a biopsy. Further, Dr. Afnan testified that if the cancer had been discovered earlier, the plaintiff's prognosis and treatment would have been better. At the conclusion of the plaintiff's case-in-chief, the defendants made a motion for directed verdict. Defendants argued that the plaintiff had failed to prove a violation of the standard of care, proximate cause and damages. The trial court overruled the defendants' motion, and the trial proceeded. In support of their case, the defendants presented the expert testimony of Dr. David Stepnick through in-court testimony as well as the expert testimony of Dr. Shan Baker via videotape. Both Dr. Stepnick and Dr. Baker testified that, based upon a reasonable degree of medical certainty, it was their opinion that the plain- tiff did not have squamous cell carcinoma at the time he was cared - 8 - for by Dr. Zelitsky. Further, both doctors opined that Dr. Zelitsky had not breached his duty of care in his treatment of appellant. In addition to the expert testimony, defendants presented the testimony of Nurse Lucille Wilson of Kaiser Permanente. Nurse Wilson testified about the procedure that is followed regarding notes and examinations taken by the Kaiser medical staff as well as the mechanism to insure that patients are aware of their appointments. At the conclusion of all the evidence, defendants renewed their motion for a directed verdict. The trial court again denied defendants' motion. Thereafter, closing arguments were heard and the matter was submitted to the jury. The jury returned a general verdict in favor of defendants Dr. Zelitsky and OPMG. At the conclusion of the trial, the plaintiff made a motion for a judgment notwithstanding the verdict pursuant to Civ.R. 50(B) as well as a motion for new trial pursuant to Civ.R. 59(A)(8). Each motion was denied by the trial court. Thereafter, appellant timely filed his notice of appeal with the court, raising the following three assignments of error for our review: I. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT/PLAINTIFF BY PERMITTING DR. SHAN BAKER, DEFENDANTS' EXPERT, TO RENDER OPINIONS THAT WERE - 9 - INCONSISTENT WITH DR. BAKER'S DEPOSITION, IN VIOLATION OF LOCAL RULE 21.1. (BAKER DEPO. AT 21). II. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF MR. RIVACUK BY REFUSING TO INSTRUCT THE JURY ON THE ISSUE OF THE INDEPENDENT NEGLIGENCE OF KAISER PERMAN- ENTE/OHIO PERMANENTE MEDICAL GROUP'S FAILURE TO PROVIDE DEFENDANT ZELITSKY WITH DR. CAMERON'S MAY 20, 1990 MEDICAL RECORD. (TRANSCRIPT AT 477). III. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF MR. RIVACUK BY FAILING TO GRANT PLAINTIFF'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE OF THE RECURRENCE OF CANCER. (PLAINTIFF'S MOTION FOR NEW TRIAL AT 5). II. In his first assignment of error, appellant contends that the trial court abused its discretion by failing to properly enforce Loc.R. 21.1 as it regards the testimony of Dr. Shan Baker. Loc.R. 21.1 provides, in pertinent part, as follows: A party may not call an expert witness to testify unless a written report has been pro- cured from the witness and provided to oppos- ing 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. (Emphasis Added). - 10 - Loc.R. 21.1 permits the trial court to exercise its discre- tion in deciding whether or not a party has complied with the mandates of the rule and, in the absence of compliance, to exclude expert testimony. Pang v. Minch (1990), 53 Ohio St.3d 186; Laster v. Light (Mar. 16, 1995), Cuyahoga App. No. 66747, unreported. It is the duty of the trial court to weigh the conduct of the party offering the expert witness along with the level of preju- dice suffered by the opposing party that is attributable to the discovery violation in order to determine what, if any, sanction is appropriate. Savage v. Correlated Health Serv. (1982), 64 Ohio St.3d 42, 55. Such determination and exclusion by the trial court will not be reversed on appeal absent an abuse of discretion. Pang, supra; Laster, supra. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Tracy v. Merrell Dow Pharmaceuticals (1991), 58 Ohio St.3d 147, 152; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In the instant case, appellant contends that the trial judge's refusal to strike portions of Dr. Baker's videotape testimony prejudiced appellant and amounted to "trial by ambush." Specifically, appellant contends that Dr. Baker's videotape testi- mony "unequivocally asserted that Mr. Rivacuk had no tumor in his right nostril when he presented himself to Dr. Cameron. Appellant contends that this testimony is unexpected and amounted to "trial - 11 - by ambush." For the following reasons, we do not agree with appellant's contention. Appellant correctly states that Loc.R. 21.1 was written to provide the parties with the basic facts and issues of a case to the fullest practicable extent. Further, appellant correctly states that a party is prohibited from effective cross-examination when the opposing party's expert witness testifies in a manner materially different from the opinion expressed in that same expert's previously submitted report. See, Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 370. However, the record in the present case does not show such prejudicial acts resulted from the admission of Dr. Baker's testi- mony. Loc.R. 21.1 requires that an expert report disclose the "issues on which the expert will testify." Dr. Baker's report dated November 30, 1993 clearly includes his opinion regarding the issue of when appellant's tumor became present. The report stated, "I believe that, more likely than not, this tumor was not visible at the time when the patient was seen by Dr. Zelitsky." Therefore, under the definition of Loc.R. 21.1, Dr. Baker's November 30, 1993 report apprised appellant of Dr. Baker's opinion regarding the "issue" of when appellant's tumor became present. Dr. Baker's videotape testimony merely stated his answer to this issue in more definite terms; it did not present a completely new issue not previously expressed in his report. Therefore, appellant's reliance on Jackson v. Booth Memorial Hosp. (1988), 47 - 12 - Ohio App.3d 177 is misplaced and inappropriate to the facts pres- ented herein. Moreover, appellant cannot claim that Dr. Baker's testimony caused surprise. The purpose of the discovery rules is to avoid the element of surprise. However, these rules are not designed to be enforced in a manner that causes undue prejudice due to their non-compliance. See, Huffman v. Hair Surgeons, Inc. (1985), 19 Ohio St.3d 83; Long v. Isakov (1989), 58 Ohio App.3d 46, 51; Laster, supra. In the present case, appellant had ample notice regarding Dr. Baker's opinion that appellant's tumor was not present in 1990. Prior to the videotape testimony, appellant took part in a discov- ery deposition of Dr. Baker on April 22, 1994. This discovery deposition clearly supplemented Dr. Baker's previous written report. At this time, Dr. Baker clearly opined that he felt appellant did not have a visible ulcer or tumor when treated by Dr. Zelitsky. Dr. Baker stated that he was of the opinion that Mr. Rivacuk did not have a "big ulcer" inside his right lateral nostril. During the course of this deposition, appellant had ample opportunity to cross-examine Dr. Baker regarding his prior opinions and testimony. For these reasons, appellant cannot claim he was surprised by Dr. Baker's videotaped opinion that the area Dr. Cameron described in 1990 was not a cancer and therefore a biopsy would have been inappropriate. If appellant felt that he was truly surprised and prejudiced from Dr. Baker's testimony, he had a right - 13 - to file a motion in limine to exclude the testimony or request a continuance of the trial to re-depose Dr. Baker. This request was not made. Therefore, from a thorough review of the record, we find that the trial court's refusal to strike portions of Dr. Baker's videotape testimony was proper and did not amount to an abuse of discretion in applying Loc.R. 21.1. Accordingly, appellant's first assignment of error is over- ruled. III. In his second assignment of error, appellant contends that the trial court abused its discretion by refusing to instruct the jury on the purported independent negligence of OPMG in failing to provide Dr. Zelitsky with the medical records of Dr. Cameron. Refusal to admit proposed jury instructions which are either redundant or immaterial to a case is within the sound discretion of a trial court. Bostic v. Connor (1988), 37 Ohio St.3d 144, paragraph two of the syllabus. In determining whether the trial court gave the appropriate jury instructions, an appellate court must review the evidence that was presented to see whether the record supports the giving of a particular instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. In the case herein, appellant contends that the failure of Kaiser/OPMG to provide Dr. Zelitsky with Dr. Cameron's records was - 14 - a proximate cause of Dr. Zelitsky's failure to recognize and biopsy the ulcer in appellant's nose. This contention of appellant fails for two reasons. First, as aforementioned, during the trial, Kaiser was dismissed upon the agreement of both parties. The only parties remaining in the case when it came time for the trial court to give jury instructions were OPMG and Dr. Zelitsky. Therefore, any purported negligence on the part of Kaiser could not have been addressed by the trial court nor can it be addressed by this court. Furthermore, throughout the course of the trial, there was no evidence presented to show that either OPMG or Dr. Zelitsky was responsible for the handling of Dr. Cameron's medical records. On the contrary, evidence was presented to show that OPMG's only function is to provide physician services to Kaiser members. During oral argument of this matter, appellant contended that OPMG should be liable for these records through an agency-by-estoppel theory with Kaiser. As the record contains no evidence to support appellant's theory, we refuse to follow appellant's agency-by- estoppel theory. Secondly, appellant failed to show that the record of Dr. Cameron was even important to the examination done by Dr. Zelitsky. Dr. Zelitsky testified that this record would not have made a difference, and the record before this court reflects the same. Both Dr. Baker and Dr. Stepnick opined that Dr. Cameron's record - 15 - was not important in light of the thorough examination which Dr. Zelitsky performed upon Mr. Rivacuk. The record shows that Dr. Zelitsky thoroughly examined appel- lant on three separate occasions. Appellant failed to show that the absence of Dr. Cameron's record was the cause of Dr. Zelitsky being unable to find a tumor; rather, the record shows that Dr. Zelitsky performed very thorough examinations and still was unable to find any suspicious cells that would lead him to perform a biopsy. Therefore, from a thorough review of the record, we cannot find that the trial court abused its discretion in refusing to give a jury instruction alleging negligence against OPMG regarding the care of Dr. Cameron's medical records. Accordingly, appellant's second assignment of error is over- ruled. IV. In his third assignment of error, appellant contests the trial court's denial of his post-judgment motions for judgment notwithstanding the verdict and for a new trial. Appellant contends that the trial court abused its discretion in not granting a new trial pursuant to Civ.R. 59(A)(5). Appel- lant motioned the trial court to permit a new trial on the ground that appellant had newly-discovered evidence that his cancer had recurred. - 16 - A trial court has the authority, pursuant to Civ.R. 59(A)(8), to grant a new trial on the grounds of newly-discovered evidence only if that newly-discovered evidence (1) is material and (2) could not have been discovered and presented at trial. The Ohio Supreme Court has interpreted the requirements of Rule 59(A)(8) to encompass a six-step analysis: To warrant the granting of a motion for a new trial based on the ground of newly discovered evidence, it must be shown that (1) the new evidence must be such a will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeach or contradict the former evidence. Sheen v. Kubiac (1936), 131 Ohio St. 52 at syllabus and 58. Application of these six steps to appellant's allegedly newly- discovered evidence reveals that a new trial is not warranted. In the present case, the primary issue before the jury was whether Dr. Zelitsky or OPMG breached their duty of care to Mr. Rivacuk. In finding for the defendants, the jury found that neither of the defendants was negligent in their care of appel- lant. Therefore, while the issue of recurrence is very materi- al to appellant, it is immaterial to the determination of the legal issues presented. Whether or not the cancer would recur was only relevant if the jury had found the defendants negligent in their care of appellant. Appellant's contention that this newly- discovered evidence substantiates his claim that defendants were - 17 - liable for his damages is spurious. Each of the medical experts testified that all cancer patients had a chance of recurrence of their cancer within five years of the initial operation. These medical experts differed only upon the percentage of the chance of recurrence regarding appellant's case. Appellant's medical expert felt the chance to be forty to fifty percent, and appellees' medical experts felt the chance to be five to twenty percent. The fact that all of these experts were proven wrong by the actual occurrence of appellant's cancer is immaterial to our determination. At best, the new evidence of appellant's recurrence only contradicts the medical experts' opinions as to the likelihood of recurrence. Furthermore, the affidavit of Dr. Afnan attached to appellant's post-trial motions states that he noticed the "suspicious looking lesion" on June 17, 1994, during the trial. However, Dr. Afnan did nothing except to set up an examination after the trial. Contrary to the assertion made in Dr. Afnan's affidavit, the facts show that the recurrence of the cancer was discoverable by appellant either before or during the trial through reasonable diligence. Therefore, from a thorough review of the record and the applicable case law, we cannot find that the trial court's denial of appellant's post-trial motions amounted to an abuse of discre- tion. - 18 - Accordingly, appellant's third assignment of error is overr- 2 uled. Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. LEO M. SPELLACY, P.J. JOSEPH J. NAHRA, J. CONCUR JUDGE DONALD C. NUGENT 2 Defendants, Dr. Zelitsky and OPMG, filed a cross-appeal assigning three assignments of error for our review in the event that this court would find for appellant and reverse and remand this matter. Due to the fact that we affirm the decision of the trial court and overrule all of appellant's assignments of error, we will not address the assignments of error raised in defendants' cross-appeal as they are rendered moot by our disposition herein. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .