COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69059 & 69105 SHERYL SIEGEL : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION GARY BIRNBAUM, M.D., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-188157 JUDGMENT: Affirmed in Part, Reversed in Part and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: CHARLES GRUENSPAN, ESQ. DOUGLAS G. LEAK, ESQ. 900 Three Commerce Park Square CLAYTON L. ROBINSON, ESQ. 23200 Chagrin Boulevard JACOBSON, MAYNARD, Cleveland, Ohio 44122 TUSCHMAN & KALUR CO., L.P.A. 1001 Lakeside Avenue, Suite 1600 Cleveland, Ohio 44114-1192 - 2 - DYKE, J.: Appellant Sheryl Siegel incurred injury to her finger while cutting chicken. She sought treatment on October 26, 1986 at Meridia Hillcrest Hospital's emergency room. Dr. Gary I. Birnbaum anesthetized the cut with a subcutaneous injection of Benadryl after being informed by appellant that she was allergic to both forms of the most commonly used anesthetics, Xylocain and Novocain. Dr. Birnbaum then cleaned and sutured the wound. The tissue of appellant's finger subsequently became necrotic, requiring surgery on the tip of her right index finger. A complaint was filed in March 1988 but was voluntarily dismissed following a year of preliminary discovery. Appellant reinstituted the action, sounding in medical malpractice, against Dr. Birnbaum and Mayfield Emergency Specialists ("Mayfield Emergency") on April 13, 1990. Two other named defendants were later dismissed. On August 8, 1991 a separate action was filed against Warner-Lambert, the manufacturer of Benadryl. The two cases were consolidated. On June 16, 1992 Warner-Lambert's motion for summary judgment, supported by the running of the statute of limitations, was granted by the trial court and this Court affirmed the decision, Siegel v. Warner-Lambert Co. (Nov. 10, 1993), Cuyahoga App. No. 64067, unreported. The remaining action against Birnbaum and Mayfield Emergency went to trial. The jury returned a verdict in favor of the appellees on August 31, 1992. Seven of the eight jurors signed the - 3 - special interrogatory indicating that the appellees had not breached the standard of care. Appellant filed a notice of appeal from the jury's verdict. Appellees also filed a cross-appeal from the trial court's assessment of costs and attorneys' fees. The appeals have been consolidated for our review. Appellant asserts fourteen assignments of error. Appellees raise two assignments of error on cross-appeal. I THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO INCLUDE ALLEGATIONS OF BATTERY AND FRAUD. Appellant argues that her claim for battery was not precluded by the running of the one year statute of limitations because appellee fraudulently concealed from her that a battery had occurred. Appellant asserts that the statute of limitations began running only once an expert reviewed the case and informed her of the existence of a battery claim. Even if appellant's assertion is valid that the statute of limitations had not run against her claims of fraud and battery, we find that the trial court did not abuse its discretion in denying appellant's motion for leave to file an amended complaint. After filing a separate claim against Warner-Lambert, appellant filed a second motion to amend, requesting a withdrawal of the first motion, adding battery and fraud claims to the medical malpractice allegation brought against appellees. This second motion to amend the pleadings was filed on August 8, 1991, sixteen - 4 - months following the initial pleadings. The case was set for trial two months prior to the filing of the motion to amend the pleadings. The trial court denied appellant's motion to amend her complaint. Prior to the time when the responsive pleading is served a plaintiff may file an amendment to the complaint without leave of court. Thereafter the language of Civ.R. 15(A) directs a court to "freely" give leave to amend a pleading when justice so requires. However, the decision to grant or deny a motion to amend is discretionary. The decision whether to allow a party leave to amend a complaint lies exclusively within the discretion of the trial court and the ruling will not be disturbed on appeal by a reviewing court absent an affirmative showing of an abuse of discretion. Natl. Bank of Fulton Cty. v. Haupricht Bros. (1988), 55 Ohio App.3d 249, 251, 564 N.E.2d 101, 107; Mead Corp. v. Lane (1988), 54 Ohio App.3d 59, 67 560 N.E.2d 1319, 1327. * * * Where the movant fails to present operative facts in support of the new allegations, a court does not abuse its discretion in denying a motion to amend. [Solowitch v. Bennett (1982), 8 Ohio App.3d 115, 117, 8 OBR 169, 171, 456 N.E.2d 562, 564.] Edmondson v. Steelman (1992), 87 Ohio App.3d 455, 457-58. In appellant's motion to file an amended complaint, she alleged a count of battery against Dr. Birnbaum. The added count stated that Dr. Birnbaum had "failed to obtain Plaintiff's prior informed consent for the improper and unapproved administration of the drug Benadryl" and as a result of this nonconsensual touching, appellant suffered injury. - 5 - Appellant's proposed amended complaint also included an added count of fraud, alleging that Dr. Birnbaum had "failed to disclose crucial facts regarding the use of the drug Benadryl with the intent of misleading Plaintiff into consenting to Defendant Birnbaum's administration of Benadryl." We can not find that either of these allegations justifies an amendment to the complaint at such a late point in the proceedings. Appellant cites no operative facts to support her allegation of battery. Appellant never states that she did not consent to Dr. Birnbaum's treatment of her injured finger. Appellant simply restates her assertion that the use of Benadryl as an anesthetic, administered by subcutaneous injection, was below the standard of care. Furthermore, the count of fraud failed to allege the circumstances constituting fraud with sufficient specificity pursuant to Civ.R. 9(B). Appellant failed to allege which "crucial facts" Dr. Birnbaum had the duty to disclose to her prior to administering the Benadryl. She offers no facts to support her assertion that Dr. Birnbaum had the intent to mislead her into consenting to his treatment. Due to appellant's failure to plead fraud with sufficient particularity and her failure to assert operative facts in support of the battery claim, we can not find an abuse of discretion in the trial court's disposition of appellant's motion. Furthermore, the initial claims of medical negligence had been raised and dismissed in 1988-1990 and re-asserted in 1990. This motion for leave to - 6 - amend comes a full year and four months after the second filing of the complaint and after the trial date had been set for two months. Given the lack of factual support and the lack of timeliness of the motion, we find that the trial court did not abuse its discretion in denying appellant's motion for leave to amend her complaint. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR SUMMARY JUDGMENT. IV THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S USE OF THE PHYSICIAN'S DESK REFERENCE AS EVIDENCE, YET ALLOWED APPELLEE TO USE SUCH EVIDENCE. Appellant's second and fourth assignments are interrelated and will be reviewed together. Appellant asserts that the trial court erred in its failure to take judicial notice of the instructions and directives in the Physician's Desk Reference ("PDR") pertaining to the manner and purpose of use of Benadryl. Appellant claims that her motion for summary judgment would necessarily have been granted if the trial court had recognized the PDR for the authority it is. This evidence would have shown that appellee had used Benadryl for an unapproved purpose in an unapproved manner, leading to appellant's permanent injury. Appellant's argument is without merit. It has been established by this Court that: The scope of cross-examination and the admissibility of evidence during cross-examination are matters which rest in the sound discretion of the trial judge. Thus, - 7 - when the trial court determines that certain evidence will be admitted or excluded from trial, it is well established that the order or ruling of the court will not be reversed unless there has been a clear and prejudicial abuse of discretion. [citations omitted.] O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163. Appellant wanted to use the PDR as evidence of the standard of care to be used by physicians. The trial court allowed use of the PDR as a source, cited by the experts testifying at trial. However, the PDR was never admitted as evidence in and of itself. The PDR has been admitted in evidence as a defense to a lawsuit alleging negligence against a drug manufacturer in warning of possible side effects. Oppenheimer v. Sterling Drug, Inc. (1964), 7 Ohio App.2d 103. The court found that the PDR was "circulated among doctors and intended to provide ready information concerning drugs, their composition, use, dosage, and side effects." Oppenheimer v. Sterling Drug, Inc., supra, 7 Ohio App.2d at 107. The contents of the PDR were directly relevant to support the drug manufacturer's assertion that they did provide warnings of the side effects of the drug they produced. Thus, the trial court properly admitted the document for those purposes in Oppenheimer v. Sterling Drug, Inc. The PDR was not introduced for the same purpose under the facts of the present case. Here, appellant is attempting to prove the standard of care which Dr. Birnbaum allegedly breached when treating her cut with Benadryl as an anesthetic. The PDR is not a definitive source of the standard of care to be used by doctors. - 8 - It is a source to which experts can cite for authority as to the composition, use, dosage and side effects of drugs. The trial court properly allowed the use of the PDR for this purpose during examination and cross-examination of the experts at trial. We do not find that the trial court abused its discretion when appell- ant's request to admit the PDR into evidence was denied. The rules of evidence are clear that the court has discretion as to the admissibility of evidence at trial. [T]he trial court's discretion in regulating the admissibility of evidence includes controlling the extent to which learned treatises may be used in the cross- examination of expert witnesses. O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163. Appellant's assertion that summary judgment should have been granted because the PDR did not specify that Benadryl could be used as an anesthetic is not a valid assignment of error attributed to the trial court. The PDR was not admitted to prove the applicable standard of care. The experts employed by appellant and appellees testified to the appropriate standard of care with which to review Dr. Birnbaum's treatment of appellant's finger. Because the trial court was not required to admit the PDR as definitive evidence of the standard of care, a genuine issue of material fact remained to be tried to the jury. Therefore, appellant's summary judgment motion was properly denied. Civ.R. 56(C). Appellant's second and fourth assignments of error are overruled. - 9 - III THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE PROVIDED BY THE DRUG MANUFACTURER. Appellant argues that the motion in limine filed by appellees to preclude the introduction of evidence obtained from Warner- Lambert relating to the proper use of its drug was improperly granted. Appellant further argues that the visiting judge assigned to the case prior to the trial but subsequent to the granting of the motion in limine was without power to vacate the prior judge's ruling with regard to the motion. Appellant's argument is not well taken. Due to appellant's litigation against Warner-Lambert for failing to adequately warn against the use of its drug, Benadryl, as an anesthetic and against the administration of Benadryl by subcutaneous injection, appellant had access to information received by Warner-Lambert from physicians using Benadryl as an anesthetic. The trial court granted appellees' motion in limine to exclude the anecdotal evidence of complications. This ruling is supported by Evid.R. 402 in that this information was not relevant to the issue of whether Dr. Birnbaum breached the standard of care in his use and administration of the Benadryl. Evid.R. 402 provides that evidence which is not relevant is not admissible. The documents sought to be admitted by appellant support the proposition that Warner-Lambert was aware of the potential for unwanted side effects from the use of Benadryl as an - 10 - anesthetic. However, the documents are irrelevant as to the standard of care which Dr. Birnbaum was held to as a reasonable physician. The documents do not prove that Dr. Birnbaum was aware of any potential problem with the anesthetic use of Benadryl. Therefore, the documents were irrelevant and thus, inadmissible. The motion in limine was properly granted. Because this assignment of error is disposed of under Evid.R. 402, we need not reach the issue of whether the visiting judge had the power to vacate the initial judge's ruling. Appellant's third assignment of error is overruled. V THE TRIAL COURT ERRED IN PERMITTING WILLIAM SEITZ, M.D., TO TESTIFY AS DEFENDANT'S MEDICAL EXAMINER. VII THE TRIAL COURT ERRED IN PERMITTING DANIEL SCHELBLE, M.D., TO TESTIFY AS DEFENDANT'S MEDICAL EXPERT. Because the same legal analysis applies to assignments of error five and seven, they will be treated together. Appellant asserts that the expert opinion testimony of Dr. Seitz should not have been admitted because no expert report from Dr. Seitz was ever submitted. Appellant argues that because of appellees' trial by ambush technique, she had no opportunity to prepare for the cross-examinations of Dr. Seitz or Dr. Schelble. Appellant's assertion is not well taken. Civ.R. 26(E)(1) governs the responsibility of the parties to supplement any response to requests for discovery with the identity - 11 - of expert witnesses and the subject matter on which they are expected to testify. Loc.R. 21.1 requires expert reports to be exchanged between the parties prior to thirty days before trial. Exceptions to this rule exist where the expert is a treating physician and the office or hospital records can serve as the report. The sufficiency of these records is a matter for the trial judge's discretion. If a party is unable to produce an expert's report, although good faith efforts were made to obtain the report, that party must produce the name and address of the expert, the subject of the expert's expertise, his or her qualifications and a detailed summary of the testimony. This Court has been presented with an extensive record from the trial court. However, we were not provided with a trial transcript and therefore, can not compare the trial testimony of the two experts with the depositions given prior to trial. The appellant did provide a statement of evidence and proceedings pursuant to App.R. 9(C), signed by the trial judge. Two of the four paragraphs of this statement of proceedings relate to the two assignments of error under our consideration here. Paragraph one reads as follows: Plaintiff timely objected in chambers to the admissibility of the testimony of William Seitz, M.D., as Defendant's expert, on the grounds that an expert report was not provided, notice was defective, and Plaintiff did not have adequate opportunity to prepare for the deposition. Motion was overruled. Dr. Seitz saw appellant in November, after Dr. Birnbaum's treatment of her finger in the emergency room. Dr. Seitz performed - 12 - surgery on the finger to relieve the infection which was beginning to spread to her hand. Dr. Seitz was deposed on August 18, 1992 and his office records were reviewed by appellant's attorney during the deposition. We find it impossible to state that appellant was or was not prejudiced by the admission of Dr. Seitz's trial testi- mony because we can not compare it with the office records which appellant had in her possession prior to the deposition, which was taken approximately a week before the trial. We are unable to state that appellant was unfairly surprised. We must affirm the trial court's use of its discretion in admitting the testimony of Dr. Seitz. Paragraph three of plaintiff's statement of proceedings states: Plaintiff timely objected in chambers to introduction of opinion evidence by Daniel Schelble, M.D., regarding the specific conduct of Defendant Birnbaum on the ground that such opinion was not contained in his expert report. Motion overruled. The deposition of Dr. Schelble took place on July 31, 1992. Appellant admits that an expert report was submitted for Dr. Schelble, however at the time the report was submitted he was an expert on behalf of defendant Hillcrest Hospital. The deposition was taken one year after Hillcrest Hospital was dismissed from this action. However, the hospital records studied by Dr. Schelble with regard to the liability of the hospital were the same records of appellant's emergency room visit upon which Dr. Schelble could base an opinion on the care given by Dr. Birnbaum. The deposition taken - 13 - on July 31st gave appellant a clear indication of Dr. Schelble's opinion as to Dr. Birnbaum's use of Benadryl as an anesthetic. Furthermore, Dr. Schelble submitted an affidavit stating that Dr. Birnbaum's use of Benadryl was appropriate which was attached to appellees' brief in opposition to appellant's motion for summary judgment, filed July 31, 1992. We do not have a copy of the report Dr. Schelble submitted as an expert for Hillcrest Hospital. However, we can not find that appellant was taken by ambush or surprise by the failure of appellees to provide a report specifying that Dr. Birnbaum did not act outside the applicable standard of care. Appellant had adequate notice of the expert opinion given by Dr. Schelble prior to trial. Upon a complete review of the record before us, we are convinced that the trial court did not abuse its discretion in admitting the expert opinion testimony of Drs. Seitz and Schelble. Appellant's fifth and seventh assignments of error are overruled. VI THE TRIAL COURT ERRED IN NOT DISCLOSING EX-PARTE COMMUNICATIONS WITH DEFENDANT'S EXPERT WITNESS. XIII THE TRIAL COURT ERRED IN DENYING THE MOTION TO HOLD SEITZ IN CONTEMPT. Appellant argues that the trial court violated its duty of impartiality by not disclosing the fact that Dr. Seitz had directed a letter to the court to unduly influence the judge. The letter was intended to notify the court of appellant's attorney's refusal to - 14 - pay the agreed upon fee at the end of the deposition. Appellant argues further under assignment of error thirteen that Dr. Seitz should have been held in contempt of court for his conduct. Appellant's arguments are without merit. Appellant was not prejudiced by the unilateral communication by Dr. Seitz to Judge Friedland, complaining of the conduct of appellant's attorney following a deposition. One line of the two page letter refers to Dr. Seitz's opinion that the lawsuit is meritless. This is not sufficient evidence of impartiality of a trial judge. Furthermore, the letter was not directed to the judge who conducted the actual trial. The trial itself was transferred from Judge Friedland's docket to a visiting judge. The case was transferred back to Judge Friedland for post-trial motions and a brief remand from this court for a clarification of a journal entry. The letter written by Dr. Seitz could not have had an impact on the jury trial verdict. The trial court was not in error when it refused to hold Dr. Seitz in contempt of court for communicating by letter to Judge Friedland. "Contempt of court" is defined as the disobedience or disregard of a court order or a command of judicial authority. Daniels v. Adkins (June 3, 1994), Ross App. No. 93CA1988, unreported at 3, 1994 WL 268263; Johnson v. Morris (Dec. 19, 1993), Ross App. No. 93CA1969, unreported at 13, 1993 WL 524976. Contempt of court involves conduct which engenders disrespect for the administrator of justice or which tends to embarrass, impede or disturb a court in the performance of its function. Denovchek v. Trumbull Cty. Bd. of Commrs. (1988), 36 Ohio St.3d 14, 15, 520 N.E.2d 1362, 1363- 1364; Windham Bank v. Tomaszczyk (1971), 27 Ohio St.2d - 15 - 55, 271 N.E.2d 815 at paragraph one of the syllabus. The law of contempt is intended to uphold and ensure the effective administration of justice, secure the dignity of the court and to affirm the supremacy of law. Cramer v. Petrie (1994), 70 Ohio St.3d 131, 133, 637 N.E.2d 882. The power of the common pleas courts to punish contempt- uous conduct is derived from its inherent authority, Burt v. Dodge (1992), 65 Ohio St.3d 34, 35, 599 N.E.2d 693; Zakany v. Zakany (1984), 9 Ohio St.3d 192, 9 OBR 505, 459 N.E.2d 870, syllabus, as well as from statute. See e.g., R.C. 2705.01 and R.C. 2705.02. In re Parker (1995), 105 Ohio App.3d 31, 34. The authority vested in the trial court to find Dr. Seitz in contempt was discretionary. Given the definitions and purposes of contempt enumerated above, we find that the trial court exercised its discretion well within the bounds of the law in denying appellant's motion to hold Dr. Seitz in contempt. Appellant's assignments of error six and thirteen are overruled. VIII THE TRIAL COURT ERRED IN PREVENTING APPELLANT FROM CALLING APPELLEE AS A REBUTTAL WITNESS. Appellant wanted to call appellee, Dr. Birnbaum, to the stand to testify that he could not have relied upon the article referred to by several of the experts from the Journal of Emergency Medicine. The article was published three years after Dr. Birnbaum treated appellant. The trial court sustained appellees' objection to the use of Dr. Birnbaum as a rebuttal witness for this purpose. Without citing to any law, appellant argues that the sustaining of the objection was in error. Appellant's argument is not well taken. - 16 - Appellees' respond in their appellate brief that references to the article in the Journal of Emergency Medicine were not first raised during the defense's case-in-chief, therefore, the issue was not a proper topic for rebuttal. This Court has no way to review this assignment of error without, at the minimum, excerpts from the transcript of the trial to support appellant's assertion of her right to call appellee on rebuttal. The only specific reference to the alleged error is in paragraph four of plaintiff's statement of evidence and proceedings. It reads as follows: Plaintiff attempted to call Defendant Birnbaum as a rebuttal witness for the purpose of cross examining him regarding a 1989 article from the Journal of Emergency Medicine cited by Defendant's counsel in cross examination of Plaintiff's expert. Defendant objected. The objection was sustained. Without the ability to review the context of the proceedings to determine when the issue was raised and whether appellant had the opportunity to question Dr. Birnbaum while he was on the stand about his awareness of the article at the time he treated appel- lant, we can not render a disposition of this assignment of error. When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm. Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, 386-87, quoting Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. - 17 - The App.R. 9(C) statement of evidence and proceedings was insufficient to support appellant's assertion that the court's ruling was in error. Appellant's eighth assignment of error is overruled. IX THE TRIAL COURT ERRED IN ALLOWING APPELLEE TO CROSS- EXAMINE APPELLANT'S WITNESS ABOUT POSSIBILITIES. Appellant argues that appellees' counsel should not have been allowed to cross-examine Dr. Crane about a series of possible occurrences in that these occurrences were prejudicial to appel- lant's case without having any probative value. Appellant's argument is not supported and can not be reviewed. There is no indication in the record that appellant was prejudiced by appellees' counsel's cross-examination of Dr. Crane. We have no record of the questions asked upon cross-examination and can not review appellant's claimed error. See Wiltsie v. Teamor (1993), 89 Ohio App.3d 380 and Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Appellant's ninth assignment of error is overruled. XI THE TRIAL COURT ERRED IN NOT REASSERTING JURISDICTION UPON REMAND FROM THE COURT OF APPEALS. XII THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL. XIV THE TRIAL COURT ERRED IN CHANGING FINAL JUDGMENT HEREIN. - 18 - In each of these three assignments of error, appellant protests the assignment on remand to the initial judge on the case, who was not the trial judge due to a docket overload. Appellant asserts that Judge Matia, the visiting judge who acted as trial judge, should have made the rulings on her motions for new trial, mistrial or judgment notwithstanding the verdict. Appellant further argues that the judge was not in a position to journalize the jury's verdict when she was not the trial judge. The trial verdict was journalized on September 3, 1992. Judge Matia's final orders were signed and filed on December 22, 1992. The matter was on appeal with this Court during 1993, until it was remanded for clarification of the journal entry in October 1993. Appellant filed her motion for mistrial, alternatively for new trial or judgment n.o.v. on January 28, 1994. She cited numerous irregularities in the proceedings, most of which are raised in this appeal as assignments of error. Judge Friedland was reassigned to the case on February 22, 1994 by the Court of Common Pleas Administrative Judge. On February 28th Judge Friedland denied appellant's motion for a new trial. First, we must affirm Judge Friedland's denial of appellant's motion for new trial as untimely. The time period allotted for moving for a new trial is not later than fourteen days after the entry of judgment. Civ.R. 59(B). Although this Court remanded the appeal temporarily for a correction of the journal entry, we find - 19 - that the September 3, 1992 journal entry is the entry of judgment from which appellant should have filed her motion for a new trial. Next, we note that another judge can be designated by the administrative judge under Civ.R. 63(B), if "for any reason the judge before whom an action has been tried is unable to perform the duties to be performed by the court after a verdict is returned or findings of fact and conclusions of law are filed." Appellant has offered no indication that the visiting judge, who conducted the trial, was able to perform his duties upon remand of the case to the trial court. We must presume regularity in the proceedings when the visiting judge was not reassigned to the case a year and two months after his last rulings as a judge on the action. We have nothing in the record to support a finding of error in the administrative judge's assignment of the case to Judge Friedland. Finally, we find that Judge Friedland had a sufficient record before her to correct the journal entry filed on September 3, 1992, according to appellees' motion to correct. The original journal entry indicated that the verdict was for a singular defendant at plaintiff's costs, when in fact Dr. Birnbaum and his business association, Mayfield Emergency, were both defendants in the trial below. Without a journal entry disposing of all parties, this Court lacked jurisdiction to hear the appeal. The corrected journal entry simply clarified the jury's verdict which found that Dr. Birnbaum had not breached the standard of care. Without a breach of duty by Dr. Birnbaum, no liability would lie with his - 20 - business association. Judge Friedland was not required to weigh the credibility of the witnesses or perform any review which would necessitate a new trial in order to correct the September 3, 1992 journal entry. She had full authority to dispose of the motions and perform any other duties required of the trial court at the post-verdict stage of the proceedings, at her discretion. Appellant's eleventh, twelfth and fourteenth assignments of error are overruled. X THE TRIAL COURT ERRED IN AWARDING COSTS. Appellant argues that only those costs authorized by statute can be awarded to the prevailing party. Appellant asserts that the $1,469.26 awarded as costs to appellees constituted deposition expenses and the cost of the playback of videotaped testimony, neither of which are statutorily authorized to be awarded as costs. Appellant's argument is well taken. In the trial court's journal entry, the $1,469.26 was listed by expense as follows: 1. Deposition of Dr. Neil Crane .............. $582.13 2. Depositions of Beverly and Joel Siegel .... 634.00 3. Video playback of Dr. Daniel T. Schelble... 253.13 $1,469.26 Civ.R. 54(D) governs the court's assessment of costs to the parties: Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs. - 21 - The Ohio Supreme Court has interpreted Civ.R. 54(D) to allow costs only when the costs are allowed by statutory authority. Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 555. Our Court has recently held that no statutory authority exists for the allowance of deposition expenses as costs. Carr v. Lunney (1995), 104 Ohio App.3d 139 and Wiltsie v. Teamor (1993), 89 Ohio App.3d 380. Although some conflict exists among recent unreported cases from this district, we are constrained to follow the reported case law precedent. As to the costs of the depositions of Dr. Crane, Beverly Siegel and Joel Siegel, this Court reverses the order of the trial court assessing these costs against appellant. As to the cost of the video playback of Dr. Schelble, the expense of playing a videotaped recording at trial or for the purpose of ruling upon objections shall be borne by the court. C.P.Sup.R. 12(D)(1)(c)- (d). Appellant's tenth assignment of error is sustained. CROSS-ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN DENYING DEFENDANTS GARY BIRNBAUM, M.D. AND MAYFIELD EMERGENCY SPECIALISTS, INC.'S MOTION TO COMPEL PAYMENT OF EXPERT FEES. Appellees claim that Dr. Seitz was entitled to payment from appellant for the reasonable costs of his services in discovery, pursuant to Civ.R. 26 (B)(4)(c) and Civ.R. 27(E). Appellees claim may be correct that Dr. Seitz is entitled to payment. However, the issue before us is whether the trial court abused its discretion in - 22 - denying the motion to compel the payment of expert fees. Although we find that the trial court has discretion under Civ.R. 26(B)(4)(c) to require the party seeking discovery to pay the expert a reasonable fee, we do not find that Dr. Seitz is an expert witness. Secondly, we do not find an abuse of discretion even if Dr. Seitz were found to be an expert witness. In a Franklin County appellate court case, the plaintiff attempted to apply provisions of Civ.R. 26(B)(4) to two of the doctors who had treated her for cancer four years prior to the accident at issue in the case. The court determined that: Dr. Barnes and Dr. Crile were two of [plaintiff's] treating physicians who were called at trial to testify because they were actors or viewers of [plaintiff's] physical condition. The doctors were not retained in anticipation of litigation; they were ordinary witnesses to whom Civ. R. 26(B)(4) does not apply. Riggs v. Mann Nursing Home (Feb. 15, 1983), Franklin App. No. 82AP- 271, unreported; see 8 Wright & Miller, Federal Practice & Procedure - Civil (1970) 257, Section 2033. Covington v. Sawyer (1983), 9 Ohio App.3d 40, 45, motion to certify record overruled (1983), No. 83-980. Upon a review of Dr. Seitz's role in the litigation, we find that he, too, was a treating physician, called to testify as to the physical condition of appellant's finger and the surgical treatment he gave her for the infection. He acted as appellees' witness to the extent that he gave his medical opinion that Dr. Birnbaum acted within the standard of care by administering Benadryl as an anesthetic. Civ.R. 26(B)(4)(c) gives courts the power to control discovery under unfair circumstances where an expert may be paid by - 23 - one party and deposed by the other party, who would garner the benefit of information without paying. Dr. Seitz was not appellees' paid expert witness, from whom appellant garnered the benefit of information without cost. Civ.R. 26(B)(4)(c) does not apply to allow the court to order payment by appellant to Dr. Seitz, even though payment may be due Dr. Seitz. Even if we had found that Dr. Seitz was an expert witness, we do not find any abuse of discretion in the trial court's denial of appellees' motion to compel the payment of Dr. Seitz's fee. Civ.R. 26(B)(4)(c) is discretionary, stating that: The court may require that the party seeking discovery under subdivision (B)(4)(b) of this rule pay the expert a reasonable fee for time spent in responding to discovery, and, with respect to discovery permitted under subdivision (B)(4)(a) of this rule, may require a party to pay another party a fair portion of the fees and expenses incurred by the latter party in obtaining facts and opinions from the expert. We will not reverse a trial court's decision to deny a motion to compel without some proof of the existence of an abuse of discretion. Appellees' first cross-assignment of error is overruled. CROSS-ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN AWARDING ATTORNEYS FEES TO PLAINTIFF'S ATTORNEY AS SANCTIONS AGAINST CROSS- APPELLANT CLAYTON L. ROBINSON. Appellees' argue that the award of reasonable attorney's fees was not made within twenty-one days after the entry of judgment and no hearing was set to determine if, in fact, counsel's conduct was frivolous. R.C. 2323.51(B). Appellees' assertion has merit. - 24 - Prior to an award of reasonable attorney's fees for frivolous conduct in a civil action, R.C. 2323.51(B) requires an evidentiary hearing on the motion for attorney's fees. Recent cases have held that a court may deny the motion for attorney's fees without a hearing when the trial court determines that there is no basis for the imposition of sanctions. Sheridan v. Harbison (1995), 101 Ohio App.3d 206, at paragraph nine of the syllabus and Wilson v. Lynch & Lynch Co., L.P.A. (1994), 99 Ohio App.3d 760, at paragraph five of the syllabus. However, this Court has held that an award should never be made without conducting a hearing: Under statute providing that attorney fees may be awarded for frivolous conduct, hearing is mandatory only when sanctions are imposed and is not necessary when court determines, upon consideration of motion for attorney fees and in its discretion, that motion lacks merit. R.C. 2323.51(B)(2). Pisani v. Pisani (1995), 101 Ohio App.3d 83, at paragraph two of the syllabus. We have no record of a hearing ever having been held in this case. We therefore reverse the court's order imposing the payment of attorney's fees on appellees' attorney in the amount of $520.00. It is incumbent upon the trial court to hold an evidentiary hearing on appellant's motion for attorney's fees, if the court deems it necessary, in order to review the merit of the motion prior to issuing a ruling. Appellees' second cross-assignment of error is sustained. - 25 - The jury's verdict in favor of appellees is affirmed. The trial court's assessment of costs against appellant is reversed. The trial court's imposition of attorney's fees against appellees' attorney is also reversed and the issue is remanded for further review of appellant's motion for attorney's fees. This cause is remanded for further proceedings consistent with this opinion. - 26 - 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 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. JAMES D. SWEENEY, C.J., AND O'DONNELL, J., CONCUR ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .