COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71108 RICARDO BRYANT : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION GREATER CLEVELAND REGIONAL TRANSIT : AUTHORITY, et al : : Defendants-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 1, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 299,037 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: JEFFERY S. WATSON Attorney at Law Yulish, Twohig & Assoc., Co., L.P.A. The Hilliard Building 1419 West Ninth Street Cleveland, Ohio 44113 For defendant-appellee CHERYL A. HAYNES Greater Cleveland Attorney at Law Regional Transit 615 West Superior Avenue Authority : 11th Floor Cleveland, Ohio 44113 (Continued) APPEARANCES: (Cont.) For defendant-appellee SANDRA LISOWSKI Administrator : Assistant Attorney General 615 West Superior Avenue 12th Floor Cleveland, Ohio 44113 - 3 - PRYATEL, J.: Plaintiff-appellant Ricardo Bryant ("appellant") appeals from the decision of the trial court that denied his motion in limine to exclude the expert witness testimony of the defendant-appellee GCRTA ("appellee") at trial. For the reasons stated below, we affirm the decision of the trial court. I. Statement of facts The record reflects that this matter originated as a worker's compensation claim filed by appellant with the Industrial Commis- sion on April 12, 1995, seeking coverage for injuries that he allegedly sustained when he fell on the railroad tracks on March 2, 1995, while in the course of his employment with the appellee. His application was first denied by appellee, and hearings were then held before the Industrial Commission, where appellant's claim was again turned down. Appellant filed his notice of appeal with the Cuyahoga Court of Common Pleas on November 27, 1995. On February 28, 1996, pursuant to Loc. R. 21, a Case Manage- ment Conference was held, at which time the court set the matter for trial on July 9, 1996. No dates for exchange of expert reports were set at the Case Management Conference as contemplated by Loc.R. 21.1. - 4 - In response to appellant's discovery requests, on February 23, 1996, appellee identified Dr. Armand Lucas, appellant's treating physician from Cleveland Clinic, as its expert. Appellant, on May 13, 1996, informed appellee that his expert witness was "unknown" and that his response would be supplemented. On May 30, 1996, Dr. Kevin Trangle issued his report to appellant. On June 2, appellee received notice from appellant that Dr. Trangle would testify as an expert for appellant. On June 4, the final pretrial was held. Appellee filed its pretrial statement that day, which indicated its expert was "to be announced." By journal entry, the court indicated that the final pretrial was held and stated that "discovery was continuing." On June 7, appellant filed a motion for continuance of trial based upon his counsel's conflict of trial dates. On June 12, appellee joined in appellant's motion, indicating that, in addi- tion to appellant counsel's conflict of schedule, the recent receipt of appellant's expert opinion report and the ability of appellee to procure an expert report on causation within the remaining time frame would cause undue hardship to both appel- lant's and appellee's counsel in their preparation for trial. The court denied the continuance motions on June 17. On June 18, appellee determined that Dr. Blinkhorn would be available as its expert. On June 27, appellant set the trial deposition of his expert, Dr. Trangle, for July 5. - 5 - On July 1, appellee supplemented its discovery responses and informed the appellant of the identity of its expert witness, Dr. Blinkhorn. Dr. Blinkhorn's deposition was set for July 8. Upon receiving this notice, appellant, on July 2, filed a motion in limine requesting the court to prevent appellee from offering the expert testimony of Dr. Blinkhorn at trial because he had not yet received his expert opinion report. The record reflects that it was not until July 3, at 2:43 p.m., that the appellee received by fax the expert report of Dr. Blinkhorn. On July 5, the videotape trial deposition of Dr. Trangle was held. During the deposition, Dr. Trangle testified as to the matters both contained in his expert report and to his findings obtained from his physical examination of the appellant. No supplemental report concerning the findings of Dr. Trangle as a result of the examination June 26 was exchanged. Dr. Trangle's supplemental testimony was entered into the trial deposition video over objection by appellee. On July 5, after Dr. Trangle's deposition was completed, appellant received appellee's expert report prepared by Dr. Blinkhorn. Dr. Blinkhorn's videotape trial deposition went forward on July 8. On July 9, the appellee filed a motion in limine to limit the testimony of Dr. Trangle to his opinions as expressed in his expert report. - 6 - On the scheduled date of trial, July 9, the court was unable to begin trial due to lack of jurors. By journal entry, the court then denied both the appellant's and the appellee's motions in limine and called the case for trial on July 10. On July 15, the jury returned its verdict finding for the appellant's right to participate in the worker's compensation fund for a left leg laceration but denying his right to participate as to the condi- tions of cellulitis and sepsis. Appellant timely appealed and raises one assignment of error for our review. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF-APPELLANT WHEN THE COURT DENIED PLAINTIFF-APPELLANT'S MOTION IN LIMINE AND ALLOWED THE DEFENDANTS-APPELLEES [sic] EXPERT WITNESS'S TESTIMONY TO BE PRESENTED TO THE JURY DESPITE THE FACT THAT DEFENDANT-APPELLEES [sic] EXPERT WITNESS'S REPORT WAS FIRST PROVIDED TO PLAINTIFF-APPELLANT ON JULY 5, 1996 AND DEFENDANT-APPELLEE'S EXPERT TRIAL DEPOSITION WAS CONDUCTED ON JULY 8, 1996. In his sole assignment of error, appellant argues that the trial court erred and abused its discretion by denying his motion in limine and not imposing the "proper sanction" upon the appellee for its failure to provide its expert report to the appellant until three days before his videotape trial deposition. Appellant contends that he was prevented from preparing an effective cross- examination of appellee's expert witness. Appellant claims that he was subjected to trial by ambush when the trial court denied his - 7 - motion in limine and permitted Dr. Blinkhorn to testify. We disagree. The trial court has substantial discretion in selecting the appropriate sanction for discovery abuse. Huffman v. Hair Sur- geon, Inc. (1985), 19 Ohio St.3d 83. However, such discretion is not "unbridled." Earl Evans Chevrolet, Inc. v. Gen. Motors Corp. (1991), 74 Ohio App.3d 266, 282. Civ.R. 37 permits the exclusion of expert testimony pursuant to a motion in limine as a sanction for the violation of Civ.R. 26(E)(1)(b). Jones v. Murphy (1984), 12 Ohio St.3d 84. However, such a sanction is "extreme." Cucciolillo v. East Ohio Gas Co. (1980), 4 Ohio App.3d 36. In Nickey v. Brown (1982), 7 Ohio App.3d 32, the court cautioned that the provisions of Civ.R. 37 to exclude evidence should only be used when clearly necessary to enforce willful non-compliance or to prevent unfair surprise. In the matter sub judice, the appellant claims unfair surprise. The trial court should weigh the conduct of the party offering the expert testimony along with the level of prejudice suffered by the opposing party attributable to the discovery violation in order to determine the appropriate sanction. Savage v. Correlated Health Serv. (1992), 64 Ohio St.3d 42. Priebe v. Matthews, et al (Aug. 31, 1995), Cuyahoga App. No. 68275, unreported. We review the rulings of the lower court in the imposition of discovery sanctions only for an abuse of discretion. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254. "The term 'abuse of - 8 - discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Our court, in Jackson v. Greater Cleveland Regional Transit Authority (Sep. 28, 1989), Cuyahoga App. No. 55965, unreported, at 5, citing Richards v. Hidden Valley (Dec. 17, 1981), Cuyahoga App. No. 43486, unreported, stated "*** it is our view that the court's discretion must be exercised with a view to implementing the spirit and purpose of Rule 21--the avoidance of unfair surprise." With these standards in mind, we review the denial of appel- lant's motion in limine by the lower court. The record reflects that although, pursuant to Loc.R. 21.1, the lower court had the discretion to set a deadline by which expert reports had to be filed, no deadline for the exchange of such reports was set by the court; therefore, this matter is not governed by the appellee's failure to meet a court-ordered deadline for the identification of its expert witness. Appellant's expert, Dr. Trangle, in his report and testimony, opined that the appellant developed cellulitis and sepsis as a direct and proximate result of the cut on his left leg or ankle. It was only after the identification of the appellant's expert witness going to the causation issues that the appellee sought and found a witness to rebut the causation testimony. Dr. Blinkhorn, appellee's expert, testified consistent with his expert - 9 - report that the alleged injury to the ankle of the appellant was irrelevant to the soft tissue infection. In the matter sub judice, appellant has demonstrated no prejudice caused by the limited three-day time frame in which he was required to prepare his cross-examination. We do not see that appellant can claim such "surprise" under these circumstances to support his assertion that he was subject to "trial by ambush." At all times, a primary issue in this matter has been whether the laceration alleged to have been received during appellant's fall on the tracks was the cause of the cellulitis and sepsis conditions for which he was subsequently hospitalized. Furthermore, we believe that appellant could reasonably assume that the testimony of the appellee's expert physician would go to the issue of causa- tion in order to rebut the report and trial deposition testimony of his own expert, Dr. Trangle. The lower court, rather than excluding evidence at trial, permitted the competing testimony of both experts and then allowed the jury to decide the issues. Accordingly, because there is no evidence that the appellant was prejudiced by the three-day limited time period to prepare for cross-examination of the appellee's expert witness and appellant's claim of surprise is unsupported by the facts of this case, we find that the trial court did not abuse its discretion in denying the appellant's motion in limine to exclude the trial testimony of Dr. Blinkhorn. The judgment of the trial court is affirmed. - 10 - It is ordered that appellee recover of appellant its 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. DAVID T. MATIA, P.J. and ANN DYKE, J. CONCUR JUDGE *AUGUST PRYATEL *SITTING BY ASSIGNMENT: August Pryatel, retired judge of the Eighth District Court of Appeals, sitting by assignment of the Supreme Court of Ohio. 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 .