COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73104 EUGENE ZIMMERLY : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION THE CLEVELAND CLINIC FOUNDATION : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-310674 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, REMANDED. DATE OF JOURNALIZATION: APPEARANCES: ______________________ For Plaintiff-Appellant: WILLIAM Z. CHRISTOFF (#0001765) 26 South Erie Massillon, Ohio 44646 For Defendant-Appellee: GEORGE M. MOSCARINO (#0019447) SUSAN R. MASSEY (#0060102) Moscarino & Treu, L.L.P. The Caxton Building 812 Huron Road, Suite 490 Cleveland, Ohio 44115-1126 SPELLACY, J.: Defendant-appellant Eugene Zimmerly ( appellant ) appeals from the trial court's order granting a directed verdict in favor of -2- defendant-appellee The Cleveland Clinic Foundation ( the Clinic ) on appellant's nursing malpractice claim. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN DETERMINING THAT THE PLAINTIFF MUST PRODUCE EXPERT MEDICAL TESTIMONY ON THE ISSUE OF PROXIMATE CAUSE. II. THE TRIAL COURT ERRED IN NOT ALLOWING PLAINTIFF'S EXPERT TO EXPLAIN HOW THE NEGLIGENCE OF THE CLEVELAND CLINIC FOUNDATION PROXIMATELY CAUSED THE PLAINTIFF'S FALL AND BROKEN LEFT ANKLE. III. THE TRIAL COURT ERRED IN ALLOWING THE CLEVELAND CLINIC FOUNDATION LEAVE TO FILE ITS ANSWER OUTSIDE OF THE TIME PERIOD PRESCRIBED BY THE OHIO RULES OF CIVIL PROCEDURE. Finding appellant's second and third assignments of error to lack merit, we affirm in part. Finding appellant's first assignment of error to have merit, the judgment of the trial court is reversed in part and this case is remanded. I. On May 19, 1993, appellant underwent a triple bypass surgery at the Clinic. By May 23, 1993, appellant had been moved to a semi-private room at the hospital. On May 23, 1993, Robert Stewart, a male nurse employed by the Clinic, assisted appellant to the bathroom of his hospital room. In the process, appellant fell and fractured his left ankle. On June 21, 1996, appellant filed the instant nursing malpractice case against the Clinic. In his complaint, appellant alleges that he fell and was injured due to the negligence of Nurse Stewart. -3- On October 9, 1996, the Clinic filed a motion for leave to file its answer. The Clinic also filed its answer on this date. On October 25, 1996, the trial court sustained the Clinic's motion and granted the Clinic leave to file its answer. On December 24, 1996, appellant filed a disclosure of his expert witnesses with the trial court. Appellant listed Linda Fowler, R.N. as an expert witness on the issue of hospital and nursing negligence. Appellant listed two medical doctors as his expert witnesses on the issue of proximate cause. On March 3, 1997, appellant provided the Clinic with a copy of the expert witness report of Nurse Fowler. Nurse Fowler's report did not address the issue of proximate cause. On July 16, 1997, the Clinic deposed Nurse Fowler. During her deposition, Nurse Fowler did not offer an opinion on whether appellant's fall and resulting injury were proximately caused by Nurse Stewart's alleged negligence. The trial of the instant case commenced on July 31, 1997. During trial, appellant sought to have Nurse Fowler testify that, in her opinion, appellant's fall was the proximate result of a deviation in the standard of care by Nurse Stewart. The Clinic's attorney objected to this testimony. The trial court sustained the Clinic's objections and did not allow Nurse Fowler to testify at trial on the issue of proximate cause. After appellant rested, the Clinic moved for a directed verdict. The Clinic noted that appellant did not present expert testimony on the issue of proximate cause. The Clinic claimed that -4- appellant was required to present expert testimony that a specific deviation from the standard of care proximately caused appellant's injury. The trial court agreed, and granted the Clinic's motion for a directed verdict. II. In his first assignment of error, appellant asserts that the trial court erred in determining that appellant was required to produce expert testimony on the issue of proximate cause, and thereby granting a directed verdict in favor of the Clinic. Appellant maintains that he was not required to produce expert testimony on the issue of proximate cause because the causal connection between the alleged nursing malpractice and appellant's resulting injury was within the jury's common knowledge. In ruling on a directed verdict motion, Civ.R. 50(A)(4), a trial court must construe the evidence in a light most favorable to the party opposing the motion. Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 119; Mitchell v. Cleveland Elec. Illum. Co.(1987), 30 Ohio St.3d 92, 93. The judge may neither weigh the evidence nor determine the witnesses' credibility. Wagner, supra; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. The court may direct the verdict only if it finds that reasonable minds could come to one conclusion and that conclusion is adverse to the party opposing the motion. Wagner, supra. In a negligence action involving the professional skill and judgment of a nurse, expert testimony must be presented to establish: (1) the prevailing standard of care; (2) a breach of -5- that standard; and (3) that the nurse's negligence was the proximate cause of the patient's injury. Dimora v. Cleveland Clinic Foundation (1996), 114 Ohio App.3d 711, 718, citing Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 580-581. However, in a negligence action involving conduct within the common knowledge and experience of jurors, expert testimony is not required. Dimora, 114 Ohio App.3d at 718, quoting Berdyck, 66 Ohio St.3d at 580-581. Cf. Wood v. Elzoheary (1983), 11 Ohio App.3d 27, 29 ( Proof that the liability event caused the claimed injury need not include expert opinion testimony when the causal relationship is a matter of common knowledge. ). In Dimora, the plaintiff, who had a documented history of balance difficulties and who needed assistance with the use of a walker, was injured when she fell while exiting the bathroom of her hospital room with the assistance of a student nurse. When the student nurse left the plaintiff's side for a brief moment to open the bathroom door, the plaintiff fell. This court held that [t]he conduct complained of here is clearly within the common knowledge and experience of jurors, not requiring knowledge beyond the ken of the layperson, and, therefore, expert testimony is not required. Dimora, 114 Ohio App.3d at 718, citing Jones v. Hawkes Hosp. of Mt. Carmel (1964), 175 Ohio St. 503; Burks v. Christ Hosp. (1969), 19 Ohio St.2d 128. In the instant case, appellant testified that on May 23, 1993, -6- he fell while a male nurse was assisting him to the bathroom of his hospital room. According to appellant, he had not been out of his hospital bed to walk since his heart surgery on May 19, 1993.1 However, appellant was not offered a walker or any other device to assist him to the bathroom. Moreover, appellant testified that the nurse urged appellant to hurry up. 2 Like the situation in Dimora, the conduct complained of in the instant case, and the causal connection between this conduct and appellant's subsequent fall and injury, are clearly within the common knowledge and experience of jurors and do not require knowledge beyond the ken of the layperson. Therefore, appellant was not required to present expert testimony on the issue of proximate causation. Accordingly, appellant's first assignment of error is sustained. The judgment of the trial court is reversed in part, and this cause is remanded for further proceedings in accordance with the above-cited law. III. In his second assignment of error, appellant argues that the trial court erred in not allowing his expert, Linda Fowler, R.N., to testify on the issue of causation. We find that the trial court 1 The Clinic contends that appellant had been walked to the bathroom on the two days prior to this incident. However, the trial court, in ruling on the Clinic's motion for a directed verdict, was required to construe the evidence in a light most favorable to appellant. Wagner, 77 Ohio St.3d at 119. Moreover, the trial court was not allowed to weigh the evidence or determine the credibility of witnesses. Id. 2 The Clinic also denies this contention. -7- did not abuse its discretion by excluding the disputed testimony under Civ.R. 26(E) and Loc.R. 21.1(B) of the Common Pleas Court of Cuyahoga County, General Division. Civ.R. 26(E)(1) provides, in pertinent part: A party is under a duty seasonably to supplement his response with respect to any question directly addressed to * * * (b) the identity of each person expected to be called as an expert witness at trial and the subject matter on which he is expected to testify. Loc.R. 21.1(B) states, in pertinent part: 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. An appellate court will review a trial court's ruling on Civ.R. 26(E) and Loc.R. 21.1(B) for abuse of discretion. Downs v. Quallich (1993), 90 Ohio App.3d 799, 803. The term abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. Downs, 90 Ohio App.3d 799, 803. In the instant case, appellant failed to identify Nurse Fowler as a potential expert witness on the issue of proximate cause.3 Moreover, Nurse Fowler's expert report did not raise the issue of causation. Nurse Fowler also did not provide an opinion on proximate cause during her deposition. Based upon the foregoing, 3 As noted above, appellant disclosed Nurse Fowler as an expert witness on the issue of hospital and nursing negligence only. Appellant also disclosed two medical doctors as his only two expert witnesses on the issue of proximate cause. -8- and pursuant to Civ.R. 26(E)(1) and Loc.R. 21.1(B), Nurse Fowler should not have been permitted to testify and provide an opinion on the issue of causation for the first time at trial. Therefore, we find that the trial court's actions were not unreasonable, arbitrary or unconscionable, and that the court did not abuse its discretion by refusing to allow Nurse Fowler to testify on the issue of proximate causation at trial. Accordingly, appellant's second assignment of error is overruled. IV. In his third assignment of error, appellant claims that the trial court erred in granting the Clinic leave to file an answer after the twenty-eight-day period prescribed in Civ.R. 12(A)(1) had expired. This argument is without merit. The Supreme Court of Ohio has held that the determination to grant leave to file an answer is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs. (1995), 72 Ohio St.3d 464, 465. As noted above, abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. State ex rel. Lindenschmidt, 72 Ohio St.3d at 465, citing Rock v. Cabral (1993), 67 Ohio St.3d 108, 112. In State ex rel. Lindenschmidt, the Supreme Court of Ohio -9- noted that courts must be mindful of the admonition that cases should be decided on their merits, where possible, rather than procedural grounds. Lindenschmidt, 72 Ohio St.3d at 466, citing Marion Production Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 271. In addition, this court has recently stated that even if a defendant did not provide explicit reasoning for its delay, we would not find that the trial court abused its discretion by granting the defendant leave to file an answer where the plaintiff made no showing of prejudice by the defendant's delay in filing the answer. McGowan v. Cuyahoga Metropolitan Housing Authority (Jan. 15, 1998), Cuyahoga App. No. 72083, unreported. In the instant case, we find that the court did not abuse its discretion in granting the Clinic leave to file its answer. We note that appellant made no showing, nor even an allegation, of prejudice by the delay in the filing of the Clinic's answer. Accordingly, appellant's third assignment of error is overruled. The judgment of the trial court is affirmed in part and reversed in part, and this cause is remanded for further proceedings consistent with this opinion. It is ordered that appellant recover of appellee his costs herein taxed. The court finds there were reasonable grounds for this appeal. -10- It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, P.J. and MICHAEL J. CORRIGAN, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .