 pretrial reports summarizing the opinions of those experts, and (2) the trial court abused its discretion when it overruled appellees' motion for a mistrial when Merrell Dow failed to produce certain requested documents prior to trial. Both discovery issues require us to decide whether the trial court abused its discretion.
"In connection with an appeal of a final order, judgment, or decree of a court, assignments of error may be filed by an appellee who does not appeal, which assignments shall be passed upon by a reviewing court before the final order, judgment, or decree is reversed in whole or in part. The time within which assignments of error by an appellee may be filed shall be fixed by rule of court."
See, also, Morgan v. Cincinnati (1986), 25 Ohio St.3d 285, 290, 25 OBR 337, 341, 496 N.E.2d 468, 473.
Abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301, 1308; State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O. 3d 169, 173, 404 N.E.2d 144, 149; Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855.
A reviewing court may not substitute its judgment for that of the trial court absent an abuse of discretion. Berk, supra; Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131, 541 N.E.2d 597, 599; Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 94, 518 N.E.2d 1197, 1199.
With this standard in mind we turn first to appellees' claim that the trial court should not have permitted testimony at variance with the pretrial reports. Appellees argue that appellants' failure to supplement their experts' pretrial reports was a violation of Civ. R. 26(E)(1)(b) and former Loc. R. 21; that they were subjected to a "trial by ambush," depriving them of effective cross-examination, and precluding them from presenting evidence to refute the experts' previously undisclosed opinions.
"(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (a) the identity and location of persons having knowledge of discoverable matters, and (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."
"(B) The Pretrial Statements will recite a brief description of the case and the injuries involved, will list item by item, the ascertainable damages such as medical expenses, lost earnings, property damage, etc., will indicate the status of depositions and physical examinations, and reflect the lowest demand and highest offer. Since Ohio Civil Rule 16 authorizes the Court to require counsel to exchange the reports of medical and expert witnesses expected to be called by each party, each counsel shall exchange with all other counsel the written reports of medical and expert witnesses he expects to testify and the Pretrial Statements shall indicate compliance with this provision. Should a party intend to call an expert witness and has not procured a written report from said witnesses, he shall so indicate such fact in his pretrial statement stating the name and address of the expert and the subject of his expertise together with the reason for his non-receipt of such report.
"(C) Expert witnesses whose reports have not been furnished to opposing counsel prior to a pretrial held within sixty (60) days before trial, will not be permitted to testify at the trial, except where a party has not received a written report from such expert witness but has fully complied with Item (B) hereof."
Specifically, the appellees claim the following irregularities. Dr. Domino testified about K phosphate therapy, which was never addressed in his pretrial report. Dr. Diamond testified about alcohol's effect on the ability to absorb nicotine from Nicorette, which was never addressed in his pretrial report. Dr. Hanson testified about alcohol or withdrawal from alcohol as the cause of Tracy's seizure, which was not addressed in his pretrial report. Dr. Sachs's pretrial report said that Tracy's death was due to alcohol-induced cardiomyopathy. At trial he stated that the cause of death was pulmonary edema and challenged the validity of portable x-rays taken of Tracy's heart in September 1983. He testified that he had received additional information after the report was made and had re-evaluated pathological slides after the report.
We do not find that appellees were misled by the pretrial summaries in any relevant and prejudicial way. There was no deviation with regard to the essential issue in the trial: whether Nicorette was the cause of Tracy's death.
Pretrial reports are not intended as a substitute for the taking of depositions. The appellees, though provided with the summaries and the names of the expert witnesses, chose not to depose those witnesses. While the pretrial reports could have been more complete and while Dr. Sachs did alter his opinion on the precise cause of death (not his opinion that the cause was not Nicorette), these variances do not render the rulings by the trial judge an abuse of discretion.
We turn next to appellees' contention that the trial court should have granted a mistrial based upon Merrell Dow's failure to produce certain documents requested prior to trial. The disputed documents are ones that Merrell Dow generated between 1984 and 1987 after Larry Tracy's death.
Appellees first served Merrell Dow with a request for the production of documents two years before trial. Merrell Dow responded to some of the requests, but objected to others on the grounds that documents not limited in time to a date prior to Larry Tracy's death would not be relevant. Appellees, upon receipt of this objection, did not file a motion to compel discovery.
A little over a year before trial, appellees served Merrell Dow with a second request for the production of documents. While Merrell Dow failed to respond in writing to appellees' request as required, its counsel did respond orally by stating that the requested documents fell within the scope of objections raised in response to appellees' first request. Again, appellees did not file a motion to compel discovery.
Appellees took no further action until a week before trial when they filed a subpoena duces tecum directed to several current or former Merrell Dow employees. A few days later Merrell Dow moved to quash two of the subpoenas. On the first day of trial the court ordered the parties to resolve the dispute themselves and appellees raised no objection to this procedure. Merrell Dow produced the disputed documents in piecemeal fashion over the course of the first week of trial.
On the sixth day of trial, after appellees' experts had testified, appellees moved for a mistrial which the trial court denied. Appellees later renewed their motion in writing and attached affidavits of two of their experts stating that their testimony would have been significantly affected if they had reviewed the documents. The trial court again denied the motion.
We find no abuse of discretion. During the course of discovery appellees could have filed a motion to compel discovery or sought sanctions for Merrell Dow's failure to file a written response to their second request. A ruling would have been made and the issue resolved in timely fashion. At trial, appellees could have asked for a short continuance in order to review the newly produced documents or for leave to recall their experts. Finally, the record reveals that appellees obtained a substantial portion of the disputed records through inquiries in 1985 and 1986 to the United States Food and Drug Administration pursuant to the Freedom of Information Act. The record simply does not support a finding that the trial court abused its discretion when it denied a mistrial.
For the foregoing reasons, we reverse the court of appeals and reinstate the jury verdict in favor of the defendants-appellants.
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