Shumaker v. Oliver B. Cannon & Sons, Inc., 86-236

• Decision Date: 30 December 1986
• Docket Number: No. 86-236,86-236
• Citation: 504 N.E.2d 44,28 Ohio St.3d 367,28 OBR 429
• Court: Ohio Supreme Court
• Parties: , 28 O.B.R. 429 SHUMAKER, Appellee, v. OLIVER B. CANNON & SONS, INC., Appellant, et al.

Page 367

28 Ohio St.3d 367

504 N.E.2d 44, 28 O.B.R. 429

SHUMAKER, Appellee, v. OLIVER B. CANNON & SONS, INC., Appellant, et al.

No. 86-236.

Supreme Court of Ohio.

Dec. 30, 1986.

Appellee, David L. Shumaker, brought this personal injury action against, inter alia, appellant, Oliver B. Cannon & Sons, Inc., claiming that he had been injured while working as a carpentry foreman at the Perry Nuclear Power Plant by exposure to toxic fumes from a spraying conducted by appellant. These fumes consisted of a protective coating known as Liquid Envelope Blue. ¹ In response to discovery, appellee and his physicians stated that the injuries consisted exclusively of pulmonary and respiratory problems. Subsequent to the filing of the complaint, but before commencement of the trial, appellee was diagnosed as having pancreatic cancer, a terminal illness. ² Appellee, however, never made any claim prior to trial that his pancreatic cancer was in any way linked to the exposure to the toxic fumes.

Appellant learned of appellee's terminal illness and filed a motion in limine requesting that the trial court preclude any suggestion of a causal link between the cancer and the exposure. Appellant also asked for a specific instruction by the court negating such a link. In his argument to the court on the morning of trial, appellant's counsel stated that "[e]ach of the Plaintiff's experts in this case had been asked if pancreatic cancer is causally related to the exposure to Liquid Envelope and each expert has declined to say there is any sort of causal relationship whatsoever between these two incidents." Counsel also advised the court that there was no other material supplied in response to discovery which suggested a causal link. In response, counsel for appellee stated that "[w]hether or not the production, or the use, or the ingestion of this chemical is a precursor or causative factor * * * [of] pancreatic cancer, is a matter of medical evidence that the experts will address or not. As it is, we don't know what they will say in the entirety. * * * The mere fact that questioning was done, doesn't mean that the proper question was asked of that witness on discovery. Maybe on direct examination he is going to say something, explain the subject matter of his examination." The trial court then proceeded to deny appellant's motion in limine.

At trial, appellee called Dr. Alan E. Kravitz as a witness. Over appellant's objection, the trial court permitted Dr. Kravitz to give opinion testimony regarding appellee's pancreatic cancer. Dr. Kravitz testified that "with a reasonable degree of probability, it is likely that this combinations of those three chemicals could have caused the cancer." Similarly, the trial court permitted Dr. Stephen A. Rudolph, appellee's expert pharmacologist, to testify over objection as to the possibility of a connection between the cancer and the chemical exposure even though he could not directly relate these elements.

The jury made an award to appellee of $500,000 in compensatory damages and $250,000 in punitive damages. On appeal the decision of the trial court was affirmed.

This case is now before this court pursuant to the allowance of a motion to certify the record.

Landskroner & Phillips Co., L.P.A., and Lawrence Landskroner, Cleveland, for appellee.

Frutig, Polito & Travis Co., L.P.A., Thomas R. Frutig and D. John Travis, Cleveland, for appellant.

PER CURIAM.

Appellant contends the trial court erred in admitting expert testimony as to the mere possibility of a causal connection between the chemical exposure and appellee's terminal cancer. We agree.

Dr. Kravitz, a medical expert for appellee, testified that "with a reasonable degree of probability, it is likely that this combination of those three chemicals could have caused the cancer." (Emphasis added.)

It is well-settled that the establishment of proximate cause through medical expert testimony must be by probability. At a minimum, the trier of fact must be provided with evidence that the injury was more likely than not caused by defendant's negligence. See Cooper v. Sisters of Charity (1971), 27 Ohio St.2d 242, 252, 272 N.E.2d 97 . Opinions expressed with a lesser degree of certainty must be excluded as speculative. ³

The evidence seeking to causally connect appellee's pancreatic cancer to his exposure to Liquid Envelope Blue was merely speculative and conjectural, and did not rise to the requisite standard of probability. See Brandt v. Mansfield Rapid Transit, Inc. (1950), 153 Ohio St. 429, 92 N.E.2d 1 . Dr. Rudolph specifically stated that he could not causally relate the pancreatic cancer to the exposure with a reasonable degree of pharmacologic certainty. Although Dr. Kravitz did state that he was testifying to a "reasonable degree of probability," he modified his statement by the word "could." Thus, he was not testifying that the cancer was causally linked to the exposure, but only that such a causal connection could, but not necessarily did, exist. Therefore, this portion of Dr. Kravitz's testimony should not have been admitted into the record over appellant's objections. The trial court erred to the prejudice of appellant in allowing the jury to consider this testimony.

Appellant further contends the trial court abused its discretion in allowing appellee to introduce the foregoing expert testimony over repeated objections purporting to establish a causal connection between the pancreatic cancer and the chemical exposure because no pretrial notice had been given regarding this claim. This contention possesses merit. While the admissibility of evidence is a matter generally within the sound discretion of the trial court, the trial court does not have unbridled discretion in this regard. See Schaffter v. Ward (1985), 17 Ohio St.3d 79, 80, 477 N.E.2d 1116; Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 436 N.E.2d 1008 .

"One of the purposes of the Rules of Civil Procedure is to eliminate surprise. This is accomplished by way of a discovery procedure which mandates a free flow of accessible information between the parties upon request, and which imposes sanctions for failure to timely respond to reasonable inquiries. * * *" Jones v. Murphy (1984), 12 Ohio St.3d 84, 86, 465 N.E.2d 444.

Civ.R. 26(E)(1) provides that " * * * [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." An objective of this rule is to provide opposing counsel with updated and complete discovery regarding the substance of expert testimony. This duty to supplement responses on the subject matter of expert testimony is necessary because preparation for effective cross-examination is especially compelling where expert testimony is to be introduced. See Smith v. Ford Motor Co. (C.A. 10, 1980), 626 F.2d 784; Scott & Fetzer Co. v. Dile (C.A.9, 1981), 643 F.2d 670.

The interrogatories propounded to appellee included a request to "[i]dentify all persons who [sic ] you expect to call as expert witnesses at trial, including a summary of the testimony that each such witness is expected to give." Appellee listed Dr. Kravitz as a witness in a supplemental response to this interrogatory, but failed to further supplement his response to include Dr. Kravitz's testimony about the potential causal link between appellee's exposure and his cancer. This failure to properly supplement this response violated Civ.R. 26(E)(1). While appellant knew that appellee had pancreatic cancer, appellant was unaware there would be a claim that the chemical exposure caused the cancer.

Expert testimony may be excluded as a sanction for the violation of Civ.R. 26(E)(1)(b). See Jones v. Murphy, supra, 12 Ohio St.3d at 86, 465 N.E.2d 444; Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 482 N.E.2d 1248. In Shelak v. White Motor Co. (C.A.5, 1978), 581 F.2d 1155, 1159, a case involving surprise which had almost identical facts as the case at bar, the court found that the trial court committed an abuse of discretion by allowing a medical expert to testify about a previously undisclosed causal connection between an injury and a subsequent medical problem, stating:

"The failure of the plaintiff candidly to reveal his claim of injury * * * goes to the question of damages. Plaintiff's disregard for the federal rules of discovery in this area created a 'trial by ambush' which those rules are designed to prevent. * * * [I]f discovery has any purpose, plaintiff's opponent was entitled, upon the unveiling of the * * * contention, to a reasonable opportunity to prepare to defend against it."

Similarly in Scott & Fetzer Co. v. Dile, supra, at 673-674, the court held that it was an abuse of discretion to allow a party to introduce testimony by previously undisclosed witnesses and to use a new theory of the case.

There appears to be an element of "ambush" in the present case. Appellee never disclosed that he was asserting the cancer claim prior to trial and, in fact, during the argument on the motion in limine immediately preceding the trial, indicated he did not know what the experts would say on that subject. Therefore, appellant had no discovery on this purported causal connection in spite of diligent efforts toward this end.

The trial court's error with respect to the surprise was compounded by its submission to the jury of the actual expert testimony which did not rise to the requisite standard of opinion testimony. This error was prejudicial since it allowed the jury to consider inadmissible evidence on a highly inflammatory subject--terminal pancreatic cancer.

For these reasons the court of appeals' decision is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

HOLMES and WRIGHT, JJ., concur.

LOCHER and DOUGLAS, JJ., concur in judgment only...