[Cite as Weller v. Price, 2020-Ohio-2735.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Kelley Weller, Individually, as Guardian : 

of Georgia and Sophia Weller, and as 

Administratrix of the Estate of Charles C. : 

Weller, Deceased, 

 : 

 Plaintiff-Appellant, 

 : No. 18AP-264 

v. (C.P.C. No. 14CV-11088) 

 : 

Brandie M. Price, as the Executor of the (REGULAR CALENDAR) 

Estate of Phillip D. Price, M.D., et al., : 

 Defendants-Appellees. : 

 

N U N C P R O T U N C 1

D E C I S I O N 

Rendered on April 30, 2020 

 

On brief: Ansa Assuncao LLP, James H. Gordon, and 

Jeremy R. Kopp, for appellant. Argued: James H. Gordon.

On brief: Arnold, Todaro & Welch Co., L.P.A., and Grier D. 

Schaffer, for appellee Mount Carmel Health System, Inc. 

Argued: Grier D. Schaffer. 

On brief: Poling Law, and Frederick A. Sewards, for 

appellees Central Ohio Surgical Associates, Inc. and 

Brandie M. Price. Argued: Frederick A. Sewards.

 

APPEAL from the Franklin County Court of Common Pleas 

BEATTY BLUNT, J. 

{¶ 1} Plaintiff-appellant Kelley Weller appeals from the decision of the Franklin 

County Court of Common Pleas granting summary judgment to defendant-appellee Mount 

 

1 This decision replaces, nunc pro tunc, the original decision released on April 30, 2020, and is effective as of 

that date. This decision corrects the reference to a party in the concurrence. 
2 

No. 18AP-264 

Carmel Health System, Inc. d.b.a. Mount Carmel West Hospital ("Mount Carmel"), and 

denying her motions for judgment notwithstanding the verdict and for a new trial following 

a jury verdict in favor of defendants-appellees Dr. Phillip Price and Dr. Price's surgical 

practice, Central Ohio Surgical Associates, Inc. (collectively, "COSA defendants"). Plaintiff 

asserts three assignments of error for review: 

[1.] The trial court abused its discretion and materially 

prejudiced Ms. Weller when it precluded Ms. Weller from 

introducing in her case in chief and in her rebuttal case COSA's 

interrogatory answers regarding injury causation. 

[2.] The trial court abused its discretion and materially 

prejudiced Ms. Weller by allowing Dr. Dean Mikami and 

Dr. William Schirmer to testify at trial. 

[3.] The trial court erred when it granted Mount Carmel's 

Second Motion for Summary Judgment. 

After a change of judge on the court, the case was assigned to this authoring judge on 

March 6, 2019. Upon consideration, we overrule plaintiff's first and second assignments 

of error, render moot plaintiff's third assignment of error, and affirm the trial court.

{¶ 2} In August 2013, plaintiff's husband and decedent Charles C. Weller met with 

Dr. Price for a lower-right side umbilical hernia evaluation, at Price's office on Mount 

Carmel's medical campus. After evaluation, Dr. Price determined Charles was an 

appropriate candidate for a laparoscopic hernia repair, even though Charles had an 

elevated risk of surgical complications because he had high blood pressure, a history of 

pulmonary embolisms, was on chronic pain medication, and weighed nearly 600 pounds.

{¶ 3} On October 8, 2013, at Mount Carmel West Hospital, Dr. Price performed a 

laparoscopic surgery on Charles and inserted a mesh to repair the umbilical hernia. Charles 

was released from the hospital that evening. 

{¶ 4} On October 23, 2013, Charles saw Dr. Price for a scheduled follow-up 

appointment. At that time, Charles complained of several issues, including fever, chills, a 

pain in his lower right side like a pulled muscle, dry heaving, loss of appetite, and fatigue. 

He had normal blood pressure, but a mildly elevated heart rate. Dr. Price examined 

Charles, noted that he had a pocket of fluid known as a seroma near his surgical site, and 

aspirated 20ccs of the fluid. Dr. Price scheduled Charles for another follow-up appointment 

approximately two weeks later. 
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No. 18AP-264 

{¶ 5} The following day, October 24, 2013, Charles visited his longtime primary 

care physician, Dr. Trieu Hua, for the same symptoms but, in addition, he reported 

coughing, vomiting after coughing, and frequent urination. Charles also told Dr. Hua that 

his surgeon had indicated he may have an abdominal strain. Dr. Hua observed Charles' 

abdominal incisions were "clean and dry," and noted that while Charles did not have 

"rebound pain," Charles did have "some tenderness" when Dr. Hua pressed on his 

abdomen. (Tr. Vol. I at 198.) Based on these symptoms, Dr. Hua described Charles as 

"acutely ill" and concluded Charles had "some form of infection," possibly pneumonia, 

which he stated was "a common complication for post-op." (Hua Depo. at 10, 12-13.) Dr. 

Hua prescribed the antibiotic Levaquin and advised Charles that if his condition got worse, 

he should call or go to the emergency room. However, Charles was unable to fill the 

prescription that evening because the pharmacy had closed.

{¶ 6} That night, Charles had great difficulty breathing and his wife called 911. 

Charles was transported by ambulance to Licking Memorial Hospital where blood work was 

performed. That testing revealed Charles' kidneys were failing, and that he was fighting a 

massive infection. Charles was then transported back to Mount Carmel West Hospital 

where Dr. Price performed emergency surgery. That surgery revealed a serious necrotizing 

soft tissue infection in the area where the seroma fluid was after the hernia repair, and the 

dead and infected tissue was removed. Charles was kept sedated and intubated in the 

intensive care unit for the next three days and was eventually placed into a medically 

induced coma, but his condition did not improve. On October 28, 2013, Charles died from 

complications of septic shock with multiple organ dysfunction. 

{¶ 7} On October 28, 2014, plaintiff filed a complaint against Dr. Price,2 COSA, and 

Mount Carmel, asserting claims for medical negligence, wrongful death, respondeat 

superior, and negligent hiring/supervision. On December 21, 2016, Mount Carmel filed a 

motion for summary judgment arguing it had no direct liability for any acts or omissions 

by Dr. Price that harmed Charles, and that Mount Carmel had no legal relationship with 

Dr. Price that would cause it to be vicariously liable for his acts or omissions. On 

February 1, 2017, the trial court held that "Dr. Price was not an employee of Mount Carmel" 

 

2 While the action was pending, Dr. Price died. Brandie M. Price was substituted as defendant, as she is the 

executor of his estate. 
4 

No. 18AP-264 

but that he was instead "an independent medical staff physician" who had a preexisting 

relationship with Charles Weller, and that because Charles had "looked to Dr. Price rather 

than Mount Carmel" for treatment, Mount Carmel was "merely a situs" for the surgery. 

(Feb. 1, 2017 Decision at 6.) In accordance with these findings, the trial court granted 

"summary judgment to Mount Carmel on all claims against it." (Decision & Entry on Def. 

Mt. Carmel's Mot. for Summ. Jgmt. at 6.)

{¶ 8} As discovery proceeded against the COSA defendants, two contentious issues 

emerged one of which first centered around two of the COSA defendants' expert witnesses, 

Drs. William Schirmer and Dean Mikami. For reasons disputed in the record, plaintiff did 

not depose these experts within the normal time frame for discovery—the COSA defendants 

asserted this was a strategic choice, but plaintiff argued the COSA defendants' witness 

disclosure was vague, did not comply with the local rules, and did not clearly assert that 

these witnesses would be offering testimony regarding whether Dr. Price had met the 

required standard of care. The trial court denied a motion by the plaintiff to depose Drs. 

Schirmer and Mikami after the discovery cutoff had passed. Notwithstanding, plaintiff 

strongly objected to expert testimony by Drs. Schirmer and Mikami at multiple points prior 

to trial, filed two unsuccessful motions in limine requesting the court to preclude them from 

testifying, and objected to their testimony at trial. 

{¶ 9} The second dispute centered around two interrogatory responses by the 

COSA defendants. Plaintiff sought to substantively rely on those responses in her case-inchief, as COSA's representative had made statements that Charles "complained of fever and 

chills 3-4 days prior to going to an outside hospital emergency room," and that "the patient 

was given instructions to call immediately for fever and chills and he waited 3-4 days before 

seeking care." (Exh. A, Pl. Opp. at 6-7.) Plaintiff interpreted these responses as nonhearsay admissions that the COSA defendants were aware Charles had symptoms requiring 

medical attention for at least 3 days prior to his admission to the hospital on October 25, 

2013—including on October 23, 2013, the date of his follow-up visit with Dr. Price. 

[Mr. GORDON]: So the defendants are now apparently going 

to argue what I think--they're going to suggest that on the one 

hand, Dr. Price should not have suspected an infection on 

October 23, 2013. And on the other hand, Chuck Weller, 

because he began experiencing fever and chills on October 

22nd, the day before he saw Dr. Price somehow delayed his care 
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No. 18AP-264 

and therefore contributed to his death. So, obviously, this is 

relevant information. There is absolutely no hearsay objection 

that could be made to this. It's an admission by a party 

opponent. This is COSA's own words. 

* * * So we would move exhibits -- I'm sorry, not exhibits, 

interrogatories and answers 10 and 11 into evidence, seek to 

move those into evidence. 

* * * All we want to do is we want to present these in closing 

argument to the jury on the screen. And I can redact everything 

else; but I want to talk about 10 and 11. They're isolated 

interrogatories and the jury needs to hear them. 

(Tr. Vol. III at 480-81.) In response, the COSA defendants argued that the interrogatory 

answers were unsworn, had not been used in cross-examination, and had not been 

previously filed as evidence with the court. The plaintiff responded that "[i]t's not hearsay. 

It's relevant. It's authentic. And unless [COSA's defense counsel] can say it is hearsay, and 

he can't, or that it's not what I'm saying it is, which he can't, or that it's not relevant, which 

it is, then it does come in." Id. at 496-97. Ultimately, the trial court concluded the 

interrogatory was not properly authenticated because it was unsworn, and because the 

representative of COSA who had completed the interrogatories was not a witness in the 

case. Further, the court ruled that the answers were admissible to impeach only if a proper 

foundation was laid: 

What I think would be improper would be, are you aware that 

Central Ohio Surgical Associates provided an interrogatory 

response that indicated that Mr. Weller was morbidly obese 

with a history of DVT, et cetera, et cetera, and then for them to 

say no. And then you get the next witness, okay, are you aware 

of an interrogatory, again, where Central Ohio Surgical 

Associates indicated, and then the answer is no. 

That's why I say what you have to do is ask them if they are even 

familiar with this interrogatory. If they're not familiar with the 

interrogatory, you can ask them questions in general, I guess, 

whether they are aware as to -- whether Mr. Weller is at fault 

somehow if that is part of their opinion. And they can answer 

yes or no at that point in time. 

But, I think, really where we are at is I'm going to have to hear 

what the witness is testifying to. I'm going to have to listen to 
6 

No. 18AP-264 

the question that's being asked and make a decision at that 

point as to whether the question is proper. 

Id. at 508. Following the testimony of the COSA defendants' experts, plaintiff argued their 

testimony was "there is no negligence and there is no causative negligence" and that the 

interrogatory answers belied that testimony. (Tr. Vol. V at 865.) Plaintiff therefore sought 

to admit the interrogatory answers in her rebuttal case, but the court denied the motion 

and again held that "the interrogatories are reaching an expert opinion as to the cause of 

death and there would need to be some sort of foundation laid in order to get that 

information before the jury." Id. at 877. 

{¶ 10} At trial, plaintiff's expert Dr. Brad Case testified while he believed Dr. Price's 

preoperative evaluation of Charles and his determination Charles was a viable candidate 

for hernia repair met a reasonable standard of care, his treatment of Charles at the postoperative visit on October 23, 2013 did not. According to Dr. Case, Charles' loss of appetite, 

chills, dry heaves, low-grade fever, fatigue, and lower-right quadrant pain should have 

caused Dr. Price to have a "clinical suspicion" that the surgery had resulted in 

complications, particularly an infection. (Tr. Vol. II at 271.) Dr. Case opined that "at the 

minimum" these symptoms should have caused Dr. Price to have sent Charles for basic lab 

work, because "that would have given [Dr. Price] a clue that something was going 

sideways." Id. at 280. Dr. Case also stated he was "perplexed" Dr. Price had drained fluid 

from Charles' seroma, since that creates the possibility of "introducing an infection where 

there wasn't one" and the only reason to aspirate fluid would be to have it analyzed, and 

that "wasn't done in this case. It was aspirated and disposed of." Id. at 288. According to 

Dr. Case, early detection by lab analysis and subsequent surgery is the only way to save the 

life of a patient developing necrotizing fasciitis, like Charles Weller. Id. at 281. After 

analyzing all of Charles' symptoms and Dr. Price's response, Dr. Case testified there was a 

reasonable degree of medical certainty that if Dr. Price had ordered basic testing, he would 

have discovered the infection at an earlier stage and would have been able to save Charles' 

life. On cross-examination, Dr. Case admitted that a reasonably well educated, trained, and 

experienced expert witness in general surgery could disagree with his view of Dr. Price's 

post-operative care of Charles Weller. 

{¶ 11} In their defense case, the COSA defendants presented the testimony of 

several experts who directly disagreed with Dr. Case. Dr. Keith Armitage, a specialist who 
7 

No. 18AP-264 

frequently consulted with surgeons treating patients with serious infections, concluded that 

Charles' medical records contained no signs of abdominal surgical wound infection until he 

arrived at Mount Carmel, days after his post-operative visit with Dr. Price. Dr. Schirmer, a 

general surgeon who focused on abdominal surgery and surgical infections and who had 

performed several thousand hernia surgeries, concluded it was "really quite speculative" to 

suggest Charles' infection had begun prior to his follow-up visit with Dr. Price, that there 

was no additional action Dr. Price could have taken at that time "that was required by the 

standard of care," that Dr. Price's care of Charles was "well within accepted standards," and 

that there "is nothing Dr. Price did or failed to do that cause this infection or the result." 

(Tr. Vol. IV at 807-08, 817-18.) Similarly, Dr. Mikami, a certified general surgeon with a 

focus in bariatric surgery, who is the chief of general surgery and director of the hernia 

program at the University of Hawaii, and who previously designed and chaired the Hernia 

Center at the Ohio State University Wexner Medical Center, concluded that Dr. Price's 

medical care both during Charles' operation and during the post-operative visit were within 

the standard of care, and his care was not the cause of Charles' death. 

{¶ 12} At the conclusion of the trial, the jury found that Dr. Price was negligent, and 

that his "documentation and assessment of post-op visit does not meet the standard of 

reasonable care based on the level of risk of a super-morbidly obese patient." (Jury Interrog. 

No. 2) But the jury also concluded that this negligence was not the proximate cause of 

Charles' death. Plaintiff then filed a combined motion for judgment notwithstanding the 

verdict and for a new trial on damages, arguing that the trial court erred by allowing Drs. 

Mikami and Schirmer to testify despite the COSA defendants' failure to comply with the 

disclosure requirements of FCCP Loc.R. 43.03(c), and by precluding the plaintiff from 

introducing the COSA defendants' answers to interrogatories 10 and 11 in her case-in-chief 

and precluding her from cross-examining defendants' experts using the interrogatory 

answers. The trial court denied the combined motion on March 23, 2018, and this appeal 

followed. 

{¶ 13} Plaintiff's first two assignments of error both address the trial court's decision 

on her combined motion for judgment notwithstanding the verdict under Civ.R. 50(B), and 

for new trial on damages under Civ.R. 59(A)(4) and (6). Our standard of review for 

reviewing rulings under those rules are related, but differ in certain respects: 
8 

No. 18AP-264 

A Civ.R. 50(B) motion for JNOV "is used to determine only one 

issue: whether the evidence is totally insufficient to support the 

verdict." Neither the weight of the evidence nor the credibility 

of the witnesses is a proper consideration for the court. If there 

is evidence to support the non-moving party's side so that 

reasonable minds could reach different conclusions, the court 

may not usurp the jury's function and the motion must be 

denied. 

A motion for JNOV does not present factual issues, but a 

question of law, even though in deciding such a motion, it is 

necessary to review and consider the evidence. 

(Citations omitted.) Jeffrey v. Marietta Mem. Hosp., 10th Dist. No. 11AP-492, 2013-Ohio1055, ¶ 23-24.. "The evidence 'must be construed most strongly in favor of the party against 

whom the motion is made, and, where there is substantial evidence to support his side of 

the case, upon which reasonable minds may reach different conclusions, the motion must 

be denied.' A favorable ruling on such a motion is not easily obtained." Smith v. Superior 

Prods., LLC, 10th Dist. No. 13AP-690, 2014-Ohio-1961, ¶ 11, quoting Osler v. Lorain, 28 

Ohio St.3d 345, 347 (1986). Because a Civ.R. 50(B) motion presents a question of law, our 

review of the trial court's judgment on the motion is de novo. Jeffrey at ¶ 24, citing 

Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d 209, 

2008-Ohio-3822, ¶ 23. 

{¶ 14} By contrast, we review the court's decision to deny plaintiff's alternative 

motion for new trial for an abuse of discretion. Smith at ¶ 58. 

* * * A motion for a new trial, pursuant to Civ.R. 59(A)(6), 

tests whether the judgment is sustained by the weight of the 

evidence. A judgment is not against the manifest weight of 

the evidence if there is competent, credible evidence going 

to all the essential elements of the case. When presented 

with a Civ.R. 59 motion, the trial court is afforded wide 

discretion in determining whether the jury's verdict is 

against the manifest weight of the evidence. 

(Citations omitted.) Jeffrey, 2013-Ohio-1055 at ¶ 25, citing C.E. Morris v. Foley Constr. 

Co., 54 Ohio St.2d 279, syllabus (1978). An abuse of discretion occurs where a trial court's 

attitude is unreasonable, arbitrary or unconscionable. Smith at ¶ 58, citing Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219 (1983). 
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No. 18AP-264 

I. Assignment of Error One: Exclusion of COSA'S Interrogatory Responses 

{¶ 15} In her first assignment of error, plaintiff argues the trial court erred when it 

precluded her from introducing COSA's interrogatory responses at trial. As stated above, 

plaintiff sought to substantively rely upon the statements that "[Charles] complained of 

fever and chills 3-4 days prior to going to an outside hospital emergency room" and 

"[Charles] was given instructions to call immediately for fever and chills and...waited 3-4 

days before seeking care" in both her case-in-chief as well as in her rebuttal case, as she 

viewed those statements as de facto admissions of Dr. Price's negligence and causation for 

Charles' post-surgical complications. (Pl. Jury Interrogs. At Nos. 10-11.) Plaintiff also 

sought to impeach COSA's expert witnesses with the responses. 

{¶ 16} In ruling on her motion for judgment notwithstanding the verdict, the trial 

court concluded: 

[E]xclusion of COSA's interrogatory responses was not 

unreasonable, arbitrary, or unconscionable. COSA's 

interrogatory responses were not admissible at trial because 

they were not signed or sworn to by any COSA employee. 

Assuming COSA violated Civ.R. 33(A) by submitting 

interrogatory responses that were not made under oath, 

Plaintiff could and should have filed a Motion to Compel 

appropriate responses under Civ.R. 37. * * * 

Also, even if the Court were to ignore the fact that the responses 

were unsigned and unsworn, Interrogatory Numbers 10 and 11 

could not be used as a judicial admission for the purpose of 

impeaching Defendants' expert witnesses because COSA, not 

its experts, answered the interrogatories. 

(Mar. 23, 2018 Decision at 15.) 

{¶ 17} We agree with the trial court. "Civ.R. 33(A) mandates that answers to 

interrogatories be signed, sworn to and served upon the party submitting them. * * *The 

use of [an unsigned, unsworn, and unserved interrogatory] in determining the merits of a 

claim is erroneous." Allstate Ins. Co. v. Rule, 64 Ohio St.2d 67, 70 (1980) (interpreting 

former version of rule). Plaintiff did not ask the COSA defendants to sign the interrogatory 

responses, there is no indication in the record the COSA defendants would have refused to 

verify the responses if they had been requested to do so during discovery, and even if the 

COSA defendants had refused, plaintiff could have sought, and would likely have received, 

an order compelling proper interrogatory responses. See generally Civ.R. 37(A)(3)(iii). 
10 

No. 18AP-264 

Plaintiff vociferously argues the interrogatory responses were relevant non-hearsay 

admissions, and the trial court materially prejudiced her by blocking her attempts to admit 

them. But as the COSA defendants argue, and the trial court correctly observed, the COSA 

employee who answered the interrogatories was not a physician. She was not competent 

to offer an opinion whether Charles needed further medical care on the date of his followup appointment, was not involved with the appointment in any way, and—perhaps most 

notably—was not deposed or called as a witness by the plaintiff to clarify her statements. 

Even if plaintiff's arguments regarding relevancy and hearsay are accepted, and the lack of 

authentication is overlooked, the evidence may well have been subject to exclusion under 

Evid.R. 403(A). "The admission or exclusion of evidence is a matter which is solely within 

the discretion of the trial court, and because the trial judge is in a significantly better 

position to determine whether testimony is relevant or irrelevant, a trial court's decision 

will be reversed only upon a showing of an abuse of discretion." Robertson v. Mt. Carmel 

East Hosp., 10th Dist. No. 09AP-931, 2011-Ohio-2043, ¶ 27, citing, e.g., Krischbaum v. 

Dillon, 58 Ohio St.3d 58, 66 (1991). We cannot say the trial court's decision to exclude 

unauthenticated statements of dubious value by a witness lacking the competency to make 

them is an abuse of its wide discretion regarding the admission of evidence. Accordingly, 

we overrule plaintiff's first assignment of error. 

II. Assignment of Error Two: Permitting Defense Experts to Testify 

{¶ 18} In her second assignment of error, plaintiff argues the trial court should have 

excluded COSA defendants' experts from testifying because COSA's disclosure of expert 

witnesses failed to comply with Loc.R. 43.03 of the Franklin County Court of Common 

Pleas, General Division. The rule states a party's disclosure of expert witnesses is to include 

"[a] brief description of the expert's qualifications and summary of the expert's opinions 

and the basis or theory of that opinion." Loc.R. 43.03(c) Loc.R. 43.04 provides that "[a]ny 

witnesses not disclosed in compliance with this rule may not be called to testify at trial, 

unless the Trial Judge orders otherwise for good cause and subject to such conditions as 

justice requires." As observed above, plaintiff filed motions in limine to preclude the 

testimony of two of the COSA defendants' expert witnesses, Drs. Schirmer and Mikami, 

which argued the COSA defendants had violated Loc.R. 43.03(c). Plaintiff reiterated this 

same objection in her combined motion for judgment notwithstanding the verdict and for 

new trial. Plaintiff's argument relies largely upon this court's decision in Foster v. Sullivan, 
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No. 18AP-264 

10th Dist. No. 13AP-876, 2014-Ohio-2909, in which we affirmed the trial court's decision 

to grant summary judgment to a defendant, based in part on its decision to disregard the 

affidavit of an expert for the plaintiff offered in opposition to summary judgment, because 

that expert's identity had not been previously disclosed. Id. at ¶ 14-15. But we believe the 

plaintiff has overread Foster—in that case we held the trial court "was authorized under 

Loc.R. 43 to exclude" the affidavit, that it was not error to exclude it, and that the trial 

court's decision to refrain from "overlooking" the failure to disclose the witness was 

supported by the general dilatory course of the plaintiff's litigation in that case. Id. at ¶ 20-

21. Foster does not stand for the principle that the only available course of action for a trial 

court for a violation of Loc.R. 43.03 is to exclude the witness; it simply approves of the trial 

court's decision to exclude the witness in that case. 

{¶ 19} Here, we are faced with the opposite situation—rather than relying upon the 

rule to exclude a witness, the trial court chose to permit the witnesses to testify, and we 

believe the facts of Foster support that decision. In Foster, the witness was not disclosed 

at all; but in this case, the trial court concluded at several points during litigation that the 

COSA defendants had in fact complied with Loc.R. 43.03. In denying the plaintiff's 

combined motion for judgment notwithstanding the verdict and for a new trial on damages, 

the court held the disclosure "contains expert names, addresses, occupations, and a 

'summary' of what the expert will opine about at trial. * * * Although Defendants' disclosure 

of experts is terse, it contains the essential information required under the rule." (Mar. 23, 

2018 Decision at 8.) 

{¶ 20} While it is certainly arguable the COSA defendants should have provided 

additional information about Drs. Schirmer and Mikami in their supplemental disclosure 

of witnesses, we cannot say as a matter of law the failure to provide that information violates 

the requirements of Loc.R. 43.03 and requires exclusion under Loc.R. 43.04. We must 

observe that instead of requesting the court to compel the defendants to provide more 

information, plaintiff waited until after the close of discovery and filed a motion for 

summary judgment based on the failure of the defendants to provide expert evidence 

refuting her claims of causation. It was only when that motion was denied that plaintiff 

sought to depose Drs. Schirmer and Mikami. As the trial court held, "assuming Defendants 

violated the local rule with their expert disclosure, justice required that the Court overlook 
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No. 18AP-264 

the failure to properly disclose," as authorized under Loc.R. 43.04. (Mar. 23, 2018 Decision 

at 10.) Given the trial court's broad discretion to decide evidentiary issues, see, e.g., 

Robertson at ¶ 27, and the inherent power and discretion of the trial judge to control the 

court proceedings, e.g., Riverside Methodist Hosp. Assn. v. Guthrie, 3 Ohio App.3d 308, 

310 (Dist.1982), even if we disagreed with the trial court's conclusion that the disclosure 

was insufficient, we cannot say that its choice to permit the experts to testify was erroneous. 

Therefore, plaintiff's second assignment of error is overruled. 

III. Assignment of Error Three: Mount Carmel's Motion for Summary 

Judgment 

{¶ 21} Plaintiff's third assignment of error argues the trial court erred in granting 

defendant Mount Carmel's motion for summary judgment. The question presented in that 

motion is whether Mount Carmel could be held liable under principles of agency law for the 

negligence of Dr. Price. But because we have determined the trial court did not err in the 

resolution of plaintiff's first two assignments of error because the jury held that Dr. Price's 

negligence was not the proximate cause of Charles' death, and because the plaintiff has not 

argued that Mount Carmel is directly liable for Charles' death, we conclude her third 

assignment of error is moot. 

{¶ 22} For all these reasons, plaintiff's first and second assignments of error are 

overruled, plaintiff's third assignment of error is rendered moot, and the trial court's 

judgment granting summary judgment to defendant Mount Carmel and denying the COSA 

defendants' combined motion for judgment notwithstanding the verdict and for new trial 

is affirmed. 

Judgment affirmed. 

DORRIAN J., concurs. 

BRUNNER, J., concurs separately. 

BRUNNER, J., concurring. 

{¶ 23} I concur with the majority on all assignments of error and specifically that 

the trial court was not required under Civ.R. 33(A)(3) to admit for the appellant's purposes 

at trial the signed but unsworn interrogatories. With this separate opinion, I wish to point 

out that "sandbagging" or purposely underperforming is not favored in litigation. There is 
13 

No. 18AP-264 

no indication in the record that purposeful sandbagging occurred here, but disfavor of the 

potential to do so is worth calling out. 

{¶ 24} There are two salient points to be made here: first, it should be sanctionable 

under Civ.R. 11 for counsel to purposely provide interrogatory responses not under oath as 

required by Civ.R. 33(A)(3). There is no indication in the record that this occurred here 

even though appellees benefited from this miscarriage of compliance with the discovery 

rule. Most unfortunately, this was the primary basis for the trial court excluding the 

responses to interrogatories. Civ.R. 33(A)(3). 

{¶ 25} Second, an entity such as Central Ohio Surgical Associates, Inc. ("COSA") is 

required under Civ.R. 33(A)(1) to "choose one or more of its proper employees, officers, or 

agents to answer the interrogatories, and * * * furnish information as is known or available 

to the organization." (Emphasis added.) This means that COSA could not provide answers 

to interrogatories by an individual of the organization who was not the proper individual to 

respond to the questions asked. Here, the individual who had signed the interrogatories, 

albeit not under oath, was not called as a witness. This problem could have been remedied 

by appellant having called this particular witness, but it was not. 

{¶ 26} In the end, while the way COSA chose to respond to the interrogatories 

propounded by the appellant is disappointing and deficient, the appellant could have 

overcome the deficiencies by seeking compliance with and under the procedures provided 

for in the Rules of Civil Procedure. 

{¶ 27} I raise these issues in this separate opinion because litigating the rights of 

parties in a dispute should not sink to this level, where winning or losing hinges on 

technicalities. Failing to provide sworn answers to interrogatories (with the exception of 

attorney-signed objections) is an unacceptable impediment to reaching the truth in 

litigation. And it bears noting that it is also not acceptable for an organization subject to 

answering interrogatories under Civ.R. 33(A)(1) to provide anyone other than the proper 

person with knowledge of the information used to respond to the questions raised in 

interrogatories. 

{¶ 28} Historically, this Court recognized before the adoption of the Rules of Civil 

Procedure that interrogatories are "for the purpose of aiding defendants in supporting their 

own case rather than to destroy the plaintiff's case. Answers to interrogatories may be 
14 

No. 18AP-264 

considered in certain instances as evidence but become no part of the pleadings." Home 

Owners' Serv. Corp. v. Hadley, 86 Ohio App. 340, 345 (10th Dist.1949). And since the 

adoption of the Rules of Civil Procedure gave the trial court the flexibility to order that 

"an interrogatory be answered at a later time, or after designated discovery has been 

completed, or at a pretrial conference," appellant had under the rules ample opportunities 

to seek the assistance of the trial court in achieving full compliance with Civ.R. 33 by 

COSA. Civ.R. 33(B). 

{¶ 29} Because appellant did not undertake what was necessary to make evidentiary 

use of COSA's interrogatories responses at trial, the trial court did not abuse its discretion 

in denying their use or in denying appellant's subsequent motions to find error in not 

permitting their use. For these reasons, I concur with the judgment of the majority. 

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