{¶ 29} I respectfully dissent from the majority's decision to reverse the trial court's judgment, because I do not believe that the court erred by denying the motion in limine to preclude the Clinic's treating physician, Dr. Peter Marcello, from giving an expert opinion with respect to his failure to notice the cautery burn.
{¶ 30} Decisions relating to the admission of testimony are reviewed for an abuse of discretion. An abuse of discretion is more than simply a disagreement with the court's actions but a finding that the court acted with a perversity of will, passion, prejudice, partiality, or moral delinquency. Pons v. Ohio StateMed. Bd. (1993), 66 Ohio St. 3d 619, 614 N.E.2d 748.
{¶ 31} Dr. Marcello testified at trial that it was "possible" that the cautery burn would not have manifested itself for several days after the procedure. This statement was so speculative that it could not reasonably be considered to have been the product of a statement of opinion; hence, any failure to divulge it to counsel in advance of trial would not have been required. While others might disagree with that conclusion, the court was within its discretion to view the statement in that manner, and a mere disagreement over a decision does not show a "perversity of will" necessary to find an abuse of discretion.
{¶ 32} Moreover, the court would have been acting within its discretion if it had found that any error relating to Dr. Marcello's statement was nonprejudicial, since the Clinic had previously presented the testimony of another expert, Dr. Whalen, on the same point. His opinions are not challenged as being undivulged, so there can be no credible claim of "surprise" stemming from the statement. Indeed, plaintiff's counsel was very clearly prepared to rebut Dr. Marcello's statement, as he met the testimony with reference to Dr. Marcello's contrary deposition testimony and medical texts for the contrary proposition. To overturn a jury verdict on a mere disagreement is not a proper application of the abuse-of-discretion standard. *Page 51