{¶ 30} I respectfully dissent because the motion for protective order was, in essence, a motion in limine to limit Dr. Linz's testimony at trial. I disagree that Smalley's motion for protective order concerned discovery of potentially privileged matter, as the majority states.
{¶ 31} First, I would point out that discovery had been completed by the time Smalley filed his motion in June 2006. Trial was scheduled for July 2006, and FDS was scheduling Dr. Linz's deposition for trial purposes as its expert. *Page 116 Smalley was given Dr. Linz's expert report in September 2005, so there was nothing to "discover" that was not already known.
{¶ 32} Secondly, Smalley had already challenged the privilege issue and Dr. Linz's information through an interlocutory appeal. We held in Smalley I, Cuyahoga App. No. 83636, 2004-Ohio-2351, 2004 WL 1048207:
[P]laintiff's communications to his physicians, including medical records, which are related causally or historically to physical or mental injuries that are relevant to issues in his civil action are not privileged.
Therefore, we conclude that the trial court did not abuse its discretion in denying plaintiff's motion for a protective order as communications which are causally or historically related to the injuries he sustained in the accident are not privileged. Moreover, the records contain information that is relevant to the defense of plaintiff's action for attorney malpractice and are therefore discoverable.
{¶ 33} Therefore, the discovery issue of privilege was determined by this court in 2004 in the underlying case. The case was ready for trial when Smalley filed his purported motion for protective order in June 2006. Clearly, he is seeking to prevent Dr. Linz from testifying at trial as a defense expert. That type of objection is raised through a motion in limine.
{¶ 34} A motion in limine is defined in Black's Law Dictionary (5th Ed.1979) 914, as "[a] written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions or statements * * * to avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial." Generally, the ruling on a motion in limine is a tentative, precautionary ruling reflecting the court's anticipated treatment of an evidentiary ruling, and in most instances, finality of the ruling does not attach even when the motion is granted. SeeState v. Grubb (1986), 28 Ohio St.3d 199, 28 OBR 285,503 N.E.2d 142.
{¶ 35} In the instant case, Smalley is attempting to challenge a preliminary evidentiary ruling regarding the defense expert's anticipated testimony. He must preserve his objection at trial or during Dr. Linz's trial deposition, and once the case is concluded, the court's ruling will be subject to review. However, at the current posture of the underlying case, the court's ruling is not a final appealable order. Therefore, I would dismiss the appeal. *Page 117