concurring in part and dissenting in part. It was prejudicial error for the trial court to bar the testimony of appellant’s expert because his report had not been submitted prior to the deadline that had expired before the granting of a continuance, where opposing counsel had received the report one week prior to trial, but made no attempt to depose the witness and did not object to his testimony before the trial. Appellant had moved the court to extend the deadline for filing expert reports, which motion the court never ruled upon, but appellant asserts that the sole reason for the continuance of the trial date was to obtain additional experts. Moreover, the motion to extend the report deadline was unopposed. Therefore, appellant was entitled to rely on its right to submit post-deadline reports.
The extreme sanction of excluding expert testimony is not justified when the party against whom the sanction is levied has not acted in bad faith, and where opposing counsel has not asked for a recess or continuance in order to depose the expert. The exclusion of reliable and probative evidence is a severe sanction and should be invoked only when clearly necessary to punish willful noncompliance or to prevent unfair surprise. See Cucciolillo v. East Ohio Gas Co. (1980), 4 Ohio App. 3d 36, and Nickey v. Brown (1982), 7 Ohio App. 3d 32.
The exclusion of this expert testimony by the trial court was a gross abuse of discretion. The purpose of a trial is to present all the evidence to the trier of fact so that he may properly adjudicate the issues and reach a just result by applying the substantive law to the facts, that is, decide the case on its merits. The exclusion during trial of expert testimony, which was unopposed before trial, completely frustrated this purpose. See my dissent in Jones v. Murphy (1984), 12 Ohio St. 3d 84, 86, for further discussion of this same subject.
Therefore, I dissent as to Part I of the court’s opinion and would reverse the judgment of the court of appeals as to that issue. I concur as to the remaining portion of the court’s opinion.
W. Brown and J. P. Celebrezze, JJ., concur in the foregoing opinion.