concurring. I concur in the syllabus and judgment and in the lead opinion’s strong words regarding abuse of the discovery process. This case is representative of a growing problem in the legal profession: a flouting of the rules of discovery, and broader notions of fair play, in the name of zealous representation of a client.
*261I also agree with Justice Wright’s characterization of the exclusion of Dr. Matejcyzk’s fact testimony as error. However, I find the error to be harmless. Appellees argue that Dr. Matejczyk’s deposition testimony, in which she stated that Nakoff had adequate circulation upon arrival at MetroHealth, was essential to disprove Nakoffs expert’s testimony that there was a lack of circulation and that immediate bypass surgery was needed. However, other evidence supported appellees’ position that there was adequate circulation. This evidence was presented in Fairview Hospital discharge notes, MetroHealth admission notes, progress notes and operation reports, the testimony of Dr. Alexander, the vascular surgeon at MetroHealth who performed the bypass, and the testimony of defense expert witnesses Dr. Kellum and Dr. King.
Dr. Matejczyk’s proffered deposition reveals that her observations were not crucial to the defense, but were instead duplicative of the other evidence presented. While Justice Wright points out the judge’s error, he does not demonstrate how the defendants were prejudiced by it. That’s because they weren’t.
The more troublesome problem in this case is the size of the jury verdict. Appellees included a request for a remittitur in their appeal to the appellate court, but that issue was mooted when the appellate court ordered a new trial. I have tried unsuccessfully to persuade at least three of my colleagues that the verdict in this case was too large — especially considering that Nakoff made no claim for lost wages and that his wife’s claim for loss of consortium was dropped. Nakoffs recovery has been superb — he returned to work after the accident and his skills as a carpenter have been relatively undiminished. Also, his leg was so badly injured from the accident that even without amputation he faced potential mobility problems.
However, after reading much of the trial transcript and all of the closing arguments in the case, appellees’ counsel’s failure to spend any meaningful time or offer one word in closing argument with regard to mitigation leaves me no ammunition with which to be persuasive. Appellees’ failure to offer the jury their own theory of damages destroyed any effective argument for remittitur. While an all or nothing approach to damages is a viable strategy in some cases, it was obviously not a good one here. It undermined any potential inclination of this court to order a remittitur.