dissenting.
{¶ 29} The majority holds that the trial court did not abuse its discretion in preventing Dr. Brooks from testifying as an expert in his own defense pursuant to former Loc.R. 21.1 and the Civil Rules. I disagree. I believe that former Loc.R. 21.1 was unconstitutional as applied to the facts of this case. I also believe that the sanction of excluding Dr. Brooks’s expert testimony for failing to timely comply with discovery was an abuse of discretion.
A. Loc.R. 21.1
{¶ 30} Former Loc.R. 21.1 required all expert witnesses to provide a written report to the opposing party and permitted the court to exclude an expert’s testimony if the expert failed to provide a report. Consistent with the purpose of the Civil Rules, the written-report requirement in Loc.R. 21.1 was to prevent surprise. However, I believe that preventing a party from providing expert testimony in his or her own defense solely because that party failed to provide the opposing party with a written report in effect deprives that party of his or her due process right to testify in his or her own behalf.
*490{¶ 31} In a medical malpractice case, expert testimony is required to establish the standard of care and to establish whether the defendant satisfied that standard. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673. Therefore, exclusion of expert testimony in a medical malpractice case precludes a defendant from presenting an effective defense.
{¶ 32} However, when a party hires an expert to testify in his or her favor, that expert is unknown to the opposing party, and thus Civ.R. 26(B)(4) dictates that such experts are subject to discovery to prevent surprise. But a party who provides his or her own expert testimony is, from the outset of the lawsuit, subject to the normal discovery mechanisms, e.g., interrogatories, depositions, etc. In my experience as a trial lawyer and trial judge, a party who provided expert testimony in his or her own defense was never required to submit a written report. Therefore, when a defendant is prevented from offering expert testimony in his of her own defense in a medical malpractice case, pursuant to Loc.R. 21.1, solely because the defendant failed to provide the opposing party with a written report, the defendant is, in effect, deprived of his or her due process right to testify in his or her own behalf. In fact, after the appellate decision in this case, the common pleas judges who drafted Loc.R. 21.1 amended it to make it explicit that it applies only to nonparty witnesses, clearly signaling that the rule was never intended to apply to a party who intends to testify as an expert in his or her own defense.
{¶ 33} Accordingly, I believe that the trial court’s exclusion of Dr. Brooks’s expert testimony for faffing to provide opposing counsel with a written report pursuant to former Loc.R. 21.1 was unconstitutional because it deprived him of his due process right to testify in his own behalf.
B. Exclusion of Dr. Brooks’s Testimony Was an Abuse of Discretion
{¶ 34} The appellate court and the majority opinion point to Dr. Brooks’s failure to timely comply with discovery requests, specifically his failure to name himself in response to appellee’s interrogatory asking for the names of his expert witnesses, as further justification for the exclusion. I disagree.
{¶ 35} A “trial court does not have unbridled discretion” to admit or exclude evidence. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St.3d 367, 370, 28 OBR 429, 504 N.E.2d 44, citing Schaffter v. Ward (1985), 17 Ohio St.3d 79, 80, 17 OBR 203, 477 N.E.2d 1116, and Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008. It is an abuse of discretion if the court’s ruling is “unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.
{¶ 36} Exclusion of evidence is only one remedy for surprise. Other remedies include continuing the case so that the party claiming surprise can depose *491the undisclosed witness, while another is to allow the party claiming surprise to renew its motion if and when the party is surprised by the witness’s testimony. Nickey v. Brown (1982), 7 Ohio App.3d 32, 34, 7 OBR 34, 454 N.E.2d 177.
{¶ 37} Admittedly, Dr. Brooks’s notification to appellee regarding his intention to testify as an expert was not timely pursuant to the trial court’s scheduling order, and I do not condone such delay. However, Dr. Brooks did notify appellee of his intention to testify as an expert one week before trial, which is sufficient notice to preclude the harsh sanction of excluding his expert testimony, particularly in light of the fact that appellee had already conducted extensive discovery of Dr. Brooks. See id.
{¶ 38} Typically when a court excludes an expert witness from testifying due to surprise, the party claiming surprise has not even known the name, let alone had a chance to depose the witness. This case is distinguishable in that regard. Dr. Brooks is the defendant in this case.
{¶ 39} Although Dr. Brooks was not expressly asked at deposition whether he comported with the standard of care in performing appellee’s knee-replacement surgery, he was thoroughly cross-examined about the placement and fit of the tibial plate, the complication caused by the tibial plate’s overhang, the iliotibial band resection, and the window procedure. Dr. Brooks testified that due to the construction of the tibial plate, it seldom fits exactly, and thus there is usually overhang but it usually does not cause discomfort or problems. It was certainly no surprise to appellee that Dr. Brooks believed that he met the standard of care in performing the knee-replacement surgery at issue herein, or more precisely that he believed that an overhang of the tibial plate is normal and that it usually does not cause problems. Therefore, any argument that appellee would have been surprised by the content of Dr. Brooks’s expert testimony is not credible.
{¶ 40} Accordingly, under the circumstances of this case, I believe that the trial court’s exclusion of Dr. Brooks’s expert testimony was unreasonable and unconscionable and therefore an abuse of discretion.
C. Conclusion
{¶ 41} There is a strong predisposition in the law that whenever possible, cases should be tried on their merits. Natl. Mwt. Ins. v. Papenhagen (1987), 30 Ohio St.3d 14, 15, 30 OBR 21, 505 N.E.2d 980. Preventing Dr. Brooks from testifying as an expert in his own defense effectively prevented this case from being decided on its merits and violated Dr. Brooks’s due process rights. Therefore, I respectfully dissent.
Timothy R. Pieper, for appellee. Squire, Sanders & Dempsey, L.L.P, and Robin G. Weaver; Roetzel & Andress, R. Mark Jones and Douglas G. Leak, for appellants. Zavarello & Davis Co., L.P.A., and Rhonda Gail Davis, urging affirmance for amicus curiae Ohio Academy of Trial Lawyers.