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Waste Mgt. of Ohio8/16/1996
WOLFF, Judge.
Waste Management of Ohio, Inc. ("Waste Management") and Richard L. Swiger appeal from a judgment of the Montgomery County Court of Common Pleas in favor of Mid-America Tire, Inc. ("Mid-America").
The undisputed facts are as follows.
In 1991, Johnny Banks and Richard Swiger were employees of Waste Management, a company that disposes of trash for industrial businesses. Waste Management had a maintenance contract with Mid-America for the wheels on its trucks. On March 26, 1991, at Waste Management's premises, Banks and Swiger were mounting a multipiece wheel which had been serviced by Mid-America onto a Waste Management truck. The wheel exploded as Banks was tightening the lug nuts with an air-driven impact wrench. Banks was thrown backwards into a metal rack and partially decapitated; he died almost immediately. Metal fragments were blown into Swiger's eyes, for which he required medical treatment. Swiger also suffered from post-traumatic stress disorder, other psychological problems, and alcoholism following the accident.
Waste Management filed a complaint against Mid-America and the Goodyear Tire and Rubber Company ("Goodyear") in March 1993 to recover its past and future workers' compensation payments made on behalf of Swiger and Banks. These payments amounted to over $100,000 at the time of trial. Swiger also filed a complaint against Mid-America and Goodyear in March 1993. Waste Management's and Swiger's claims were based upon negligence in the design, manufacture, and maintenance of Waste Management's multipiece wheels. The trial court consolidated Waste Management's and Swiger's cases on October 6, 1993. Waste Management and Swiger voluntarily dismissed their causes of action against Goodyear prior to trial.
The consolidated case against Mid-America was tried to a jury in late August and early September 1995. On September 6, the jury returned a verdict in favor of Mid-America, indicating through an interrogatory that it found that Mid-America had not been negligent.
Waste Management and Swiger appeal from the judgment in favor of Mid-America. In several respects, the issues raised by the appellants are the same and will be addressed together. The first common assigned error is as follows:
"The trial court erred in allowing defense expert Seybold to offer an opinion about the cause of the explosion because Mid-America failed to supplement discovery regarding the substance of Seybold's expert testimony as required by Civ.R. 26(E)(1)(b)."
Waste Management and Swiger argue that they were unfairly surprised by defense expert Douglas Seybold's testimony at trial that Waste Management employees caused the wheel's explosion by tightening the lug nuts improperly. They claim that the only information they had received prior to trial about the subject matter of Seybold's opinion was his written report following his investigation. The report stated, "It is difficult to develop a definite conclusion [about thscause of the explosion] based on available information. Something caused this side split ring to part from the rim and effectuated the accident. Further information is required."
Several days into the trial Seybold saw a high-quality reproduction of one of the coroner's photographs of the accident scene, and he allegedly for the first time formed an opinion about the cause of the explosion. Waste Management and Swiger claim that they were unprepared to respond to Seybold's testimony because they had not been notified prior to trial that he had formed an opinion, had not taken Seybold's deposition, and were unable to call an expert to rebut Seybold's new asse
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