¶1 dissenting. It is my opinion that Section 2317.06, Revised Code, cannot be used in cases where an opposing party has not been reasonably accorded a full and fair opportunity to cross-examine the witness on all matters being litigated.
¶2 The eighth assignment of error specifically raises the question of appellants’ right to cross-examine the absent witness, Dr. Moraitis, concerning the new matter of surgery-related, permanent hearing loss. I recognize that the witness was an eye rather than an ear specialist, but he was also a doctor of medicine and thus possessed sufficient qualifications to render cross-examination concerning his patient’s hearing impairment as the direct result of eye surgery both relevant and necessary to appellants’ case.
¶3 As was readily acknowledged in oral argument, the introduction of this special damage evidence was secretly planned in the express hope that catching the appellants by surprise would be to appellees’ advantage in the new trial. I find it difficult to accede to appellees’ view that to inform the court and opposing counsel of the new claim would have been unethical. It has always been a plaintiff’s burden to openly state all elements of his case for which compensation is sought; and when damages which do not normally and foreseeably flow from the breach of duty are involved, the necessity for sustaining that burden becomes all the more reasonable.
¶4 The travail and expense to which all parties have been put since the initial filing of this litigation is appalling, and a reversal would do little to remedy the situation. However, it is my opinion that a review of this entire record indicates that the appellants’ rights were seriously prejudiced under the eighth assignment of error.