Background

• Appellant (Estate of Aukland) filed a medical-malpractice/wrongful-death complaint in 2014 and obtained an extension to file an affidavit of merit (AOM); failure to timely file led to dismissal without prejudice in May 2015.
• Appellant refiled the action in May 2016, moved for a second extension, and later filed a nurse's AOM (Johanna Ojeda) that appellee challenged as defective for failing to establish expert causation.
• Appellee moved for judgment on the pleadings arguing a nurse is not competent on causation under Civ.R. 10(D)(2); appellant sought leave under Civ.R. 10(D)(2)(e) to cure the defective AOM.
• The trial court held Civ.R. 10(D)(2)(e) applies only where an AOM was filed "along with the complaint or amended complaint in which claims are first asserted against that defendant," denied curing relief, and granted judgment on the pleadings.
• The Tenth District (Estate of Aukland) affirmed that interpretation, creating a conflict with prior Eighth and Ninth District decisions (Jarina, Chapman, Wick) that allowed curing defective AOMs filed by extension.
• The court granted appellant's motion to certify conflict to the Ohio Supreme Court, framing the certified question whether Civ.R. 10(D)(2)(e) permits curing only for AOMs filed with the complaint or also for AOMs filed later under Civ.R. 10(D)(2)(b).

Issues

Key Cases Cited

• Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594 (Ohio 1993) (sets standard for certifying conflicts among appellate districts)
• Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167 (Ohio 2008) (explains purpose of Civ.R. 10(D)(2) and heightened AOM pleading requirement)