2019 Ohio 4246
Ohio Ct. App.2019Background
- In 2015 Randy and John May sued Donich for medical malpractice and filed an affidavit of merit by Robert M. Levy, M.D.; that action was voluntarily dismissed.
- The Mays refiled under Ohio’s savings statute on February 23, 2018 and attached the same Levy affidavit.
- Donich moved to declare the affidavit defective, arguing Levy was unqualified and had not reviewed all records; the trial court found the first affidavit defective and gave the Mays 60 days to cure.
- The Mays filed a second affidavit (May 29, 2018); Donich moved to strike it and, alternatively, to dismiss the complaint, alleging Levy’s Florida license was delinquent and he was not in active clinical practice.
- The Mays attempted to substitute Levy’s March 2017 deposition for an affidavit of merit; the trial court struck the second affidavit, refused to accept the deposition as a substitute, and dismissed the complaint for failure to file a proper affidavit.
- The Ninth District Court of Appeals affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by considering matters outside the complaint when declaring the first affidavit defective | May: challenge to affidavit sufficiency is a de facto 12(B)(6) issue; court must limit review to complaint (Fletcher) | Donich: moved only to declare affidavit defective under Civ.R.10(D)(2), not to dismiss; court may follow Civ.R.10(D) procedures | Court: Civ.R.10(D) governs; because Donich sought a declaration of defect and cure period, 12(B)(6) constraints did not apply; no error. |
| Whether the court erred in striking the second affidavit based on evidence outside the complaint and Evid.R. 601(D) | May: trial court improperly considered counsel’s background investigation and outside evidence; Evid.R.601(D) shouldn’t disqualify an affidavit at pleading stage | Donich: affidavit failed Civ.R.10(D)(2) because Levy lacked a current license and active practice per investigation and deposition; strike appropriate under Civ.R.12(F) | Court: motion to strike is a separate 12(F) objection; trial court did not abuse discretion in striking the affidavit (Mays conceded deficiencies). |
| Whether the trial court should have converted Donich’s 12(B)(6) motion to a summary-judgment motion when it considered matters outside the pleadings | May: conversion required if court considered matters outside the pleadings | Donich: dismissal was contingent on striking the affidavit; court did not rely on outside evidence to rule on the 12(B)(6) dismissal | Court: no conversion required because the dismissal followed the striking of the affidavit and the court did not treat the 12(B)(6) motion as relying on external factual matters. |
| Whether a deposition may substitute for the affidavit of merit required by Civ.R.10(D)(2) | May: Levy’s deposition is a sworn statement and satisfies affidavit requirements | Donich: Civ.R.10(D)(2) requires a sworn affidavit meeting listed criteria; deposition is not an affidavit | Court: rule unambiguously requires an affidavit; deposition cannot substitute; denial of substitution upheld. |
Key Cases Cited
- Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167 (2008) (failure to file affidavit of merit is properly addressed by Civ.R.12(B)(6) and dismissal for that failure is without prejudice)
- O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975) (standard for dismissal under Civ.R.12(B)(6))
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard for appellate review)
- State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206 (1997) (a court may not rely on evidence outside the complaint when deciding a 12(B)(6) motion)
- Erwin v. Bryan, 125 Ohio St.3d 519 (2010) (if a rule of civil procedure is unambiguous, courts must apply it as written)