Nunley v. Nationwide Children's Hosp.
2013 Ohio 5330
Ohio Ct. App.2013Background
- Mary Nunley, a former employee, appealed the Ohio BWC/Industrial Commission’s disallowance of her work-related conditions after an alleged workplace fall caused a stroke.
- Nationwide Children's Hospital (NCH) retained Dr. Gerald Steinman as a consulting (non-testifying) expert and produced his report during the administrative process under R.C. 4123.651.
- Nunley listed Dr. Steinman as a potential witness during discovery. NCH moved for a protective order and in limine under Civ.R. 26(B)(5)(a) to prohibit Nunley from contacting, deposing, or calling Dr. Steinman at trial as a non-testifying expert.
- The trial court denied the protective-order component (allowing contact/discovery) but granted the motion in limine to the extent that the written report could not be introduced at trial without Dr. Steinman testifying.
- NCH appealed the trial court’s denial of the protective-order relief; Nunley moved to dismiss the appeal as not from a final, appealable order.
- The Tenth District found the in-limine/protective ruling interlocutory and nonfinal and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court's order denying a protective order and partially granting an in limine is a final, appealable order | Nunley: The ruling is interlocutory and not final; appeal should be dismissed | NCH: Pretrial resolution is efficient; immediate appeal appropriate to resolve expert-contact/discovery issue | Court: Order is interlocutory (motion in limine is preliminary); appeal dismissed for lack of final order |
| Whether Civ.R. 26(B)(5)(a) protection was waived by production of the expert report under R.C. 4123.651 | Nunley: Production for administrative purposes does not waive work-product protection under Civ.R. 26(B)(5)(a) | NCH: Identifying and producing the report should negate need for protection; pretrial relief warranted | Court: Production does not automatically waive work-product protection; trial court erred to treat waiver as automatic |
| Whether Nunley showed undue hardship or exceptional circumstances to overcome work-product protection | Nunley: Physical and financial hardships justify allowing contact and discovery of the expert | NCH: Allowing contact would permit free-riding on defendant’s trial-prep efforts; hardship/exceptional-circumstances standard not met | Court: Health/economic factors insufficient; undue hardship/exceptional circumstances must be substantial and rare; not shown |
| Whether immediate appellate review is appropriate despite interlocutory nature | Nunley: Immediate appeal is improper; appellate review should await final judgment | NCH: Efficiency favors resolving issue pretrial | Court: Efficiency insufficient; actual trial context may alter rulings and harms; appeal premature |
Key Cases Cited
- Noble v. Colwell, 44 Ohio St.3d 92 (Ohio 1989) (appeals permitted only from final orders)
- Denham v. New Carlisle, 86 Ohio St.3d 594 (Ohio 1999) (final order requirements and Civ.R. 54(B) analysis)
- Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86 (Ohio 1989) (criteria for final appealable orders)
- State ex rel. Bd. of State Teachers Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410 (Ohio 2007) (appellate jurisdiction limited to final orders)
- State v. Grubb, 28 Ohio St.3d 199 (Ohio 1986) (motion in limine rulings are interlocutory and tentative)
- Gable v. Gates Mills, 103 Ohio St.3d 449 (Ohio 2004) (treatment of preliminary evidentiary rulings)
- Plymovent Corp. v. Air Technology Solutions, Inc., 243 F.R.D. 139 (D.N.J. 2007) (purpose of protecting consulting-expert work product from unfair free-riding)