RICHARD COON, ADMINISTRATOR OF THE ESTATE OF BIANCA COON, DECEASED v. OHIOHEALTH CORP, ET AL.
CASE NO. 9-22-41
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
February 21, 2023
2023-Ohio-492
ZIMMERMAN, J.
Aрpeal from Marion County Common Pleas Court Trial Court No. 2020 CV 379 Judgment Affirmed
Michael R. Traven for Appellants
John A. Lancione, Paul W. Flowers and Melissa A. Ghrist for Appellee, Bianca Coon Estate
{1} Defendants-appellants, OhioHealth Corporation (“OhioHealth“) and Marion General Hospital (collectively, “defendants“), appeal the judgment of the Marion County Court of Common Pleas denying their motion for a protective order under
{2} This case stems from the December 27, 2019 death of Bianca Coon (“Bianca“) following her outpatient surgery by the defendants (and the other partiеs named in plaintiff-appellee‘s complaints). Importantly, this case involves the discovery of records pertaining to OhioHealth‘s—a not-for-profit healthcare system in Central Ohio—policies and procedures and medical-staff bylaws as they existed in 2019.
{3} On December 3, 2020, plaintiff-appellee, Richard Coon (“Richard“), administrator of the estate of Bianca, filed a complaint in the trial court alleging claims for wrongful death and survivorship against the defendants, along with Marion Area Physicians, LLC (“Marion Physicians“) and Rebecca Crockett, D.O (“Dr. Crockett“). On December 28, 2020, the defendants, Marion Physicians, and Dr. Crockett filed their answer.
{4} On April 5, 2021, Richard filed an amended complaint against the defendants, Marion Physicians, and Dr. Crockett as well as including additional defendants: Aditi S. Girme, M.D. (“Dr. Girme“), Veera Chandra Seklar Veerla
{5} On September 8, 2021, Richard filed a second amended complaint against the defendants, Marion Physicians, Crist, and Drs. Crockett, Cuevas, Girme, and Veerla, and naming as defendants: Access Medical Group, LLC (“Access Medical“), Andrea Ciola, R.N. (“Ciola“), Wendy Tevis, R.N. (“Tevis“), Cassi Babcock, R.N. (“Babcock“), and Marinah Edwards, PSA (“Edwards“). The defendants, along with Marion Physicians, Drs. Crockett and Cuevas, Crist, Ciola, Tevis, Babcock, and Edwards filed their answer to Richard‘s second amended complaint on September 13, 2021. Access Medical along with Drs. Girme and Veerla filed their answer to Richard‘s second amended cоmplaint on September 17, 2021.
{6} On August 23, 2021, Richard filed a motion to compel discovery from Drs. Girme and Veerla. Drs. Girme and Veerla filed a memorandum in opposition to Richard‘s motion to compel discovery on August 30, 2021.
{7} On September 1, 2021, Richard filed a motion to compel discovery from the defendants and for sanctions. On September 24, 2021, the defendants filed
{8} As evidence in support of their protective order, the defendants submitted the affidavit of Dr. Marian K. Schuda, M.D. (“Dr. Schuda“), the medical director for patient services at Riverside Methodist Hospital and the system medical director for risk management at OhioHealth. In the affidavit, Dr. Schuda averred that she has “knowledge and information regarding” the disputed documents based on her roles with Ohio Health and asserted that “OhioHealth considers the Disputed Documents to be confidential and proprietary commercial information.” (Doc. No. 36, Ex. C). Specifically, Dr. Schuda averred that
[t]he information contained in the Disputed Documents outlines * * * the mеthod and manner that OhioHealth (a) provides some of its medical care and treatment regarding certain medical conditions and issues; (b) utilizes certain medical equipment and other instrumentation; and (c) the organization structure and procedures of hospital-based committees and other like groups. The Disputed
Documents contain information related to the professionalism, quality performance, and culture of OhioHealth, all of which is organic and specific to OhioHealth.
(Id.). Moreover, Dr. Schuda averred that “[t]he Disputed Documents are not publicly accessible“; “[a]ll OhioHealth staff as well as those credentialed with OhioHealth (whether employed or not are required to sign [a] Confidentiality Agreement“; OhioHealth “invested significant time, resources, human capital, and money into the creation, maintenance, and aforementioned availability of the Disputed Documents“; and “OhioHealth would suffer harm if the Disputed Documents are not maintained in a confidential manner” because “healthcare is a competitive industry.” (Id.).
{9} On September 27, 2021, Richard filed a second motion to compel discovery from the defendants and for sanctions. On October 22, 2021, the defendants filed a memorandum in opposition to Richard‘s second motion to compel discovery and for sanctions. The trial court set the matter for a hearing.
{10} Following a hearing on December 1, 2021 (regarding Richard‘s motion to compel discovery and the defendants’ motion for a protective order), the trial court‘s magistrate concluded that all of the requested documents (except for the peer-review policy) arе discoverable and denied the defendants’ request for a protective order. (Doc. No. 56). Importantly, the trial court‘s magistrate concluded that the defendants failed to meet their burden of establishing that “a clearly defined
{11} On January 11, 2022, the defendants filed a motion for an extension of time to file objections to the magistrate‘s decision due to an alleged service failure. Nevertheless, the defendants filed a notice of appeal from the December 20, 2021 magistrate‘s decision in this court on January 18, 2022. However, this court dismissed the appeal for lack of a final and appealable order on March 9, 2022.
{12} Without being granted an extension of time, the defendants filed their objections to the magistrate‘s decision on March 17, 2022. Apparently recognizing such oversight, the defendants filed a “renewed” motion for an extension of time to file objections to the magistrate‘s decision the next day. On March 24, 2022, Richard filed a “motion tо adopt magistrate‘s decision and overrule defendants’ objections to magistrate‘s decision.” (Doc. No. 69). On March 29, 2022, the defendants filed a motion to strike Richard‘s motion, arguing that
{13} On April 22, 2022, the trial court censured the defendants for obfuscating the Rules of Civil Procedure and its orders. Critically, the trial court
{14} Consequently, on May 2, 2022, the trial court‘s magistrate issued a decision reconsidering the December 20, 2021 magistrate‘s decision, yet reached the same result. Specifically, the magistrate reviewed the disputed documents along with the evidence presented by the parties in their motions as well as the December 1, 2021 hearing. Based on the arguments presented by the defendants, the trial court‘s magistrate thoroughly analyzed the evidence against Ohio‘s trade-secrets law to determine if the defendants met their burden of proving that the documents in dispute constitute “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way” as provided under
{15} On May 12, 2022, the defendants filed their objections to the magistrate‘s decision. Notwithstanding the arguments presented in their motion for
{16} On July 8, 2022, the trial court issued its entry addressing the defendants’ objections to the magistrate‘s decision in which it affirmed the magistrate‘s decision. (Doc. No. 83). Specifically, the trial court rejeсted the defendants’ argument that the magistrate “should not have applied trade secret law.” (Id.). Furthermore, the trial court announced that it was “not convinced the factors have the weight in favor of the protective order stated by OhioHealth” and agreed with the magistrate‘s analysis. (Id.).
{17} On July 12, 2022, Richard voluntarily dismissed his complaint against Dr. Cuevas without prejudice under
{18} The defendants’ filed their notice of appeal on July 26, 2022. They raise one assignment of error for our review.
The Trial Court Erred in Denying OhioHealth‘s Motion for Protective Order, Because OhioHеalth‘s Policies and Procedures Are Confidential and Proprietary [Judgment Entry, filed July 8, 2022].
{19} In their assignment of error, the defendants argue that the trial court abused its discretion by adopting the magistrate‘s decision denying their motion for a protective order under
{20} Notwithstanding their argument in favor of a new standard, the defendants contend that there is not some competent, credible evidence supporting the trial court‘s decision that the documents in dispute did not constitute “a trade secret or other confidential research, development, or commercial information [which should] be disclosed only in a designated way” under
Standard of Review
{21} “Generally, ‘[a]n appellate court reviews the trial court‘s decision to adopt, reject or modify the Magistrate‘s decision under an abuse of discretion
{22} “““When reviewing a trial court‘s disposition of objections to a magistrate‘s report,” an appellate court “will not reverse the trial court‘s decision if it is supported by some competent, credible evidence.““” Davidson v. Hatcher, 3d Dist. Allen No. 1-22-21, 2022-Ohio-4452, ¶ 29, quoting McNeilan v. The Ohio Univ. Med. Ctr., 10th Dist. Franklin No. 10AP-472, 2011-Ohio-678, ¶ 20, quoting O‘Connor v. O‘Connor, 10th Dist. Franklin No. 07AP-248, 2008-Ohio-2276, ¶ 16. “““If there is some сompetent, credible evidence in the record to support the trial court‘s decision, there is generally no basis for a reviewing court to find an abuse of discretion.““” Id. at ¶ 28, quoting Depinet v. Norville, 3d Dist. Wyandot No. 16-19-04, 2020-Ohio-3843, ¶ 11, quoting In re Medure, 7th Dist. Columbiana No. 01 CO 3, 2002-Ohio-5035, ¶ 13.
{23} However, when reviewing a party‘s objections to a magistrate‘s decision, “[t]he trial court may adopt, reject, or modify the magistrate‘s decision.” Sheehan v. Sheehan, 3d Dist. Defiance No. 4-19-25, 2020-Ohio-5300, ¶ 11, citing
Analysis
{24} “The Rules of Civil Procedure provide liberal discovery provisions.” Lima Mem. Hosp. v. Almudallal, 3d Dist. Allen No. 1-16-05, 2016-Ohio-5177, ¶ 55. Under
any nonprivileged matter that is relevant to any party‘s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
{25} “Civ.R. 26(C) governs protective orders in Ohio.” Id. at ¶ 56. The rule provides,
Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place or the allocation of expenses; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, dеvelopment, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
{26} “Where the party resisting discovery alleges the requested information is confidential or proprietary: ‘Courts aрply a balancing test in determining whether to grant protective orders, weighing the competing interests to be served by allowing discovery to proceed against the harm that may result.‘” Squiric at ¶ 70, quoting Eberhard Architects LLC v. Schottenstein, Zox & Dunn Co., 8th Dist. Cuyahoga No. 99867, 2013-Ohio-5319, ¶ 13. See also Almudallal at ¶ 56 (“In determining whether to grant a protective order, a trial court must balance the competing interests to be served by allowing the discovery to proceed against any harm which may result.“), quoting Montrose Ford, Inc. v. Starn, 147 Ohio App.3d 256, 259 (9th Dist.2002).
{27} In the May 2, 2022 decision, the trial court‘s magistrate denied the defendants’ motion for a protective order after concluding that they failed to meet their burden of prоving that the documents in dispute are either confidential or proprietary and that they would suffer a clearly defined and serious injury resulting from the documents’ disclosure. Specifically, the trial court‘s magistrate found that (1) “most of the information is gathered from public, national sources, and associations which any hospital could obtain“; (2) “the policies are known within the OhioHealth System, but their employees are subject to non-disclosure
{28} Significantly, the trial court‘s magistrate did not find Dr. Schuda‘s affidavit or her testimony at the December 1, 2021 hearing to be credible. In particular, the trial court‘s magistrate highlighted that Dr. Schuda averred in her affidavit to have “personal knowledge of the ‘disputed documents,’ while her in person testimony was that she had no personal knowledge of the documents that were in dispute in this case.” (Id.).
{29} In its July 8, 2022 decision overruling the defendants’ objections to the magistrate‘s decision, the trial court rejected the defendants’ plea for it to carve out a new, and less cumbersome standard, which the defendants argued should be applicable to a category of documents they titled “confidential business
{30} The defendants begin by arguing that the trial court abused its discretion by denying its motion for a protective order under
{31} That is not the standard. See Squiric 2020-Ohio-7026, ¶ 82 (noting that ”
{32} “Merely claiming the information is confidential is insufficient to sustain the burden.” Eberhard Architects, 2013-Ohio-5319, at ¶ 14. Critically, “the producing party must state the harm it will suffer with ‘sufficient particularity,’ which requires “‘specific demonstrations of fact, supported where possible by affidavits and concrete examples.““” Almudallal at ¶ 57, quoting Stout at 535, quoting Penn, LLC v. Prosper Business Dev. Corp., S.D.Ohio No. 2:10-cv-0993, 2012 WL 5948363, *4 (Nov. 28, 2012).
{34} A trade secrets includes “any information ‘including * * * any business information or plans [and] financial information,’ which meets the” statutory criteria under
{35} The Supreme Court of Ohio establishеd a six-factor test to consider when analyzing a trade-secrets claim:
- The extent to which the information is known outside the business;
- the extent to which it is known to those inside the business, i.e., by the employees;
- the precautions taken by the holder of the trade secret to guard the secrecy of the information;
the savings effected and the value to the holder in having the information as against competitors; - the amount of effort or money expended in obtaining and developing the information; and
- the amount of time and expense it would take fоr others to acquire and duplicate the information.
Hance at ¶ 28, quoting State ex rel. Plain Dealer v. Ohio Dept. of Ins., 80 Ohio St.3d 513, 524-525(1997), superseded by statute on other grounds, Besser. When analyzing the factors, “[n]o single factor is dispositive. Id. See also MNM & MAK Enterprises, LLC v. HIIT Fit Club, LLC, 10th Dist. Franklin No. 18AP-980, 2019-Ohio-4017, ¶ 25 (acknowledging that the “factors are meant to assist courts and factfinders in their analysis of whether something is a ‘trade secret‘“).
{36} “Conclusory statements as to trade secret factors without supporting factual evidence are insufficient to meet the burden of establishing trade secret status.” Hance at ¶ 29, quoting Arnos, 2010-Ohio-1883, at ¶ 28. That is, ““[t]he mere presence of ‘trade secrets’ does not automatically entitle the producing party to [a] рrotective order. The burden remains on the producing party to show that the * * * protection is warranted.““” Almudallal, 2016-Ohio-5177, at ¶ 57, quoting Stout at 534-535, quoting Penn, 2012 WL 5948363, at *4. Importantly, “the party claiming to possess a trade secret must demonstrate that it has taken ‘some active steps to maintain its secrecy in order to enjoy presumptive trade secret status.‘” Hance at ¶ 29, quoting Arnos at ¶ 26.
{38} We conclude that the trial court did not abuse its discretion by adopting the magistrate‘s decision denying the defendants’ motion for a protective order under
{39} As evidence in support of their protective order, the defendants relied on Dr. Schuda‘s affidavit as well as her testimony at the December 1, 2021 hearing. However, the evidence presented by the defendants failed to meet their burden of proving a clearly defined and serious injury that would result from the disclosure of the documents in dispute. Accord Almudallal, 2016-Ohio-5177, at ¶ 61 (“Where St. Rita‘s argument fails is that the affidavits fail to establish a specific showing of harm.“). That is, Dr. Schuda‘s affidavit offers only conclusory statements without
{40} In her affidavit, Dr. Schuda averred that “OhioHealth would suffer harm if the Disputed Documents are not maintained in a confidential manner” because “healthcare is a competitive industry.” (Doc. No. 36, Ex. C). However, Dr. Schuda‘s affidavit fails to identify the clearly defined and serious injury that would result from disclosing the documents in dispute in this case. See Almudallal at ¶ 62 (concluding that “Lehman‘s affidavit also lacks specificity” because “Lehman failed to show a specific harm that would result from St. Rita‘s disclosing the information to Lima Memorial“). Imperatively, at the December 1, 2021 hearing, Dr. Schuda could not articulate a single injury that the defendants would incur by producing the documents in disрute without a protective order. (See Dec. 1, 2021 Tr. at 91).
{41} Moreover, notwithstanding Dr. Schuda‘s conclusory averments to the contrary in her affidavit, there is some competent, credible evidence in the record
{42} In sum, based on the inconsistencies between her testimony and her affidavit, the trial court‘s magistrate concluded that Dr. Schuda was not credible. Decisively, Dr. Schuda testified that she did not review the specific documents at issue in this case despite claiming personal knowledge of them in her affidavit.
{43} Consequently, we conclude that there is some competent, credible evidence in the record that the defendants failed to meet their burden of establishing
{44} The defendants’ assignment of error is overruled.
{45} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER, P.J. and WILLAMOWSKI, J., concur.
/jlr