Mаry Foster, Plaintiff-Appellant, v. Christine M. Sullivan, M.D. et al., Defendants-Appellees.
No. 13AP-876
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 30, 2014
2014-Ohio-2909
(C.P.C. No. 12CV-351) (ACCELERATED CALENDAR)
Rendered on June 30, 2014
Dale M. Musilli, for appellant.
Hammond Sewards & Williams, and Frederick A. Sewards, for appellees.
APPEAL from the Franklin County Court of Common Pleas
O‘GRADY, J.
{1} Plaintiff-appellant, Mary Foster, appeals from a judgment of the Franklin County Court of Common Pleas, which granted the “Motion to Dismiss for Failure to Prosecute/Motion for Summary Judgment” of defendants-appellees Christine M. Sullivan, M.D. and the Sullivan Plastic and Reconstructive Surgery Center, Inc. For the following reasons, we affirm the trial court‘s judgment.
I. FACTS AND PROCEDURAL HISTORY
{2} This action was initiated on January 10, 2012. According to appellant‘s complaint, the action was previously filed in 2010 and dismissed in 2011. Appellant alleged Dr. Sullivan committed malpractice while performing surgical procedures on appellant in 2008. Attached to the complaint was an affidavit of merit executed by James
{3} The Franklin County Clerk of Courts generated a case schedule the day the complaint was filed with the following dates:
| Latest Time of Occurrence | |
| *** | |
| Initial Joint Disclosure of all Witnesses | 11/13/12 |
| Supplemental Joint Disclosure of all Witnesses | 02/05/13 |
| *** | |
| Dispositive Motions | 09/17/13 |
| Discovery Cut-Off | 10/01/13 |
| *** | |
| Trial Assignment | 01/07/14 |
(R. 1.)
{4} Appellees filed an initial disclosure of witnesses on November 13, 2012 which did not name appellant‘s expert, Dr. Apesos. Appellant did not file an initial disclosure of witnesses, nor does the record indicate appellant ever filed a witness disclosure with the trial court.
{5} On January 14, 2013, the parities filed a stipulation to extend appellees’ supplemental witness disclosure deadline “until thirty (30) days after [appellees] have deposed [appellant‘s] identified witnesses: Plaintiff Mary Foster and expert James Apesos, M.D., FACS, ASPS.” On February 14, 2013, appellees filed a supplemental disclosure of witnesses, which did not name Dr. Apesos. It rеferenced appellant‘s “fact and expert witnesses,” and named other doctors identified from appellant‘s medical records. Appellees also identified their own expert witnesses by name, and indicated their credentials were provided to appellant‘s counsel.
{6} On July 16, 2013, appellees filed a “Motion to Dismiss for Failure to Prosecute/Motion for Summary Judgment” pursuant to
{7} Appellees also provided an affidavit executed by Dr. Sullivan stating in part:
The care and treatment provided to [appellant] by [appellees‘] agents and employees including me, met the standard of care of a reasonable, prudent plastic surgeon, nurse, surgical technician, etc.
Nothing [aрpellees], our agents and employees did or failed to do proximately caused [appellant] any injury.
Appellees claimed Dr. Sullivan‘s affidavit contained the only expert opinion regarding appellant‘s care.1 Thus, appellees were entitled to summary judgment on appellant‘s malpractice claim.
{8} Appellees’ motion prompted the trial court to issue a notice warning of dismissаl if appellant did not respond within ten days and show good cause why the action should not be dismissed for failure to prosecute.
{9} On August 9, 2013, with leave of court, appellant filed a “Motion and Memorandum in Opposition to Defendant‘s Motions to Dismiss For Failure to Prosecute/Motion for Summary Judgment.” Appellant pointed out that paper discovery had been conducted and appellant and Dr. Sullivan had already beеn deposed. Appellant claimed the letters attached to appellees’ motion evidenced her efforts to help schedule Dr. Apesos’ deposition. Appellees just did not want to pay Dr. Apesos at his requested
{10} Appellees replied in support to their motion arguing, in part, that Dr. Apesos’ affidavit offered in opposition to their motion for summary judgment should be stricken pursuant to Loc.R. 43 of the Franklin County Court of Common Pleas, General Division. Appellees noted the rule states: “Any witnesses not disclosed in compliance with this rule may not be called to testify at trial, unless the Trial Judge orders otherwise for good cause and subject to such conditions as justice requires.” Loc.R. 43.04.
{11} On September 13, 2013, the trial cоurt granted appellees’ combined motion. The trial court found appellees’ motion to dismiss well-taken based on appellant‘s failure to cooperate with appellees during discovery. The trial court further noted appellant never filed a witness disclosure with the court as required by Loc.R. 43. Accordingly, the trial court excluded Dr. Apesos’ affidavit from consideration when ruling on summary judgment. In the absence of Dr. Apesos’ affidavit, the trial court found no genuine issue of material fact and determined appellees were entitled to judgment as a matter of law.
{12} Appellant timely appealed the trial court‘s judgment to this court.
II. ASSIGNMENTS OF ERROR
{13} Appellant presents us with the following assignments of error to review:
I. The Trial Court committed prejudicial error and abused its Discretion when it determined that the Court determined that the Defendants Motiоn to Dismiss For Failure to Prosecute was well taken per
Ohio Rule Of Civil Procedure 41 (B) because the Plaintiff as found by the Court to be uncooperative with defense counsel because the Plaintiff had failed to produce any of its expert witnesses, especially Dr. James Apesos M.D. etc., for a deposition after repeated requests by Defendants to do and so and after the plaintiff‘s explained in a timely response to aOhio Civil Procedure Rule 40 Notice that Plaintiffs [sic] had made numerous efforts to do so but failed to provide any dates for the plaintiff‘s expert deposition as among the various logistical reasons was theDefendants were refusing to pay the expert witness fees in advance before the expert would voluntarily make himself available as the defendants believed the requested experts witness fee was unreasonable and the defendants hаd not complied with any proper discovery procedures by issuing subpoenas, issuing written interrogatories, or any other discovery methods including the procedure for obtaining an expert witnesses deposition per this court‘s ruling in Fletcher v. Bolz, 35 Ohio App.3d 129m (10th App. Dist- 1987). II. The Trial Court committed prejudicial error and abused its discretion by granting the Defendants Motion to Dismiss and Defendants Motion for Summary Judgment when the Plaintiff responded timely to thе Trial Court‘s Notice of Possible Dismissal per
Ohio Rule of Civil Procedure 41(B) and when the Court utilizedOhio Civil of Procedure Rule 56 (f) to prevent further discovery by both parties as an improper sanction when the Case Schedule Discovery Cutoff per Local Court Rule 39.04(B) had not expired for both Parties.III. The Trial Court committed prejudicial error and abused its discretion by ordering the exclusion of Plaintiffs evidentiary expert affidavit per Local Rule 43 which was to be utilized in opposition to defendants affidаvit in the defendants Motions for Dismissal and Defendants Motion for Summary Judgment when Plaintiff had technically not complied with Local Rule 43 not filing an Identification of Witness list which complied with Local Court Rule 43 when the ‘Defendant could not and had not established that they were surprised or prejudiced by Plaintiffs technical violation as Plaintiffs counsel had disclosed all the names and relevant contact information of all witnesses , expеrt or otherwise , and Plaintiffs had produced all medical records and physician medical reports of the expert physician in written discovery and the Defendants had not complied with Local Rule 43.03(c) and neither party had stated because of the Plaintiffs violation they could not complete discovery by October 1, 2013 which was the Case Schedule date per Local Rule 39(B) 1, 2013 and therefore a lesser sanсtion other than the sanction to exclude Plaintiffs proffered affidavit evidence Local Rule 39(C) and 39(D) and
Ohio Rule of Civil Procedure 56(F) of a court order for both parties to continue discovery utilizing all appropriate discovery procedures available would have been more appropriate as there had not been a prior sanction or request for sanctions requested by Defendants against the Plaintiff or either party for failing to complete the discoveryper the established procedures or Plaintiff and or Defendant would both face sanctions by the Court as said lesser sanction would be more appropriate, proportionate to the Plaintiffs technical violation, and just to all parties since the discovery cutoff date was over 2 1/2 months away from the filing of the Defendants Motion to Dismiss/Summary Judgment and the only issue rаised by the Defendants in the Motion for Summary Judgment was that the Plaintiff was not in strict compliance with Local Court Rule 43 and therefore the Court committed PREJUDICIAL ERROR and Abused its Discretion when it utilized the harsh remedy of exclusion of Plaintiffs evidence which gutted the Plaintiffs response to and eliminated Plaintiffs defense to Defendants Motion for Summary Judgment where the record also discloses the Plaintiff had been cooperative and was working with Defendants to complete discovery by October 1, 2013 and the Court had less punitive measures available.
(Sic passim.) Since resolution of appellant‘s third assignment of error is dispositive in this case, we begin by addressing that assignment of error.
III. DISCUSSION
{14} In appellant‘s third assignment of error, she argues the trial court committed prejudicial error by granting appellees’ motion for summary judgment. She asserts the trial court erred by excluding Dr. Apesos’ affidаvit submitted in opposition to summary judgment pursuant to Loc.R. 43. Appellant admits to not filing witness disclosures with the court as required by Loc.R. 43, but claims all of her witnesses were informally disclosed to appellees or otherwise known; thus, appellees were not surprised or prejudiced by Dr. Apesos’ affidavit. Appellant complains appellees did not technically comply with Loc.R. 43 either, and a lesser sanction than excluding Dr. Apesos’ affidavit was appropriate. Appellant notes the discovery deadline had not yet passed when appellees filed their motion for summary judgment. She believes the trial court should have ordered the parties to continue discovery pursuant to
{15} We review the trial court‘s grant of summary judgment de novo. Titenok v. Wal-Mart Stores E., Inc., 10th Dist. No. 12AP-799, 2013-Ohio-2745, ¶ 6; Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995). Summary judgment is proper when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that сonclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Tilley v. Dublin, 10th Dist. No. 12AP-998, 2013-Ohio-4930, ¶ 19, citing State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997);
{16} Additionally, we note the decision to admit or exclude evidence lies within the sound discretion of the trial court, and an appellate court will not disturb such a decision absent an abuse of discretion. Burton v. Triplett, 10th Dist. No. 01AP-357 (Feb. 14, 2002), citing O‘Brien v. Angley, 63 Ohio St.2d 159, 163 (1980); Stockdale v. Baba, 153 Ohiо App.3d 712, 2003-Ohio-4366, ¶ 64 (10th Dist.). An “abuse of discretion” implies that the court acted in an unreasonable, arbitrary or unconscionable manner. Banford v. Aldrich Chem. Co., Inc., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 38, citing State ex rel. Sartini v. Yost, 96 Ohio St.3d 37, 2002-Ohio-3317.
{17} Our primary inquiries under this assignment of error are whether the trial court had authority under Loc.R. 43 to exclude Dr. Apesos’ affidavit offered in opposition to summary judgment, and whether excluding the affidavit and granting appellees’ motion for summary judgment was in error. We note that appellant does not challenge
{18} Loc.R. 43 provides in pertinent part:
43.01. (04-26-00) Initial Joint Disclosure of All Witnesses
Each party shall, not later than the date for disclosure designated in the Case Schedule, serve on all parties and file with the court a written disclosure of all persons with relevant factual or expert knowledge whom the party reserves the option to call аs witnesses at trial.
43.02. (04-26-00) Supplemental Joint Disclosure of All Witnesses
Each party shall, no later than the date for disclosure designated in the Case Schedule, serve on all parties and file with the court a written disclosure of all persons whose factual or expert knowledge did not appear relevant until the witnesses were initially disclosed, whom the party reserves the option to call as witnesses at trial.
***
43.04. Exclusion of Testimony
Any witnesses nоt disclosed in compliance with this rule may not be called to testify at trial, unless the Trial Judge orders otherwise for good cause and subject to such conditions as justice requires.
{19} This court has approved of reading Loc.R. 43 in conjunction with
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit. * * * When a motion for summary judgment is madе and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party‘s pleadings, but the party‘s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
(Emphasis added).
{20} Appellant admits she did not disclose Dr. Apesos in a witness disclosure filed with the trial court. Indeed, appellant never filed any witness disclosures as required by Loc.R. 43. She argues her failure to comply with Loc.R. 43 should be overlooked because appellees knew Dr. Apesos was appellant‘s retained expert. He provided the affidavit of merit attached to the complaint and the parties discovery dispute centered around deposing Dr. Aрesos. Appellant‘s rationale is unpersuasive. Whether or not a witness is generally known does not excuse compliance with Loc.R. 43. See id. at ¶ 72-73. Moreover, due to appellant‘s failure to properly disclose Dr. Apesos, the trial court was authorized under Loc.R. 43 to exclude Dr. Apesos’ affidavit from the summary judgment evidence, and the trial court did not err in doing so. Id. at ¶ 73. In the absence of Dr. Apesos’ affidavit, Dr. Sullivаn‘s affidavit denying malpractice stood unopposed. Therefore, the trial court was correct that there was no genuine issue for trial and summary judgment in appellees’ favor was appropriate.
{21} We recognize that Loc.R. 43 allows for overlooking a failure to properly disclose a witness when good cause exists and justice so demands. Loc.R. 43.04. The trial court noted the exception in its judgment entry and chose not to apply it. Pursuant to our review of this case, we cannot find fault with that decision. This case is based on conduct that allegedly occurred in 2008. It was originally filed in 2010 and dismissed in 2011. After refiling in 2012, appellant did not properly litigate her case in compliance with the trial court‘s local rules. Those rules are in place to ensure the fair and efficient administration of all cases. Loc.R. 43 (Statement of Purрose). This is not a case in which appellant was denied her day in court, and the trial court‘s decision to exclude Dr. Apesos’
{¶ 22} Appellant‘s remaining arguments under this assignment of error are misplaced or otherwise untenable. Appellant‘s general allegations about cooperation during the discovery process pertain to the trial court‘s analysis of whether she failed to prosecute, and we need not address them here. Appellant did not move the court pursuant to
{¶ 23} For these reasons, we overrule appellant‘s third assignment of error. By doing so, we render moot appellant‘s first and second assignments of еrror. Appellant‘s arguments under those assignments of error are duplicative and have already been
IV. APPELLEES’ MOTION TO STRIKE
{24} In their brief, appellees moved this court to strike appellant‘s brief from the record because it excеeds the page limit set forth in this court‘s Loc.R. 8(B). We have just overruled appellant‘s third assignment of error and rendered her remaining assignments of error moot, thereby concluding this appeal. There is no reason to strike appellant‘s brief from the record. Accordingly, appellees’ motion to strike is denied as moot.
V. CONCLUSION
{25} For the foregoing reasons, appellant‘s third assignment of error is overruled and appellant‘s first and second assignments of error are rendered moot. Accordingly, the judgment of the Franklin County Court of Common Pleas is affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.
Judgment affirmed.