CAROL LYTLE, ET AL. v. SHILA MATHEW, M.D., ET AL.
No. 104622
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 20, 2017
2017-Ohio-1447
Kilbane, P.J., Stewart, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-857637
Mark E. Owens
Natalie F. Grubb
Grubb & Associates, L.P.A.
437 W. Lafayette Road, Suite 260-A
Medina, Ohio 44256
ATTORNEYS FOR APPELLEES
For Kaiser Foundation Health Plan of Ohio, Ohio Permanente Medical Group, and Shila Mathew, M.D.
Jeffrey W. Van Wagner
Jennifer R. Becker
Bonezzi, Switzer, Polito & Hupp Co.
1300 East 9th Street, Suite 1950
Cleveland, Ohio 44114
For Konstantin Kuschnir, M.D. and Brunswick Orthopedics, Inc.
Thomas B. Kilbane
Michelle J. Sheehan
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 44115
For Discount Drug Mart, Inc.
Patrick S. Corrigan
55 Public Square, Suite 930
Cleveland, Ohio 44113
{1} Plaintiffs-appellants, Carol Lytle (“Carol“) and the estate of Trаcy Lytle (“Tracy“) (collectively referred to as “plaintiffs“), appeal from the trial court‘s decision granting defendants-appellees, Dr. Shila Mathew, M.D., Kaiser Foundation Health Plan of Ohio, Ohio Permanente Medical Group, Inc., Dr. Konstantin Kuschnir, M.D., Brunswick Orthopedics, Inc., and Discount Drug Mart, Inc.‘s (collectively referred to as “defendants“), motion to disqualify plaintiffs’ attorney, Natalie Grubb (“Grubb“) and her law firm. For the reasons set forth below, we affirm.
{2} The instant case was previously filed by the plaintiffs in Summit County Common Pleas Court, Lytle v. Matthew, Summit C.P. No. CV-12-02-0809. Carol, as Tracy‘s mother and as administrator of Tracy‘s estate, brought a wrongful death cоmplaint against defendants, alleging that Tracy‘s death was the proximate result of the defendants’ negligent failure to ensure that the medications prescribed to her did not pose a high risk of a negative drug interaction. Additionally, Carol asserted that Discount Drug Mart, Inc. (“Discount Drug Mart“) was negligent in failing to fоllow proper protocols in dispensing Tracy‘s medication. Lytle v. Mathew, 9th Dist. Summit No. 26932, 2014-Ohio-1606, 3.
{3} In 2004, Tracy was injured in an automobile accident while in the course and scope of her employment. The injuries required her to receive medical and psychological treatment from various medical professionals. Tracy received temporary total disability benefits from the Bureau of Workers’ Compensation (“BWC“) related to her injuries.
{4} Defendants sought to depose Grubb and obtain certain documents from her related to Tracy‘s employment at her law firm. Defendants wanted to explore the possibility that stress from Tracy‘s involvement in the BWC fraud investigation caused or cоntributed to her death. Defendants’ issued a subpoena directing that Grubb bring with her to the deposition “[a]ny and [a]ll records of employment of [Tracy] and any and all cancelled checks, bank ledgers, bank statements, or any other documents that relate to compensation to [Tracy] from Nаtalie F. Grubb or Grubb & Associates, LPA.” Id. at ¶ 4.
{5} Grubb filed a motion to quash the subpoena and a motion for a protective order. The motion asserted both that the materials sought to be obtained were irrelevant
{6} On appeal, the court found that the trial court erred in issuing its ruling prior to giving Grubb the opportunity to respond to Discount Drug Mart‘s submission of supplemental exhibits. Id. at ¶ 16. Following the remand of the Ninth District Court of Appeals, defendants deposed Grubb and filed a joint motion to disqualify Grubb as cоunsel. The trial court held its ruling on the motion in abeyance pending its hearing with the plaintiffs. The plaintiffs appealed from this order in Lytle v. Mathew, 9th Dist. Summit No. 27587. The appeal was dismissed by the Ninth District Court of Appeals for lack of a final appealable order. Id. On remand, plaintiffs voluntarily dismissed the case, without prejudice.
{7} In January 2016, plaintiffs filed the instant case against defendants in Cuyahoga County Common Pleas Court, Lytle v. Mathew, Cuyahoga C.P. No. CV-16-857637. Plaintiffs brought forth the same wrongful death cause of action against
{8} In May 2016, defendants filed a joint motion to disqualify Grubb based on the same evidence and arguments in the Summit County Case. Plaintiffs filed a brief in opposition to defendants’ motion. The trial court granted defendants’ motion to disqualify in June 2016. The trial court found
[s]ufficient evidence from defendants’ joint motion, plaintiffs’ brief in opposition, defendants’ joint rеply, and the exhibits attached thereto, to determine that no exception to the disciplinary rules applies to protect Attorney [Grubb] and her law firm from disqualification as counsel in this matter.
Prof.Cond.R. 3.7 . See also, Landzberg v. 10630 Berea Road, Inc., 8th Dist. Cuyahoga No. 79574, 2002 Ohio App. LEXIS 1085, *13-14 (March 14, 2002), citing Univ. Carnegie Med. Partners Assn. v. Weiss & Kramer, Inc., 8th Dist. Cuyahoga No. 65422, 1994 Ohio App. LEXIS 269 (Jun. 23, 1994). Therefore, Attorney [Grubb] and her law firm of Grubb & Associates, LPA, shall be disqualified as plаintiffs’ counsel and not permitted to proceed in this litigation.
Plaintiffs are granted 30 days to retain new counsel; new counsel shall file a notice of appearance with this court.
{9} It is from this order that the plaintiffs appeal, raising the following single assignment of error for review.
Assignment of Error
The trial court еrred and abused its discretion in disqualifying [Grubb] and her entire law firm without making any express determination that the purported testimony to be elicited is material to resolution of an issue
(Emphasis sic.)
{10} Plaintiffs contend that the trial court erred when it granted defendants’ motion to disqualify because Grubb is not a necessary witness and her testimony regarding the BWC fraud investigation and Tracy‘s employment with Grubb is not material to the issues being litigated in the mattеr before us. She further argues that her testimony is protected by the attorney-client privilege, her disqualification will cause a substantial hardship on plaintiffs, and there is no personal interest conflict under
{11} In reviewing a trial court‘s decision to disqualify a party‘s counsel, we apply an abuse of discretion standard. 155 N. High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423, 426, 1995-Ohio-85, 650 N.E.2d 869, citing Royal Indemn. Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 501 N.E.2d 617 (1986); Mentor Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 510 N.E.2d 379 (1987). “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{12} We are mindful that “[d]isqualification of an attorney is a drastic measure, which should not be imposed unless absolutely necessary.” Quiros v. Morales, 8th Dist. Cuyahoga No. 894274, 2007-Ohio-5442, ¶ 15; Roth v. Roth, 8th Dist. Cuyahoga No. 89141, 2008-Ohio-927, ¶ 70. Disqualification interferes with a client‘s right to choose counsel. Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 5-6, 1998-Ohio-439, 688 N.E.2d 258, citing Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir.1988); A.B.B. Sanitec W., Inc. v. Weinsten, 8th Dist. Cuyahoga No. 88258, 2007-Ohio-2116.
{13} Moreover, “[w]hile motions to disqualify may be legitimate and necessary under certain circumstances, they ‘should be viewed with extreme caution for they can be misused as techniques of harassment.‘” Cliffs Sales Co. v. Am. S.S. Co., N.D. Ohio No. 1:07-CV-485, 2007 U.S. Dist. LEXIS 74342, at *7 (Oct. 4, 2007), quoting SST Castings, Inc. v. Amana Appliances, Inc., 250 F.Supp.2d 863, 865-866 (S.D.Ohio 2002), citing Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 722 (7th Cir.1982). “It is the burden of the party moving for disqualification of an attorney to demonstrate that * * * disqualification is necessary.” Id., citing Mentor Lagoons v. Teague, 71 Ohio App.3d 719, 595 N.E.2d 392 (11th Dist.1991).
{14} Pursuant to
A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless one or more of the following applies:
(1) the testimony relates to an uncontested issue;
(2) the testimony rеlates to the nature and value of legal services rendered in the case;
(3) the disqualification of the lawyer would work substantial hardship on the client.
{15} The official comments to the rule state, in relevant part, that
[4] (a)(3) recognizes that a balancing is required between the interests of the client and those of the tribunal and the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer‘s testimony, and the probability that the lawyer‘s testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer‘s client.
{16} In Gonzalez-Estrada v. Glancy, 8th Dist. Cuyahoga No. 104570, 2017-Ohio-538, ¶ 12, we recently stated:
A necessary witness under
Prof.Cond.R. 3.7 is one whose testimony must be admissible and unobtainable through other trial witnesses. King v. Pattison, 5th Dist. Muskingum No. CT2013-0010, 2013-Ohio-4665, citing Popa Land Co., Ltd. v. Fragnoli, 9th Dist. Medina No. 08CA0062-M, 2009-Ohio-1299, ¶ 15.Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony and availability of other evidence. * * * A party‘s mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification even if that counsel could give relevant testimony.
Cty. Risk Sharing Auth. v. Robson, 5th Dist. Licking No. 15-CA-62, 2016-Ohio-1460, ¶ 22, quoting Akron v. Carter, 190 Ohio Aрp.3d 420, 2010-Ohio-5462, 942 N.E.2d 409, ¶ 19 (9th Dist.).
{17} In its judgment entry disqualifying Grubb and her law firm as plaintiff‘s counsel, the trial court determined that no exception to
{18} Grubb testified during her deposition that she does not know: (1) why the checks were made payable to Tracy; (2) if the checks were executed by Tracy; (3) who signed the checks on behalf of her law firm; or (4) whether Tracy forged Grubb‘s signature. She also claims that she did not have any conversations with Tracy regarding the BWC investigation.
{19} Defendants correctly maintain that Grubb‘s testimony is necessary and cannot be obtained elsewhere. Grubb‘s position as the principal of her law firm and her knowledge of and role in the BWC investigation of Tracy renders her testimony at trial necessary. Grubb is the only person whо can explain her signature on the checks made payable to Lytle by Grubb, and any conversations with Lytle regarding the BWC fraud investigation.
{20} Grubb‘s testimony in the instant case is not protected by the attorney-client privilege. The Ohio Supreme Court has held that the attorney-client privilege does not attach to conversations with clients that relate “to some future unlawful or fraudulent transaction. Advice sought and rendered in this regard is not worthy of protection, and the principles upon which the attorney-client privilege is founded do not dictate otherwise.” Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 27, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 661, 635 N.E.2d 331 (1994). This crime-fraud exception is
{21} Plaintiffs also contend that Grubb‘s disqualification will cause them a substantial hardship. In order to establish that Grubb‘s disqualification would cause the plaintiffs a substantial hardship, Grubb must demonstrate “some proof of specialized expertise.” 155 N. High, Ltd., 72 Ohio St.3d at 429 (where the Ohio Supreme Court found it appropriate to place the burden on the attorney seeking to continue representation to prove distinctiveness); Mentor Lagoons, Inc., 71 Ohio App.3d 719. Here, Grubb did not present any
{22} Plaintiffs further contend that neither Grubb nor the other attorney in Grubb‘s law firm have a “personal interest” conflict under
{23}
{24} In this case, Grubb cannot effectively advocate for plaintiffs in the wrongful death action and testify to the actions of employing Tracy while she was receiving the BWC benefit, which defendants contend contributed to the stress that arguably caused Tracy‘s death. There is a substantial risk that Grubb‘s ability to
{25} For the foregoing reasons, we cannot sаy the trial court abused its discretion when it disqualified Grubb and her law firm as plaintiffs’ counsel. The trial court considered the ample evidence before it and recognized that Grubb‘s testimony is necessary and a conflict exists. We acknowledge that removing Grubb and her law firm is a drastic measure, but the trial court found it necessary in light of the ample documentation of this highly unusual situation through several court proceedings, both civil and criminal. Accordingly, the trial court‘s decision was not arbitrary, unreasonable, or unconscionable.
{26} The sole assignment of error is overruled.
{27} Judgment is affirmed.
It is ordered that appellees recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate рursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
SEAN C. GALLAGHER, J., CONCUR