Norris v. BasdenNorris v. Basden
Case Information
*1
[Cite as
Norris v. Basden
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Audеne Norris, :
Plaintiff-Appellant, :
No. 23AP-305 v. : (C.P.C. No. 22CV-8386) Arlena Basden et al. : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on March 19, 2024 On brief: Benson & Sesser , LLC , Mark D. Tolles , II , for appellant. Argued: Mark D. Tolles II.
On brief: Poling Law , Sabrina S. Sellers , and Zachary R.
Hoover , for appellees. Argued: Sabrina S. Sellers.
APPEAL from the Franklin County Court of Common Pleas LELAND, J.
Plaintiff-appellant, Audene Norris, appeals from a judgment of the Franklin
County Court of Common Pleas granting the motion for summary judgment filed by defendants-appellees Arlena Basden, Mount Carmel Grove City, Mount Carmel Health System, Trinity Health Corporation, and John Does 1-10, after previously denying appellant’s motion for an extension of time to oppose summary judgment and striking appellant’s subsequent attempt to file an untimely brief in opposition to summary judgment. For the reasons that follow, we affirm.
I. Facts and Procedural History Appellant initially filed a complaint against appellees on December 14, 2020.
See Norris v. Basden , Franklin C.P. No. 20CV-8027. The parties agree that appellees filed *2 a motion for summary judgment, and appellant responded with a brief in opрosition to summary judgment accompanied by a supporting affidavit. On December 1, 2021, prior to resolution of that motion, appellant filed a notice of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a). One year later, appellant refiled a complaint against appellees on
December 1, 2022. In the complaint, appellant alleged that on February 9, 2019 at approximately 12:09 p.m., she went to Mount Carmel Grove City’s emergency department due to right leg pain. After an examination, medical professionals determined appellant “had an acute exacerbation or f lare-up of chronic pain, and that she did not have any injury or trauma to her right leg.” (Compl. at 4.) The exam concluded at 1:53 p.m., she was discharged in a stable condition, and was taken by wheelchair to the lobby to wait for her transportation home. At approximately 2:11 p.m., appellant’s daughter arr ived to pick up appellant. Around the same time as appellant’s daughter’s arrival, Basden “transported [appellant] in a wheelchair from the Mount Carmel Grove City ’s lobby to [ appellant’s ] daughter’s vehicle.” (Compl. at 4.) While appellant was “ being transferred from the wheelchair to her daughter’s car,” appellant alleged she sustained injuries, including a right femur fracture. (Compl. at 4.) She was thereafter transferred by ambulance to Mount Carmel West where she was admitted and underwent surgery to repair the fracture. In Count 1 of appellant’s complaint, she allege d “Personal Injury/Negligence” based on appellees providing substandard ” transportation servicеs and/or custodial care for appellant; breaching a duty of care owed to “customers”; negligent or reckless hiring, training, and supervision of their employees and/or agents; and negligence or recklessness with respect to policies, procedures, and/or protocols relative to transporting customers. ” (Compl. at 6-10.) Appellant asserted that “[t] he acts or omissions complained of herein do not implicate questions of medical competence nor involve matters of medical science or art that would require specialized knowledge, training, or skills ordinarily not possessed by laypersons. (Compl. at 9.) Appellant additionally alleged counts of respondeat superior and tortious interference with or destruction of evidеnce related to a surveillance video, audio recordings, and written reports. Appellees filed an answer on December 9, 2022 asserting, in part, the
expiration of the statute of limitations and/or statute of repose as affirmative defenses. On *3 December 12, 2022, appellees then filed a motion for summary judgment on the basis that appellant’s c omplaint contains “ medical claims ” as defined by R.C. 2305.113(E) subject to and, under the undisputed facts, barred by the one-year statute of limitations in R.C. 2305.113(A). As support for their contention that the complaint involves medical claims, appellees argued that, as part of the “ Medical Decision Making ” during the medical treatment of appellant in the emergency department, “ a physician directed [appellant] be plaсed into a wheelchair to prepare her for discharge. ” (Mot. for Summ. Jgmt. at 2, citing attached exhibits of medical records.) In accordance with this medical decision making by a physician, Nurse * * * Basden transported [appellant] in a wheelchair when the alleged injury occurred. (Mot. for Summ. Jgmt. at 2, citing Compl.) The use of a wheelchair was used to alleviate her complaints of right leg pain and to assist with her reduced mobility ” and was “ ancillary to, and an inherently necessary part of, the care and treatment of [appellant s] right leg pain by [appellees] in the ED. ” (Mot. for Summ. Jgmt. at 2-3.) Appellees added that to the extent the complaint alleges negligence and breach of duty based on the failure to implement appropriate guidelines, policies, and рrocedures, those allegations in healthcare settings have been held to constitute medical claims. According to appellees, since appellant’s medical claims accrued on
February 9, 2019, her initial December 14, 2020 complaint was filed beyond the one-year statute of limitations. Further, because that initial filing was untimely, the savings statute ordinarily available following a voluntary dismissal does not, in this case, apply to save the refiled complaint. As a result, appellees argued there is no genuine issue of material fact and appellees are entitled to judgment as a matter of law. Appellees attached to the motion for summary judgment authenticated portions of the Mount Carmel Grove City emergency department records related tо appellant’s care on February 9, 2019 and an affidavit of Basden. On January 9, 2023, appellant filed a motion for an extension of 90 days to
respond to appellees motion for summary judgment pursuant to Civ.R. 6(C)(3) and 56(F). Appellant attached an affidavit of counsel, which stated counsel had not been able to fully research and brief all the issues raised in the motion for summary judgment due to personal obligations over the holidays in addition to his workload and schedule issues. Counsel requested an extension to conduct additional discovery relative to the issues raised in *4 appellees ’ motion for summary judgment, including taking the deposition of Basden. Counsel stated he anticipated such discovery “should be able to be obtained within ninety * * * days” of this motion. (Jan. 9, 2023 Mot. at 2.)
{¶ 8} On February 17, 2023, appellees filed a motion to stay discovery until the summary judgment motion was resolved by the trial court. The trial court granted appellees’ motion to stay. The trial court then, on February 23, 2023, denied appell ant’s motion for
extension of time to respond to appellees ’ motion for summary judgment. “Based on the history of this case, [appellant’s] motion is not well taken. [Appellant ] has previously briefed the issues in [appellees ] Motion for Summary Judgment in the prior case and submitted a supporting affidavit.” (Feb. 23, 2023 Order at 1.) A few weeks later, appellant filed a brief in opposition to summary judgment.
Appellant indicates her brief in opposition was filed on March 10, 2023, while the trial court decision and appellees’ appellate brief state the filing date was March 13, 2023. Appellees filed a motion to strike appellant’s brief in opposition to summary judgment on March 14, 2023, and appellant did not file a response. The trial court on April 19, 2023 granted appellees motion and ordered the brief in opposition to summary judgment be “hereby stricken for being untimely and for exceeding the page limitation set forth in Loc.R. 12.01.” (Apr. 19, 2023 Jgmt. Entry at 3.) The brief in opposition to summary judgment filed by appellant is not in the appellate record. The trial court granted appellees’ motion for summary judgment the same
day, April 19, 2023. In doing so, the trial court determined the allegations in appellant’s complaint were “ancillary to and an inherently necessary part” of appellant’s medical care and treatment provided to her in Mount Carmel’s Emergency Department for her complаints of right leg pain. (Apr. 19, 2023 Decision & Entry at 7, 9.) Therefore, since the allegations constituted medical claims under R.C. 2305.113(E), the one-year statute of limitations stated in R.C. 2305.113(A) applied. The trial court found the cause of action accrued on the date of the injury, February 9, 2019, starting the clock for the statute of limitations. Because appellant filed her initial complaint against appellees on December 14, 2020, after the statute of limitations had expired, she could not then voluntarily dismiss that action and use the savings statute, R.C. 2305.19, to properly refile *5 her case . Instead, appellant’s “refiled [c]omplaint is time -barred by the one-year statute of limitations for medical claims under [R.C.] 2305.113(A) because the savings statute does not apply.” (Apr. 19, 2023 Decision & Entry at 10.) As a result, the trial court concluded no genuine issue of material fact remained, and appellees were entitled to summary judgment as a matter of law. The trial court dismissed the case in its entirety, and appellant filed a timely appeal.
II. Assignments of Error
{¶ 12} Appellant assigns three assignments of error for our review: [I.] THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT ’ S CIV.R. 56(F) MOTION FOR EXTENSION OF TIME TO RESPOND TO APPELLEES ’ MOTION FOR SUMMARY JUDGMENT IN ITS February 23, 2023 ORDER.
[II.] THE TRIAL COURT ABUSED ITS DISCRETION IN STRIKING APPELLANT ’ S BRIEF IN OPPOSITION TO APPELLEES ’ MOTION FOR SUMMARY JUDGMENT IN ITS APRIL 19, 2023 JUDGMENT ENTRY.
[III.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING APPELLEES ’ MOTION FOR SUMMARY JUDGMENT IN ITS APRIL 19, 2023 DECISION AND ENTRY.
III. Analysis With her assignments of error, appellant challenges three determinations of
the trial court: the decision denying her motion for an extension to respond to appellees ’ motion for summary judgment; the decision granting appellees’ motion to strike her brief in opposition to summary judgment; and the decision to grant appellees motion for summary judgment based on the expiration of the statute of limitations.
A. First Assignment of Error – Denying Motion for Extension In her first assignment of error, appellant contends the trial court abused its discretion in denying her Civ.R. 56(F) motion for extension. We disagree. While there is a “wide scope of permissible discovery” in civil litigation, “ a
party s efforts to conduct discovery may be interrupted ” since “ a motion for summary
judgment can be filed at ‘ any time. ’ ”
Miller v. NWD 355 McConnell L.L.C.
, 10th Dist. No.
22AP-725,
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party ’ s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. Thus, “ Civ.R. 56(F) requires the party opposing the motion for summary
judgment to provide an affidavit with sufficient basis to explain why they cannot provide
sufficient facts by affidavit to support its opposition. ”
Id.
at ¶ 12, citing
Jacobs
at ¶ 58.
“ ‘ Mere allegations requesting a continuance for the purpose of discovery are not sufficient
reasons why a party cannot present affidavits in opposition to the motion for summary
judgment. ’ ”
Jacobs
at ¶ 58, quoting
Hahn v. Groveport
, 10th Dist. No. 07AP-27, 2007-
Ohio-5559, ¶ 30. “The party requesting relief under Civ.R. 56(F) bears the burden to
demonstrate that the need for a continuance is warranted.”
Miller
at ¶ 12, citing
Huntington Natl. Bank v. Bywood Inc.
, 10th Dist. No. 12AP-994,
of this case. In her motion for an extension of time to respond to appellees’ argument on summary judgment, appellant provided an affidavit of her counsel that explained he had not been able to fully research and brief all the issues raised in appellees’ motion for summary judgment or obtain the necessary affidavits to respond to the motion due to his workload and personal obligations over the holidays. The affidavit continues that *7 appellant’s counsel, “need [s] additional time to tаke the deposition of [nurse] Basden, regarding the averments set forth in her [a] ffidavit” and “obtain affidavits and/or to take the depositions of others who may have knowledge and information relevant to the February 9, 2019 incident, the conduct of [appellees] at the time of the February 9, 2019 incident, and other issues raised in [appellees’] Motion for Summary Judgment.” (Jan. 9, 2023 Mot. for Extension, Tolles Aff. at 2.) In denying appellant’s motion, the trial court indicated the threshold statute
of limitations issue raised in appellees’ motion for summary judgment had been previously
raised and responded to in the original case, which undermined appellant’s stated need for
an extension in this case. Appellant has not shown how th e trial court’s position in this
regard was unreasonable. This is, undisputedly, a re-filed case and appellant does not
contend it was error for the trial court to consider the parties filings from the previous case.
Moreover, the affidavit provided in support of the Civ.R. 56(F) extension does not explain
why appellant could not provide sufficient facts by affidavit to presently oppose summary
judgment. Rather, the motion and affidavit appellant submitted amounts to a general
request for additional time to conduct depositions and written discovery, which is
insufficient to support a Civ.R. 56(F) motion.
Miller
at ¶ 12. Finally, workload constraints
faced by a party’s counsel do not require a trial court to grant an extension to respond to
summary judgment, particularly where the litigants had the opportunity to conduct
relevant discovery previously.
See TPI Asset Mgt. L.L.C. v. Baxter
, 5th Dist. No.
2011CA000007,
trial court acted outside of its discretion in denying her motion for an extension to respond to appellees’ summary judgment motion. Miller at ¶ 12. Accordingly, appellant’s first assignment of error is overruled.
B. Second Assignment of Error – Striking Brief in Opposition
{¶ 21}
Appellant’s second assignment of error chаllenges the trial court’s decision to
grant appellees’ motion to strike appellant’s brief in opposition to summary judgment. We
review the trial court s decision to grant the motion to strike under an abuse of discretion
standard.
Nist v. Nexeo Solutions L.L.C.
, 10th Dist. No. 14AP-854,
appellant’s brief in opposition to summary judgment : untimeliness and violation of Loc.R.
12.01. Appellаnt has not demonstrated the trial court abused its discretion in either regard.
First, pursuant to Franklin County Court of Common Pleas Loc.R. 12.01, A
supporting or opposing memorandum or brief * * * shall not exceed fifteen (15) pages
exclusive of any supporting documents. Any supporting or opposing memorandum or brief
which exceeds fifteen (15) pages
shall not be considered
without prior leave of the Court. ”
(Emphasis added.) Appellant admits in her appellate brief that she violated Loc.R. 12.01
by providing a brief that exceeded 15 pages and does not contend she sought leave of court
to do so. She therefore concedes th is basis for the trial court’s decision was factually correct. Appellant attempts to established that regardless of her own Loc.R. 12.01
transgression, the trial court acted arbitrarily since appellees at times filed briefs that were
too long under the local rule. However, in this instance, the trial court was presented with
a motion to strike. We do not view the trial court’s action to be arbitrary in these
circumstances. Appellant additionally believes the trial court should have at least
permitted counsel’s affidavit to be filed , regardless of striking the response brief. However,
this position appears to run counter t0 Loc.R. 56.01, which mandates all Civ.R. 56
evidentiary material “shall be filed with the responsive memorandum unless leave of court
is secured, and appellant does not provide any legal authority to support her position that
*9
the affidavit in support of the stricken response memorandum should survive
independently. Appellant has therefore nоt met her burden of demonstrating error on
appeal in this regard.
See State v. Sims
, 10th Dist. No. 14AP-1025,
her response brief was late but, with a citation to Civ.R. 12(A)(2), appellant states she filed
her brief in opposition to summary judgment on March 10, 2023, 14 days after the trial
court issued its decision denying her Civ.R. 56(F) motion for an extension. To the extent
appellant implies her response was timely by operation of Civ.R. 12(A)(2), we disagree.
Civ.R. 12(A)(2) states that the service of a motion
permitted under Civ.R. 12
alters the periods of time outlined in Civ.R. 12(A)(2) to answer or respond to pleadings.
Civ.R. 12(A)(2) (“ The service of a motion
permitted under this rule
alters these periods of
time as follows, unless a different time is fixed by order of the court: (a) if the court denies
the motion, a responsive pleading, delayed because of service of the motion, shall be served
within fourteen days after notice of the court s action .”) (Emphasis added.);
Byrd v. Meyer
,
10th Dist. No. 21AP-578,
additional 14 days to file a response to summary judgment, beginning on the date the trial *10 court denied of her Civ.R. 56 motion for extension, and appellant does not provide any additional legal support for this contention. Sims at ¶ 11; Hubbard at ¶ 34; App.R. 16(A)(7) and 12(A)(2). Moreover, even if for sake of argument we accept appellant’s 14-day theory as true, she does not provide factual support for her alleged March 10, 2023 filing date: the trial court states appellant filed her response to summary judgment on March 13, 2023, and the appellate record is devoid of evidence to the contrary.
{¶ 28} In these circumstances, appellant has not demonstrated the trial court abused its discretion in striking her response in opposition to summary judgment. Accordingly, appellant s second assignment of error lacks merit and is overruled.
C. Third Assignment of Error – Granting Summary Judgment
Appellant’s third and final assignment of error challenges the trial court’s
determination that summary judgment in favor of appellees is warranted in this case.
Appellate review of summary judgment is de novo.
MacDonald v. Authentic Invests. L.L.C.
, 10th Dist. No. 15AP-801,
judgment demonstrates: (1) no genuine issue of material fact remains to be litigated, (2) the
moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence
that reasonable minds can come to but one conclusion, and viewing such evidence most
strongly in favor of the non-moving party, that conclusion is adverse to the party against
whom the motion for summary judgment is made. Civ.R. 56;
State ex rel. Grady v. State
Emp. Relations Bd.
,
informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293 (1996). The moving party, however, cannot discharge its initial burden under this rule with a conclusory assertion that the non-moving party has no evidence to prove its case; the moving party must specifically point to evidence of a type listed in Civ.R. *11 56(C), affirmatively demonstrating that the non-moving party has no evidence to support the non-moving party ’ s claims. Id. at 293. Once the moving party discharges its initial burden, summary judgment is appropriate if the non-moving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Id. ; Civ.R. 56(E).
1 . “ M edical claims” or ordinary negligence
{¶ 32} Appellees moved for summary judgment on the basis that appellant’s complaint contains “ medical claims ” as defined by R.C. 2305.113(E) that accrued February 9, 2019 and, because appellant did not file her first complaint until after the one- year statute of limitations, the savings statute could not apply to the refiled case. On appeal, appellant contends genuine issues of material fact exist that preclude granting summary judgment concerning whether the complaint alleges “medical claims . ” Medical clаims are subject to a one-year statute of limitations. R.C. 2305.113(A). Ordinary negligence claims are subject to a two-year statute of limitations. R.C. 2305.10. Therefore, “ whether appellees conduct gives rise to a medical claim or an ordinary negligence claim determines the applicable statute of limitations and the viability of the alleged claims. ” Smith v. Mentor Ridge Health & Rehab. , 8th Dist. No. 112863, 2023- Ohio-4659, ¶ 11. A medical claim is defined in relevant part as “ any claim that is asserted in
any civil action against a physician, * * * hospital, * * * against any employee or agent of a
physician, [or] * * * hospital, * * * or against a licensed practical nurse, registered nurse,
advanced practice registered nurse, * * * and that arises out of the medical diagnosis, care,
or treatment of any person. ” R.C. 2305.113(E)(3).
Estate of Stevic v. Bio-Medical of Ohio Inc
.,
analogous version of R.C. 2305.113(E)(3), refers to ‘ the prevention or alleviation of a
*12
physical or mental defect or illness. ’ ”
Rome v. Flower Mem. Hosp.
,
motion for summary judgment established that: appellant’s medical history included sciatica and multiple surgeries to her right leg; she reported that her right leg “gives out on her”; she has a walker at home that she can use to ambulate; she sought emergency treatment for right leg pain which caused her to have, at minimum, difficulty bearing weight and ambulating; at the emergency room she wаs given morphine and instructed to follow- up with specific doctors; she was able to ambulate from the bed to a wheelchair to be taken to the lobby; and she was discharged in stable condition. (Mot. for Summ. Jgmt., Ex. B at 7.) Through the affidavit of Basden, appellees further established in pertinent part that: Basden is a registered nurse; Basden has personal knowledge of the facts; and that “[a]ll of [Basden’s] involvement” with appellant on the date at issue “was performed within [her] role as a registered nurs[e] and was performed based upon [her] education, training, and *13 experience as a registered nurse. (Mot. for Summ. Jgmt., Ex. C at 1.) By pointing to appropriate Civ.R. 56 evidence, appellees established all of Basden’s interactions with appellant on February 9, 2019, which necessarily included any аssistance she gave to appellant in being transported from the wheelchair to her daughter’s car , was ancillary to and an inherently necessary part of medical care. Even construing the evidence strongly in appellant ’s favor , we find appellees met their initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Civ.R. 56(C); Dresher . The burden then shifted to appellant to respond, by affidavit or as otherwise
provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher at 293; Civ.R. 56(E). However, once appellees discharged their initial burden as the moving party, appellant failed to appropriately respond. While appellant in her appеllate brief appears to cite to documents she attempted to submit in her untimely response to summary judgment, these documents were stricken and therefore not considered by the trial court as discussed in the second assignment of error and, regardless, are not in the appellate record for our review. As a result, pursuant to Civ.R. 56, the trial court properly granted summary judgment in appellees favor. The cases appellant relies on to support a different result are distinguishable.
Foremost, in the cases cited by appellant that involve summary judgment, the court
concluded various claims based on patient or resident falls were not “medical claims” only
after the plaintiff properly opposed summary judgment and presented the trial court with
specific facts showing that a genuine issue exists for trial. For example, in
Hill v.
Wadsworth-Rittman Area Hosp.
, 185 Ohio App.3d 788,
presented allegations and attachments sufficient to survive various dismissals but did not
involve the assessment of summary judgment evidence.
See
,
e.g.
,
Carte v. Manor at
Whitehall
, 10th Dist. No. 14AP-568,
situations, particularly those with claims that accrued prior to 2015, those cases are of diminished value here since nursing home settings invoke additional statutory sections, and the statutory language was amended in 2015 to expand conduct fitting the statutory definition of medical claims pertaining to nursing homes. See R.C. 2305.113(E)(3)(d) and (e); Smith at ¶ 16-22 (declining to follow cases, including O’Dell , that relied on pre-2015 amendment language applicable to nursing facilities). In short, none of the cases cited by appellant involve uncontested averments
by a medical professional that all of their interactions with the plaintiff on the date of injury, including transporting the plaintiff from a wheelchair to a vehicle, were conducted within their role as a medical professional and based on their medical training. We therefore find the cases relied on by appellant do not control the outcome here. However, we also decline to declare, as a matter of law, that a fall occurring under the circumstances alleged in this case is always a medical claim. See O Dell at ¶ 40 ( “Falls can either be medical claims or general negligence claims, depending upon the factual circumstances.” ). As a result, appellees’ motion for summary judgment was sufficient to show
appellant’s complaint stated “medical claims” subject to the one -year statute of limitations stated in R.C. 2305.113(A).
2 . Application of one-year statute of limitations {¶ 44} R.C. 2305.113(A) provides: “ Except as otherwise provided in this section, an action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the cause of action accrued. ” The parties do not dispute that the claim accrued on February 9, 2019, the date the alleged injury occurred. Applying the one-year statute of limitations stated in R.C. 2305.113(A), appellant had until February 9, 2020 to file her medical clаims, unless an exception in R.C. 2305.113 applied. Appellant argues the exception in R.C. 2305.113(B)(1) applies to extend the
expiration date of her claims since counsel sent “ 180- day” letters to appellees on January 24, 2020. By operation of the “180 - day” extension plus tolling during the Covid- 19 pandemic, appellant argues her medical claims would not have expired until Monday, December 14, 2020 — the date she filed her initial complaint. Therefore, appellant argues her initial complaint was timely filed, and the saving statute would apply to her re-filed complaint. Appellant’s argument fails on the record before us. It appears that “180 - day”
arguments and evidence were not properly before the trial court: if appellant made and
supported this argument in her response to summary judgment, that response was stricken
as described in the second assignment of error. Because appellant did not properly raise
the issue to the trial court, we decline to address this issue for the first time on appeal.
Tucker v. Leadership Academy for Math
, 10th Dist. No. 14AP-100,
3 . Spoliation claim Lastly, as a part of the third assignment of error, appellant asserts that her spoliation of evidence claims, as asserted in Count 3 of her complaint, are not medical claims. As explained below, based on the resolution of the medical claims, appellant has not demоnstrated prejudicial error as to the dismissal of the spoliation claim. Appellant cites to Janson v. Christ Hosp. , Inc. , 1st Dist. No. C-200047, 2021-
Ohio-1467, ¶ 32, in support of the position that spoliation claims are not medical claims. Janson does indicate spoliation-of- evidence claims do “not arise out of the medical diagnosis, care, or treatment of a plaintiff and is therefore not a ‘medical claim.’ ” Nevertheless, Janson then continues to discuss how dismissal of a spoliation claim is nevertheless still proper where the elimination of the underlying claims essentially negated a required element of the spoliation claim:
However, in order to prevail on a claim for interference or destruction of evidence, a plaintiff must be able to show (1) pending or probable litigation, (2) knowledge on the part оf the defendant that litigation exists or is probable, (3) willful destruction of evidence by the defendant designed to disrupt the plaintiff s case, (4) disruption of the plaintiff ’ s case , and (5) damages proximately caused by the defendant s acts.
(Emphasis added.) Smith v. Howard Johnson Co. Inc. , 67 Ohio St.3d 28, 29,1993-Ohio-229 ,615 N.E.2d 1037 (1993). In the cases at hand, all other claims brought against [The Christ Hospital] were properly dismissed under Civ.R. 12(B)(6). Thus, plaintiffs would be unable to prove disruption of their respective cases and their spoliation-of-evidence claims would inevitably fail. Therefore, dismissal of the spoliation-of- evidence claims was proper as it appears beyond doubt from the complaint that plaintiffs could prove no set of facts entitling them to recovery on the spoliation-of-evidence claims.
Janson at ¶ 32. See also Landrum v. Durrani , S.D.Ohio No. 1:18-cv-807 (June 29, 2020) (explaining: A spoliation of evidence claim requires a plaintiff to demonstrate actual ‘ disruption of the plaintiff s case. ’ * * * Because the statute of repose bars Plaintiff ’ s claims against [Good Samaritan Hospital], Plaintiff cannot show the required disruption ,” the plaintiff cannot succeed on a spoliation of evidence, and therefore the trial court did not err in dismissing the claim.). To be entitled to a reversal on appeal, an appellant must demonstrate
“prejudicial” error. App.R. 12(D).
See Robson v. Discount Drug Mart
,
Inc.
, 9th Dist. No. 22CA0049-M,
basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact concerning their statute of limitations argument. Appellant thereafter did not properly respond with specific facts showing that a genuine issue exists for trial. Dresher at 293; Civ.R. 56(E). As a result, the trial court did not err in determining summary judgment in favor of appellees was appropriate. Considering all the above, a ppellant’s third assignment of error is overruled.
IV. Conclusion Having overruled appellant s three assignments of error, the judgment of the
Franklin County Court of Common Pleas is affirmed.
Judgment affirmed . DORRIAN and LUPER SCHUSTER, JJ., concur.