801 N.E.2d 930 | Ohio Ct. App. | 2003
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *526
First Assignment of Error:
"The trial court failed to rule on plaintiff's motion filed November 21, 2001 for costs, expenses and attorney fees arising from the mistrial, which motion should have been granted."
Second Assignment of Error:
"By order time stamped `10:31 am 16 dec 02', served on plaintiff after january 13, 2003, the trial court granted adena regional medical center's motion for summary judgment as to plaintiff's amended complaint alleging spoliation of evidence, although plaintiff-appellant had presented credible evidence as to each element of that tort as set forth in ohio jury instruction 305.1 Consistent with well established case law in the following cases: Smith v. Howard Johnson Co., Inc., Drawl v. Cornicelli,Moskovitz v. Mt. Sinai Medical Center, and Davis v. Wal-Mart Stores,Inc."
{¶ 2} In February 1998, Cheng-Chung Yen, M.D performed appellant's laparoscopy at the Adena Regional Medical Center (hospital). Appellant and her husband had previously informed hospital nurses and staff that if the doctor identified cancer during the course of the laparoscopy, they were to report that finding to appellant's husband who would then make the decision whether to remove her ovary and fallopian tubes. During the procedure, Dr. Yen performed a Salpingo-oophorectomy (removal of ovary and fallopian tube) without any prior testing of the tissue or appellant's husband's consent. Apparently, no cancer appeared in the organs removed.
{¶ 3} Appellant and her husband filed the instant action against Dr. Yen, the hospital and John Doe Jane Doe hospital employees. The complaint alleged, inter alia, medical malpractice, battery (due to lack of informed consent) and the *528 loss of consortium. They asked for compensatory and punitive damages in excess of $25,000. Dr. Yen and the hospital both denied any liability.
{¶ 4} The case proceeded through extensive and contentious discovery before coming to trial. At the close of opening statements, the trial court judge noted that anticipated testimony defense counsel alluded to seemed to contradict an incident report previously ordered to remain confidential under a protective order. The hospital voluntarily released the incident report to defense counsel the next day, and the report appeared to reflect contradictions between what a nurse wrote in that report and the nurse's deposition testimony. Noting that more discovery was necessary to identify precisely what had happened, the court declared a mistrial.
{¶ 5} Following the mistrial, appellant filed two items that are relevant to this appeal. First, on November 21, 2001 appellant filed a motion for costs and attorney fees as a result of the mistrial. Appellant charged that the mistrial was necessitated by the hospital's "misconduct" and further charged that the hospital had concealed other evidence for which appellant should be compensated.1
{¶ 6} The second filing relevant to this appeal is the amended February 8, 2002 complaint. That pleading set forth substantially the same claims contained in the original complaint, but also included a new claim against the hospital for "tortious interference with evidence/spoliation" and punitive damages. The hospital denied any liability.
{¶ 7} At the conclusion of the trial23 the jury awarded (1) appellant $250,000 against Dr. Yen; and (2) her husband's estate $25,000 on his loss of consortium claim. The jury found in favor of the hospital, however, and further concluded that there had been no negligence on the part of the hospital nursing staff. Appellant subsequently filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court denied her request.4 *529
{¶ 8} On October 16, 2002, the hospital filed a summary judgment motion on the spoliation of evidence claim. In particular, the hospital asserted that it neither destroyed nor concealed the report that caused the 2001 mistrial. Rather, the trial court deemed that report privileged and it was not disclosed to appellant pursuant to a protective order.
{¶ 9} Also, a controversy existed over a "yellow post-it note" that was attached to the incident report but later discarded. The hospital, citing several nurses' deposition testimony, argued (1) that the post-it note was not part of the record kept in the ordinary course of business, (2) the post-it was discarded as part of hospital procedure and (3) it was unclear when the post-it note was discarded thus making it impossible to determine if it was done to impede litigation.
{¶ 10} Appellant's memorandum contra took the position that — aside from the incident report which was at issue during the mistrial — the hospital engaged in a pattern of not producing other reports which should have been disclosed during discovery. Furthermore, the post-it note issue should have been given to the jury to determine whether that note was part of the file and whether it was destroyed to impede the litigation.
{¶ 11} On December 16, 2002, the trial court granted summary judgment on the spoilation claim in the hospital's favor. The court found nothing to suggest that the hospital "destroyed or altered in any way" records or that the hospital intended to impede appellant's case. Further, the court noted that the hospital eventually produced the items sought through discovery and that the jury "considered all of the evidence available in the records of this case." The court reasoned that the delay in producing the reports, or the attempt to hide them, may indeed be sanctionable under the Civil Rules but did not give rise to a new cause of action. This was particularly true in light of the fact that the jury had already considered all the evidence against the hospital and found that it was not negligent.
{¶ 13} Appellant raises another jurisdictional issue when she claims that the trial court did not expressly enter judgment for the hospital on the jury verdict returned in its favor. Obviously, a jury verdict alone does not constitute a final order under R.C.
{¶ 14} Finally, just one week after the trial court overruled appellant's first motion for new trial/JNOV, appellant filed a second motion for such relief specifically "incorporating by reference her prior motion for the same relief." It appears to us that this motion has not been resolved. A Civ.R. 59 motion for new trial tolls the time period for filing a notice of appeal under App.R. 4(B)(2). Thus, until a trial court rules on the motion, the appeal time does not begin to run and a notice of appeal fails to invoke the appellate court's jurisdiction. SeeColumbus v. Triplett (Dec. 14, 1999), Franklin App. No. 99AP-368; Whitev. Bozman's (Dec. 18, 1995), Hocking App. No. 95CA9. In the case sub judice, we need not concern ourselves with this particular problem, however, because appellant filed his second motion out of rule. SeeGallucci v. Freshour (Jun. 22, 2000), Hocking App. No. 99CA22.5 Thus, the fact that the trial court did not decide the second motion is not an impediment to this Court's jurisdiction.
{¶ 15} Thus, having determined that we do possess the jurisdiction to review this case, we turn to the merits of appellant's assignments of error.
{¶ 17} A trial court's decision on a motion for attorney fees and costs is typically reviewed on appeal for an abuse of discretion. See e.g. Sherman v. Fifth Third Bank (1993),
{¶ 18} In the case sub judice, we believe that the trial court's failure to award appellant attorney fees and costs did not constitute an abuse of discretion. We note that the mistrial was necessitated by the need to conduct further discovery concerning an incident report that the hospital gave appellant when it was not required to do so. The report had previously been deemed privileged. Nevertheless, because of the conflict with anticipated testimony, the hospital produced that report and allowed appellant to review its contents. We also note that nothing in the record suggests that the hospital had anything to do with the inconsistencies in the nurses's deposition testimony and the incident report. Accordingly, we hereby overrule appellant's first assignment of error.
{¶ 20} Our analysis begins with the fundamental premise that we review summary judgments de novo. See Broadnax v. Greene Credit Service
(1997),
{¶ 21} Summary judgment under Civ.R. 56(C) is appropriate when the movant can demonstrate that (1) there are no genuine issues of material fact, (2) it is entitled to judgment in its favor as a matter of law, and (3) reasonable minds can come to only one conclusion and that conclusion is adverse to the opposing party; said party being entitled to have the evidence construed most strongly in their favor. Zivich v. Mentor SoccerClub, Inc. (1998),
{¶ 22} We further note that the moving party bears the initial burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Vahila v. Hall
(1997),
{¶ 23} The claim at issue is "spoliation of evidence." The elements of that claim are "(1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designedto 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. (1993),
{¶ 24} In its summary judgment motion, the hospital pointed out that all of the incident reports were made available to appellant. Appellant used those reports at trial. None of the reports were destroyed. The only arguable destruction of evidence was the "post-it note" attached to one of those reports. As the hospital pointed out, there is no evidence in the record to show when or who discarded the note. Thus, the hospital concluded, appellant could not prove the third element of spoliation. The burden then shifted to appellant to produce evidentiary materials to substantiate that evidence was willfully destroyed so as to disrupt her case. Appellant did not meet that burden.
{¶ 25} Appellant argued below, and continues to maintain on appeal, that her spoliation claim can go forward even though no destruction of the incident report(s) occurred and that they were eventually provided to her in discovery. She asserts that her claim for spoliation will lie even for concealing evidence or interfering with discovery. As authority for her position, she cites Davis v. Wal-MartStores, Inc. (2001),
{¶ 26} The issue in Davis was whether a spoliation claim was barred by the doctrine of res judicata. The spoliation claim itself was not at issue and Justice Pfeifer's observations were mere dicta.6
{¶ 27} Additionally, our Second District colleagues recently considered the same issue and declined to expand spoliation to include giving false testimony. See Pratt v. Payne,
{¶ 28} Moreover, we recently considered Davis and held that the majority opinion in that case did not set forth "a new cause of action for interference with *534 evidence." McGuire v. Draper, Hollenbaugh, Briscoe Co., L.P.A., Highland App. No. 01CA21, 2002-Ohio-6170, at ¶ 81. Appellant offers nothing in her brief that causes us to reconsider that holding and, thus, we find no evidentiary support for her spoliation claims with respect to the incident reports.7
{¶ 29} With respect to the "post-it note," we conclude that no evidence supports appellant's spoliation claim. While we accept that the note was destroyed,8 there is no evidence that the note was destroyed in order to disrupt the plaintiff's case. It is conjecture that this note's destruction proximately caused any damage to appellant's case. From our review of the record, it is not clear that the post-it would have benefited appellant's case. Appellant argues that nurse Janice Butler's deposition testimony, indicates that the note concerned "consent." Our reading of her deposition, however, is much less conclusive. At one point, Butler described the note as "a courtesy note to other staff members." Elsewhere, she explained "[t]he note that I put on there had nothing to do with consent. I — it was simply a courtesy to let them know how long the surgery would be." (Emphasis added) The point is that we have no idea what information the post-it note actually contained and whether it would have been helpful to appellant's case. Thus, we do not see how appellant was damaged or prejudiced by the note's destruction.
{¶ 30} For these reasons, we find no error in the trial court's summary judgment for the hospital on appellant's spoliation of evidence claim and her second assignment of error is hereby overruled.
{¶ 31} Having considered the two errors assigned and argued in the briefs, and after finding merit in neither of them, the judgment of the trial court is hereby affirmed.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J., concurs in Judgment Opinion (vote received 9-24-03)
Evans, P.J., concurs in Judgment Opinion (vote received 12-15-03)