Erickson v. Ohio Dept. of Rehab. & Corr. ( 2017 )

[Cite as Erickson v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-1572.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Christopher S. Erickson, :
Plaintiff-Appellant, :
v. : No. 16AP-74
(Ct. of Cl. No. 2010-7962)
:
Ohio Department of Rehabilitation (REGULAR CALENDAR)
and Correction, :
Defendant-Appellee. :
D E C I S I O N
Rendered on April 27, 2017
On brief: Michael Drain, Jr., for plaintiff-appellant.
Argued: Michael Drain, Jr.
On brief: Michael DeWine, Attorney General, Daniel R.
Forsythe, and Anne Berry Strait, for defendant-appellee.
Argued: Daniel R. Forsythe.
APPEAL from the Court of Claims of Ohio
BRUNNER, J.
{¶ 1} Plaintiff-appellant, Christopher S. Erickson, appeals the judgment of the
Court of Claims of Ohio, which adopted its magistrate's decision granting summary
judgment pursuant to Civ.R. 56(C) to defendant-appellee, Ohio Department of
Rehabilitation and Correction ("ODRC"). For the following reasons, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Erickson was an inmate in ODRC's custody when he underwent a dental
procedure in February 2008. Erickson claims he developed a seizure disorder as a result
of complications following that dental procedure and was subsequently prescribed anti-
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seizure medication. On June 13, 2008, ODRC transferred him to Marion Correctional
Institution ("Marion"). On June 15, 2008, Erickson suffered a grand mal seizure, which
he alleges occurred because ODRC negligently failed to provide him with his prescribed
anti-seizure medication upon his transfer to Marion two days earlier.
{¶ 3} On June 7, 2010, Erickson filed a complaint in the Court of Claims against
the Ohio State University Medical Center ("OSUMC"), which provides medical services for
ODRC, and against ODRC, itself, alleging negligence. OSUMC and ODRC moved to
dismiss on the ground that Erickson's complaint asserted a medical claim that was barred
by a one-year statute of limitations. On January 11, 2011, the Court of Claims dismissed
OSUMC as a party, finding claims against it were barred by the one-year statute of
limitations on medical claims. The trial court denied ODRC's motion to dismiss, finding
that ODRC was subject to a negligence claim with a two-year statute of limitations, rather
than a medical claim with a one-year statute of limitations. Because Erickson was
litigating against medical providers in the Ashtabula County Court of Common Pleas, the
Court of Claims stayed the case from March 14, 2011 until November 21, 2014, at which
time the court vacated the stay and ordered the case set for trial.
{¶ 4} On January 16, 2015, the Court of Claims' magistrate issued an order
establishing discovery and motion deadlines. The order required Erickson to furnish
ODRC with the names and reports of his expert witnesses by June 5, 2015, and ODRC was
required to furnish Erickson the names and reports of its expert witnesses by July 17,
2015, one month later. The order provided that no discovery was permitted after
October 23, 2015 without leave of court, and set November 6, 2015 as the dispositive
motion deadline.
{¶ 5} Erickson had not provided the name of any expert witness and/or expert
report by his June 5, 2015 disclosure of experts deadline.
{¶ 6} On June 17, 2015, ODRC filed a motion requesting additional time to file its
expert witness disclosure, stating that it could not conduct a proper expert review until it
received additional documents and records from Erickson. Erickson's counsel had no
objection to ODRC's motion. On July 1, 2015, the magistrate issued an order extending
ODRC's expert witness disclosure deadline by 60 days.
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{¶ 7} On September 1, 2015, ODRC sought an order compelling Erickson to
produce documents and/or provide responses to specifically identified discovery requests.
On October 22, 2015, the magistrate granted ODRC's motion and ordered Erickson to
complete the discovery requests within 14 days. ODRC alleged that Erickson had failed to
comply with the magistrate's order as of the time ODRC filed its motion for summary
judgment on November 6, 2015.
{¶ 8} On September 8, 2015, ODRC timely filed its expert witness disclosure,
including the names and reports of two expert witnesses: Joseph P. Hanna, M.D., a
board-certified neurologist with 25 years of experience (neurology), and Michael A.
Zemaitis, Ph.D., Professor of Pharmaceutical Science (pharmacology). Dr. Hanna stated
in his report dated July 29, 2015 that he had reviewed Erickson's records provided by
ODRC and was able to conclude with a relatively high degree of medical certainty that
Erickson's seizures that occurred on June 15, 2008 were the result of multiple factors
predating the February 2008 dental procedure, including a scar on his brain, "that make
seizure occurrence in him unpredictable." (Sept. 8, 2015 Def.'s Expert Disclosure, Report
of Dr. Hanna.) Dr. Hanna stated that Erickson "did not suffer any sequela from his
seizures of June 15, 2008." Id. Dr. Hanna concluded that "any change in [Erickson's]
seizures along with the morbidity or mortality that they incur are unrelated to the events
of June 2008." Id.{¶ 9} On November 6, 2015, ODRC filed a motion for summary judgment
pursuant to Civ.R. 56(C). ODRC presented two arguments in support of its motion. First,
it renewed its contention that Erickson's claim was barred by the one-year statute of
limitations for "medical claims." (Nov. 16, 2015 Def.'s Motion for Summ. Jgmt. at 3.)
Second, it argued that Erickson could not prevail on the negligence claim because he
could not prove the element of causation for the June 15, 2008 seizure. ODRC argued
that Erickson "has failed to provide an expert report supporting his claims as required by
Local Rule 7(E) and as ordered by this court. Without an expert witness, Mr. Erickson
will not be able to sustain his burden of proof." Id. at 1.
{¶ 10} ODRC attached to its motion for summary judgment Dr. Hanna's affidavit
averring that he had reviewed Erickson's complaint and medical records for the period of
2008 to 2012 from ODRC, OSUMC, and other medical care providers. Through his
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affidavit, and consistent with Civ.R. 56, Dr. Hanna authenticated a copy of his expert
report dated July 29, 2015. ODRC argued that because there are several possible causes
of Erickson's seizures, and Erickson cannot prove the probable cause, Erickson cannot
meet his burden of proof. ODRC asserted that there were no issues of material fact and
that it was entitled to summary judgment as a matter of law.
{¶ 11} Erickson did not respond to ODRC's motion for summary judgment. He did
file a motion for leave to file plaintiff's disclosure of expert report instanter on
November 9, 2015, nearly five months after his expert witness disclosure deadline.
Attached to the motion was the report of John Sullivan, M.D., which Erickson claimed
rebutted the reports of ODRC's two expert witnesses. Dr. Sullivan's report was not
authenticated pursuant to Civ.R. 56(E).
{¶ 12} On November 10, 2015, ODRC additionally filed a motion to dismiss
Erickson's complaint for failure to comply with the magistrate's October 22, 2015 order
compelling Erickson to produce documents within 14 days. And on November 12, 2015,
ODRC filed a memorandum contra plaintiff's motion for leave to file late expert report,
arguing that Erickson had failed to provide a reasonable justification for providing his
expert report five months past his expert disclosure deadline and two weeks past the
discovery cutoff. ODRC noted that Erickson had never responded to the court's order
compelling him to complete specific outstanding discovery requests, including a request
for records from Dr. Sullivan. Further, ODRC contended that Erickson's counsel had
misquoted material portions of Dr. Sullivan's report.
{¶ 13} On December 29, 2015, the Court of Claims granted ODRC's motion for
summary judgment. The judgment entry noted that Erickson had not filed a response to
the motion, but filed a motion on November 13, 2015 requesting an extension of time to
furnish ODRC with a report from an expert witness and providing a copy of the proposed
report. The Court of Claims did not find Erickson's motion well-taken, given that it had
been filed "well after the deadline expired and without explanation, much less a showing
of excusable neglect as required under Civ.R. 6(B)(2)." (Dec. 29, 2015 Entry at 5.)
Moreover, the Court of Claims was not persuaded that granting the extension of time to
furnish the expert report would enable Erickson to satisfy his burden under Civ.R. 56.
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The judgment entry also denied all other pending motions as moot and vacated all
previously scheduled events.
{¶ 14} On January 22, 2016, Erickson filed a motion for reconsideration of
summary judgment. Attached to the motion for reconsideration was Dr. Sullivan's
affidavit authenticating his report filed November 13, 2014. The Court of Claims denied
this motion as moot on January 26, 2016.
{¶ 15} Erickson then filed his appeal with this Court.
II. ASSIGNMENTS OF ERROR
{¶ 16} Erickson presents two assignments of error for our review:
[1.] The trial court abused its discretion and committed
prejudicial error by failing to give consideration to Appellant's
expert report challenging the expert opinion of Appellee's
expert.
[2.] The trial court committed prejudicial error by entering
summary judgment in favor of Appellee.
III. DISCUSSION
A. Standard of review
{¶ 17} Erickson's complaint was resolved by summary judgment of the Court of
Claims after orders were entered governing discovery between the parties.
Appellate review of summary judgment motions is de
novo. Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio
App. 3d 158, 162, 703 N.E.2d 841. When reviewing a trial
court's decision granting summary judgment, we conduct an
independent review of the record, and the appellate court
"stands in the shoes of the trial court." Mergenthal v. Star
Banc Corp. (1997), 122 Ohio App. 3d 100, 103, 701 N.E.2d
383.
Rose v. Ohio Dept. of Rehab. & Corr., 173 Ohio App.3d 767, 2007-Ohio-6184, ¶ 18 (10th
Dist.).
{¶ 18} Thus, when reviewing an appeal of an order granting a motion for summary
judgment, this Court uses the same standard of review as the trial court. Freeman v.
Brooks, 154 Ohio App.3d 371, 2003-Ohio-4814, ¶ 6 (10th Dist.), citing Maust v. Bank One
of Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992), jurisdictional motion
overruled, 66 Ohio St.3d 1488 (1993).
{¶ 19} Civ.R. 56(C) requires that:
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Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Civ.R. 56 has been described as a means to facilitate the early assessment of the merits of
claims, to foster pre-trial dismissal of meritless claims, and to define and narrow issues
for trial. Telecom Acquisition Corp. I v. Lucic Ents., 8th Dist. No. 102119, 2016-Ohio-
1466, ¶ 92. See also Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 170 (1997) (Cook,
J., concurring in part and dissenting in part). As such, summary judgment is a procedural
device designed to promote judicial economy and to avoid needless trials.
The goal of a motion for summary judgment is to narrow the
issues in a case to determine which, if any, should go to trial.
"The purpose of summary judgment is not to try issues of fact,
but is, rather, to determine whether triable issues of fact
exist." State ex rel. Anderson v. The Village of Obetz, 10th
Dist. No. 06AP-1030, 2008-Ohio-4064, ¶ 64, quoting Lakota
Local School Dist. Bd. of Edn. v. Brickner, 108 Ohio App.3d
637, 643, 671 N.E.2d 578 (1996) (citations omitted.)
Thevenin v. White Castle Mgmt. Co., 10th Dist. No. 15AP-204, 2016-Ohio-1235, ¶ 45
(concurring opinion). Thus, a party seeking summary judgment on the grounds that a
nonmoving party cannot prove its case bears the initial burden of informing the trial court
of the basis for the motion and must identify those parts of the record which demonstrate
the absence of a genuine issue of material fact on the elements of the nonmoving party's
claims. Drescher v. Burt, 75 Ohio St.3d 280, 292-93 (1996).
{¶ 20} If the moving party has satisfied its initial burden, the burden shifts to the
nonmoving party to set forth specific facts showing there is a genuine issue for trial. If the
nonmoving party does not respond, summary judgment, if otherwise appropriate, shall be
entered against the nonmoving party. Id. The nonmoving party may not rest on the mere
allegations or denials of his or her pleadings, but must respond with specific facts showing
there is a genuine issue for trial. Civ.R. 56(E); Drescher at 293.
{¶ 21} As with summary judgment, discovery is also a process whereby issues are
narrowed for trial. See, e.g., Tucker v. Cleveland Bd. of Edn., 8th Dist. No. 43889
(Jan. 10, 1983). Trial court discovery orders allow the trial court to facilitate discovery "to
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narrow the issues prior to trial, so that the trial itself would not become the primary
vehicle for discovery." Id.{¶ 22} And it is not an abuse of discretion for a trial court to rule on the merits of
motions for partial summary judgment in the absence of requested discovery, even when
the trial court in its discretion has denied further discovery. See Bank of Am. NA v.
Omega Design/Build Group, LLC, 1st Dist. No. C-100018, 2011-Ohio-1650, ¶ 10, 42. For
instance, Civ.R. 56(F) provides that when a party cannot for sufficient reasons stated by
affidavit present facts essential to justify the party's opposition to summary judgment, the
trial court may deny summary judgment or order a continuance to permit discovery.
Erickson provided no affidavit pursuant to Civ.R. 56(F) to the Court of Claims. Even if he
had, whether to grant him additional time or discovery was within the Court of Claims'
sound discretion. Id. at ¶ 40.
{¶ 23} An appellate court must review a trial court's disposition of discovery issues
according to whether the trial court abused its discretion. Carpenter v. Reis, 109 Ohio
App.3d 499, 507 (6th Dist.1996), citing Toney v. Berkemer, 6 Ohio St.3d 455 (1983). "A
trial court's decision on discovery issues is within its broad discretion, and the decision
will not be reversed absent an abuse of such discretion." Safelite Glass Corp. v. Kagy,
10th Dist. No. 99AP-875 (June 1, 2000). When reviewing a trial court's discovery
decisions, for a court of appeals to reverse a trial court decision it must find more than an
error of judgment, but rather a decision that connotes that it is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). A decision that
is unreasonable is one that has no sound reasoning process to support it. Griffin v. Dept.
of Rehab. & Corr., 10th Dist. No. 05AP-858, 2006-Ohio-5206, ¶ 5. A reviewing court
applying the abuse of discretion standard may not otherwise substitute its judgment for
that of the trial court. Berk v. Matthew, 53 Ohio St.3d 161, 169 (1990).
B. First Assignment of Error
{¶ 24} Erickson argues that the trial court abused its discretion and committed
prejudicial error by failing to give consideration to his expert report challenging the expert
opinion of ODRC's expert. Erickson contends that Dr. Sullivan's report attached to
Erickson's motion for leave to file plaintiff's disclosure of expert report instanter put into
issue a genuine issue of material fact such that it contradicted Dr. Hanna's report.
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{¶ 25} Having independently reviewed the record, we find that the Court of Claims
did not commit prejudicial error by excluding Dr. Sullivan's report. Erickson failed to
respond to discovery requests in a timely manner and failed to meet the Court of Claims'
expert disclosure deadline. And unlike a party defending summary judgment such as in
the Omega Design/Build Group, LLC litigation, Erickson did neither (1) respond to
ODRC's November 6, 2015 motion for summary judgment, nor (2) ask for additional time
to respond to the motion via an affidavit pursuant to Civ.R. 56(F). The Court of Claims
found that Erickson's motion to extend the deadline for furnishing an expert witness
report was filed "well after the deadline expired and without explanation, much less a
showing of excusable neglect as required under Civ.R. 6(B)(2). On that basis alone, the
motion is not well taken." (Dec. 29, 2015 Entry at 5.)
{¶ 26} The Court of Claims went further, explaining why granting an extension of
time to furnish Dr. Sullivan's report was immaterial because Erickson had failed to
present Civ.R. 56 evidence to controvert Dr. Hanna's averments:
The report by Dr. Sullivan that is attached to [Erickson's]
motion is not authenticated by affidavit and cannot be
considered by the court in connection with the motion for
summary judgment. Moreover, Dr. Sullivan does not express
an opinion that the seizure and any related harm was more
likely than not caused by the alleged missed dose or doses of
anti-seizure medication, which, similar to Dr. Hanna, Dr.
Sullivan identifies as merely a possible cause.
Accordingly, based upon the uncontroverted evidence
presented by [ODRC], reasonable minds can only conclude
that [Erickson] is unable to prove the causation element of his
negligence claim.
(Dec. 29, 2015 Entry at 5-6.)
{¶ 27} We find the Court of Claims' decision to be reasonable and supported by
sound reasoning. Consequently, we overrule Erickson's first assignment of error.
C. Second Assignment of Error
{¶ 28} Based on our review of the record, we find that the Court of Claims did not
err by granting summary judgment in favor of ODRC. The Court held that causation is a
necessary element in order for Erickson to be granted relief, citing Menifee v. Ohio
Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984) and Cromer v. Children's Hosp. Med.
Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 23. More specifically, Erickson
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needed to establish "that he was caused to suffer a seizure and related harm resulting
from [ODRC's] alleged failure to provide him one or more doses of anti-seizure
medication." (Dec. 29, 2015 Entry at 4.) The Court of Claims found that ODRC had
presented appropriate Civ.R. 56 evidence demonstrating that Erickson could not establish
the necessary element of causation, and "therefore satisfied its initial burden in moving
for summary judgment." (Dec. 29, 2015 Entry at 5.) The burden then shifted to Erickson
pursuant to Civ.R. 56(E) to "set forth specific facts showing that there is a genuine issue
for trial."
{¶ 29} Erickson did not, however, respond to the motion for summary judgment.
In the absence of expert testimony, Erickson cannot prove the probable cause of his
seizures and thus cannot meet his burden of proof. Fritch v. Univ. of Toledo College of
Medicine, 10th Dist. No. 11AP-103, 2011-Ohio-4518, ¶ 22-23; see also Clifton v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 06AP-677, 2007-Ohio-3791, ¶ 25. There being no
genuine issue for trial, summary judgment is appropriate. Consequently, we find that the
Court of Claims did not commit prejudicial error by entering summary judgment against
Erickson in accordance with Civ.R. 56(E). Erickson's second assignment of error is
overruled.
IV. CONCLUSION
{¶ 30} Based on the foregoing, we overrule both of Erickson's assignments of error
and affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
TYACK, P.J., and LUPER SCHUSTER, J., concur.
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