Cerimele v. Vanburen ( 2013 )

[Cite as Cerimele v. Vanburen, 2013-Ohio-1277.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JEANNINE CERIMELE ) CASE NO. 11 MA 159
)
PLAINTIFF-APPELLANT )
)
VS. ) OPINION
)
MAX M. VAN BUREN, D.V.M. )
FAIRFIELD ANIMAL HOSPITAL )
)
DEFENDANTS-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the County Court No. 5
of Mahoning County, Ohio
Case No. 11 CVF 94 CNF
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Atty. Robert D. Vizmeg
Anzellotti, Sperling, Pazol & Small Co.
21 N. Wickliffe Circle
Youngstown, Ohio 44515
For Defendants-Appellees: Atty. John A. Fiocca, Jr.
Smith, Rolfes & Skavdahl Co., LPA
65 East State Street, Suite 2000
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: March 29, 2013
[Cite as Cerimele v. Vanburen, 2013-Ohio-1277.]
WAITE, J.
{¶1} Plaintiff-Appellant Jeanine Cerimele (“Appellant”) appeals the Mahoning
County Court’s decision granting summary judgment to Defendant-Appellee Max M.
Van Buren, D.V.M., (“Dr. Van Buren”). The appeal arises out of a veterinary
malpractice action against Dr. Van Buren in connection with the treatment of
Appellant’s dog, Sir Bentley (“Bentley”). Appellant argues that she submitted an
affidavit from an expert witness and that the affidavit created enough genuine issues
of material fact for her to survive summary judgment. Appellee contends that there
were no genuine issues of material fact because the affidavit of Appellant’s expert
testimony was not timely filed. As such, the trial court was not obliged to consider the
affiant’s testimony when ruling on the motion for summary judgment. Appellee
further contends that the affidavit, even if timely filed, did not create any material
issue of fact regarding proximate cause. Appellee is correct. Appellant did not
establish that any genuine issue of material fact was in dispute that would prevent
judgment in favor of Dr. Van Buren, and the judgment of the trial court is affirmed.
Statement of Facts
{¶2} Dr. Van Buren, D.V.M., has been practicing veterinary medicine for over
thirty years, doing business as Fairfield Animal Hospital, a registered trade name,
since 1992. Dr. Van Buren’s business form is a sole proprietorship, not a corporation
or a partnership.
{¶3} Appellant is the owner of a West Highland Terrier named Bentley who
was born December 7, 2007. Appellant first brought Bentley to Fairfield Animal
Hospital in February of 2008 for shots and an exam. Dr. Van Buren continued to
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provide routine veterinary care for Bentley between February 25, 2008, and April 20,
2009.
{¶4} On January 15, 2009, Appellant presented Bentley to Dr. Van Buren
seeking treatment for the dog’s red, itchy skin and ears. Appellant made no mention
of any problems she observed regarding Bentley’s penis or genital area at that time.
After examination, Dr. Van Buren diagnosed Bentley with generalized allergic
dermatitis with secondary pyroderma, and he prescribed antibiotics and an anti-
inflammatory. Dr. Van Buren also provided Appellant with literature regarding
interdigital pyroderma and atopy. Bentley was rechecked by Dr. Van Buren on
January 20, 2009. At that time, Bentley’s penile sheath appeared to be inflamed and
traumatized. Dr. Van Buren concluded that this condition occurred as a result of
Bentley’s generalized allergic dermatitis condition. He dispensed a topical ointment
with an antibiotic, an antifungal agent, and an anti-inflammatory agent to be rubbed
on the affected areas.
{¶5} On January 21, 2009, Appellant contacted Dr. Van Buren, indicating
Bentley was licking his prepuce, which was bleeding. She requested that Dr. Van
Buren prescribe a nerve pill to calm Bentley down, and he prescribed a mild
tranquilizer. Appellant brought Bentley back for an examination to determine the
cause of the bleeding. Upon examination, Dr. Van Buren found Bentley’s penile
sheath and penis to be normal. Dr. Van Buren then passed a urinary catheter easily
into Bentley’s bladder with no resistance, and the urine was normal in color and
consistency. There was no blood in the urine, and there was no evidence of fracture
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of the “os penis” (the bone in the penile sheath of a canine). At that time, Dr. Van
Buren noted no abnormalities in Bentley’s reproductive tract or urine, and concluded
that Bentley’s bleeding was probably the cause of self-trauma. Dr. Van Buren then
dispensed a protective Elizabethan collar to prevent Bentley from biting or gnawing
the traumatized area.
{¶6} Appellant reported that Bentley’s biting behavior continued over the
next few weeks, and she provided Dr. Van Buren with an updated status report and
request for medication refills on January 26, 2009, and February 4, 2009. On the
latter occasion, Appellant reported that Bentley had begun biting and chewing his
penis again, causing bleeding. She also requested they try something besides the
collar and the sedative. Dr. Van Buren provided a treatment for canine obsessive
compulsive disorder.
{¶7} Bentley continued to be treated medically between February 9 and
March 21, 2009. On April 9, 2009, Dr. Van Buren saw Bentley again and noted that
the dog was still engaged in recurrent licking of the penis area. Dr. Van Buren
attributed this problem to a probable underlying separation anxiety issue. On April
20, 2009, Dr. Van Buren prescribed more antibiotic ointment. This was the last time
Dr. Van Buren provided veterinary care and treatment for Bentley.
{¶8} On April 22, 2009, Appellant took Bentley to get a second opinion from
veterinarian T.E. Reeping, D.V.M. at the Crago Veterinary Clinic in Youngstown.
According to the Crago Veterinary Clinic records, appended to Dr. Van Buren’s
affidavit, Dr. Reeping found the dog’s penis was ulcerated and bleeding on that
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occasion. There is nothing in Dr. Reeping’s records which would suggest the penis
bone was fractured as of April 22, 2009. Dr. Reeping recommended Bentley be
examined by a veterinary surgical specialist.
{¶9} On April 28, 2009, Appellant presented Bentley to Dr. Sheldon Padgett,
D.V.M., a veterinary surgeon associated with Metropolitan Veterinary Hospital in
Akron. Upon examination, Dr. Padgett diagnosed a fracture of the penis bone, and
recommended penile amputation, which was successfully performed by Dr. Padgett
the same day.
Statement of the Case
{¶10} A complaint sounding in professional veterinarian negligence was filed
on March 11, 2011 in Mahoning County Court No. 5. Dr. Van Buren filed his answer
to the complaint on March 25, 2011, and filed a motion for summary judgment on
March 31, 2011.
{¶11} On April 13, 2011, Appellant filed a Civ.R. 56(F) motion seeking an
additional 90 days within which to respond to Dr. Van Buren’s motion. On April 22,
2011, the trial court sustained the motion, ordering her to respond by July 12, 2011.
The trial court’s order also set the non-oral hearing date for summary judgment on
July 12, 2011.
{¶12} Appellant filed her memorandum in opposition to defendant’s motion for
summary judgment with the court on July 12, 2011. Attached to the memorandum
was an unsworn, undated, and unsigned affidavit of Appellant’s veterinary expert,
Sheldon Padgett, D.V.M. On August 1, 2011, Dr. Van Buren filed a reply brief.
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{¶13} On August 5, 2011, without obtaining leave of court, Appellant filed a
signed affidavit from Dr. Padgett. This was done twenty-four days after the
dispositive motion response date of July 12, 2011. The affidavit itself was not
executed until July 20, 2011, which was eight days after the discovery deadline date
had passed.
{¶14} On August 12, 2011, the trial court sustained Dr. Van Buren’s motion
for summary judgment, dismissing the suit. This appeal followed.
Standard of Review
{¶15} An appellate court reviews a grant of summary judgment de novo,
independently and without deference to the trial court’s decision. Ohio Govt. Risk
Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶5,
citing Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶8. “A
grant of summary judgment will be affirmed only when the requirements of Civ.R.
56(C) are met.” Adkins v. Chief Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772,
at ¶7. The party moving for summary judgment must establish: (1) there are no
genuine issues of material fact; (2) that the moving party is entitled to judgment as a
matter of law; and (3) that reasonable minds can come to but one conclusion and that
conclusion is adverse to the non-moving party, said party being entitled to have the
evidence construed most strongly in his favor. Id., citing Civ.R. 56(C); Horton v.
Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three
of the syllabus.
ASSIGNMENT OF ERROR
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THE TRIAL COURT ERRED IN GRANTING
DEFENDANT/APPELLEE’S MOTION FOR SUMMARY JUDGMENT
AS PLAINTIFF/APPELLANT HAS PRESENTED SUFFICIENT
COMPETENT EVIDENCE SHOWING GENUINE ISSUES OF
MATERIAL FACT.
A. The timeliness of the affidavit of Sheldon Padgett, D.V.M.
{¶16} Appellant contends that the July 20, 2011, affidavit of Dr. Padgett
presented genuine issues of material fact that should have prevented the court from
granting summary judgment to Appellee. Appellee argues, in response, that the
affidavit was not filed in time to be used as evidence to overcome summary
judgment. Appellee is correct.
{¶17} In a veterinary malpractice action, “ ‘[p]roof of the recognized standards
[of the medical community] must necessarily be provided through expert testimony.’
Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 131-132, 346 N.E.2d 673. Additionally,
the issue of ‘whether the [defendant] has proceeded in the treatment of a patient with
the requisite standard of care and skill must ordinarily be determined from the
testimony of medical experts.’ Id. at 130, 346 N.E.2d 673.” Ullmann v. Duffus, 10th
Dist. No. 05AP-299, 2005-Ohio-6060, ¶15. Without proper expert testimony,
Appellant could not create a genuine issue of material fact. Thus, it is important to
know whether or not the expert's affidavit was actually filed properly and on time.
Although the trial court did not mention the untimeliness of the affidavit as a reason
for granting summary judgment, it is certainly an issue for us to consider on appeal.
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“[A] reviewing court may affirm the trial court's judgment for reasons that are different
from those used by the trial court.” DeLost v. Ohio Edison, 7th Dist. No. 10 MA 162,
2012-Ohio-4561, ¶15.
{¶18} The record reflects that Dr. Van Buren filed his motion for summary
judgment on March 31, 2011. On April 13, 2011, Appellant filed a Civ.R. 56(F)
motion seeking an additional 90 days to respond to the motion for summary judgment
in order to depose Dr. Van Buren. However, this deposition never occurred.
{¶19} On July 12, 2011, Appellant filed her brief in opposition to Dr. Van
Buren’s motion for summary judgment. Attached to her brief were two documents:
(1) the affidavit of Appellant Jeannine Cerimele, dated July 8, 2011; and (2) the
unsigned and unsworn proposed affidavit of Dr. Padgett. The proposed affidavit did
not comply with the evidentiary requirements set forth in Ohio Civ.R. 56(C) or (E).
Thus, Dr. Padgett’s “affidavit” did not create any genuine issue of material fact that
would preclude summary judgment, at least not on July 12, 2011.
{¶20} Mahoning County Court Local Rule 8(H)(2) provides:
Upon the filing of a motion for summary judgment, the opposing party
may file a response within fourteen (14) days of receipt thereof,
together with any accompanying briefs, affidavits or other material
pursuant to Civil Rule 56(C), unless said time is extended by the Court.
{¶21} In this case, the time for filing Appellant's response was extended by
the trial court to July 12, 2011. It is apparent from the local rule that all evidentiary
materials were required to be filed by that date.
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{¶22} On August 5, 2011, Appellant filed the signed and sworn affidavit of Dr.
Padgett. The affidavit indicates that it was executed on July 20, 2011, eight days
after the dispositive motion response cutoff date of July 12, 2011. The affidavit was
filed without first obtaining leave of court. The trial court was not obligated to
consider the affidavit when addressing the motion for summary judgment on August
12, 2011, and neither is this Court.
{¶23} Since Dr. Padgett’s affidavit was not timely filed and was never
explicitly used or even acknowledged by the trial court, we will not accept it as
properly filed evidence in opposition to summary judgment. As there is no expert
evidence to support Appellant's claim, the trial court properly granted summary
judgment to Dr. Van Buren.
B. The content of the affidavit of Sheldon Padgett, D.V.M.
{¶24} Even if we assume that the trial court had considered Dr. Padgett’s July
20, 2011 affidavit, it creates no genuine issue of material fact to overcome summary
judgment in Dr. Van Buren’s favor.
{¶25} In Ohio, “in order to establish negligence by a veterinarian, it must be
shown that the injury complained of was caused by the doing of a particular thing that
a veterinarian of ordinary skill, care and diligence would not have done under like or
similar circumstances, or by the failure or omission to do some particular thing that
such a veterinarian would have done under like or similar circumstances.” Turner v.
Sinha, 65 Ohio App.3d 30, 35, 582 N.E.2d 1018 (12th Dist.1989), citing Littleton v.
Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 93, 529 N.E.2d 449 (1988).
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“A veterinary malpractice claim has similar elements to a medical malpractice claim.
The plaintiff must show (1) a duty to perform according to the appropriate veterinary
standards; (2) that the veterinarian breached that duty; 3) that the breach was the
proximate cause of the damages; and (4) that the plaintiff suffered damages.”
Lauderbaugh v. Gellasch, 8th Dist. No. 91430, 2008-Ohio-6500, ¶7.
{¶26} As noted earlier, these elements must be established by expert
evidence. Bruni v. Tatsumi, supra, 46 Ohio St.2d at 131-132, 346 N.E.2d 673. The
expert testimony must establish the injury was more likely than not caused by the
defendant's negligence: “The admissibility of expert testimony that an event is the
proximate cause is contingent upon the expression of an opinion by the expert with
respect to the causative event in terms of probability.” Stinson v. England, 69 Ohio
St.3d 451, 633 N.E.2d 532 (1994), paragraph one of the syllabus. Dr. Padgett’s
affidavit does not state with any degree of medical probability that Dr. Van Buren's
actions were the proximate cause of the injuries alleged in the complaint. Dr. Padgett
stated that therapy, rather than surgery, may only have been “possible” rather than
probable. (7/20/11 Affidavit, p. 3.) More importantly, Dr. Padgett's affidavit also
states: “Failure to discover the fracture, if present, during that initial visit and
subsequent visits fell below the standard of care for veterinarians.” (Emphasis
added.) (7/20/11 Affidavit, p. 3.) This is mere speculation, which is not sufficient to
overcome summary judgment.
{¶27} The affidavit of Dr. Padgett does not provide any expert evidentiary
support that Dr. Van Buren caused a compensable injury to Appellant. For this
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reason, the affidavit cannot be used as a basis for overturning the judgment of the
trial court even if it had been timely filed. Appellant's assignment of error is
overruled.
Conclusion
{¶28} Appellant has alleged on appeal that there are genuine issues of
material fact in dispute in this case and that the summary judgment in favor of Dr.
Van Buren should be reversed. The record reflects that the affidavit of Dr. Padgett,
which was Appellant's sole basis for arguing that the motion for summary judgment
was inappropriate, was not filed on time. More to the point, the affidavit does not
establish that veterinary malpractice took place, particularly the element of proximate
cause. For these reasons, Appellant's assignment of error is overruled and the
judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.