Ndiaye v. Stahl

[Cite as Ndiaye v. Stahl, 2022-Ohio-1523.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
ALASSANE NDIAYE :
:
Plaintiff-Appellant : Appellate Case No. 29276
:
v. : Trial Court Case No. 2021-CV-2743
:
BRIAN STAHL, M.D. : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 6th day of May, 2022.
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ALASSANE NDIAYE, 9104 Rolling Green Trails, Miamisburg, Ohio 45342
Plaintiff-Appellant
JOHN F. HAVILAND, Atty. Reg. No. 0029599 & KEVIN C. QUINLAN, Atty. Reg. No.
0092999, 6 North Main Street, Suite 400, Dayton, Ohio 45402
Attorneys for Defendant-Appellee
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DONOVAN, J.
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{¶ 1} Plaintiff-appellant Alassane Ndiaye, acting pro se, appeals from a judgment
of the Montgomery County Court of Common Pleas, which granted defendant-appellee
Brian Stahl, M.D.’s motion for summary judgment. Ndiaye filed a timely notice of appeal
on October 15, 2021.
{¶ 2} In December 2019, Ndiaye visited the office of Stahl regarding treatment for
possible glaucoma in both of his eyes. Stahl is a board-certified ophthalmologist and
surgeon specializing in LASIK and cataract surgery. Ndiaye later alleged in a pro se civil
complaint that, during the course of treatment provided by Stahl, his right eye and the
right side of his face were injured, and as a result, he has suffered great pain, sleeping
disorders, and “irregular rapid heartbeat.” Ndiaye’s failed to attach an affidavit of merit
pursuant to Civ.R. 10(D)(2) to his complaint.
{¶ 3} On August 4, 2021, Stahl filed a motion to dismiss Ndiaye’s complaint
because it was not accompanied by an affidavit of merit by a medical expert pursuant to
Civ.R. 10(D)(2), and it failed to meet the notice pleading requirements of Civ.R. 8(A). In
response to the motion to dismiss, Ndiaye filed over 200 pages of his medical records
along with the following statement, “I cannot provide any expert [sic] of the current
situation, that is why I have brought my previous medical records to show I have not had
any previous issues with my eyes.
{¶ 4} On August 24, 2021, Stahl filed a motion to dismiss and a motion for
summary judgment in which he argued that Ndiaye had produced no expert testimony
that Stahl’s conduct fell below the applicable standard of care. Stahl also argued that
Ndiaye had admitted that he “cannot provide” the necessary expert testimony. On
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September 10, 2021, Ndiaye filed a notice and affidavit in response to Stahl’s pending
motions to dismiss and for summary judgment. In his notice and affidavit, Ndiaye did not
address his failure to produce an affidavit of merit by a medical expert pursuant to Civ.R.
10(D)(2). On September 23, 2021, the trial court granted Stahl’s motion for summary
judgment.1 Ndiaye filed this appeal.
{¶ 5} On December 13, 2021, Ndiaye filed an appellate brief containing a narrative
account of his negative experience being treated by Stahl. The appellate brief contained
no assignments of error and otherwise failed to comply with App.R. 16(A) regarding the
necessary requirements for an appellate brief. On January 6, 2022, Stahl filed a motion
to dismiss Ndiaye’s appeal pursuant to App.R. 16(A). On January 28, 2022, we issued
a decision and entry overruling Stahl’s motion to dismiss and ordering that Ndiaye’s
appellate brief be stricken. We provided Ndiaye with an opportunity to file a new brief
that complied with the requirements of App.R. 16(A) within 30 days from the filing of our
decision and entry. Ndiaye filed a new appellate brief on February 22, 2022.
{¶ 6} Ndiaye’s appeal is now properly before this Court.
Standard of Review
{¶ 7} Appellate review of a trial court's ruling on a summary judgment motion is de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 38-42,
citing Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703 N.E.2d 8411 Notably, the trial court did not rule on Stahl’s motion to dismiss before granting his
motion for summary judgment on September 23, 2021. Accordingly, the motion to
dismiss is presumed to have been denied. “Where, as here, a trial court proceeds to
judgment without ruling on a pending motion, it is presumed the motion has been denied.”
State v. Alltop, 2d Dist. Montgomery No. 24324, 2011-Ohio-5541, ¶ 18.
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(4th Dist.1997). De novo review “ ‘means that this court uses the same standard that the
trial court should have used, and we examine the evidence to determine whether as a
matter of law no genuine issues exist for trial.’ ” Riverside v. Ohio, 2016-Ohio-2881, 64
N.E.3d 504, ¶ 21 (2d Dist.), quoting Brewer v. Cleveland City Schools Bd. of Edn., 122
Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield
Journal Co., Inc., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980). On such review, we do
not grant deference to the trial court's determinations. Id.{¶ 8} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988); Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To
this end, the movant must be able to point to evidentiary materials of the type listed in
Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher at 292-
293.
{¶ 9} Once the moving party satisfies its burden, the nonmoving party may not rest
upon the mere allegations or denials of its pleadings. Id.; Civ.R. 56(E). Rather, the
burden then shifts to the nonmoving party to respond, with affidavits or as otherwise
permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue
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of material fact for trial. Id. Throughout, the evidence must be construed in favor of the
nonmoving party. Id.; Civ.R. 56(C).
Analysis
{¶ 10} Here, we note that even after having provided Ndiaye with a second
opportunity to file an appellate brief that complied with App.R. 16(A), he has again
submitted a brief containing no assignments of error. Ndiaye’s brief again consists of a
narrative, personal account of his alleged negative experience being treated by Stahl.
Ndiaye also accuses Stahl of falsifying his “records,” forging his signature, paralyzing the
right side of his face, causing the pupil in his right eye to become “unreactive,” causing
him long-term pain, and displaying false advertisements. In support of his allegations
against Stahl, Ndiaye again cites to the medical records that he originally filed with the
trial court.
{¶ 11} Ndiaye's brief is deficient in that it fails to substantially conform to the
briefing requirements set forth in the Ohio Rules of Appellate Procedure and this court's
Local Rules. Pursuant to App.R. 16(A)(3), an appellant's brief must contain “[a]
statement of the assignments of error presented for review, with reference to the place in
the record where each error is reflected.” Assignments of error are particularly important
because appellate courts determine each appeal “on its merits on the assignments of
error set forth in the briefs under App.R. 16.” App.R. 12(A)(1)(b). “This court rules on
assignments of error, not mere arguments.” Huntington Natl. Bank v. Burda, 10th Dist.
Franklin No. 08AP-658, 2009-Ohio-1752, ¶ 21, citing App.R. 12(A)(1)(b). Consequently,
without assignments of error, an appellate court has nothing to review. Luke v. Roubanes,
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10th Dist. Franklin No. 16AP-766, 2018-Ohio-1065, ¶ 16.
{¶ 12} Ndiaye is proceeding pro se, but we note that “[l]itigants who choose to
proceed pro se are presumed to know the law and correct procedure, and are held to the
same standard as other litigants. A litigant proceeding pro se ‘cannot expect or demand
special treatment from the judge, who is to sit as an impartial arbiter.’ “ (Citation omitted.)
Dunina v. Stemple, 2d Dist. Miami No. 2007-CA-9, 2007-Ohio-4719, ¶ 3. We cannot
give Ndiaye special treatment in this appeal and craft arguments and assignments of error
that he has failed to craft himself. Nevertheless, it is apparent from the record that only
one issue could have been presented in this appeal, which is that the trial court erred
when it granted Stahl’s motion for summary judgment.
{¶ 13} As we previously stated, Ndiaye failed to file an affidavit of merit by a
medical expert pursuant to Civ.R. 10(D)(2) with his complaint for medical malpractice.
Civ.R. 10(D)(2) states:
(a) Except as provided in division (D)(2)(b) of this rule, a complaint that
contains a medical claim, dental claim, optometric claim, or chiropractic
claim, as defined in R.C. 2305.113, shall be accompanied by one or more
affidavits of merit relative to each defendant named in the complaint for
whom expert testimony is necessary to establish liability. Affidavits of merit
shall be provided by an expert witness meeting the requirements of Evid.R.
702 and, if applicable, also meeting the requirements of Evid.R. 601(D).
Affidavits of merit shall include all of the following:
(i) A statement that the affiant has reviewed all medical records reasonably
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available to the plaintiff concerning the allegations contained in the
complaint;
(ii) A statement that the affiant is familiar with the applicable standard of
care;
(iii) The opinion of the affiant that the standard of care was breached by one
or more of the defendants to the action and that the breach caused injury to
the plaintiff.
{¶ 14} “Clearly, the purpose behind the rule is to deter the filing of frivolous
medical-malpractice claims. The rule is designed to ease the burden on the dockets of
Ohio's courts and to ensure that only those plaintiffs truly aggrieved at the hands of the
medical profession have their day in court.” Fletcher v. Univ. Hosps. of Cleveland, 120
Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10. Here, Ndiaye failed to either
submit an affidavit of merit or ask the court for an extension of time in which to file an
affidavit. Consequently, he did not comply with Civ.R. 10(D)(2)’s requirements.
{¶ 15} The underlying issue of physician liability requires the expert testimony of a
physician, surgeon, or ophthalmologist, and Ndiaye lacks that evidence by his own
admission. In his notice and affidavit filed on September 10, 2021, Ndiaye even states
that he consulted with a medical expert that his former attorney suggested, and the expert
opined that Stahl had acted within the standard of care. Thus, the trial court properly
granted summary judgment to Stahl. See Daly v. Hess, 2d Dist. Montgomery No. 22048,
2008-Ohio-2884, ¶ 21. In light of the foregoing, the judgment of the trial court is affirmed.
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EPLEY, J. and LEWIS, J., concur.
Copies sent to:
Allassane Ndiaye
John F. Haviland
Kevin C. Quinlan
Hon. Mary L. Wiseman