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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
JEMILATU BANGURA, Administrator of the :
Estate of Dominion Bangura, deceased, et al., : CASE NO. 22-CV-3269
PLAINTIFFS,
JUDGE K. PHIPPS
vs.
OHIOHEALTH RIVERSIDE
METHODIST HOSPITAL, et al.,
DEFENDANTS.
MOTION TO RECONSIDER COURT’S APRIL 25, 2023 ORDER GRANTING
PLAINTIFF’S EMERGENCY MOTION TO EXTEND CASE MANAGEMENT
SCHEDULE OF DEFENDANTS OHIOHEALTH RIVERSIDE METHODIST
HOSPITAL, OHIOHEALTH CORPORATION, MEAGAN SCHNEIDERMAN,
M.D., VALERIE SCHOTT, M.D., EMILY MISBRENER, D.O..,
MAHIMA PRASAD, M.D., AMBER N. FERRARO, RN, MADDALYNN
HUFFMAN, RN, KATELYN MEISTER, RN, AND MARYBETH D’AMICO, RN
Defendants OhioHealth Riverside Methodist Hospital, OhioHealth Corporation,
Meagan Schneiderman, M.D., Valerie Schott, M.D., Emily Misbrener, D.O., Mahima
Prasad, M.D., Amber N. Ferraro, RN, Maddalynn Huffman, RN, Katelyn Meister, RN, and
Marybeth D’Amico, RN, by and through counsel, hereby move this Court to reconsider its
April 25, 2023 Order Granting Plaintiff's Emergency Motion to Extend Case Management
Schedule and request that the Court implement the discovery sanction of excluding the
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Plaintiffs undisclosed expert witnesses rather than extending the deadlines. Additional
support for this Motion is included in the attached Memorandum in Support.
Respectfully submitted,
s/ Karin M. Long
Bobbie S. Sprader (0064015)
bsprader@brickergraydon.com
Karen L. Clouse (0037294)
kclouse@bricke GG: com
Karin M. Long (0101480)
klong @brickergraydon.com
Bricker Graydon LLP
100 South Third Street
Columbus, Ohio 43215-4291
Phone: (614) 227-2300
Fax: (614) 227-2390
Counsel for Defendants,
OhioHealth Riverside Methodist Hospital,
OhioHealth Corporation,
Meagan Schneiderman, M.D.,
Valerie Schott, M.D.,
Emily Misbrener, D.O.,
Mahima Prasad, M.D.,
Amber N. Ferraro, RN,
Maddalynn Huffman, RN,
Katelyn Meister, RN, and
Marybeth D’Amico, RN
Of Counsel:
Chester P. Porembski, Esq. (0000754)
OhioHealth Corporation
David P. Blom Administrative Campus
3430 OhioHealth Parkway, 5‘ Floor
Columbus, OH 43202
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MEMORANDUM IN SUPPORT
I. INTRODUCTION & STATEMENT OF FACTS
On February 12, 2023, the deadline for the disclosure of expert witnesses of
Plaintiff Jemilatu Bangura, Administrator of the Estate of Dominion Bangura, Deceased,
Jemilatu Bangura, Individually and Paul Bangura, Individually (hereinafter collectively
“Plaintiff”) in this medical negligence case came and went and the Plaintiff neither
disclosed expert witnesses nor requested an extension of that deadline. As a result,
Defendants OhioHealth Riverside Methodist Hospital, OhioHealth Corporation, Meagan
Schneiderman, M.D., Valerie Schott, M.D., Emily Misbrener, D.O., Mahima Prasad, M.D.,
Amber N. Ferraro, RN, Maddalynn Huffman, RN, Katelyn Meister, RN, and Marybeth
D’Amico, RN (hereinafter collectively “OhioHealth Defendants”) filed a Motion for
Summary Judgment on April 18, 2023 arguing that they are entitled to summary
judgment as a matter of law pursuant to Civ.R. 56(C) because the Plaintiff has failed to
identify expert witnesses and thus cannot present expert testimony at trial to meet her
burden of proof on these medical claims. This Motion followed a Motion for Summary
Judgment that made the same arguments, filed by Avina Women’s Care dba MaternOhio
Clinical Associates, Inc., MaternOhio Clinical Associates, Inc., Carl Krantz, M.D., and
Amber Murphy Mack, M.D. (hereinafter collectively “MaternOhio Defendants”) on April
3, 2023. These Motions are currently unopposed, although the Plaintiff has 28 days to
respond to each pursuant to Civ.R. 6(C)(1).
However, instead of responding to the Motions for Summary Judgment, on April
24, 2023, the Plaintiff filed Plaintiff's Emergency Motion to Extend Case Management
Schedule and Motion for Telephone Pretrial (“Plaintiff's Emergency Motion”). Therein,
the Plaintiff posed the issue of the missed deadlines as excusable neglect resulting from a
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substitution of counsel and requested that the Court extend the expert disclosure
deadlines by seven months to September of 2023. Before the Defendants could respond
in opposition to that Motion, on April 25, 2023, the Court granted it and entered a Case
Management Schedule (hereinafter “April 25, 2023 Order”) that moved the deadlines for
expert discovery by seven months but kept the existing discovery deadline and trial date.
Il. LAW & ARGUMENT
In granting the Plaintiffs Emergency Motion, the Court found that the Plaintiff
showed good cause for neglecting the expert disclosure deadlines agreed-upon by the
parties and established by the Court. This was before the Defendants were able to
respond, alerting the Court to the fact that there are two pending Motions for Summary
Judgment on the very topic addressed in the Plaintiffs Emergency Motion. Accordingly,
the OhioHealth Defendants respectfully urge the Court to reconsider the April 25, 2023
Order, instead maintaining the case schedule established August 22, 2022 and excluding
the Plaintiff's expert witnesses from trial as a discovery sanction for failing to comply with
the deadlines agreed-upon by the parties and established by this Court.
A. The Court Should Exclude the Plaintiff's Undisclosed Expert Witness
as a Discovery Sanction for Failing to Meet the Disclosure Deadlines
Set by this Court Rather than Extending the Deadlines Because the
Failure to Disclose the Experts Was Inexcusable Neglect and Extending
the Deadlines Prejudices the Defendants and Will Most Certainly
Burden the Court’s Schedule.
It is well-established that, “[t]he admission or exclusion of relevant evidence rests
largely within the exercise of discretion by the trial court.” Fields v. Dailey, 68 Ohio
App.3d 33, 42, 587 N.E.2d 400, 405-06 (10th Dist.1990), quoting O'Brien v. Angley
(1980), 63 Ohio St.2d 159, 163, 17 0.0.3d 98, 100, 407 N.E.2d 490, 493. At this time, two
Motions for Summary Judgment filed by the Defendants are pending which request that
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the Court exclude the Plaintiff's undisclosed expert witnesses as a discovery sanction for
her failure to comply with the deadlines of this Court. These Motions remain pending
and unopposed, but as the MaternOhio Defendants filed their Motion on April 3, 2023
and the OhioHealth Defendants filed theirs on April 18, 2023, the Plaintiff has until May
1, 2023 and May 16, 2023, respectively, to respond. However, instead of addressing these
dispositive motions and defending her position on summary judgment, the Plaintiff filed
the Plaintiff's Emergency Motion, which disguised a dispositive issue as a simple request
to extend deadlines due to substitution of counsel. This is not so.
In the Motions for Summary Judgment, the Defendants each argue that the
Plaintiff should be barred from presenting expert testimony at trial because she has failed
to disclose any expert witnesses by the deadline agreed-upon by the parties and
established by this Court. In reconsidering the April 25, 2023 Order, the OhioHealth
Defendants herein respectfully request that rather than extending the discovery
deadlines, the Court exclude the Plaintiff's undisclosed expert witnesses as a discovery
anction for failure to timely disclose their identities, as certainly, “[t]he testimony of
expert witnesses who are not timely identified pursuant to a pretrial order may be
excluded at trial.” Price v. Cleveland Clinic Found., 33 Ohio App.3d 301, 515 N.E.2d 931,
932 (8th Dist.1986); see also Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83,
84-86, 19 OBR 123, 124, 482 N.E.2d 1248, 1250.
When considering whether to use its discretion to permit or exclude undisclosed
or belatedly-disclosed expert testimony, a trial court may contemplate: “(1) the
proponent's justification for the delayed disclosure of the expert's identity or the expert's
report, (2) the opponent's prejudice from that delay, and (3) the burden on the court's
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schedule to accommodate the respective parties’ interests.” Price, 33 Ohio App.3d at 306,
515 N.E.2d at 936. In the present case, these factors weigh in favor of exclusion.
1. Plaintiffs Counsel Has Demonstrated _Inexcusable Neglect _in
Failing to Meet the Deadlines for Expert Witness Disclosure.
In the present case, the justifications of Plaintiffs counsel for failing to disclose
expert testimony are blatantly inexcusable neglect. The Plaintiff retained three attorneys
at the outset of this case, but apparently two abdicated responsibilities with regard to
expert witnesses to the third, Counselor Paris. Thus, when Counselor Paris failed to
identify expert witnesses, Counselor Pantages and Counselor Connolly were unaware of
the missed deadline and took no action to either identify witnesses or request an
extension. Then, when the Defendants filed Motions for Summary Judgment which
argued for summary judgment due to these failures, rather than responding to those
Motions, Plaintiff's counsel presented their delays as an “emergency” that required this
Court’s immediate attention. They therein argued that Counselor Paris was responsible
for all of the errors in the case and they required a seven-month extension to rectify these
failures.
Notably, in the Plaintiff's Emergency Motion, Plaintiffs counsel neither states why
the deadlines were missed by Counselor Paris, nor why, when Counselor Paris apparently
neglected her duties, Counselor Connolly and Counselor Pantages failed to monitor their
client’s case and notice the missed deadlines. This does not provide the Court a basis to
excuse their neglect. Instead, Counselor Connolly merely vaguely blames the now-
withdrawn Counselor Paris for their combined neglect of the case. However, as the old
saying goes, “a lack of poor planning on your part does not constitute an emergency on
mine.” Indeed, the same is true here, as Plaintiffs counsel’s failure to abide by these
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deadlines and advance their client’s case is inexcusable neglect that should not constitute
an emergency for the other parties and this Court. As such, this first factor weighs in favor
of excluding the Plaintiff's undisclosed expert witnesses.
2. The Plaintiff's Inexcusable Neglect Has Prejudiced the Defendants
by Delaying the Discovery Timeline.
With regard to the second factor, “[t]he existence and effect of prejudice resulting
from noncompliance with the disclosure rules is of primary concern, not just the intent or
motive involved.” Culp v. Olukoga, 4th Dist. No. 12CA3470, 2013-Ohio-5211, 3 N.E.3d
724, 138, quoting Huffman, 19 Ohio St.3d at 85, 482 N.E.2d 1248.
This delay has, indeed, prejudiced the OhioHealth Defendants. This case involves
claims of medical negligence during a surgical delivery of the Plaintiff’s decedent. It will
involve three different sets of expert witnesses (for the Plaintiff, the OhioHealth
Defendants, and the MaternOhio Defendants), including both nurses and doctors from a
variety of specialties on just the issue of standard of care, alone. The Plaintiff, OhioHealth
Defendants and MaternOhio Defendants will then also require experts on causation and
damages, all of whom which will write reports and be deposed. With three sets of counsel
and a large number of very busy expert witnesses, this discovery will take some time,
hence the almost fifteen months (from February of 2023 to May of 2024) originally
dedicated to this phase of the case.
However, due to the Plaintiff’s delays, the new case schedule will require that all of
these depositions take place in just eight months (from September of 2023 to May of
2024). This means that there can be no other delay without impacting the trial schedule,
as it is already unlikely that this volume of expert discovery can occur in half the time
originally allowed for it. Accordingly, as the Defendants are now forced to conduct
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discovery on an expedited schedule to accommodate the Plaintiff’s failures to meet the
original deadlines, the Defendants are clearly prejudiced by these delays.
Indeed, the second factor, too, weighs in favor of excluding the Plaintiff's
undisclosed expert witnesses.
3. The Plaintiff's Inexcusable Neglect Has and Likely Will Continue to
Burden the Court’s Schedule.
Finally, this request does, and will likely continue to, burden the Court’s schedule.
The aforementioned expedited discovery schedule caused by the Plaintiff's failures means
that any other delays in discovery or the case generally will require a continuance of the
trial date. Given the very busy docket of this Court, reserving a trial date now which is
likely to move due to delays will cause a burden on the Court.
Indeed, as the Plaintiff's delays were caused by inexcusable neglect, the Defendants
are prejudiced and the Court’s schedule is burdened, the OhioHealth Defendants
respectfully urge the Court to implement the discovery sanction of excluding the
Plaintiffs undisclosed expert witnesses rather than extending the deadlines. The delays
in this case’s schedule are not small excusable errors caused by substitution of counsel,
but instead inexcusable neglect that is the subject of two pending dispositive motions. By
presenting this issue to the Court as a small request to extend discovery deadlines rather
than responding to the Motions for Summary Judgment, the Plaintiff is seeking to avoid
accountability for the discovery violations while still preserving the ability to later
voluntarily dismiss without prejudice and refile. However, as the orders of this Court and
the discovery rules should not be thus disregarded, this should not be allowed, and a
discovery sanction should instead be imposed.
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B. If_the Court Does Exclude the Plaintiffs Expert Witnesses _as_a
Discovery Sanction for Nondisclosure, the Plaintiff Does Have Another
Remedy That Will Not Prejudice Her Case: Voluntary Dismissal
Without Prejudice Pursuant to Civ.R 41(A).
If the Court does reconsider and ultimately deny the Plaintiff’s request to extend
the case deadlines and exclude the Plaintiff's expert witnesses as a discovery sanction, the
Plaintiff does have another remedy other than arguing the issues on summary judgment:
voluntary dismissal without prejudice pursuant to Civ.R. 41(A). In the Plaintiff's
Emergency Motion, the Plaintiff does acknowledge that this is an option instead of asking
the Court to excuse her neglect, but she uses the age-old argument that such an action
would put the parties back in the same place, setting a new case schedule, so it is better to
merely revise this schedule now. This argument is unavailing.
First of all, the parties would not be in the same place as they are now if this case
were dismissed and refiled. The parties are currently over 11 months into a 24 month
track without having made any progress in discovery. If the case were re-filed, the parties
would be at the beginning of a 24 month track for this case, which better fits the status.
Additionally, the Plaintiff would no longer have the ability to voluntarily dismiss her case
asecond time. This is a small price to pay for her neglect, but is clearly a price that she is
trying to avoid, so it clearly has value.
Furthermore, even if it were true that a dismissal/refile would just put the case in
the same place as it is now, arguing that a discovery violation should be ignored on that
basis is the epitome of a “slippery slope” argument. Indeed, if there is no sanction for
such a discovery violation, then parties could unilaterally ignore the orders of the Court
and argue this very position to avoid responsibility for their actions. In fact, according to
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this logic, the Plaintiff should never be held to her deadlines because she has the ability
to dismiss and refile and only the Defense will ever held to established deadlines.
Discovery sanctions exist for a reason—to enforce the goal of the Rules of Civil
Procedure and the orders of this Court, which is to prevent surprise to the parties at trial
and avoid the parties being hampered in their ability to present a claim or defense at trial.
See Huffman, 19 Ohio St.3d at 86. “The discovery rules give the trial court great latitude
in crafting sanctions to fit discovery abuses.” Culp v. Olukoga, 4th Dist. No. 12CA3470,
2013-Ohio-5211, 3 N.E.3d 724, 1 33, quoting Nakoff v. Fairview Gen. Hosp., 75 Ohio
St.3d 254, 662 N.E.2d 1 (1996). Forcing the Plaintiff to dismiss and refile is an
appropriate sanction under the present circumstances and it serves to “right size” this
case in relation to the trial date and other discovery deadlines.
Accordingly, the Defendants respectfully urge the Court to reconsider its April 25,
2023 Order and impose the discovery sanction of excluding the Plaintiff's expert
witnesses at trial due to lack of disclosure instead of extending the case deadlines to
preserve the Plaintiff's ability to later dismiss without prejudice. This result is more just
for the Defendants, who have complied with this Court’s schedule, and more efficient for
the Court, and still leaves the Plaintiff with the option to either voluntarily dismiss the
case without prejudice and refile or defend her position on summary judgment.
Ill. CONCLUSION
For the foregoing reasons, Defendants OhioHealth Riverside Methodist Hospital,
OhioHealth Corporation, Meagan Schneiderman, M.D., Valerie Schott, M.D., Emily
Misbrener, D.O., Mahima Prasad, M.D., Amber N. Ferraro, RN, Maddalynn Huffman,
RN, Katelyn Meister, RN, and Marybeth D’Amico, RN, respectfully request that this Court
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reconsider its April 25, 2023 Order and impose the discovery sanction of excluding the
Plaintiff's expert witnesses at trial due to lack of disclosure instead of extending the case
deadlines.
Respectfully submitted,
s/Karin M. Long
Bobbie S. Sprader (0064015)
bsprader@brickergraydon.com
Karen L. Clouse (0037294)
kelouse@brick aydon.com
Karin M. Long (0101480)
kmlong @brickereraydon.com
Bricker Graydon LLP
100 South Third Street
Columbus, Ohio 43215-4291
Phone: (614) 227-2300
Fax: (614) 227-2390
Counsel for Defendants,
OhioHealth Riverside Methodist Hospital,
OhioHealth Corporation,
Meagan Schneiderman, M.D.,
Valerie Schott, M.D.,
Emily Misbrener, D.O.,
Mahima Prasad, M.D.,
Amber N. Ferraro, RN,
Maddalynn Huffman, RN,
Katelyn Meister, RN, and
Marybeth D’Amico, RN
Of Counsel:
Chester P. Porembski, Esq. (0000754)
OhioHealth Corporation
David P. Blom Administrative Campus
3430 OhioHealth Parkway, 5‘ Floor
Columbus, OH 43202
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing Motion to
Reconsider Court's April 25, 2023 Order Granting Plaintiffs Emergency Motion to
Extend Case Management Schedule of Defendants OhioHealth Riverside Methodist
Hospital, OhioHealth Corporation, Meagan Schneiderman, M.D., Valerie Schott, M.D
Emily Misbrener, D.O., Mahima Prasad, M.D., Amber N. Ferraro, RN, Maddalynn
Huffman, RN, Katelyn Meister, RN, and Marybeth D'Amico, RN was served via the
Court’s electronic filing system, and/or regular U.S. mail, postage prepaid, this 26th day
of April, 2023:
Meghan P. Connolly, Esq.
Lowe, Scott, Fisher, Co., LPA
1660 West 24 Street
610 Skylight Office Tower
Cleveland, OH 44113
mconnoll sflayv OR
Counsel for Plaintiffs
Craig S. Tuttle, Esq.
LEESEBERG TUTTLE
175 S. Third Street:
Penthouse One
Columbus, Ohio 43215
chuttle@) sebergla LOM
Counsel for Plaintiffs
FrederickA. Sewards, Esq.
Arnold, Todaro, Welch & Foliano, Co., LPA
2075 Marble Cliff Office Park
Columbus, OH 43215
Counsel for Defendants,
Avina Women’s Care dba MaternOhio Clinical Associates, Inc.,
MaternOhio Clinical Associates, Inc., Carl Krantz, M.D., and
Amber Murphy Mack, M.D.
‘s/ KarinM. Long
Karin M. Long, Esq.
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y8 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO JEMILATU BANGURA, Administrator of the : Estate of Dominion Bangura, deceased, et al., : CASE NO. 22-CV-3269 PLAINTIFFS, JUDGE K. PHIPPS vs. OHIOHEALTH RIVERSIDE METHODIST HOSPITAL, et al., DEFENDANTS. MOTION TO RECONSIDER COURT’S APRIL 25, 2023 ORDER GRANTING PLAINTIFF’S EMERGENCY MOTION TO EXTEND CASE MANAGEMENT SCHEDULE OF DEFENDANTS OHIOHEALTH RIVERSIDE METHODIST HOSPITAL, OHIOHEALTH CORPORATION, MEAGAN SCHNEIDERMAN, M.D., VALERIE SCHOTT, M.D., EMILY MISBRENER, D.O.., MAHIMA PRASAD, M.D., AMBER N. FERRARO, RN, MADDALYNN HUFFMAN, RN, KATELYN MEISTER, RN, AND MARYBETH D’AMICO, RN Defendants OhioHealth Riverside Methodist Hospital, OhioHealth Corporation, Meagan Schneiderman, M.D., Valerie Schott, M.D., Emily Misbrener, D.O., Mahima Prasad, M.D., Amber N. Ferraro, RN, Maddalynn Huffman, RN, Katelyn Meister, RN, and Marybeth D’Amico, RN, by and through counsel, hereby move this Court to reconsider its April 25, 2023 Order Granting Plaintiff's Emergency Motion to Extend Case Management Schedule and request that the Court implement the discovery sanction of excluding the 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y87 Plaintiffs undisclosed expert witnesses rather than extending the deadlines. Additional support for this Motion is included in the attached Memorandum in Support. Respectfully submitted, s/ Karin M. Long Bobbie S. Sprader (0064015) bsprader@brickergraydon.com Karen L. Clouse (0037294) kclouse@bricke GG: com Karin M. Long (0101480) klong @brickergraydon.com Bricker Graydon LLP 100 South Third Street Columbus, Ohio 43215-4291 Phone: (614) 227-2300 Fax: (614) 227-2390 Counsel for Defendants, OhioHealth Riverside Methodist Hospital, OhioHealth Corporation, Meagan Schneiderman, M.D., Valerie Schott, M.D., Emily Misbrener, D.O., Mahima Prasad, M.D., Amber N. Ferraro, RN, Maddalynn Huffman, RN, Katelyn Meister, RN, and Marybeth D’Amico, RN Of Counsel: Chester P. Porembski, Esq. (0000754) OhioHealth Corporation David P. Blom Administrative Campus 3430 OhioHealth Parkway, 5‘ Floor Columbus, OH 43202 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y88 MEMORANDUM IN SUPPORT I. INTRODUCTION & STATEMENT OF FACTS On February 12, 2023, the deadline for the disclosure of expert witnesses of Plaintiff Jemilatu Bangura, Administrator of the Estate of Dominion Bangura, Deceased, Jemilatu Bangura, Individually and Paul Bangura, Individually (hereinafter collectively “Plaintiff”) in this medical negligence case came and went and the Plaintiff neither disclosed expert witnesses nor requested an extension of that deadline. As a result, Defendants OhioHealth Riverside Methodist Hospital, OhioHealth Corporation, Meagan Schneiderman, M.D., Valerie Schott, M.D., Emily Misbrener, D.O., Mahima Prasad, M.D., Amber N. Ferraro, RN, Maddalynn Huffman, RN, Katelyn Meister, RN, and Marybeth D’Amico, RN (hereinafter collectively “OhioHealth Defendants”) filed a Motion for Summary Judgment on April 18, 2023 arguing that they are entitled to summary judgment as a matter of law pursuant to Civ.R. 56(C) because the Plaintiff has failed to identify expert witnesses and thus cannot present expert testimony at trial to meet her burden of proof on these medical claims. This Motion followed a Motion for Summary Judgment that made the same arguments, filed by Avina Women’s Care dba MaternOhio Clinical Associates, Inc., MaternOhio Clinical Associates, Inc., Carl Krantz, M.D., and Amber Murphy Mack, M.D. (hereinafter collectively “MaternOhio Defendants”) on April 3, 2023. These Motions are currently unopposed, although the Plaintiff has 28 days to respond to each pursuant to Civ.R. 6(C)(1). However, instead of responding to the Motions for Summary Judgment, on April 24, 2023, the Plaintiff filed Plaintiff's Emergency Motion to Extend Case Management Schedule and Motion for Telephone Pretrial (“Plaintiff's Emergency Motion”). Therein, the Plaintiff posed the issue of the missed deadlines as excusable neglect resulting from a 3 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y8 substitution of counsel and requested that the Court extend the expert disclosure deadlines by seven months to September of 2023. Before the Defendants could respond in opposition to that Motion, on April 25, 2023, the Court granted it and entered a Case Management Schedule (hereinafter “April 25, 2023 Order”) that moved the deadlines for expert discovery by seven months but kept the existing discovery deadline and trial date. Il. LAW & ARGUMENT In granting the Plaintiffs Emergency Motion, the Court found that the Plaintiff showed good cause for neglecting the expert disclosure deadlines agreed-upon by the parties and established by the Court. This was before the Defendants were able to respond, alerting the Court to the fact that there are two pending Motions for Summary Judgment on the very topic addressed in the Plaintiffs Emergency Motion. Accordingly, the OhioHealth Defendants respectfully urge the Court to reconsider the April 25, 2023 Order, instead maintaining the case schedule established August 22, 2022 and excluding the Plaintiff's expert witnesses from trial as a discovery sanction for failing to comply with the deadlines agreed-upon by the parties and established by this Court. A. The Court Should Exclude the Plaintiff's Undisclosed Expert Witness as a Discovery Sanction for Failing to Meet the Disclosure Deadlines Set by this Court Rather than Extending the Deadlines Because the Failure to Disclose the Experts Was Inexcusable Neglect and Extending the Deadlines Prejudices the Defendants and Will Most Certainly Burden the Court’s Schedule. It is well-established that, “[t]he admission or exclusion of relevant evidence rests largely within the exercise of discretion by the trial court.” Fields v. Dailey, 68 Ohio App.3d 33, 42, 587 N.E.2d 400, 405-06 (10th Dist.1990), quoting O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163, 17 0.0.3d 98, 100, 407 N.E.2d 490, 493. At this time, two Motions for Summary Judgment filed by the Defendants are pending which request that 4 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y90 the Court exclude the Plaintiff's undisclosed expert witnesses as a discovery sanction for her failure to comply with the deadlines of this Court. These Motions remain pending and unopposed, but as the MaternOhio Defendants filed their Motion on April 3, 2023 and the OhioHealth Defendants filed theirs on April 18, 2023, the Plaintiff has until May 1, 2023 and May 16, 2023, respectively, to respond. However, instead of addressing these dispositive motions and defending her position on summary judgment, the Plaintiff filed the Plaintiff's Emergency Motion, which disguised a dispositive issue as a simple request to extend deadlines due to substitution of counsel. This is not so. In the Motions for Summary Judgment, the Defendants each argue that the Plaintiff should be barred from presenting expert testimony at trial because she has failed to disclose any expert witnesses by the deadline agreed-upon by the parties and established by this Court. In reconsidering the April 25, 2023 Order, the OhioHealth Defendants herein respectfully request that rather than extending the discovery deadlines, the Court exclude the Plaintiff's undisclosed expert witnesses as a discovery anction for failure to timely disclose their identities, as certainly, “[t]he testimony of expert witnesses who are not timely identified pursuant to a pretrial order may be excluded at trial.” Price v. Cleveland Clinic Found., 33 Ohio App.3d 301, 515 N.E.2d 931, 932 (8th Dist.1986); see also Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 84-86, 19 OBR 123, 124, 482 N.E.2d 1248, 1250. When considering whether to use its discretion to permit or exclude undisclosed or belatedly-disclosed expert testimony, a trial court may contemplate: “(1) the proponent's justification for the delayed disclosure of the expert's identity or the expert's report, (2) the opponent's prejudice from that delay, and (3) the burden on the court's 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y91 schedule to accommodate the respective parties’ interests.” Price, 33 Ohio App.3d at 306, 515 N.E.2d at 936. In the present case, these factors weigh in favor of exclusion. 1. Plaintiffs Counsel Has Demonstrated _Inexcusable Neglect _in Failing to Meet the Deadlines for Expert Witness Disclosure. In the present case, the justifications of Plaintiffs counsel for failing to disclose expert testimony are blatantly inexcusable neglect. The Plaintiff retained three attorneys at the outset of this case, but apparently two abdicated responsibilities with regard to expert witnesses to the third, Counselor Paris. Thus, when Counselor Paris failed to identify expert witnesses, Counselor Pantages and Counselor Connolly were unaware of the missed deadline and took no action to either identify witnesses or request an extension. Then, when the Defendants filed Motions for Summary Judgment which argued for summary judgment due to these failures, rather than responding to those Motions, Plaintiff's counsel presented their delays as an “emergency” that required this Court’s immediate attention. They therein argued that Counselor Paris was responsible for all of the errors in the case and they required a seven-month extension to rectify these failures. Notably, in the Plaintiff's Emergency Motion, Plaintiffs counsel neither states why the deadlines were missed by Counselor Paris, nor why, when Counselor Paris apparently neglected her duties, Counselor Connolly and Counselor Pantages failed to monitor their client’s case and notice the missed deadlines. This does not provide the Court a basis to excuse their neglect. Instead, Counselor Connolly merely vaguely blames the now- withdrawn Counselor Paris for their combined neglect of the case. However, as the old saying goes, “a lack of poor planning on your part does not constitute an emergency on mine.” Indeed, the same is true here, as Plaintiffs counsel’s failure to abide by these 6 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y9 deadlines and advance their client’s case is inexcusable neglect that should not constitute an emergency for the other parties and this Court. As such, this first factor weighs in favor of excluding the Plaintiff's undisclosed expert witnesses. 2. The Plaintiff's Inexcusable Neglect Has Prejudiced the Defendants by Delaying the Discovery Timeline. With regard to the second factor, “[t]he existence and effect of prejudice resulting from noncompliance with the disclosure rules is of primary concern, not just the intent or motive involved.” Culp v. Olukoga, 4th Dist. No. 12CA3470, 2013-Ohio-5211, 3 N.E.3d 724, 138, quoting Huffman, 19 Ohio St.3d at 85, 482 N.E.2d 1248. This delay has, indeed, prejudiced the OhioHealth Defendants. This case involves claims of medical negligence during a surgical delivery of the Plaintiff’s decedent. It will involve three different sets of expert witnesses (for the Plaintiff, the OhioHealth Defendants, and the MaternOhio Defendants), including both nurses and doctors from a variety of specialties on just the issue of standard of care, alone. The Plaintiff, OhioHealth Defendants and MaternOhio Defendants will then also require experts on causation and damages, all of whom which will write reports and be deposed. With three sets of counsel and a large number of very busy expert witnesses, this discovery will take some time, hence the almost fifteen months (from February of 2023 to May of 2024) originally dedicated to this phase of the case. However, due to the Plaintiff’s delays, the new case schedule will require that all of these depositions take place in just eight months (from September of 2023 to May of 2024). This means that there can be no other delay without impacting the trial schedule, as it is already unlikely that this volume of expert discovery can occur in half the time originally allowed for it. Accordingly, as the Defendants are now forced to conduct 7 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y9 discovery on an expedited schedule to accommodate the Plaintiff’s failures to meet the original deadlines, the Defendants are clearly prejudiced by these delays. Indeed, the second factor, too, weighs in favor of excluding the Plaintiff's undisclosed expert witnesses. 3. The Plaintiff's Inexcusable Neglect Has and Likely Will Continue to Burden the Court’s Schedule. Finally, this request does, and will likely continue to, burden the Court’s schedule. The aforementioned expedited discovery schedule caused by the Plaintiff's failures means that any other delays in discovery or the case generally will require a continuance of the trial date. Given the very busy docket of this Court, reserving a trial date now which is likely to move due to delays will cause a burden on the Court. Indeed, as the Plaintiff's delays were caused by inexcusable neglect, the Defendants are prejudiced and the Court’s schedule is burdened, the OhioHealth Defendants respectfully urge the Court to implement the discovery sanction of excluding the Plaintiffs undisclosed expert witnesses rather than extending the deadlines. The delays in this case’s schedule are not small excusable errors caused by substitution of counsel, but instead inexcusable neglect that is the subject of two pending dispositive motions. By presenting this issue to the Court as a small request to extend discovery deadlines rather than responding to the Motions for Summary Judgment, the Plaintiff is seeking to avoid accountability for the discovery violations while still preserving the ability to later voluntarily dismiss without prejudice and refile. However, as the orders of this Court and the discovery rules should not be thus disregarded, this should not be allowed, and a discovery sanction should instead be imposed. 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y94 B. If_the Court Does Exclude the Plaintiffs Expert Witnesses _as_a Discovery Sanction for Nondisclosure, the Plaintiff Does Have Another Remedy That Will Not Prejudice Her Case: Voluntary Dismissal Without Prejudice Pursuant to Civ.R 41(A). If the Court does reconsider and ultimately deny the Plaintiff’s request to extend the case deadlines and exclude the Plaintiff's expert witnesses as a discovery sanction, the Plaintiff does have another remedy other than arguing the issues on summary judgment: voluntary dismissal without prejudice pursuant to Civ.R. 41(A). In the Plaintiff's Emergency Motion, the Plaintiff does acknowledge that this is an option instead of asking the Court to excuse her neglect, but she uses the age-old argument that such an action would put the parties back in the same place, setting a new case schedule, so it is better to merely revise this schedule now. This argument is unavailing. First of all, the parties would not be in the same place as they are now if this case were dismissed and refiled. The parties are currently over 11 months into a 24 month track without having made any progress in discovery. If the case were re-filed, the parties would be at the beginning of a 24 month track for this case, which better fits the status. Additionally, the Plaintiff would no longer have the ability to voluntarily dismiss her case asecond time. This is a small price to pay for her neglect, but is clearly a price that she is trying to avoid, so it clearly has value. Furthermore, even if it were true that a dismissal/refile would just put the case in the same place as it is now, arguing that a discovery violation should be ignored on that basis is the epitome of a “slippery slope” argument. Indeed, if there is no sanction for such a discovery violation, then parties could unilaterally ignore the orders of the Court and argue this very position to avoid responsibility for their actions. In fact, according to 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y9 this logic, the Plaintiff should never be held to her deadlines because she has the ability to dismiss and refile and only the Defense will ever held to established deadlines. Discovery sanctions exist for a reason—to enforce the goal of the Rules of Civil Procedure and the orders of this Court, which is to prevent surprise to the parties at trial and avoid the parties being hampered in their ability to present a claim or defense at trial. See Huffman, 19 Ohio St.3d at 86. “The discovery rules give the trial court great latitude in crafting sanctions to fit discovery abuses.” Culp v. Olukoga, 4th Dist. No. 12CA3470, 2013-Ohio-5211, 3 N.E.3d 724, 1 33, quoting Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 662 N.E.2d 1 (1996). Forcing the Plaintiff to dismiss and refile is an appropriate sanction under the present circumstances and it serves to “right size” this case in relation to the trial date and other discovery deadlines. Accordingly, the Defendants respectfully urge the Court to reconsider its April 25, 2023 Order and impose the discovery sanction of excluding the Plaintiff's expert witnesses at trial due to lack of disclosure instead of extending the case deadlines to preserve the Plaintiff's ability to later dismiss without prejudice. This result is more just for the Defendants, who have complied with this Court’s schedule, and more efficient for the Court, and still leaves the Plaintiff with the option to either voluntarily dismiss the case without prejudice and refile or defend her position on summary judgment. Ill. CONCLUSION For the foregoing reasons, Defendants OhioHealth Riverside Methodist Hospital, OhioHealth Corporation, Meagan Schneiderman, M.D., Valerie Schott, M.D., Emily Misbrener, D.O., Mahima Prasad, M.D., Amber N. Ferraro, RN, Maddalynn Huffman, RN, Katelyn Meister, RN, and Marybeth D’Amico, RN, respectfully request that this Court 10 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y9 reconsider its April 25, 2023 Order and impose the discovery sanction of excluding the Plaintiff's expert witnesses at trial due to lack of disclosure instead of extending the case deadlines. Respectfully submitted, s/Karin M. Long Bobbie S. Sprader (0064015) bsprader@brickergraydon.com Karen L. Clouse (0037294) kelouse@brick aydon.com Karin M. Long (0101480) kmlong @brickereraydon.com Bricker Graydon LLP 100 South Third Street Columbus, Ohio 43215-4291 Phone: (614) 227-2300 Fax: (614) 227-2390 Counsel for Defendants, OhioHealth Riverside Methodist Hospital, OhioHealth Corporation, Meagan Schneiderman, M.D., Valerie Schott, M.D., Emily Misbrener, D.O., Mahima Prasad, M.D., Amber N. Ferraro, RN, Maddalynn Huffman, RN, Katelyn Meister, RN, and Marybeth D’Amico, RN Of Counsel: Chester P. Porembski, Esq. (0000754) OhioHealth Corporation David P. Blom Administrative Campus 3430 OhioHealth Parkway, 5‘ Floor Columbus, OH 43202 11 18615485v1 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Apr 27 9:52 AM-22CV003269 0G365 - Y97 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing Motion to Reconsider Court's April 25, 2023 Order Granting Plaintiffs Emergency Motion to Extend Case Management Schedule of Defendants OhioHealth Riverside Methodist Hospital, OhioHealth Corporation, Meagan Schneiderman, M.D., Valerie Schott, M.D Emily Misbrener, D.O., Mahima Prasad, M.D., Amber N. Ferraro, RN, Maddalynn Huffman, RN, Katelyn Meister, RN, and Marybeth D'Amico, RN was served via the Court’s electronic filing system, and/or regular U.S. mail, postage prepaid, this 26th day of April, 2023: Meghan P. Connolly, Esq. Lowe, Scott, Fisher, Co., LPA 1660 West 24 Street 610 Skylight Office Tower Cleveland, OH 44113 mconnoll sflayv OR Counsel for Plaintiffs Craig S. Tuttle, Esq. LEESEBERG TUTTLE 175 S. Third Street: Penthouse One Columbus, Ohio 43215 chuttle@) sebergla LOM Counsel for Plaintiffs FrederickA. Sewards, Esq. Arnold, Todaro, Welch & Foliano, Co., LPA 2075 Marble Cliff Office Park Columbus, OH 43215 Counsel for Defendants, Avina Women’s Care dba MaternOhio Clinical Associates, Inc., MaternOhio Clinical Associates, Inc., Carl Krantz, M.D., and Amber Murphy Mack, M.D. ‘s/ KarinM. Long Karin M. Long, Esq. 12 18615485v1