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CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 1 of 14
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
MICHAEL A. RENNE, as Guardian of the ) CASE NO. CV-2020-02-0578
Estate of LP, a minor )
) JUDGE MARY MARGARET ROWLANDS
Plaintiff )
) DEFENDANTS’ REPLY IN SUPPORT
vs. ) OF MOTION TO DISMISS
)
SUMMA HEALTH SYSTEM, et al. ) and
)
Defendants ) RESPONSE IN OPPOSITION TO
) PLAINTIFF’S REQUEST FOR
) ATTORNEY FEES AND COSTS
) PURSUANT TO CIV. R. 37
)
) and
)
) RESPONSE TO PLAINTIFF’S
) REQUEST FOR ORAL ARGUMENT
) PURSUANT TO LOCAL RULE 7.14
Defendants Summa Health System, Summa Health, Summa Physicians, Inc., Cheryl
Johnson, M.D., Ashley L. Ballester, M.D. and Meredith Bellamy, D.O. (hereinafter, collectively,
“Summa”) for their Reply in Support of Motion to Dismiss, and Response in Opposition to
Plaintiff’s Request for Attorney Fees and Costs Pursuant to Civ. R. 37, and Response to
Plaintiff’s Request for Oral Argument Pursuant to Local Rule 7.14 state as follows:
I. INTRODUCTION
By Plaintiff’s own admission, Plaintiff has not complied with this Court’s April 1, 2022
Order compelling Plaintiff to respond to Summa’s discovery requests. In that Order, this Court
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put Plaintiff on notice that failure to comply could result in dismissal of this action. Now, six
months later, Plaintiff continues to rely on the same excuse for failing to participate in discovery,
i.e., the information necessary to prosecute this case is not within Plaintiff’s custody or control.
The Court has already considered and rejected this argument. Dismissal of Plaintiff’s case is
appropriate.
II. LAW AND ARGUMENT
A. This Court has already considered and rejected Plaintiff’s argument that he
is relieved from participating in discovery because he has been unable to
obtain the most rudimentary and basic information about LP.
After months of trying to obtain the most basic information about LP from Plaintiff,
Summa was forced to file a Motion to Compel. On March 9, 2022, Plaintiff opposed Summa’s
Motion. At the outset of the Motion, Plaintiff explained, “Defendant’s Motion to Compel should
be denied because Plaintiff has produced all relevant, non-privileged, and responsive information
in Plaintiff’s possession, custody, or control – control being the operative term for this
motion.” (Plaintiff’s Response to Defendants’ Motion to Compel, p. 1) (emphasis added).
Thereafter, Plaintiff made an additional 13 references to his inability to produce relevant
information about LP because he did not have access to that information. Specifically, Plaintiff
made the following representations:
This Court should deny Defendant’s Motion to Compel because Counsel for
the Plaintiff has complied with all discovery obligations by producing all non-
privileged, relevant records and information in our control. Id. at p. 2;
However, due to the custody dispute that was proceeding at that time with
SCCS in the Juvenile Court, the medical care providers of whom Plaintiff’s
counsel was aware for L.P. would not honor authorizations for records signed
by Olivia Patterson. Id. at p. 4;
However, SCCS refused to provide that information to Mr. Renne or
Plaintiff’s counsel and L.P.’s medical care providers refused to provide
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medical records for L.P. in response to authorizations signed by Mr. Renne as
Guardian of the Estate. Id.;
Plaintiffs continued to work with Mr. Renne to request information regarding
L.P.’s medical status and records related to his medical care from SCCS, but
all attempts were rejected by that agency. Id. at pp. 4-5;
In short, Mr. Rossi’s letter requested information and documents that he
already knew Plaintiff’s counsel was incapable of providing per his prior
discussions with Ms. Weinstein by phone and during Olivia Patterson’s
deposition. Id. at pp. 6-7;
On November 18, 2021, Ms. Weinstein responded to Mr. Rossi once again
explaining Plaintiff’s inability to provide certain information and documents.
(Plaintiff’s Response to Defendants’ Motion to Compel, p. 7);
Plaintiff’s counsel has been attempting to obtain information regarding the
minor Plaintiff, L.P.’s custodial situation, his medical treaters and facilities
that have provided care, and other information on him relevant to this action
since they were retained several years ago. All attempts had been unfruitful, as
detailed above, when SCCS refused to cooperate with Plaintiff’s counsel
during the pendency of the custody dispute with Olivia Patterson. Id. at p. 8;
As detailed above, Plaintiff’s counsel was stymied from requesting further
medical records because the identity of those providers was beyond Plaintiff’s
personal knowledge and control. Id. at p. 9;
Plaintiff’s counsel did not have access to L.P. nor his medical records until the
Probate Court issued the November 9, 2021 order granting limited access. Id.
at p. 10;
In addition, Plaintiff does not know the identity of everyone “with whom L.P.
has lived since his birth.” Id. at p. 14;
Plaintiff answered the interrogatories fully and to the best of Plaintiff’s
knowledge at the time, thus satisfying his discovery obligations under Civ.R.
33. Id. at p. 19;
Here, Plaintiff does not have personal knowledge of the information sought by
Interrogatory No. 2 and communicated that fact to Defendants. (Plaintiff’s
Response to Defendants’ Motion to Compel, p. 20); and
Plaintiff has no further information, and, therefore, Plaintiff has complied with
his discovery obligations. Id.
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The Court conducted a conference call with counsel on March 16, 2022 to discuss the
discovery dispute. At that time, Plaintiff’s counsel reiterated Plaintiff’s position that Summa’s
Motion to Compel should be denied because Plaintiff does not have access to the discovery
requested. After considering the briefing and Plaintiff’s arguments as set forth above, on April 1,
2022, this Court granted Summa’s Motion and noted in part:
Plaintiffs initiated this lawsuit on behalf of L.P., a minor, and after two years,
assert they are unable to provide Defendants with basic information about L.P.,
such as L.P.’s address, care providers, and living arrangements, because they
themselves are unable to obtain the information from L.P.’s custodian, Summit
County Children Services Board. Despite Plaintiffs’ asserted obstacles to
information about L.P., their own client, Plaintiffs are not relieved of their
duty to comply with discovery.
(April 1, 2022 Order, p. 3) (emphasis added). This Court also noted, “Plaintiffs’ inability to
obtain L.P.’s custodian’s cooperation (Summit County Children Services Board) for discoverable
information should not be transferred to Defendants. Discovery is long overdue.” Id. (emphasis
added).
This Court is fully aware of Plaintiff’s contention that he is relieved from participating in
discovery because he does not have access to, or control over, relevant, discoverable
information. Equally clear is that this Court has expressly rejected this argument. Nonetheless, in
Plaintiff’s most recent motion, Plaintiff argues that discovery sanctions, including dismissal, for
his failure to comply with this Court’s April 1, 2022 Order is not appropriate because he does not
have access to information related to LP. Nothing has changed in the last six months. This still is
not a legitimate reason for not participating in discovery, nor is it a legitimate reason for failing
to comply with a Court Order.
Because Plaintiff admits he has not complied with the Court’s April 1, 2020 Order,
discovery sanctions are appropriate. It is clear from the Court’s Order that such sanctions may
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include dismissal. Dismissal of this action due to Plaintiff’s failure to respond to discovery and
comply with this Court’s Order is proper. By admitting that Plaintiff cannot comply with the
Court’s Order, Plaintiff demonstrates exactly why dismissal is an appropriate discovery sanction.
B. Plaintiff has failed to comply with this Court’s Order and dismissal is an
appropriate sanction.
Plaintiff does not dispute that he has failed to comply with this Court’s discovery order.
Rather, in response, Plaintiff attempts to deflect and minimize the seriousness of his conduct. For
example, Plaintiff would like this Court to believe that the meet and greet would have gone
forward, but for Summa’s last-minute request to video record the meeting. Specifically, Plaintiff
represents to this court that ten days before the scheduled meeting, defense counsel insisted on
video recording the meeting. (Plaintiff’s Opposition to Defendants’ Motion to Dismiss, p. 2).
Although defense counsel reiterated this condition to Plaintiff’s counsel just ten days before the
scheduled meet and greet, video recording had always been Defense Counsel’s intention for the
meeting. Indeed, Plaintiff’s counsel was aware of this requirement for a year prior to the
scheduled meeting. (See August 3, 2021 correspondence to Plaintiff’s counsel, attached as
Exhibit G to Defendants’ Motion to Dismiss). Plaintiff’s suggestion to the Court that this was a
last minute condition is simply untrue.
In fact, Plaintiff’s counsel was reminded that the meeting would be video-recorded on
April 28, 2022 when Plaintiff’s counsel started making arrangements for the “meet and greet”;
(after being compelled to do so). Specifically, when Plaintiff’s counsel offered dates for the
meeting, Defense Counsel advised:
Hi Ed. Could you obtain additional dates in May and June from SCCS for us to
meet [LP]? Also, it would be our intention to video record the session. Could
you please inquire of SCCS if they will permit video recording? We would like
to proceed in our office and think that would be the most convenient location for
the individuals and the attorneys attending, but will defer to SCCS on where they
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would like this to occur. Finally, do you know who will be accompanying him? In
the past, I have undertaken this with a parent present who can provide some
commentary on the child’s limitations and capabilities as we are video recording.
Please let us know. Thank you. –Greg
(See April 28, 2022 email from Attorney Rossi, attached to Defendants’ Motion to Dismiss as
Exhibit I)(emphasis added). The implication that Summa’s intent to video-record the “meet and
greet” was an 11th hour requirement is simply untrue.
A request for video recording under these circumstances and in a case of this nature is not
unreasonable and occurs routinely. What is most noteworthy is that Plaintiff is unable to make
the minor, whom he is appointed to represent for purposes of this litigation, available for video
recording in connection with the litigation filed on the minor’s behalf. Plaintiff’s response to the
request to video-record is that this is outside of his control and Summa must file a Motion to
Compel. Summa first requested the opportunity to meet LP and make a video recording of him
on August 3, 2021. This is necessary for Summa to adequately defend against Plaintiff’s claims,
including submitting information for expert review. Plaintiff has not complied with the Court’s
April 1, 2022 Order as it relates to the “meet and greet,” to the detriment of Summa.1
Plaintiff also has not complied with the Court’s Order as it relates to the presentation of
witnesses for deposition. In an attempt to excuse his conduct, Plaintiff incorrectly represents that
Summa “concedes that Plaintiff’s counsel have diligently sought to contact the other fact
witnesses.” (Plaintiff’s Opposition to Defendants’ Motion to Dismiss, p. 11). That is not true.
Summa does not believe that Plaintiff has worked diligently to provide discovery. In fact, the
opposite is true. There is no evidence that Plaintiff made any effort to produce fact witnesses
until after Summa contacted the Court in August of this year to advise of Plaintiff’s continued
1
Plaintiff argues that Summa failed to file a Motion with the Court to video-record LP at the meet and greet.
Summa, however, followed the Court’s instructions and sent correspondence to the Court and Plaintiff’s counsel,
outlining the discovery issues and requesting a conference to discuss.
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obstruction of the discovery process and failure to comply with the Court’s April 1, 2022 Order.
Moreover, Plaintiff has not provided deposition dates for Jenny Howard or any of the individuals
with whom LP has lived, as ordered by this Court.
Plaintiff also has not provided full and complete interrogatory answers, as ordered by this
Court. In response, Plaintiff relies on caveats and exculpatory language that was not included in
Court’s Order, such as “all information known to the Plaintiff.” (Plaintiff’s Opposition to
Defendants’ Motion to Dismiss, p. 12) (emphasis added). The Court’s Order was clear and was
not conditional as suggested by Plaintiff.
Plaintiff has also failed to comply with discovery as it relates to the production of
photographs and videos of LP. Plaintiff argues, “[r]ather than offer evidence-because they have
none- defense counsel offers innuendo.” Id. at p. 14. There is no innuendo. During Olivia
Patterson’s October 2021 deposition she had videos and photographs of LP in her possession that
she was willing to produce to Summa. Plaintiff’s counsel instructed her not to produce the
relevant items and represented that counsel would obtain all of these photographs and videos and
produce them to the defense. Plaintiff’s counsel never did. Thus, Summa was forced to obtain a
Court Order for the requested items. Plaintiff now claims that the records have been lost:
Q. Did you provide these photographs, and I can flip through if you want, but to
counsel to produce to us?
A. Yes.
Q. And is this the extent of all of the photographs that you have of [LP]?
A. Yes.
Q. Okay. So the sum total of the photographs that you have of [LP] would be the
here and then there were seven in the other set, although I believe that one was
a picture of your scar. So that's the entirety of the photographs that you have
of [LP]?
MS. WEINSTEIN: Just objection. Form.
Q. Is that correct?
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A. Yes.
Q. So the total number of photographs that you have of [LP] is 23 photos?
MS. WEINSTEIN: Objection. Asked and answered. You can answer again.
A. Yes.
Q. And you don't have any videos of [LP]?
A. I have -- no, actually, I don't. I had a new phone, unfortunately.
Q. The last time you were in our office in October, at that time you had video of
[LP], correct? Because you were going to show those to us. Do you remember
that?
MS. WEINSTEIN: Objection. Form.
A. Yeah, I had a phone that had all that -- all those photos and everything, but I
don't have it anymore.
Q. What happened to that phone?
A. Actually, it broke. It literally just shut off on me.
(Deposition of Olivia Patterson, 186-188).
Photographs and videos of LP were available. Plaintiff however, refused to produce those
documents to Summa and now claims that the relevant documents are no longer available for
production. This is consistent with Plaintiff’s conduct of obstruction and non-compliance.
C. Plaintiff’s subpoena to Summit County Children Services does not
excuse Plaintiff’s non-compliance with this Court’s April 1, 2022
Order.
Plaintiff makes multiple references to his subpoena to Summit County Children Services
(“SCCS”) throughout his Brief in Opposition. This subpoena has no relation to Summa’s
discovery or the Court’s April 1, 2022 Order. Plaintiff claims that the subpoenaed records “are
the exact documents that Defendant Summa claims in the instant motion to be prejudiced
through not receiving them.” (Plaintiff’s Opposition to Defendants’ Motion to Dismiss, p. 6).
This is not an accurate statement. Summa’s discovery requests and this Court’s Order compelling
the same are quite specific. Summa does not seek production of documents from SCCS. Summa
merely seeks the most standard information that is immediately disclosed at the outset of any
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medical malpractice case, including the addresses where the minor child has lived and the
identity of everyone with whom he has lived and who can provide relevant information about
him.
Further, although Plaintiff repeatedly mentions the subpoena, notably absent from
Plaintiff’s brief is any explanation why Plaintiff waited nearly five months after the Court’s order
to issue the subpoena. Indeed, the subpoena was not issued until after the defense notified the
Court that there was an ongoing discovery dispute as a result of Plaintiff’s failure to comply with
the April 1, 2022 Order.
Finally, Plaintiff’s suggestion that Summa is misleading this Court with respect to
SCCS’s position on the subpoena is simply false. The statement in Summa’s brief that “SCCS
strongly urges that such personal information not be disclosed,” is based on SCCS’s Motion to
Quash wherein, “SCCS strongly urges the Court to quash the subpoena requiring disclosure of
the name, residential address, and contact information for all persons who lived with the minor
child since February 12, 2019.” (SCCS Motion to Quash, pp. 2-3) (emphasis added). Summa has
not misled this Court. In fact, it is Plaintiff who attempts to mislead this Court by suggesting that
SCCS is “standing neutral” with respect to the subpoenaed information. SCCS’s statement that it
is “standing neutral” is made in connection to the continuation of this litigation despite the fact
that neither SCCS, nor the guardian ad litem appointed to represent LP’s best interest, consented
to this litigation. Notably, SCCS suggests that “[t]he Court may wish to consider staying his
matter until the child has been adopted.” Id. at p. 2.
Shockingly, Plaintiff suggests that “LP’s prospective adoption has no relevance to the
discovery issues before the Court.” It is somewhat incredible that Plaintiff makes such a
statement when it was Plaintiff’s counsel who advised Summa’s counsel that SCCS “fears that
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disclosing [the foster parent or potential adoptive parent’s actual names] could compromise the
adoption opportunity for L.P.” (See September 1, 2022 email from Attorney Aucoin, attached to
Defendants’ Motion to Dismiss as Exhibit F). Based on this statement alone, it is inconceivable
how Plaintiff can represent to this Court that the prospective adoption has no relevance to the
discovery issues. In fact, counsel for Summa brought this to the Court’s attention during a
conference call to alert the Court that Summa was again being prejudiced in discovery; while
Summa does not wish to do anything to compromise LP’s adoption, this discovery is basic and
necessary.
The subpoena to SCCS has no bearing on Plaintiff’s failure to comply with this Court’s
April 1, 2022 Order or the pending Motion to Dismiss. There is no dispute; Plaintiff has not
complied with this Court’s discovery order. Dismissal is a proper sanction.
D. Under the circumstances, Plaintiff’s request for costs and fees is
completely inappropriate.
Despite Plaintiff’s continued failure to comply with this Court’s Order, Plaintiff
remarkably asks this Court to award Plaintiff attorney fees incurred in responding to Defendants’
Motion to Dismiss. Summa’s Motion was necessary as a direct result of Plaintiff’s undeniable
failure to comply with this Court’s April 1, 2022 Order compelling Plaintiff to respond to
discovery. Not only is Plaintiff’s request bizarre and unreasonable, it is not supported by the
facts of this case nor the Civil Rule upon which Plaintiff relies.
Plaintiff argues that an attorney fee award is appropriate under Civil Rule 37(A)(5)(b). in
support of this argument, Plaintiff misstates the Rule as follows, “[i]f a motion for discovery
under Civ. R 37 is denied, then the Court ‘shall, after giving an opportunity to be heard, require
the movant, the attorney filing the motion, or both’ pay for the reasonable expenses incurrent in
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opposing the motion, including attorney fees.” (Plaintiff’s Brief in Opposition, p. 15)(emphasis
added).
Ironically, Civil Rule 37(A) specifically applies to a “Motion for an Order Compelling
Discovery,” not another “discovery” motion such as a Motion to Dismiss, which is the Motion
currently before the Court. Civil Rule 37(A) is clear; a party may move for an order compelling
discovery. Subsection 5 of this Rule, makes multiple references to “the motion,” i.e., the motion
to compel. The relevant part of the Rule provides:
(5) Payment of Expenses; Protective Orders.
(a) If the Motion Is Granted. If the motion is granted, the court shall, after
giving an opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees. But the court shall not order
this payment if:
(i) The movant filed the motion before attempting in good faith to obtain
the discovery without court action;
(ii) The opposing party's response or objection was substantially justified;
or
(iii) Other circumstances make an award of expenses unjust.
(b) If the Motion Is Denied. If the motion is denied, the court may issue any
protective order authorized under Civ.R. 26(C) and shall, after giving an
opportunity to be heard, require the movant, the attorney filing the motion, or
both to pay the party or deponent who opposed the motion its reasonable
expenses incurred in opposing the motion, including attorney's fees. But the
court shall not order this payment if the motion was substantially justified or
other circumstances make an award of expenses unjust.
The award of attorney fees pursuant to Civil Rule 37(A)(5)(b) applies to a non-movant who
successfully opposes a motion to compel.
Here, Summa filed a Motion to Compel, which was granted, not denied. Civil Rule
37(A)(5)(b) is not applicable. Pursuant to Civil Rule 37(A)(5)(a), Summa is entitled to recover
costs and fees incurred in connection with its Motion to Compel. Summa, however, has not been
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vindictive or punitive. While there is a reasonable basis for Summa to proceed with a Motion for
attorney fees, Summa has not tried to punish the Plaintiff. Summa simply has taken the steps
available under the Civil Rules to try to obtain discovery necessary to defend against Plaintiff’s
claims.
Not only is Civil Rule 37 not applicable to Plaintiff’s request for attorney fees, the facts
do not support such an award. There is no question that Plaintiff has failed to comply with the
Court’s April 1, 2022 Order. There is also no question that the parties have been unable to
resolve this issue. See September 6, 2022, Magistrate’s Order (“Defendants have contacted the
Court regarding a discovery dispute pursuant to the case management order. The discovery
dispute was not able to be resolved informally, therefore, Defendants may file a motion to
compel.2)(emphasis added). The Court authorized additional motion practice at this time. Thus, it
is difficult to understand how Summa could be responsible for Plaintiff’s costs associated with
responding to the motion. Moreover, dismissal is a potential sanction set forth in the Court’s
Order granting the Motion to Compel.
Plaintiff seeks attorney fees pursuant to Civil Rule 37(A)(5)(b). This rule applies when a
Motion to Compel is denied. Here, Summa’s Motion to Compel was granted. Thus, if any party
is entitled to expenses, including attorney fees, it is Summa, not Plaintiff. See Civ. R.
37(A)(5)(a). Plaintiff’s Request for Attorney Fees and Costs must be denied.
E. Oral Argument
Summa joins in Plaintiff’s Request for an oral argument on the pending motions and
further requests that such hearing be conducted in-person.
2
Summa already filed a motion to compel. A second motion to compel on the same issues already addressed by the
Court was not necessary. Thus, Summa interpreted the Magistrate’s Order to mean that Summa could file the
appropriate motion due to Plaintiff’s failure to comply with the Court’s prior order granting Summa’s Motion to
Compel.
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III. CONCLUSION
For the reasons set forth herein, as well as Summa’s Motion to Dismiss, dismissal of this
action is appropriate due to Plaintiff’s failure to comply with this Court’s April 1, 2022 Order
compelling discovery. Additionally, Plaintiff’s request for attorney fees pursuant to Civil Rule
37(A)(5), must be denied. Under this Rule, when a motion to compel is granted, as is the case
here, attorney fees shall be awarded to the movant, not the party who opposed the motion to
compel. Clearly, Plaintiff is not entitled to recover attorney fees for opposing a motion that was
granted. Finally, Summa joins in Plaintiff’s request for an oral argument and further requests that
such hearing be conducted in-person.
Respectfully submitted,
/s/ Emily R Yoder
Gregory T. Rossi, Esq. (0047595)
Rocco D. Potenza, Esq. (0059577)
Emily R. Yoder, Esq. (0084013)
HANNA, CAMPBELL & POWELL, LLP
3737 Embassy Parkway, Suite 100
Akron OH 44333
(330) 670-7612 (T) * (330) 670-6453 (FAX)
eyoder@hcplaw.net
Counsel for Defendants
Summa Health System, Summa Health, Summa
Physicians, Inc., Cheryl Johnson, M.D., Ashley L.
Ballester, M.D. and Meredith Bellamy, D.O.
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CERTIFICATE OF SERVICE
Pursuant to Civil Rule 5(B)(2)(f), I hereby certify that copy of the foregoing Defendants’
Reply in Support of Motion to Dismiss was sent via the Summit County Court Clerk of Courts
E-Filing System and via electronic mail, this 11th day of October, 2022, to:
Edward J. Aucoin, Jr., Esq. Counsel for Plaintiff
Lisa Weinstein, Esq.
James B. Puritz, Esq.
Grant & Eisenhofer
30 N. LaSalle Street, Suite 2350
Chicago IL 60602
eaucoin@gelaw.com
lweinstein@gelaw.com
jpuritz@gelaw.com
Pamela Pantages, Esq.
Nurenberg Paris Heller & McCarthy, Co., LPA
600 Superior Avenue East, Suite 1200
Cleveland OH 44114
ppantages@nphm.com
/s/ Emily R Yoder
Emily R. Yoder, Esq. (0084013)
Counsel for Defendants
Summa Health System, Summa Health, Summa
Physicians, Inc., Cheryl Johnson, M.D., Ashley L.
Ballester, M.D. and Meredith Bellamy, D.O.
<>
Sandra Kurt, Summit County Clerk of Courts
Preview
CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 1 of 14 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO MICHAEL A. RENNE, as Guardian of the ) CASE NO. CV-2020-02-0578 Estate of LP, a minor ) ) JUDGE MARY MARGARET ROWLANDS Plaintiff ) ) DEFENDANTS’ REPLY IN SUPPORT vs. ) OF MOTION TO DISMISS ) SUMMA HEALTH SYSTEM, et al. ) and ) Defendants ) RESPONSE IN OPPOSITION TO ) PLAINTIFF’S REQUEST FOR ) ATTORNEY FEES AND COSTS ) PURSUANT TO CIV. R. 37 ) ) and ) ) RESPONSE TO PLAINTIFF’S ) REQUEST FOR ORAL ARGUMENT ) PURSUANT TO LOCAL RULE 7.14 Defendants Summa Health System, Summa Health, Summa Physicians, Inc., Cheryl Johnson, M.D., Ashley L. Ballester, M.D. and Meredith Bellamy, D.O. (hereinafter, collectively, “Summa”) for their Reply in Support of Motion to Dismiss, and Response in Opposition to Plaintiff’s Request for Attorney Fees and Costs Pursuant to Civ. R. 37, and Response to Plaintiff’s Request for Oral Argument Pursuant to Local Rule 7.14 state as follows: I. INTRODUCTION By Plaintiff’s own admission, Plaintiff has not complied with this Court’s April 1, 2022 Order compelling Plaintiff to respond to Summa’s discovery requests. In that Order, this Court Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 2 of 14 put Plaintiff on notice that failure to comply could result in dismissal of this action. Now, six months later, Plaintiff continues to rely on the same excuse for failing to participate in discovery, i.e., the information necessary to prosecute this case is not within Plaintiff’s custody or control. The Court has already considered and rejected this argument. Dismissal of Plaintiff’s case is appropriate. II. LAW AND ARGUMENT A. This Court has already considered and rejected Plaintiff’s argument that he is relieved from participating in discovery because he has been unable to obtain the most rudimentary and basic information about LP. After months of trying to obtain the most basic information about LP from Plaintiff, Summa was forced to file a Motion to Compel. On March 9, 2022, Plaintiff opposed Summa’s Motion. At the outset of the Motion, Plaintiff explained, “Defendant’s Motion to Compel should be denied because Plaintiff has produced all relevant, non-privileged, and responsive information in Plaintiff’s possession, custody, or control – control being the operative term for this motion.” (Plaintiff’s Response to Defendants’ Motion to Compel, p. 1) (emphasis added). Thereafter, Plaintiff made an additional 13 references to his inability to produce relevant information about LP because he did not have access to that information. Specifically, Plaintiff made the following representations: This Court should deny Defendant’s Motion to Compel because Counsel for the Plaintiff has complied with all discovery obligations by producing all non- privileged, relevant records and information in our control. Id. at p. 2; However, due to the custody dispute that was proceeding at that time with SCCS in the Juvenile Court, the medical care providers of whom Plaintiff’s counsel was aware for L.P. would not honor authorizations for records signed by Olivia Patterson. Id. at p. 4; However, SCCS refused to provide that information to Mr. Renne or Plaintiff’s counsel and L.P.’s medical care providers refused to provide -2- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 3 of 14 medical records for L.P. in response to authorizations signed by Mr. Renne as Guardian of the Estate. Id.; Plaintiffs continued to work with Mr. Renne to request information regarding L.P.’s medical status and records related to his medical care from SCCS, but all attempts were rejected by that agency. Id. at pp. 4-5; In short, Mr. Rossi’s letter requested information and documents that he already knew Plaintiff’s counsel was incapable of providing per his prior discussions with Ms. Weinstein by phone and during Olivia Patterson’s deposition. Id. at pp. 6-7; On November 18, 2021, Ms. Weinstein responded to Mr. Rossi once again explaining Plaintiff’s inability to provide certain information and documents. (Plaintiff’s Response to Defendants’ Motion to Compel, p. 7); Plaintiff’s counsel has been attempting to obtain information regarding the minor Plaintiff, L.P.’s custodial situation, his medical treaters and facilities that have provided care, and other information on him relevant to this action since they were retained several years ago. All attempts had been unfruitful, as detailed above, when SCCS refused to cooperate with Plaintiff’s counsel during the pendency of the custody dispute with Olivia Patterson. Id. at p. 8; As detailed above, Plaintiff’s counsel was stymied from requesting further medical records because the identity of those providers was beyond Plaintiff’s personal knowledge and control. Id. at p. 9; Plaintiff’s counsel did not have access to L.P. nor his medical records until the Probate Court issued the November 9, 2021 order granting limited access. Id. at p. 10; In addition, Plaintiff does not know the identity of everyone “with whom L.P. has lived since his birth.” Id. at p. 14; Plaintiff answered the interrogatories fully and to the best of Plaintiff’s knowledge at the time, thus satisfying his discovery obligations under Civ.R. 33. Id. at p. 19; Here, Plaintiff does not have personal knowledge of the information sought by Interrogatory No. 2 and communicated that fact to Defendants. (Plaintiff’s Response to Defendants’ Motion to Compel, p. 20); and Plaintiff has no further information, and, therefore, Plaintiff has complied with his discovery obligations. Id. -3- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 4 of 14 The Court conducted a conference call with counsel on March 16, 2022 to discuss the discovery dispute. At that time, Plaintiff’s counsel reiterated Plaintiff’s position that Summa’s Motion to Compel should be denied because Plaintiff does not have access to the discovery requested. After considering the briefing and Plaintiff’s arguments as set forth above, on April 1, 2022, this Court granted Summa’s Motion and noted in part: Plaintiffs initiated this lawsuit on behalf of L.P., a minor, and after two years, assert they are unable to provide Defendants with basic information about L.P., such as L.P.’s address, care providers, and living arrangements, because they themselves are unable to obtain the information from L.P.’s custodian, Summit County Children Services Board. Despite Plaintiffs’ asserted obstacles to information about L.P., their own client, Plaintiffs are not relieved of their duty to comply with discovery. (April 1, 2022 Order, p. 3) (emphasis added). This Court also noted, “Plaintiffs’ inability to obtain L.P.’s custodian’s cooperation (Summit County Children Services Board) for discoverable information should not be transferred to Defendants. Discovery is long overdue.” Id. (emphasis added). This Court is fully aware of Plaintiff’s contention that he is relieved from participating in discovery because he does not have access to, or control over, relevant, discoverable information. Equally clear is that this Court has expressly rejected this argument. Nonetheless, in Plaintiff’s most recent motion, Plaintiff argues that discovery sanctions, including dismissal, for his failure to comply with this Court’s April 1, 2022 Order is not appropriate because he does not have access to information related to LP. Nothing has changed in the last six months. This still is not a legitimate reason for not participating in discovery, nor is it a legitimate reason for failing to comply with a Court Order. Because Plaintiff admits he has not complied with the Court’s April 1, 2020 Order, discovery sanctions are appropriate. It is clear from the Court’s Order that such sanctions may -4- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 5 of 14 include dismissal. Dismissal of this action due to Plaintiff’s failure to respond to discovery and comply with this Court’s Order is proper. By admitting that Plaintiff cannot comply with the Court’s Order, Plaintiff demonstrates exactly why dismissal is an appropriate discovery sanction. B. Plaintiff has failed to comply with this Court’s Order and dismissal is an appropriate sanction. Plaintiff does not dispute that he has failed to comply with this Court’s discovery order. Rather, in response, Plaintiff attempts to deflect and minimize the seriousness of his conduct. For example, Plaintiff would like this Court to believe that the meet and greet would have gone forward, but for Summa’s last-minute request to video record the meeting. Specifically, Plaintiff represents to this court that ten days before the scheduled meeting, defense counsel insisted on video recording the meeting. (Plaintiff’s Opposition to Defendants’ Motion to Dismiss, p. 2). Although defense counsel reiterated this condition to Plaintiff’s counsel just ten days before the scheduled meet and greet, video recording had always been Defense Counsel’s intention for the meeting. Indeed, Plaintiff’s counsel was aware of this requirement for a year prior to the scheduled meeting. (See August 3, 2021 correspondence to Plaintiff’s counsel, attached as Exhibit G to Defendants’ Motion to Dismiss). Plaintiff’s suggestion to the Court that this was a last minute condition is simply untrue. In fact, Plaintiff’s counsel was reminded that the meeting would be video-recorded on April 28, 2022 when Plaintiff’s counsel started making arrangements for the “meet and greet”; (after being compelled to do so). Specifically, when Plaintiff’s counsel offered dates for the meeting, Defense Counsel advised: Hi Ed. Could you obtain additional dates in May and June from SCCS for us to meet [LP]? Also, it would be our intention to video record the session. Could you please inquire of SCCS if they will permit video recording? We would like to proceed in our office and think that would be the most convenient location for the individuals and the attorneys attending, but will defer to SCCS on where they -5- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 6 of 14 would like this to occur. Finally, do you know who will be accompanying him? In the past, I have undertaken this with a parent present who can provide some commentary on the child’s limitations and capabilities as we are video recording. Please let us know. Thank you. –Greg (See April 28, 2022 email from Attorney Rossi, attached to Defendants’ Motion to Dismiss as Exhibit I)(emphasis added). The implication that Summa’s intent to video-record the “meet and greet” was an 11th hour requirement is simply untrue. A request for video recording under these circumstances and in a case of this nature is not unreasonable and occurs routinely. What is most noteworthy is that Plaintiff is unable to make the minor, whom he is appointed to represent for purposes of this litigation, available for video recording in connection with the litigation filed on the minor’s behalf. Plaintiff’s response to the request to video-record is that this is outside of his control and Summa must file a Motion to Compel. Summa first requested the opportunity to meet LP and make a video recording of him on August 3, 2021. This is necessary for Summa to adequately defend against Plaintiff’s claims, including submitting information for expert review. Plaintiff has not complied with the Court’s April 1, 2022 Order as it relates to the “meet and greet,” to the detriment of Summa.1 Plaintiff also has not complied with the Court’s Order as it relates to the presentation of witnesses for deposition. In an attempt to excuse his conduct, Plaintiff incorrectly represents that Summa “concedes that Plaintiff’s counsel have diligently sought to contact the other fact witnesses.” (Plaintiff’s Opposition to Defendants’ Motion to Dismiss, p. 11). That is not true. Summa does not believe that Plaintiff has worked diligently to provide discovery. In fact, the opposite is true. There is no evidence that Plaintiff made any effort to produce fact witnesses until after Summa contacted the Court in August of this year to advise of Plaintiff’s continued 1 Plaintiff argues that Summa failed to file a Motion with the Court to video-record LP at the meet and greet. Summa, however, followed the Court’s instructions and sent correspondence to the Court and Plaintiff’s counsel, outlining the discovery issues and requesting a conference to discuss. -6- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 7 of 14 obstruction of the discovery process and failure to comply with the Court’s April 1, 2022 Order. Moreover, Plaintiff has not provided deposition dates for Jenny Howard or any of the individuals with whom LP has lived, as ordered by this Court. Plaintiff also has not provided full and complete interrogatory answers, as ordered by this Court. In response, Plaintiff relies on caveats and exculpatory language that was not included in Court’s Order, such as “all information known to the Plaintiff.” (Plaintiff’s Opposition to Defendants’ Motion to Dismiss, p. 12) (emphasis added). The Court’s Order was clear and was not conditional as suggested by Plaintiff. Plaintiff has also failed to comply with discovery as it relates to the production of photographs and videos of LP. Plaintiff argues, “[r]ather than offer evidence-because they have none- defense counsel offers innuendo.” Id. at p. 14. There is no innuendo. During Olivia Patterson’s October 2021 deposition she had videos and photographs of LP in her possession that she was willing to produce to Summa. Plaintiff’s counsel instructed her not to produce the relevant items and represented that counsel would obtain all of these photographs and videos and produce them to the defense. Plaintiff’s counsel never did. Thus, Summa was forced to obtain a Court Order for the requested items. Plaintiff now claims that the records have been lost: Q. Did you provide these photographs, and I can flip through if you want, but to counsel to produce to us? A. Yes. Q. And is this the extent of all of the photographs that you have of [LP]? A. Yes. Q. Okay. So the sum total of the photographs that you have of [LP] would be the here and then there were seven in the other set, although I believe that one was a picture of your scar. So that's the entirety of the photographs that you have of [LP]? MS. WEINSTEIN: Just objection. Form. Q. Is that correct? -7- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 8 of 14 A. Yes. Q. So the total number of photographs that you have of [LP] is 23 photos? MS. WEINSTEIN: Objection. Asked and answered. You can answer again. A. Yes. Q. And you don't have any videos of [LP]? A. I have -- no, actually, I don't. I had a new phone, unfortunately. Q. The last time you were in our office in October, at that time you had video of [LP], correct? Because you were going to show those to us. Do you remember that? MS. WEINSTEIN: Objection. Form. A. Yeah, I had a phone that had all that -- all those photos and everything, but I don't have it anymore. Q. What happened to that phone? A. Actually, it broke. It literally just shut off on me. (Deposition of Olivia Patterson, 186-188). Photographs and videos of LP were available. Plaintiff however, refused to produce those documents to Summa and now claims that the relevant documents are no longer available for production. This is consistent with Plaintiff’s conduct of obstruction and non-compliance. C. Plaintiff’s subpoena to Summit County Children Services does not excuse Plaintiff’s non-compliance with this Court’s April 1, 2022 Order. Plaintiff makes multiple references to his subpoena to Summit County Children Services (“SCCS”) throughout his Brief in Opposition. This subpoena has no relation to Summa’s discovery or the Court’s April 1, 2022 Order. Plaintiff claims that the subpoenaed records “are the exact documents that Defendant Summa claims in the instant motion to be prejudiced through not receiving them.” (Plaintiff’s Opposition to Defendants’ Motion to Dismiss, p. 6). This is not an accurate statement. Summa’s discovery requests and this Court’s Order compelling the same are quite specific. Summa does not seek production of documents from SCCS. Summa merely seeks the most standard information that is immediately disclosed at the outset of any -8- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 9 of 14 medical malpractice case, including the addresses where the minor child has lived and the identity of everyone with whom he has lived and who can provide relevant information about him. Further, although Plaintiff repeatedly mentions the subpoena, notably absent from Plaintiff’s brief is any explanation why Plaintiff waited nearly five months after the Court’s order to issue the subpoena. Indeed, the subpoena was not issued until after the defense notified the Court that there was an ongoing discovery dispute as a result of Plaintiff’s failure to comply with the April 1, 2022 Order. Finally, Plaintiff’s suggestion that Summa is misleading this Court with respect to SCCS’s position on the subpoena is simply false. The statement in Summa’s brief that “SCCS strongly urges that such personal information not be disclosed,” is based on SCCS’s Motion to Quash wherein, “SCCS strongly urges the Court to quash the subpoena requiring disclosure of the name, residential address, and contact information for all persons who lived with the minor child since February 12, 2019.” (SCCS Motion to Quash, pp. 2-3) (emphasis added). Summa has not misled this Court. In fact, it is Plaintiff who attempts to mislead this Court by suggesting that SCCS is “standing neutral” with respect to the subpoenaed information. SCCS’s statement that it is “standing neutral” is made in connection to the continuation of this litigation despite the fact that neither SCCS, nor the guardian ad litem appointed to represent LP’s best interest, consented to this litigation. Notably, SCCS suggests that “[t]he Court may wish to consider staying his matter until the child has been adopted.” Id. at p. 2. Shockingly, Plaintiff suggests that “LP’s prospective adoption has no relevance to the discovery issues before the Court.” It is somewhat incredible that Plaintiff makes such a statement when it was Plaintiff’s counsel who advised Summa’s counsel that SCCS “fears that -9- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 10 of 14 disclosing [the foster parent or potential adoptive parent’s actual names] could compromise the adoption opportunity for L.P.” (See September 1, 2022 email from Attorney Aucoin, attached to Defendants’ Motion to Dismiss as Exhibit F). Based on this statement alone, it is inconceivable how Plaintiff can represent to this Court that the prospective adoption has no relevance to the discovery issues. In fact, counsel for Summa brought this to the Court’s attention during a conference call to alert the Court that Summa was again being prejudiced in discovery; while Summa does not wish to do anything to compromise LP’s adoption, this discovery is basic and necessary. The subpoena to SCCS has no bearing on Plaintiff’s failure to comply with this Court’s April 1, 2022 Order or the pending Motion to Dismiss. There is no dispute; Plaintiff has not complied with this Court’s discovery order. Dismissal is a proper sanction. D. Under the circumstances, Plaintiff’s request for costs and fees is completely inappropriate. Despite Plaintiff’s continued failure to comply with this Court’s Order, Plaintiff remarkably asks this Court to award Plaintiff attorney fees incurred in responding to Defendants’ Motion to Dismiss. Summa’s Motion was necessary as a direct result of Plaintiff’s undeniable failure to comply with this Court’s April 1, 2022 Order compelling Plaintiff to respond to discovery. Not only is Plaintiff’s request bizarre and unreasonable, it is not supported by the facts of this case nor the Civil Rule upon which Plaintiff relies. Plaintiff argues that an attorney fee award is appropriate under Civil Rule 37(A)(5)(b). in support of this argument, Plaintiff misstates the Rule as follows, “[i]f a motion for discovery under Civ. R 37 is denied, then the Court ‘shall, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both’ pay for the reasonable expenses incurrent in -10- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 11 of 14 opposing the motion, including attorney fees.” (Plaintiff’s Brief in Opposition, p. 15)(emphasis added). Ironically, Civil Rule 37(A) specifically applies to a “Motion for an Order Compelling Discovery,” not another “discovery” motion such as a Motion to Dismiss, which is the Motion currently before the Court. Civil Rule 37(A) is clear; a party may move for an order compelling discovery. Subsection 5 of this Rule, makes multiple references to “the motion,” i.e., the motion to compel. The relevant part of the Rule provides: (5) Payment of Expenses; Protective Orders. (a) If the Motion Is Granted. If the motion is granted, the court shall, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court shall not order this payment if: (i) The movant filed the motion before attempting in good faith to obtain the discovery without court action; (ii) The opposing party's response or objection was substantially justified; or (iii) Other circumstances make an award of expenses unjust. (b) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Civ.R. 26(C) and shall, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court shall not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. The award of attorney fees pursuant to Civil Rule 37(A)(5)(b) applies to a non-movant who successfully opposes a motion to compel. Here, Summa filed a Motion to Compel, which was granted, not denied. Civil Rule 37(A)(5)(b) is not applicable. Pursuant to Civil Rule 37(A)(5)(a), Summa is entitled to recover costs and fees incurred in connection with its Motion to Compel. Summa, however, has not been -11- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 12 of 14 vindictive or punitive. While there is a reasonable basis for Summa to proceed with a Motion for attorney fees, Summa has not tried to punish the Plaintiff. Summa simply has taken the steps available under the Civil Rules to try to obtain discovery necessary to defend against Plaintiff’s claims. Not only is Civil Rule 37 not applicable to Plaintiff’s request for attorney fees, the facts do not support such an award. There is no question that Plaintiff has failed to comply with the Court’s April 1, 2022 Order. There is also no question that the parties have been unable to resolve this issue. See September 6, 2022, Magistrate’s Order (“Defendants have contacted the Court regarding a discovery dispute pursuant to the case management order. The discovery dispute was not able to be resolved informally, therefore, Defendants may file a motion to compel.2)(emphasis added). The Court authorized additional motion practice at this time. Thus, it is difficult to understand how Summa could be responsible for Plaintiff’s costs associated with responding to the motion. Moreover, dismissal is a potential sanction set forth in the Court’s Order granting the Motion to Compel. Plaintiff seeks attorney fees pursuant to Civil Rule 37(A)(5)(b). This rule applies when a Motion to Compel is denied. Here, Summa’s Motion to Compel was granted. Thus, if any party is entitled to expenses, including attorney fees, it is Summa, not Plaintiff. See Civ. R. 37(A)(5)(a). Plaintiff’s Request for Attorney Fees and Costs must be denied. E. Oral Argument Summa joins in Plaintiff’s Request for an oral argument on the pending motions and further requests that such hearing be conducted in-person. 2 Summa already filed a motion to compel. A second motion to compel on the same issues already addressed by the Court was not necessary. Thus, Summa interpreted the Magistrate’s Order to mean that Summa could file the appropriate motion due to Plaintiff’s failure to comply with the Court’s prior order granting Summa’s Motion to Compel. -12- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 13 of 14 III. CONCLUSION For the reasons set forth herein, as well as Summa’s Motion to Dismiss, dismissal of this action is appropriate due to Plaintiff’s failure to comply with this Court’s April 1, 2022 Order compelling discovery. Additionally, Plaintiff’s request for attorney fees pursuant to Civil Rule 37(A)(5), must be denied. Under this Rule, when a motion to compel is granted, as is the case here, attorney fees shall be awarded to the movant, not the party who opposed the motion to compel. Clearly, Plaintiff is not entitled to recover attorney fees for opposing a motion that was granted. Finally, Summa joins in Plaintiff’s request for an oral argument and further requests that such hearing be conducted in-person. Respectfully submitted, /s/ Emily R Yoder Gregory T. Rossi, Esq. (0047595) Rocco D. Potenza, Esq. (0059577) Emily R. Yoder, Esq. (0084013) HANNA, CAMPBELL & POWELL, LLP 3737 Embassy Parkway, Suite 100 Akron OH 44333 (330) 670-7612 (T) * (330) 670-6453 (FAX) eyoder@hcplaw.net Counsel for Defendants Summa Health System, Summa Health, Summa Physicians, Inc., Cheryl Johnson, M.D., Ashley L. Ballester, M.D. and Meredith Bellamy, D.O. Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 10/11/2022 10:58:55 AM REPL Page 14 of 14 CERTIFICATE OF SERVICE Pursuant to Civil Rule 5(B)(2)(f), I hereby certify that copy of the foregoing Defendants’ Reply in Support of Motion to Dismiss was sent via the Summit County Court Clerk of Courts E-Filing System and via electronic mail, this 11th day of October, 2022, to: Edward J. Aucoin, Jr., Esq. Counsel for Plaintiff Lisa Weinstein, Esq. James B. Puritz, Esq. Grant & Eisenhofer 30 N. LaSalle Street, Suite 2350 Chicago IL 60602 eaucoin@gelaw.com lweinstein@gelaw.com jpuritz@gelaw.com Pamela Pantages, Esq. Nurenberg Paris Heller & McCarthy, Co., LPA 600 Superior Avenue East, Suite 1200 Cleveland OH 44114 ppantages@nphm.com /s/ Emily R Yoder Emily R. Yoder, Esq. (0084013) Counsel for Defendants Summa Health System, Summa Health, Summa Physicians, Inc., Cheryl Johnson, M.D., Ashley L. Ballester, M.D. and Meredith Bellamy, D.O. <> Sandra Kurt, Summit County Clerk of Courts