Motion to Compel in L P (A MINOR) VS SUMMA HEALTH, DBA SUMMA HEALTH SYS.-AKRON| Trellis.Law

On February 12, 2020 a Motion-Secondary was filed involving a dispute between P, Patterson, Olivia, and Ballester, M.D., Ashley, Bellamy, D.O., Meredith, Johnson, M.D., Cheryl, Summa Health, Dba Summa Health Sys.-Akron, Summa Physicians, Inc., for MEDICAL MALPRACTICE in the District Court of Summit County.

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CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/15/2022 14:15:48 PM 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,

vs.
DEFENDANTS’ REPLY IN SUPPORT
SUMMA HEALTH SYSTEM, et al. OF MOTION TO COMPEL

Defendants

Defendants, Summa Health System, Summa Health, Summa Physicians, Inc., Cheryl

Johnson, M.D., Ashley L. Ballester, M.D. and Meredith Belleny, D.O. (hereinafter, collectively,

“Summa”), for their Reply in Support of Motion to Compel state as follows:

I INTRODUCTION

As set forth in Summa’s Motion to Compel, there is a legitimate discovery dispute that

the parties are not able to resolve without Court intervention. Plaintiff's Response to Defendants’

Motion to Compel further demonstrates Plaintiff's failure to appropriately participate in

discovery, which necessitated Summa’s Motion to Compel. Summa has repeatedly requested

information and documents necessary to defend against Plaintiff's claims. Summa’s most recent

request for discovery was via letter sent to Plaintiff's counsel on January 27, 2022. Despite the

representations in Plaintiff's response brief, Plaintiff did not provide any substantive response to

Summa’s January 27 letter; thus, necessitating the Motion to Compel.

Sandra Kurt, Summit County Clerk of Courts
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Plaintiff's suggestion that Plaintiff's February 23, 2022 letter was sent before Summa

filed its Motion to Compel is misleading, at best. There is no question that Summa’s Motion to

Compel was filed on February 23, 2022 and the motion was served by the Court’s electronic

filing system the same day at 11:28 a.m. (See Exhibit A). Additionally, a copy of the Motion to

Compel was emailed to Plaintiff's counsel at 11:48 a.m. (See Exhibit B). Plaintiff's letter was

emailed at 5:25 p.m.; six hours after Plaintiffs counsel was served with the Motion to Compel.

(See Exhibit C). From the timing, one can reasonably infer that Summa’s Motion to Compel

prompted Plaintiffs counsel to send the February 23, 2022 letter.

Plaintiff further misrepresents the procedural posture of this case by stating to this Court

that, “[t]he Juvenile Court did not allow Mr. Rossi, counsel for Defendants, to attend that closed

hearing upon his request.” (Plaintiff's Response to Defendants’ Motion to Compel at p. 3).

Plaintiff's intentional deception is apparent from Plaintiff's failure to attach defense counsel’s

February 17, 2021 correspondence wherein defense counsel advised Plaintiff's counsel

The hearing is scheduled for two days next week, Monday, February 22, 2021 and
Tuesday, February 23, 2021, Case Number DN 19-05-548. We reached out to the
Juvenile Court to inquire if we could attend the proceeding. Sarah Testa (email:
stesta@cpcourt.summitoh.net) advised that they could forward a Zoom link for
the hearing next week to us. She indicated that Judge Teodosio advised that she
will inquire with the parties and counsel if anyone objects to the observation on
the record on Monday.

T have a conflict with the hearing on Monday and would most likely have my
partner, Emily Yoder, attend. I think it would be very beneficial for us on the
defense to have the ability to observe as it would provide us further information
and would assist us in assessing the claim.

I wanted to advise you of this in advance to ascertain if you would intend to
object to us observing the proceedings. In the event you do not, I would think the
Court, Sarah Testa, could provide you with a Zoom link to attend and observe, as
well.

(February 17, 2021 correspondence attached as Exhibit A) (emphasis added).

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Sandra Kurt, Summit County Clerk of Courts
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Thereafter, and through an email exchange, when it was clear Plaintiff's counsel would

object, defense counsel indicated they would not attend. Any representation in Plaintiff's Brief to

the contrary is disingenuous. This is just an example of Summa’s inability to obtain discovery

despite its best efforts.

Remarkably, a review of Plaintiffs brief reveals Plaintiff's failure to participate in

discovery in a meaningful way. Indeed, Plaintiff continues to argue that he should be relieved

from discovery because he is not in possession of facts, information, and documents central to

the claims asserted. Because of this, more than two years after this case was filed, Summa still

lacks basic information about Plaintiff's claims including updated medical records and general

background information about LP. Summa cannot defend against Plaintiffs claims without

discovery. Plaintiff's conduct is completely adverse to the spirit of Civil Rule 26 and should not

be permitted.

IL PROCEDURAL HISTORY

As set forth in Summa’s Motion to Compel, throughout the pendency of this case,

whether through written discovery requests, e-mails, or verbally, Summa has repeatedly

requested information and documents. The case has been pending for two years and Plaintiff has

not responded to the most basic discovery requests. Rather, it is Plaintiff's position that he is

relieved from participating in discovery because he is “incapable of providing” and has an

“inability to provide information and documents.” (Plaintiff's Response to Defendant’s Motion

to Compel at p. 7). How can a party’s guardian and lawyers be “incapable” of providing basic

information central to the claims asserted? If Plaintiff and counsel have authority to represent

LP, how are they “incapable” of providing basic information central to the claims asserted?

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Sandra Kurt, Summit County Clerk of Courts
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ii. LAW AND ARGUMENT

A Plaintiff has failed to produce LP’s medical records.

Plaintiff has not produced any medical records for LP for any treatment between

December 2019 and the present. As such, defense counsel has no medical records for this child

dating back over two years. Plaintiff attempts to justify this failure by noting that some records

were produced. Plaintiff is not relieved from his Rule 26 burden to respond to discovery by

producing some records. Likewise, the fact that “the identity of those providers was beyond

Plaintiff's personal knowledge and control” is an equally insufficient excuse for Plaintiffs

failure to produce a single medical record for any treatment LP has received in the last two years.

It would seem to be beyond the need for stating, but in any medical malpractice case the

plaintiff's medical records are produced by the plaintiff, as a matter of course. This is especially

true in a birth injury case such as this. Summa fully expects that Plaintiff will argue that LP’s

injuries are severe and permanent. It is extraordinarily prejudicial to deny the defense access to

the very records that would allow the defense to evaluate LP’s current condition. Moreover,

Plaintiff has had an order from the Probate Court to obtain LP’s records for more than four

months, but has failed to produce any records.

Now, when challenged on this conduct, Plaintiff attempts to shift blame to the defense

and suggests that Summa should have issued subpoenas directly to Summit County Children

Services (“SCCS”) and/or LP’s medical providers. (Plaintiff's Response to Defendants’ Motion

to Compel, p. 10). Plaintiffs position is shocking based on Plaintiffs contention that all SCCS

records are privileged. Moreover for the past two years, Summa has been unaware of the identity

of LP’s healthcare providers. Plaintiff is attempting to force the defense to obtain general

information about LP via subpoena because Plaintiff has been unable to access this information

Sandra Kurt, Summit County Clerk of Courts
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himself. Again, how can a defendant possibly be expected to defend a case of this nature without

this fundamental information?

B. Plaintiff must be ordered to allow Summa a “meet and greet” with LP
and to make LP available for examination by the defense experts.

Summa is entitled to a medical examination of LP. Nonetheless, when confronted,

Plaintiff attempts to blame the defense by suggesting that Summa’s request to have LP examined

by defense experts “is [a] thinly disguised attempt to make an end-run around Civ.R. 35.” What

does this even mean? Summa is entitled to an IME of LP. Plaintiff is unable to make LP

available for examination to Plaintiff's or Summa’s experts. Accordingly, Plaintiff petitioned the

Probate Court and obtained an order permitting Plaintiff's experts, but not Summa’s experts, to

examine LP. It is clear that Plaintiff is engaged in inappropriate gamesmanship.

Further, it is impossible at this juncture to determine which, if any, defense experts

should perform an IME when Plaintiff has not produced relevant medical records, has not made

LP available for observation, has not produced even a single photograph or video of LP, and has

not made available any witness with knowledge of LP’s current condition, medical needs, or

prognosis. Typically, in cases of this nature, the plaintiff produces the relevant medical records

and then makes the child available for the defense to meet and potentially video record. The

plaintiff also presents for deposition individuals knowledgeable about the child’s condition, i.e.,

the parents and/or family.

Unfortunately, because Plaintiff has refused to cooperate with discovery in any

meaningful way, Summa is unable to determine whether an IME is even necessary. Because

Plaintiff clearly does not have access to LP and is unable to make him available to defense

experts if necessary, Plaintiff should have requested the same access to LP for Plaintiff and

Sandra Kurt, Summit County Clerk of Courts
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defense experts. The fact that Plaintiff has no provided the defense any of this information has

impeded and prejudiced Summa from defending against Plaintiff's claims.

Cc Plaintiff_must_be_ordered_to permit Ms. Patterson to provide
deposition testimony on relevant, non-privileged_topics_and_to
chedule the depositions of other fact witnesses.

Summa has requested legitimate discovery in the way of depositions of the Plaintiff and

fact witnesses. Plaintiff has refused to cooperate and an order from this court is necessary.

1. Summa is entitled to the discovery depositions of trial witnesses.

With respect to depositions of other fact witnesses, Plaintiff again attempts to distract the

Court from the issue at hand by shifting the focus to the defense. Plaintiff argues that by

requesting discovery depositions of individuals who will testify at trial, Summa “seeks a tactical

litigation advantage by early disclosure of Plaintiffs trial witnesses.” (Plaintiff's Response to

Defendants’ Motion to Compel, p. 12). Summa is not seeking a “tactical advantage.” Rather,

Summa is seeking to avoid trial by ambush, which is precisely what the civil rules are designed

to avoid, by deposing fact witnesses prior to trial. This is completely appropriate and consistent

with the civil rules. To the extent that Plaintiff wants to maintain the secrecy of his trial

witnesses and not make them available for deposition, Summa will object to them testifying at

trial. Of course, the more practical (and common) approach however, is to make the individuals

available for deposition.

2. Plaintiff agrees that Summa is entitled to the discovery deposition
of Michael Renne despite refusing to provide dates for the
deposition prior to Summa filing its Motion to Compel.

Prior to filing its Motion to Compel, Summa requested the deposition of Plaintiff Michael

Renne. Dates for the deposition however, were never provided and Summa was forced to file a

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Sandra Kurt, Summit County Clerk of Courts
CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/15/2022 14:15:48 PM REPL Page 7 of 14

Motion to Compel. Now that Summa has sought Court intervention, Plaintiff is apparently

willing to provide deposition dates.

3. Summa is entitled to depose the individuals with whom LP has
lived.

Not surprisingly, Summa seeks to depose the individuals with whom LP resides. Plaintiff

however does not know anything about these individuals including their names or where they

live. Thus, Plaintiff cannot identify or make them available for deposition.

4, Summa is entitled to deposition testimony from LP’s mother
concerning events that occurred during the first few months of his
life and that resulted in her parental rights being terminated,
permanently.

Plaintiff seeks to prohibit Summa from questioning LP’s mother about significant events

that occurred when LP was an infant and in her custody. Plaintiff acts like this request is

unreasonable. It is difficult however, to imagine how this information is not discoverable in a

medical malpractice case alleging a birth injury resulting in brain damage. In order to obstruct

Summa’s ability to present a defense, Plaintiff misrepresents the facts and law. Specifically, the

statutes Plaintiff cites protect from disclosure SCCS records only. Despite Plaintiffs

representations to this Court, the cited statutes do not render information within Ms. Patterson’s

personal knowledge privileged. There is no legal basis for Plaintiff's argument. Further, as set

forth above, Plaintiff's representations concerning the custody hearing are simply false. An order

compelling LP’s mother to answer deposition questions concerning LP is necessary.

D Plaintiff_must_be compelled _to_provide_complete_interrogatory
answers.

Plaintiff has provided incomplete interrogatory answers. Plaintiff again however, claims

that the incomplete answers are sufficient because Plaintiff lacks the information necessary to

respond to interrogatories. Specifically, “Plaintiff does not have personal knowledge of the

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Sandra Kurt, Summit County Clerk of Courts
CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/15/2022 14:15:48 PM REPL Page 8 of 14

information sought in Interrogatory No. 2”, i.e., “L.P.’s current residence address, the individuals

with whom he resides, and their relationship with him.” If Plaintiff is unable to provide this

information, the only logical conclusion is that Plaintiff cannot adequately represent LP’s

interests in this case. Additionally, despite Plaintiff's representations, a complete answer was not

provided in response to Interrogatory No. 4.

E. Plaintiff_must_be ordered _to produced relevant _and discoverable
prenatal records.

Summa has requested all of Olivia Patterson’s prenatal records. This is a standard request

in a birth injury case, such as this. These records are relevant to the defense experts’ review of

the case. Plaintiff's failure to timely produce these records has prejudiced the defense; especially

in light of the June 30, 2022 defense expert deadline. An order compelling Plaintiff to produce

these records is necessary.

F. Plaintiff has failed _to_ produce photographs and videos of LP, a:
previously agreed.

During Oliva Patterson’s deposition four months ago the defense requested photographs

and videos of LP. Ms. Patterson was prepared to provide this information during her deposition.

Plaintiff's counsel however, interjected and advised that they would collect the documents from

Ms. Patterson and provide them to the defense. Summa has continued to request this information

since Ms, Patterson’s deposition, but it has not been provided. Plaintiff doesn’t dispute that

photographs and videos are responsive and discoverable; but, offers no explanation for why they

have not been provided. Clearly a Court order is necessary to obtain this information.

G. Plaintiff must_be ordered to provide placental pathology recuts to
Summa for review and analysis by the defense experts.

Plaintiff suggests that because the parties are working amicably on the issue concerning

the placental pathology recuts, court intervention is unnecessary. Plaintiff's position ignores the

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Sandra Kurt, Summit County Clerk of Courts
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obvious; Summa requested the recuts over a year and a half ago and they still have been not

provided. Based on this history, a court order is necessary to ensure that Plaintiff produces the

placental pathology recuts, which Plaintiff agrees Summa is entitled to receive.

Iv. CONCLUSION

Plaintiff admits that he has failed to provide relevant and discoverable information.

Plaintiff however, argues that he should be excused from participating in discovery because he is

not in possession of this information. Plaintiffs position ignores the obvious; Plaintiff petitioned

the Probate Court to be appointed guardian of LP’s Estate for purposes of pursuing this medical

malpractice case on LP’s behalf. Plaintiff is voluntarily pursing this action for LP and must be

ordered to participate in discovery in accordance with the civil rules. Accordingly, Summa

requests that its motion be granted.

Respectfully submitted,

/s/ Gregory T. Rossi, Esq.
Gregory T. Rossi, Esq. (0047595)
Rocco D. Potenza, Esq. (0059577)
Emily R. Yoder (0084013)
HANNA, CAMPBELL & POWELL, LLP
3737 Embassy Parkway, Suite 100
Akron, Ohio 44333
Phone: 330-670-7300
Fax: 330-670-0977
grossi@hcplaw.net
rpotenza@hcplaw.net
:yoder@hcplaw.net

Counsel for Defendants
Summa Health System, Summa Health, Summa
Physicians, Inc., Cheryl Johnson, M.D., AshleyL.
Ballester, M.D. and Meredith Bellamy, D.O.

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Sandra Kurt, Summit County Clerk of Courts
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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Defendants’ Reply in Support of Motion to

Compel was served via email this 15" day of March, 2022 to:

Lisa Weinstein, Esq. Counsel for Plaintiff
Grant & Eisenhofer
30N. LaSalle Street, Suite 2350
Chicago IL 60602
lweinstein@gelaw.com

Pamela Pantages, Esq. Counsel for Plaintiff
Nurenberg Paris Heller & McCarthy, Co., LPA
600 Superior Avenue East, Suite 1200
Cleveland OH 44114
ppantages@nphm.com

/s/ Gregory T. Rossi. Esq.
Gregory T. Rossi, Esq. (0047595)
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 03/15/2022 14:15:48 PM REPL Page 11 of 14

Greg Rossi

From: DoNotReplySCCOC@summitoh.net
Sent: Wednesday, February 23, 2022 11:34 AM
To: Greg Rossi
Subject: SCCOC E-Filing ~ Secondary Filing Accepted — CV-2020-02-0578

STi ia eel iia ee (Te aol meol acy

Secondary Filing Acceptance
The Summit County Clerk of Courts has accepted your secondary electronic filing. Review the details
below and retain for your records. If your filing included a proposed order, it will be forwarded to the
appropriate court staff for review.

Case Details

Caption: LP (A MINOR) vs SUMMA HEALTH, DBA SUMMA HEALTH SYS.-AKRON
Case Number: CV-2020-02-0578
Assigned Judge: MARY MARGARET ROWLANDS
Filed By: GREGORY ROSS!
Filed On Behalf Of: SUMMA PHYSICIANS, INC.
File Date: 2/23/2022 11:28:18 AM
Transaction ID: 772392

Case Parties

*A copy of this Acceptance E-mail was sent to the e-mail addresses listed below. If an e-mail address
is not listed, no e-mail was sent to that party.*
Party Type Party Name E-Mail Address
Judge ROWLANDS, MARY MARGARET Mhom@cpcourt.summitoh.net
Defense
YODER, EMILY R Eyoder heplaw.net
Attorney
Defense
Attorney
ROSSI, GREGORY TALBOT rossi hcplaw.net

Plaintiff Attorney PANTAGES, PAMELA docket nphm.com
Defense
POTENZA, ROCCO DOMINIC rpotenza@hcplaw.net
Attorney
Defendant BELLAMY, D.O., MEREDITH
Defendant BALLESTER, M.D., ASHLEY L.
Defendant JOHNSON, M.D., CHERYL
Plaintiff PATTERSON, OLIVIA EXHIBIT

Sandra Kurt, Summit County Clerk
CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/15/2022 14:15:48 PM REPL Page 12 of 14

Plaintiff Attorney BRANCATO, KIMBERLY M KBRANCATO@GELAW.COM
Plaintiff Attorney AUCOIN, JR, EDWARD J EAUCOIN@GELAW.COM
Plaintiff Attorney WEINSTEIN, LISA B LWEINSTEIN@GELAW.COM
Plaintiff P (A MINOR), L
Defendant SUMMA PHYSICIANS, INC.
SUMMA HEALTH, DBA SUMMA HEALTH SYS.-
Defendant
AKRON

Documents Filed

Document ID Document Name Document Title
13428541 MOTION FOR LEAVE View Image
13428542 MOTION TO COMPEL DISCOVERY View Imaq:

Proposed Orders Filed

Proposed Order
Document Title
ID

178532
ORDER - MOTION FOR LEAVE TO FILE EXHIBITS AND DEPOSITION
TESTIMONY

Payment Information

Fee Type Fee Amount Transaction Information
Filing Fee $0.00 Authorization Number:
Service Fee $0.00
Transaction Fee $0.00
Total Fees Charged $0.00
If you have any questions, please contact the Summit County Clerk of Courts at 330-643-2211.
Please have your case number handy.

Sandra Kurt, Summit County Clerk of Courts
CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/15/2022 14:15:48 PM REPL Page 13 of 14

Emily Yoder ee
From: Denise Reddy
Sent: Wednesday, February 23, 2022 11:48 AM
To: lweinstein@gelaw.com; ppantages@nphm.com
Subject: Renne, etc. v. Summa Health System
Attachments: Defendants’ Motion to Compel (w Exhibits).pdf

Please find the Defendants’ Motion to Compel (with Exhibits) in this matter.

This will be the only form of transmittal. Thank you.

Denise Reddy
Legal Assistant to R. Brian Borla, Emily R. Yoder
and Frank G. Mazgqj, Jr.
HANNA, CAMPBELL & POWELL, LLP
3737 Embassy Parkway, Suite 100
Akron, Ohio 44333
Direct: (330) 670-7632
Fax: (330) 670-7453

This transmission may contain confidential and/or privileged information which is intended solely for the use of the
intended recipient(s). If you are not an intended recipient, or a person responsible for delivering this transmission to an
intended recipient, please do not disseminate this transmission or take any action in reliance on its contents. If you
have received this transmission in error, please delete this transmission and immediately notify the sender of the error.

EXHIBIT

ease
Sandra Kurt, Summit County Clerk of Courts
CV-2020-02-0578 ROWLANDS, MARY MARGARET 03/15/2022 14:15:48 PM REPL Page 14 of 14

Emily Yoder

From: Corinne Ernst
Sent: Wednesday, February 23, 2022 5:25 PM
To: Greg Rossi; Edward J. Aucoin; Lisa Weinstein
Cc: Emily Yoder; Deborah Solomon; Kimberly Brancato; ppantages@nphm.com
Subject: Patterson v. Suma Health - Correspondence [IWOV-BIRTHINJURY.FIDS15802]
Attachments: Patterson - CORR - Letter to Atty Rossi RE Pathology Protocol and Discovery -
2.23.22.pdf

Good Afternoon All,

Attached please find correspondence from Lisa Weinstein.

Thank you,

Corinne Ernst
Paralegal
Grant & Eisenhofer, P.A.
30 N. LaSalle Ave.
Chicago, IL 60602
Direct Phone: 312-610-5400
Email: cernst@gelaw.com

EXHIBIT

Sandra Kurt, Summit Count Ourts

Case Info

Judge

MARY MARGARET ROWLANDS Track Judge’s New Case

Case No.

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Document Filed Date

March 15, 2022

Case Filing Date

February 12, 2020

County

Parties

BALLESTER, M.D., ASHLEY Defendant
BELLAMY, D.O., MEREDITH Defendant
JOHNSON, M.D., CHERYL Defendant
P (A MINOR), L Plaintiff
PANTAGES, PAMELA Attorney for the Plaintiff
PATTERSON, OLIVIA Plaintiff
ROSSI, GREGORY Attorney for the Defendant
SUMMA HEALTH, DBA SUMMA HEALTH SYS.-AKRON Defendant
SUMMA PHYSICIANS, INC. Defendant
Edward Jones Attorney
Rocco Potenza Attorneys for Defendants
Carol Tran Attorneys for Defendants
Catherine Van Horne Attorneys for Plaintiffs
James Brightbill Attorney
Michael Renne Attorney
Jonathan Amy Attorney
Lisa Bolen Attorney
Kimberly Miyazawa Attorney

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Motion-Secondary: L P (A MINOR) VS SUMMA HEALTH, DBA SUMMA HEALTH SYS.-AKRON

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Case Info

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