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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’ MOTION TO DISMISS
SUMMA HEALTH SYSTEM, et al. )
)
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”) file their Motion to Dismiss due to Plaintiff’s failure to comply with this Court’s
April 1, 2022 Order. Throughout this litigation, Plaintiff has failed to provide very basic
information related to LP, a minor, such as where he lives and the individuals with whom he
lives. Plaintiff has also refused to provide other information that is highly relevant and
discoverable. As a result of Plaintiff’s conduct, Summa was forced to seek court intervention to
obtain information crucial to the defense of this case. On April 1, 2022, Plaintiff was ordered to
provide certain discovery items to Summa. At that time, Plaintiff was notified that failure to
comply with this Court’s Order could result in dismissal of the Complaint. Plaintiff has failed to
comply with this Court’s Order. Specifically, Plaintiff has filed to do all of the following:
Provide a date for the defense meet and greet with LP;
Identify all individuals with whom LP has lived;
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Provide dates for depositions of Plaintiff’s fact witnesses;
Provide complete answers to interrogatories; and
Provide photographs and videos of LP.
It is clear that Plaintiff does not intend to participate in discovery in a manner consistent
with the Civil Rules, nor does Plaintiff intend to comply with this Court’s Orders. Accordingly,
dismissal is appropriate in accordance with Ohio Civil Rules 37 and 41.
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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MEMORANDUM IN SUPPORT
I. INTRODUCTION
This is a medical malpractice action wherein Plaintiff makes very serious allegations
against Summa concerning the care and treatment provided to Olivia Patterson in connection
with the labor and delivery of her son LP, a minor. Plaintiff claims that because of the negligent
medical care provided by Summa, LP sustained severe and permanent injuries. Despite these
very serious allegations, Plaintiff has failed to participate in discovery in a meaningful way.
Summa attempted to obtain discovery from Plaintiff without Court intervention. These attempts
however, were unsuccessful. Accordingly, Summa filed a motion to compel. This motion was
granted on April 1, 2022 and Plaintiff was ordered to provide certain information. Plaintiff
however, has not complied with this Court’s Order.
II. FACTUAL AND PROCEDURAL BACKGROUND
LP was born on February 12, 2019. Shortly thereafter, Summit County Children Services
(“SCCS”) became involved with LP. This medical malpractice case was initiated on
February 12, 2020 when LP, by and through his mother Olivia Patterson, and Olivia Patterson
individually filed suit against Summa. On April 14, 2020, an Application for Guardianship was
filed by Michael Renne, in the Summit County Probate Court, to serve as legal guardian of LP
for purposes of pursuing personal injury litigation and receive settlement. On May 27, 2020,
Michael Renne was appointed Guardian of the Estate of LP, for purposes of this litigation only.
On August 19, 2020, Plaintiff sought leave to amend the complaint, to substitute guardian
Michael Renne as the proper Plaintiff to represent LP’s interest. This motion was granted and the
case proceeded, albeit slowly, with Olivia Patterson, individually, and Michael Renne, as
guardian. On September 29, 2020, SCCS moved for permanent custody of LP. The case
proceeded to a permanent custody hearing in February 2021. SCCS has since obtained
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permanent custody of LP. Notably, the day before her deposition, Olivia Patterson voluntarily
dismissed her claims, without prejudice.
Since that time, the case has proceeded with Michael Renne as the sole Plaintiff. Plaintiff
however, has been unable to provide meaningful information in response to discovery because he
has no information about LP. Michael Renne has never met LP or Olivia Patterson. He has no
information concerning LP’s condition, prognosis, abilities, likes, dislikes or daily schedule. By
his own admission his role as guardian of the estate is limited to the “financial aspect,” only. (“I
was appointed guardian of the estate, which in Ohio is limited to a guardianship over the
financial aspect, the money or property of the ward.”). (Deposition of Michael A. Renne, Esq. at
32:23-25; 33:1). In response to questions from his own counsel, Mr. Renne testified:
Q And does that mean, you know, do you have the ability to make medical
decisions for the minor, [LP]?
A. No, I have no ability or responsibility with respect to medical decisions.
Q. Do you have, as guardian, as you were appointed, do you have any ability to
make decisions regarding where [LP] lives?
A. I do not.
Q. Do you have any ability to make any decision regarding who the guardian of
the person is?
A. I do not.
Id. at 32:2-13.
On February 23, 2022, after repeated requests to Plaintiff to provide information in
response to discovery requests, Summa filed a Motion to Compel. This Motion was fully briefed
and the Court conducted a telephone conference call in an attempt to resolve the discovery
dispute. During the conference call it was suggested that Plaintiff voluntarily dismiss the case,
without prejudice, due to Plaintiff’s lack of information about LP and Plaintiff’s inability to
participate in discovery. Plaintiff rejected this idea.
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On April 1, 2022, this Court granted Summa’s Motion to Compel and ordered Plaintiff to
participate in discovery by providing the defense with information related to LP and directly
relevant to the claims asserted against Summa. Thereafter, Plaintiff complied with a few of the
items in the Court’s April 1, 2022 Order, but has failed to fully comply with the Court’s Order
despite the fact that four and a half months have passed.
On August 17, 2022, defense counsel notified this Court of Plaintiff’s failure to comply
with the Court’s discovery order as it pertains to a meet and greet with LP. (See Exhibit A,
attached hereto). On August 22, 2022, Plaintiff’s counsel advised that a subpoena was served on
SCCS on July 21, 2022. The subpoena was never sent to the defense and it was ultimately
discovered that the subpoena was never actually served on SCCS. (See Exhibit B, attached
hereto). The subpoena sought production of the following items:
[LP’s] medical records and bills from February 12, 2019 to present; Identity of all
individuals with whom [LP] has lived from February 12, 2019 to present; Full
name, date of birth, residential address, and contact information (telephone and
email) for all persons identified
(See Exhibit C, attached hereto). In addition to not ever being served, the subpoena was deficient
to the extent that it was not actually seeking the production of documents.
On August 24, 2022, the defense sent a second letter notifying the Court of additional
ways in which Plaintiff has failed to comply with this Court’s April 1, 2022 discovery order. (See
Exhibit D, attached hereto). On August 26, 2022, Plaintiff’s counsel provided a service copy of a
new subpoena that was being issued to SCCS. (See Exhibit E, attached hereto). This subpoena
seeks production of the following documents:
1. Any documents and/or electronically stored information that contain [LP’s]
medical records, DOB: 2/12/2019 to the present.
2. Any documents and/or electronically stored information that contain [LP’s]
education, school and/or social service records, DOB: 2/12/2019 to the
present.
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3. Any documents and/or electronically stored information that identifies each
physician and/or health care provider who has examined or treated [LP] since
2/12/2019.
4. Any documents and/or electronically stored information that identifies the
policy number, group number, plan number and/or member number related to
any insurance plan, Medicaid and/or Medicare coverage/benefits for [LP]
since 2/12/2019.
5. Any documents and/or electronically stored information that identifies any
and all benefits which have been paid on behalf of [LP] or that have been
received by [LP].
6. Any documents and/or electronically stored information that identifies any
and all physicians, healthcare or social service practitioners from whom [LP]
has received medical treatment or sought consultation since 2/12/2019.
7. Any documents and/or electronically stored information that identifies any
and all hospitals, clinics, Urgent Care Centers, or other medical/mental health
care institutions where [LP] was admitted, received treatment, or sought
consultation since 2/12/2019.
8. Any documents and/or electronically stored information that identifies any
and all bills for medical care and treatment incurred by [LP] since 2/12/2019.
9. Any photographs, videos or other recordings of [LP] since 2/12/2019.
10. Any documents and/or electronically stored information that identifies the full
name(s) of [LP’s] guardian(s) since 2/12/2019;
11. Any documents and/or electronically stored information that identify the
individual or entity who/which currently has custodial rights to [LP] and
provide the address of the individual/entity;
12. Any documents that identity [LP’s] current residence address, individuals with
whom he resides, and their relationship with him;\
13. Any documents that identity [LP’s] former residence address, individuals with
whom he resided, and their relationship with him since 2/12/2019;
14. Any documents and/or electronically stored information that identify [LP’s]
custodial relationship and the address(es) of his custodian since 2/12/2019;
15. Any documents and/or electronically stored information that identify any
custody or any visitation rights regarding [LP], including but not limited to
any visitation schedules since 2/12/2019;
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16. Any documents and/or electronically stored information related to the
custodial rights of [LP] since 2/12/2019; and
17. Any documents and/or electronically stored information received from any
court involving the custodial rights of [LP].
SCCS has filed a Motion to Quash the subpoena citing privacy concerns for LP’s foster family,
as well as a potential adoptive family.
In its Motion to Quash, SCCS notes that LP was in SCCS’s custody when this lawsuit
was initiated. (Motion to Quash, p. 1). Nonetheless, “[t]he Attorney/Guardian ad litem who was
appointed to represent the best interest of the child in Summit County Juvenile court did not
initiate or consent to the within lawsuit.” Id. at p. 2. SCCS “strongly urges the Court to quash
the subpoena requiring disclosure of the name, residential address, and contact information for
all persons who have lived with the minor child since February 12, 2019.” Id. at pp. 2-3
(emphasis added). It is also noted that LP’s “current foster parents do not consent to their
personal identifying information being disclosed in this lawsuit.” Id. at p. 3 (emphasis added).
Most importantly, SCCS has concerns that disclosing the foster parents or potential adoptive
parents’ actual names could compromise the adoption opportunity for LP. (See Exhibit F,
attached hereto).
This Court has conducted several status conferences concerning Plaintiff’s failure to
comply with the Court’s April 1, 2022 Order. During these calls with the Court, it has been
suggested that Plaintiff voluntarily dismiss the claims to allow LP’s adoption to proceed. Once
the adoption is complete, LP’s adoptive parents can decide whether it is in LP’s best interest to
reinitiate this litigation. Presumably, LP’s adoptive parents will be able to participate in
discovery in ways that the current Plaintiff has been unable to. Specifically, it is anticipated that
the adoptive parents will be able to provide information concerning LP’s condition, prognosis,
treatment, daily routine, abilities, inabilities, limitations, likes, dislikes; i.e., all of the information
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that Plaintiff has been unable to provide in the years that this case has been pending. Plaintiff’s
counsel however is unwilling to voluntarily dismiss the case because LP only gets one “free”
dismissal. Interestingly, when a stipulated dismissal was suggested, which would allow LP to
retain the “free” dismissal, this was also rejected by Plaintiff’s counsel.
Finally, multiple case management schedules have been entered in the two and a half
years that this case has been pending. Most recently, the parties filed a joint motion to amend the
case management schedule on April 1, 2022 due in part to the ongoing discovery dispute. A
second amended case management schedule was entered on April 21, 2022, which includes the
following dates and deadlines:
Discovery shall be completed by December 30, 2022.
Plaintiff’s expert identification and report due January 31, 2023.
Defendant’s expert identification and report due May 1, 2023.
Dispositive motions and proposed orders shall be filed on or before July 10, 2023.
This case is scheduled to proceed to trial on October 16, 2023. Based on Plaintiff’s conduct with
respect to discovery, it is unlikely that this matter will be able to proceed to trial as currently
scheduled. At the very least, the defense is at a serious disadvantage due to Plaintiff’s failure to
participate in discovery and comply with this Court’s discovery order. Notably, unlike Plaintiff,
the defense does not have a “free” dismissal and does not have the ability to voluntarily dismiss
the case if Plaintiff does not respond to discovery with sufficient time to comply with expert
deadlines.
IV. DISCOVERY AT ISSUE
On April 1, 2022, the Court entered an order compelling Plaintiff to do the following:
1. Produce all of L.P.’s medical records and bills no later than April 14,
2022;
2. Provide a date for the defense meet and greet with L.P. Defendants shall
file a motion for its experts to examine L.P. if the parties are unable to
reach an agreement;
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3. Provide a date for the continuation of Olivia Patterson’s deposition on
topics Ms. Patterson was previously instructed not to answer; provide a
date for Plaintiff’s deposition; identify all individuals with whom L.P. has
lived; and provide dates for depositions of Plaintiff’s fact witnesses,
regardless of whether Plaintiffs will call them as witnesses at trial – it
should be clear to the parties that Plaintiffs may not produce a witness at
trial that was not disclosed to Defendants via discovery. It should also be
clear to the parties, that discovery expires prior to the date the parties are
to submit their trial witness and exhibit lists. To suggest that a party wait
until after discovery concludes to disclose a fact witness Plaintiffs intend
to call as a witness at trial, or to request Plaintiffs to exclude certain
individuals as potential trial witnesses during discovery and bind Plaintiffs
to the exclusion for purposes of trial, contradicts the purpose of discovery
and the Ohio Rules of Civil Procedure.
4. Provide full and complete answers to interrogatories;
5. No later than April 14, 2022, produce all of Olivia Patterson’s prenatal
records for L.P.’s pregnancy, only. Defendants have not demonstrated a
need for Ms. Patterson’s prenatal records regarding other pregnancies,
except to generically state they are “highly relevant” and will be needed
by its experts, without articulating the need;
6. No later than April 14, 2022, produce photographs and videos of L.P., as
agreed during Olivia Patterson’s deposition; and
7. No later than April 14, 2022 provide counsel for Summa with recuts of the
placental slides.
(April 1, 2022 Order, pp. 3-4).
The Court’s Order concluded with the following cautionary language:
Failure of Plaintiffs to comply with this Order may result in sanctions
pursuant to Civ. R. 37(B), including, but, not limited to Orders directing that
the matters embraced in the discovery or other designated facts shall be
taken as established for purposes of the action as the Defendants claim,
prohibiting Plaintiffs from supporting or opposing designated claims or
defenses, prohibiting Plaintiffs from introducing designated matters in
evidence, striking pleadings or parts thereof, staying further proceedings
until the Order is obeyed, dismissal of Plaintiffs’ complaint, or treating
Plaintiffs’ failure to comply as contempt of Court, punishable by the
imposition of a fine and/or jail.
Id. at p. 5 (emphasis in original).
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Despite the Court’s clear directive and the passage of four and a half months, Plaintiff has
failed to comply with the Court’s Order in a number of significant ways.
A. Meet and Greet
On August 17, 2022, defense counsel notified this Court of Plaintiff’s failure to comply
with the Court’s discovery order as it pertains to a meet and greet with LP. (See Exhibit A,
attached hereto). Specifically, in Item No. 2 of the Court’s Order, Plaintiff was instructed to
“[p]rovide a date for the defense meet and greet with L.P.” The Court noted in its April 1, 2022
Order that, “Plaintiffs’ inability to obtain L.P.’s custodian’s cooperation (Summit County
Children Services Board) for discoverable information should not be transferred to Defendants.”
Plaintiff’s counsel provided August 9, 2022 as the date for the “meet and greet.” In
preparation for this meeting, the defense again advised Plaintiff’s counsel that the “meet and
greet” would be video recorded. Such recording is necessary for defense experts to review in
connection with their analysis of the case. It is also necessary to allow the defense and its experts
to determine whether an IME is necessary. Defense counsel also asked that LP be accompanied
to the “meet and greet” by someone familiar with his condition including his abilities,
limitations, etc. and that this person be present for the duration. These were not new requests. In
fact, Plaintiff was aware of these conditions of the “meet and greet” long before the Motion to
Compel or the April 1, 2022 Order.
Specifically, on August 3, 2021 Summa requested the opportunity to meet with LP and
noted that the defense “would like to have the opportunity to video record the session with him.”
(See Exhibit G, attached hereto). The intent to video record the “meet and greet” was reiterated
in correspondence to Plaintiff’s counsel on March 23, 2022, in Summa’s Motion to Compel, and
again in an April 28, 2022 letter. (See Exhibits H and I, attached hereto). Nonetheless, on
August 1, 2022, Plaintiff’s counsel advised that SCCS “will not allow photographs or videotape
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of L.P. during the ‘meet and greet’ next week.” Without the ability to videotape or photograph
LP, the “meet and greet” has little value to the defense. Thus, the defense was forced to postpone
the “meet and greet” and seek Court intervention. Plaintiff has not taken any steps to permit the
defense to proceed with the “meet and greet” in a format that gives the defense access to
information necessary to move forward with expert review of this case.
B. Identify all individuals with whom LP has lived
Item No. 3 of the Court’s Order provided in part, “identify all individuals with whom
L.P. has lived.” To date Plaintiff has not provided this information. Plaintiff Michael Renne was
deposed on May 10, 2022. He testified that he has no information about LP; he has never met
LP, does not know where LP lives, and knows nothing about the people with whom LP currently
lives or has lived in the past. Also on May 10, the continued deposition of Olivia Patterson was
conducted. Ms. Patterson testified that she has not seen LP since June of 2021. Ms. Patterson
testified that LP is living with a foster family. The only identifying information she has about
this family is the foster mother’s first name. She also believes that the foster mother is married,
but she does not know the husband’s name and does not know whether there are any other
children living in the home.
Notably, one of Plaintiff’s witnesses, Angela Mendise, was recently deposed. Mrs.
Mendise identified herself as a mentor to Olivia Patterson. Mrs. Mendise testified that Olivia and
LP lived with the Mendise family for a period of time. This information was not previously
disclosed, despite Ms. Patterson previously being a party to this litigation and being deposed,
twice. Although Ms. Patterson was not a party to this litigation at the time of her depositions, she
was represented by Plaintiff’s counsel and the second deposition was conducted after the Court
entered the April 1, 2022 Order.
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Plaintiff has failed to identify all individuals with whom LP has lived, in direct
contravention of this Court’s April 1, 2022 Order. The defense has attempted to resolve this with
Plaintiff. To date, Plaintiff has failed to provide this basic information concerning LP’s living
arrangements. Only recently did Plaintiff take any steps to obtain this information from SCCS;
again, despite the Court’s Order. In response to the August 25, 2022 subpoena, SCCS strongly
urges that such personal information not be disclosed.
C. Provide dates for depositions of Plaintiff’s fact witnesses
Item No. 3 of the Court’s Order also required Plaintiff to provide dates for the depositions
of Plaintiff’s fact witnesses, regardless of whether Plaintiff will call them as witnesses at trial.
On May 16, 2022, defense counsel asked Plaintiff’s counsel to advise whether deposition dates
would be provided for Plaintiff’s remaining fact witnesses. Counsel responded as follows:
Plaintiff has produced Olivia and Mr. Renne for their depositions per your
request. Those are the only two fact witnesses that we have control over and can
produce for deposition through a notice. We are attempting to get the identity of
[L.P.]’s foster parent so that we could take her/his deposition, but as you know,
we have not been provided her/his full name by SCCS. If we are provided that
information, we will provide it to you upon receipt. However, we feel that court
intervention will likely be required and would hope that we could bring a joint
motion in that regard since you have requested the identity of that person several
times.
No further information was provided. In addition to the depositions of the individuals with whom
LP has lived, Plaintiff was also ordered to provide deposition dates for Angela Mendise and
Jenny Howard, fact witnesses identified in Plaintiff’s answers to interrogatories.
With respect to the depositions of Mrs. Mendise and Mrs. Howard, Plaintiff’s counsel
represented to this Court,
Plaintiff’s counsel had attempted to contact each of these witnesses without
success since at least May 2020. All contact information for those individuals
provided was not valid. All contact information available online had resulted in
disconnected telephone numbers or individuals responding that are not the
witnesses.
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(See Exhibit J, attached hereto). Interestingly, despite alleged years of trying to reach Mrs.
Mendise without success, Plaintiff’s counsel was able to make contact and obtain a date for her
deposition within days of defense counsel notifying the Court of Plaintiff’s failure to comply
with the Court’s Order. Also interesting was Mrs. Mendise’s testimony during her deposition
that she was only recently contacted by counsel when he reached out to her through contact
information available on her public, work website. But, perhaps most noteworthy was Mrs.
Mendise’s testimony that she remains in contact with Olivia via text message. Thus, the
representation that counsel has “attempted to contact each of these witnesses without success
since at least May 2020” is questionable and perhaps illustrative of Plaintiff’s unwillingness to
cooperate with discovery and disregard of this Court’s discovery order.
Plaintiff has not provided a date for the deposition of Jenny Howard. Additionally,
Plaintiff has not provided dates for the depositions of the individuals with whom LP has lived.
Based on SCCS’s Motion to Quash, it does not appear that these individuals want to be identified
or deposed. Regardless, Plaintiff has failed to comply with this Court’s Order.
D. Provide full and complete answers to interrogatories
Item No. 4 of this Court’s Order compelled Plaintiff to provide full and complete answers
to interrogatories. Plaintiff has also failed to comply with this part of the Court’s order.
Specifically, on April 18, 2022, Plaintiff supplied supplemental answers, but the answer to at
least one of these interrogatories is incomplete as follows:
INTERROGATORY NO. 2: Please identify L.P.’s current residence address,
individuals with whom he resides, and their relationship with him.
Answer: As stated in this letter, SCCS continues to refuse to provide the current
residential address for L.P. or the name of his foster parent. We hope to resolve
this issue through Court order and/or protective order.
This is yet another way in which Plaintiff is in violation of the Court’s April 1, 2022 Order.
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E. No later than April 14, 2022, produce photographs and videos of LP
Finally, in Item No. 6 of this Court’s April 1, 2022 Order, Plaintiff was instructed to
produce photographs and videos of LP. Apparently, Ms. Patterson’s phone broke between her
first deposition in October 2021 and her second deposition in May 2021. Thus, due to Plaintiff’s
failure to timely produce responsive, discoverable information, those records are no longer
available. Plaintiff’s conduct with respect to the photographs further evidences Plaintiff’s
obstructive and uncooperative conduct as it relates to discovery in this matter. Such conduct
should not be tolerated. More importantly, Summa is prejudiced by Plaintiff’s failure to
participate in discovery.
V. LAW AND ARGUMENT
One purpose of the Civil Rules is to eliminate surprise. Huffman v. Hair Surgeon, Inc., 19
Ohio St.3d 83, 85 (1985). This purpose is accomplished through “discovery procedure which
mandates a free flow of accessible information between the parties upon request, and which
imposes sanctions for failure to timely respond to reasonable inquiries.” Id. Accordingly, a trial
court has the ability to dismiss a case where a party has failed to obey the court’s discovery
orders. Specifically, Civil Rule 37(B)(1)(d) provides that if a party fails to obey or order to
provide or permit discovery, the trial court may issue further just orders, including dismissing the
action in whole or in part. Civ. R. 41(B)(1) states:
[W]here the plaintiff fails to prosecute, or comply with these rules or any court
order, the court upon motion of a defendant or on its own motion, may, after
notice to the plaintiff’s counsel, dismiss an action or claim.
(emphasis added).
Before dismissing a case, the court must consider that disposition of cases on their merits
is favored. Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 48 (1997). Nonetheless,
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under the appropriate circumstances, dismissal is proper. Id. For example, where there is a
flagrant, substantial disregard for court rules. Id.
In determining whether the sanction of dismissal is warranted, the trial court
should consider the history of the case; all the facts and circumstances
surrounding the noncompliance, including the number of opportunities and the
length of time within which the faulting party had to comply with the discovery or
the order to comply; what efforts, if any, were made to comply; the ability or
inability of the faulting party to comply; and such other factors as may be
appropriate.
Foley v. Nussbaum, Second Dist. No. 24572, 2011-Ohio-6701at ⁋ 31 (internal citations omitted).
It is within the sound discretion of the trial court to dismiss an action pursuant to Civil
Rule 37(B)(2) for failure to comply with a discovery order or Civil Rule 41(B)(1) for lack of
prosecution. Quonset Hut, Inc., 80 Ohio St.3d at 47-48. The Supreme Court of Ohio has held that
the “[o]rderly and timely administration of justice requires that courts exercise the power to
dismiss cases where appropriate”:
Proper factors for consideration in a Civ. R. 41(B)(1) dismissal with prejudice
include the drawn-out history of the litigation, including the plaintiffs’ failure to
respond to interrogatories until threatened with dismissal, and other evidence that
a plaintiff is proceeding in dilatory fashion . . .
Jones v. Hartranft, 78 Ohio St.3d 368, 372 (1997). “A trial court is in the best position to
determine whether delays in the prosecution of a case are due to legitimate reasons.” Industrial
Risk Insurers v. Lorenz Equipment Co., 69 Ohio St.3d 576, 581 (1994).
Before a trial court can dismiss a case pursuant to Civ. R. 37 or 41, the party must be on
notice that the case could be dismissed. With respect to the notice requirement, the Ohio
Supreme Court has explained:
For purposes of Civ.R. 41(B)(1), counsel has notice of an impending dismissal
with prejudice for failure to comply with a discovery order when counsel has been
informed that dismissal is a possibility and has had a reasonable opportunity to
defend against dismissal.
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Quonset Hut, Inc., 80 Ohio St.3d at syllabus. Specifically, “a court order compelling timely
discovery under a threat of dismissal constitutes such notice, especially where a party has
repeatedly failed to produce discovery materials, has been given extensions of trial dates, and has
been given other opportunities to bring legitimate discovery problems to the court’s attention.”
Foley v. Nussbaum, Second Dist. No. 24572, 2011-Ohio-6701 at ⁋ 25.
In Quonset Hut, Inc., the Ohio Supreme Court addressed whether the trial court abused
its discretion in dismissing the case with prejudice. In analyzing this question, the Court noted:
Prior to dismissing the case, the trial court issued an order compelling discovery.
Quonset did not comply with it. Consequently, the trial court issued an order of
contempt. Still, Quonset did not comply with the discovery order.
As noted above, the very purpose of notice is to provide a party with an
opportunity to explain its default and/or to correct it. Quonset had notice and
ample opportunity to explain its default and/or to correct. It did not do so. There
was no reason for the trial court to expect that one more warning would have
prompted Quonset to comply with the discovery order it had ignored for over four
months, not to mention the contempt order that had been outstanding for one
month.
Quonset Hut, Inc., 80 Ohio St.3d at 49. Accordingly, the trial court acted within its discretion in
dismissing plaintiff’s claims, with prejudice. Id.
Similarly, in Lyons v. Kindell, 35 N.E.3d 7 (First Dist., 2015), default judgment was
entered against the plaintiff due to the plaintiff’s failure to respond to discovery. In a concurring
opinion, the court noted,
Parties in civil discovery should not have to wait for months upon months to get
some type of responses to basic discovery requests. In this case, the plaintiff,
according to the only evidence in the record, made numerous extrajudicial
attempts to get the information. And if there was no information to be “gotten,” as
averred in the eleventh-hour affidavit submitted by the defendant, why is the
record devoid of responses simply stating as much, without the need for a motion
to compel? Without the need for a motion for sanctions? And without the need for
numerous discovery hearings and pleadings to be filed? Where is a letter or an
email in the record showing that the defendant so informed the plaintiff before the
plaintiff was forced to file its first motion? This record is simply empty of any
such communication. Thus, one can only conclude from this record that the
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defendant willfully refused to participate in discovery until a motion for sanctions
had been filed.
Id. at ⁋ 61. The appellate court held that under the circumstances, the trial court did not abuse its
discretion by entering a default judgment against the plaintiff as a discovery sanction under Civ.
R. 37(B). The plaintiff’s failure to respond to discovery requests could not be considered a good
faith effort to comply. Id.
Summa understands that certain circumstances can impact the manner in which a case
proceeds and can delay discovery. In this case, Summa has been more than patient and at some
point has a right to have this case prosecuted in a timely fashion. Indeed, the prospect of
litigation should not continuously burden a party, but that is exactly what is happening here.
Plaintiff has failed to participate in discovery. It appears that Plaintiff does not have access to
information related to LP and the individuals with this information do not want to be identified at
this time.
It is anticipated that Plaintiff will argue that he is trying to get the information that he was
ordered to produce. Plaintiff however, did nothing for months, in total disregard for this Court’s
Order. Plaintiff only issued a subpoena to SCCS, after months of delay and after Summa notified
the Court of Plaintiff’s failure to comply the April 1, 2022 discovery order. Clearly Plaintiff does
not intend to voluntarily participate in discovery.
SCCS seeks to quash the subpoena. LP’s foster and prospective adoptive parents do not
wish to be identified at this time. Even if SCCS is compelled to respond to Plaintiff’s subpoena,
all documents must first be reviewed in-camera by the Court. This will result in further delay and
further impedes Summa’s ability to identify experts and properly defend against Plaintiff’s
claims. Further, it appears that SCCS seeks to have the names of LP’s care providers remain
confidential and to refer to them only as foster parents and prospective adoptive parents. (See
Exhibit K). More importantly, even if SCCS is ordered to respond to the subpoena, Plaintiff is no
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closer to complying with this Court’s Order. Specifically, Plaintiff has been ordered to provide
deposition dates for the individuals with whom LP has lived. Plaintiff has not taken any steps to
schedule these depositions.
Plaintiff has engaged in a pattern of refusing to participate in discovery. This conduct has
been ongoing; starting with Plaintiff refusing to comply with Summa’s request for recuts of the
pathology slides from the placental pathology. (See Defendants’ Motion to Compel, pp. 4-8).
Summa first requested the slides on August 26, 2020. Plaintiff refused to provide this
information until after Summa filed its Motion to Compel, 18 months after Summa’s first
request.
Likewise, during her deposition, Ms. Patterson was improperly instructed by Plaintiff’s
counsel not to respond to a number of questions. Again, Summa was forced to file a Motion to
Compel, obtain an order from this Court, and depose Ms. Patterson a second time in order to
obtain relevant, discoverable information. Further, during her first deposition in October 2021,
Ms. Patterson indicated that she had pictures and video of LP that had not been produced despite
being requested. Plaintiff’s counsel agreed to produce these documents, but the photographs and
videos were never provided. Summa was forced to file a Motion to Compel. Following this
Court’s April 1, 2022 Order, a small number of photographs were produced. No videos were
provided. During her second deposition, Ms. Patterson testified that at the time of her first
deposition she had video and photographs in her possession (i.e., the information counsel agreed
to produce and that the Court odered to be produced), but that she no longer had such relevant
information because her phone broke.
Plaintiff has not complied with this Court’s April 1, 2022 Order. This case has been
pending for years and Plaintiff has failed to provide the most basic information about LP.
Because of Plaintiff’s failures, Summa is unable to adequately prepare its defense. Plaintiff is on
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Sandra
Preview
CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 1 of 20 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’ MOTION TO DISMISS SUMMA HEALTH SYSTEM, et al. ) ) 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”) file their Motion to Dismiss due to Plaintiff’s failure to comply with this Court’s April 1, 2022 Order. Throughout this litigation, Plaintiff has failed to provide very basic information related to LP, a minor, such as where he lives and the individuals with whom he lives. Plaintiff has also refused to provide other information that is highly relevant and discoverable. As a result of Plaintiff’s conduct, Summa was forced to seek court intervention to obtain information crucial to the defense of this case. On April 1, 2022, Plaintiff was ordered to provide certain discovery items to Summa. At that time, Plaintiff was notified that failure to comply with this Court’s Order could result in dismissal of the Complaint. Plaintiff has failed to comply with this Court’s Order. Specifically, Plaintiff has filed to do all of the following: Provide a date for the defense meet and greet with LP; Identify all individuals with whom LP has lived; Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 2 of 20 Provide dates for depositions of Plaintiff’s fact witnesses; Provide complete answers to interrogatories; and Provide photographs and videos of LP. It is clear that Plaintiff does not intend to participate in discovery in a manner consistent with the Civil Rules, nor does Plaintiff intend to comply with this Court’s Orders. Accordingly, dismissal is appropriate in accordance with Ohio Civil Rules 37 and 41. 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 09/21/2022 14:45:36 PM DMTD Page 3 of 20 MEMORANDUM IN SUPPORT I. INTRODUCTION This is a medical malpractice action wherein Plaintiff makes very serious allegations against Summa concerning the care and treatment provided to Olivia Patterson in connection with the labor and delivery of her son LP, a minor. Plaintiff claims that because of the negligent medical care provided by Summa, LP sustained severe and permanent injuries. Despite these very serious allegations, Plaintiff has failed to participate in discovery in a meaningful way. Summa attempted to obtain discovery from Plaintiff without Court intervention. These attempts however, were unsuccessful. Accordingly, Summa filed a motion to compel. This motion was granted on April 1, 2022 and Plaintiff was ordered to provide certain information. Plaintiff however, has not complied with this Court’s Order. II. FACTUAL AND PROCEDURAL BACKGROUND LP was born on February 12, 2019. Shortly thereafter, Summit County Children Services (“SCCS”) became involved with LP. This medical malpractice case was initiated on February 12, 2020 when LP, by and through his mother Olivia Patterson, and Olivia Patterson individually filed suit against Summa. On April 14, 2020, an Application for Guardianship was filed by Michael Renne, in the Summit County Probate Court, to serve as legal guardian of LP for purposes of pursuing personal injury litigation and receive settlement. On May 27, 2020, Michael Renne was appointed Guardian of the Estate of LP, for purposes of this litigation only. On August 19, 2020, Plaintiff sought leave to amend the complaint, to substitute guardian Michael Renne as the proper Plaintiff to represent LP’s interest. This motion was granted and the case proceeded, albeit slowly, with Olivia Patterson, individually, and Michael Renne, as guardian. On September 29, 2020, SCCS moved for permanent custody of LP. The case proceeded to a permanent custody hearing in February 2021. SCCS has since obtained Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 4 of 20 permanent custody of LP. Notably, the day before her deposition, Olivia Patterson voluntarily dismissed her claims, without prejudice. Since that time, the case has proceeded with Michael Renne as the sole Plaintiff. Plaintiff however, has been unable to provide meaningful information in response to discovery because he has no information about LP. Michael Renne has never met LP or Olivia Patterson. He has no information concerning LP’s condition, prognosis, abilities, likes, dislikes or daily schedule. By his own admission his role as guardian of the estate is limited to the “financial aspect,” only. (“I was appointed guardian of the estate, which in Ohio is limited to a guardianship over the financial aspect, the money or property of the ward.”). (Deposition of Michael A. Renne, Esq. at 32:23-25; 33:1). In response to questions from his own counsel, Mr. Renne testified: Q And does that mean, you know, do you have the ability to make medical decisions for the minor, [LP]? A. No, I have no ability or responsibility with respect to medical decisions. Q. Do you have, as guardian, as you were appointed, do you have any ability to make decisions regarding where [LP] lives? A. I do not. Q. Do you have any ability to make any decision regarding who the guardian of the person is? A. I do not. Id. at 32:2-13. On February 23, 2022, after repeated requests to Plaintiff to provide information in response to discovery requests, Summa filed a Motion to Compel. This Motion was fully briefed and the Court conducted a telephone conference call in an attempt to resolve the discovery dispute. During the conference call it was suggested that Plaintiff voluntarily dismiss the case, without prejudice, due to Plaintiff’s lack of information about LP and Plaintiff’s inability to participate in discovery. Plaintiff rejected this idea. -2- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 5 of 20 On April 1, 2022, this Court granted Summa’s Motion to Compel and ordered Plaintiff to participate in discovery by providing the defense with information related to LP and directly relevant to the claims asserted against Summa. Thereafter, Plaintiff complied with a few of the items in the Court’s April 1, 2022 Order, but has failed to fully comply with the Court’s Order despite the fact that four and a half months have passed. On August 17, 2022, defense counsel notified this Court of Plaintiff’s failure to comply with the Court’s discovery order as it pertains to a meet and greet with LP. (See Exhibit A, attached hereto). On August 22, 2022, Plaintiff’s counsel advised that a subpoena was served on SCCS on July 21, 2022. The subpoena was never sent to the defense and it was ultimately discovered that the subpoena was never actually served on SCCS. (See Exhibit B, attached hereto). The subpoena sought production of the following items: [LP’s] medical records and bills from February 12, 2019 to present; Identity of all individuals with whom [LP] has lived from February 12, 2019 to present; Full name, date of birth, residential address, and contact information (telephone and email) for all persons identified (See Exhibit C, attached hereto). In addition to not ever being served, the subpoena was deficient to the extent that it was not actually seeking the production of documents. On August 24, 2022, the defense sent a second letter notifying the Court of additional ways in which Plaintiff has failed to comply with this Court’s April 1, 2022 discovery order. (See Exhibit D, attached hereto). On August 26, 2022, Plaintiff’s counsel provided a service copy of a new subpoena that was being issued to SCCS. (See Exhibit E, attached hereto). This subpoena seeks production of the following documents: 1. Any documents and/or electronically stored information that contain [LP’s] medical records, DOB: 2/12/2019 to the present. 2. Any documents and/or electronically stored information that contain [LP’s] education, school and/or social service records, DOB: 2/12/2019 to the present. -3- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 6 of 20 3. Any documents and/or electronically stored information that identifies each physician and/or health care provider who has examined or treated [LP] since 2/12/2019. 4. Any documents and/or electronically stored information that identifies the policy number, group number, plan number and/or member number related to any insurance plan, Medicaid and/or Medicare coverage/benefits for [LP] since 2/12/2019. 5. Any documents and/or electronically stored information that identifies any and all benefits which have been paid on behalf of [LP] or that have been received by [LP]. 6. Any documents and/or electronically stored information that identifies any and all physicians, healthcare or social service practitioners from whom [LP] has received medical treatment or sought consultation since 2/12/2019. 7. Any documents and/or electronically stored information that identifies any and all hospitals, clinics, Urgent Care Centers, or other medical/mental health care institutions where [LP] was admitted, received treatment, or sought consultation since 2/12/2019. 8. Any documents and/or electronically stored information that identifies any and all bills for medical care and treatment incurred by [LP] since 2/12/2019. 9. Any photographs, videos or other recordings of [LP] since 2/12/2019. 10. Any documents and/or electronically stored information that identifies the full name(s) of [LP’s] guardian(s) since 2/12/2019; 11. Any documents and/or electronically stored information that identify the individual or entity who/which currently has custodial rights to [LP] and provide the address of the individual/entity; 12. Any documents that identity [LP’s] current residence address, individuals with whom he resides, and their relationship with him;\ 13. Any documents that identity [LP’s] former residence address, individuals with whom he resided, and their relationship with him since 2/12/2019; 14. Any documents and/or electronically stored information that identify [LP’s] custodial relationship and the address(es) of his custodian since 2/12/2019; 15. Any documents and/or electronically stored information that identify any custody or any visitation rights regarding [LP], including but not limited to any visitation schedules since 2/12/2019; -4- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 7 of 20 16. Any documents and/or electronically stored information related to the custodial rights of [LP] since 2/12/2019; and 17. Any documents and/or electronically stored information received from any court involving the custodial rights of [LP]. SCCS has filed a Motion to Quash the subpoena citing privacy concerns for LP’s foster family, as well as a potential adoptive family. In its Motion to Quash, SCCS notes that LP was in SCCS’s custody when this lawsuit was initiated. (Motion to Quash, p. 1). Nonetheless, “[t]he Attorney/Guardian ad litem who was appointed to represent the best interest of the child in Summit County Juvenile court did not initiate or consent to the within lawsuit.” Id. at p. 2. SCCS “strongly urges the Court to quash the subpoena requiring disclosure of the name, residential address, and contact information for all persons who have lived with the minor child since February 12, 2019.” Id. at pp. 2-3 (emphasis added). It is also noted that LP’s “current foster parents do not consent to their personal identifying information being disclosed in this lawsuit.” Id. at p. 3 (emphasis added). Most importantly, SCCS has concerns that disclosing the foster parents or potential adoptive parents’ actual names could compromise the adoption opportunity for LP. (See Exhibit F, attached hereto). This Court has conducted several status conferences concerning Plaintiff’s failure to comply with the Court’s April 1, 2022 Order. During these calls with the Court, it has been suggested that Plaintiff voluntarily dismiss the claims to allow LP’s adoption to proceed. Once the adoption is complete, LP’s adoptive parents can decide whether it is in LP’s best interest to reinitiate this litigation. Presumably, LP’s adoptive parents will be able to participate in discovery in ways that the current Plaintiff has been unable to. Specifically, it is anticipated that the adoptive parents will be able to provide information concerning LP’s condition, prognosis, treatment, daily routine, abilities, inabilities, limitations, likes, dislikes; i.e., all of the information -5- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 8 of 20 that Plaintiff has been unable to provide in the years that this case has been pending. Plaintiff’s counsel however is unwilling to voluntarily dismiss the case because LP only gets one “free” dismissal. Interestingly, when a stipulated dismissal was suggested, which would allow LP to retain the “free” dismissal, this was also rejected by Plaintiff’s counsel. Finally, multiple case management schedules have been entered in the two and a half years that this case has been pending. Most recently, the parties filed a joint motion to amend the case management schedule on April 1, 2022 due in part to the ongoing discovery dispute. A second amended case management schedule was entered on April 21, 2022, which includes the following dates and deadlines: Discovery shall be completed by December 30, 2022. Plaintiff’s expert identification and report due January 31, 2023. Defendant’s expert identification and report due May 1, 2023. Dispositive motions and proposed orders shall be filed on or before July 10, 2023. This case is scheduled to proceed to trial on October 16, 2023. Based on Plaintiff’s conduct with respect to discovery, it is unlikely that this matter will be able to proceed to trial as currently scheduled. At the very least, the defense is at a serious disadvantage due to Plaintiff’s failure to participate in discovery and comply with this Court’s discovery order. Notably, unlike Plaintiff, the defense does not have a “free” dismissal and does not have the ability to voluntarily dismiss the case if Plaintiff does not respond to discovery with sufficient time to comply with expert deadlines. IV. DISCOVERY AT ISSUE On April 1, 2022, the Court entered an order compelling Plaintiff to do the following: 1. Produce all of L.P.’s medical records and bills no later than April 14, 2022; 2. Provide a date for the defense meet and greet with L.P. Defendants shall file a motion for its experts to examine L.P. if the parties are unable to reach an agreement; -6- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 9 of 20 3. Provide a date for the continuation of Olivia Patterson’s deposition on topics Ms. Patterson was previously instructed not to answer; provide a date for Plaintiff’s deposition; identify all individuals with whom L.P. has lived; and provide dates for depositions of Plaintiff’s fact witnesses, regardless of whether Plaintiffs will call them as witnesses at trial – it should be clear to the parties that Plaintiffs may not produce a witness at trial that was not disclosed to Defendants via discovery. It should also be clear to the parties, that discovery expires prior to the date the parties are to submit their trial witness and exhibit lists. To suggest that a party wait until after discovery concludes to disclose a fact witness Plaintiffs intend to call as a witness at trial, or to request Plaintiffs to exclude certain individuals as potential trial witnesses during discovery and bind Plaintiffs to the exclusion for purposes of trial, contradicts the purpose of discovery and the Ohio Rules of Civil Procedure. 4. Provide full and complete answers to interrogatories; 5. No later than April 14, 2022, produce all of Olivia Patterson’s prenatal records for L.P.’s pregnancy, only. Defendants have not demonstrated a need for Ms. Patterson’s prenatal records regarding other pregnancies, except to generically state they are “highly relevant” and will be needed by its experts, without articulating the need; 6. No later than April 14, 2022, produce photographs and videos of L.P., as agreed during Olivia Patterson’s deposition; and 7. No later than April 14, 2022 provide counsel for Summa with recuts of the placental slides. (April 1, 2022 Order, pp. 3-4). The Court’s Order concluded with the following cautionary language: Failure of Plaintiffs to comply with this Order may result in sanctions pursuant to Civ. R. 37(B), including, but, not limited to Orders directing that the matters embraced in the discovery or other designated facts shall be taken as established for purposes of the action as the Defendants claim, prohibiting Plaintiffs from supporting or opposing designated claims or defenses, prohibiting Plaintiffs from introducing designated matters in evidence, striking pleadings or parts thereof, staying further proceedings until the Order is obeyed, dismissal of Plaintiffs’ complaint, or treating Plaintiffs’ failure to comply as contempt of Court, punishable by the imposition of a fine and/or jail. Id. at p. 5 (emphasis in original). -7- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 10 of 20 Despite the Court’s clear directive and the passage of four and a half months, Plaintiff has failed to comply with the Court’s Order in a number of significant ways. A. Meet and Greet On August 17, 2022, defense counsel notified this Court of Plaintiff’s failure to comply with the Court’s discovery order as it pertains to a meet and greet with LP. (See Exhibit A, attached hereto). Specifically, in Item No. 2 of the Court’s Order, Plaintiff was instructed to “[p]rovide a date for the defense meet and greet with L.P.” The Court noted in its April 1, 2022 Order that, “Plaintiffs’ inability to obtain L.P.’s custodian’s cooperation (Summit County Children Services Board) for discoverable information should not be transferred to Defendants.” Plaintiff’s counsel provided August 9, 2022 as the date for the “meet and greet.” In preparation for this meeting, the defense again advised Plaintiff’s counsel that the “meet and greet” would be video recorded. Such recording is necessary for defense experts to review in connection with their analysis of the case. It is also necessary to allow the defense and its experts to determine whether an IME is necessary. Defense counsel also asked that LP be accompanied to the “meet and greet” by someone familiar with his condition including his abilities, limitations, etc. and that this person be present for the duration. These were not new requests. In fact, Plaintiff was aware of these conditions of the “meet and greet” long before the Motion to Compel or the April 1, 2022 Order. Specifically, on August 3, 2021 Summa requested the opportunity to meet with LP and noted that the defense “would like to have the opportunity to video record the session with him.” (See Exhibit G, attached hereto). The intent to video record the “meet and greet” was reiterated in correspondence to Plaintiff’s counsel on March 23, 2022, in Summa’s Motion to Compel, and again in an April 28, 2022 letter. (See Exhibits H and I, attached hereto). Nonetheless, on August 1, 2022, Plaintiff’s counsel advised that SCCS “will not allow photographs or videotape -8- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 11 of 20 of L.P. during the ‘meet and greet’ next week.” Without the ability to videotape or photograph LP, the “meet and greet” has little value to the defense. Thus, the defense was forced to postpone the “meet and greet” and seek Court intervention. Plaintiff has not taken any steps to permit the defense to proceed with the “meet and greet” in a format that gives the defense access to information necessary to move forward with expert review of this case. B. Identify all individuals with whom LP has lived Item No. 3 of the Court’s Order provided in part, “identify all individuals with whom L.P. has lived.” To date Plaintiff has not provided this information. Plaintiff Michael Renne was deposed on May 10, 2022. He testified that he has no information about LP; he has never met LP, does not know where LP lives, and knows nothing about the people with whom LP currently lives or has lived in the past. Also on May 10, the continued deposition of Olivia Patterson was conducted. Ms. Patterson testified that she has not seen LP since June of 2021. Ms. Patterson testified that LP is living with a foster family. The only identifying information she has about this family is the foster mother’s first name. She also believes that the foster mother is married, but she does not know the husband’s name and does not know whether there are any other children living in the home. Notably, one of Plaintiff’s witnesses, Angela Mendise, was recently deposed. Mrs. Mendise identified herself as a mentor to Olivia Patterson. Mrs. Mendise testified that Olivia and LP lived with the Mendise family for a period of time. This information was not previously disclosed, despite Ms. Patterson previously being a party to this litigation and being deposed, twice. Although Ms. Patterson was not a party to this litigation at the time of her depositions, she was represented by Plaintiff’s counsel and the second deposition was conducted after the Court entered the April 1, 2022 Order. -9- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 12 of 20 Plaintiff has failed to identify all individuals with whom LP has lived, in direct contravention of this Court’s April 1, 2022 Order. The defense has attempted to resolve this with Plaintiff. To date, Plaintiff has failed to provide this basic information concerning LP’s living arrangements. Only recently did Plaintiff take any steps to obtain this information from SCCS; again, despite the Court’s Order. In response to the August 25, 2022 subpoena, SCCS strongly urges that such personal information not be disclosed. C. Provide dates for depositions of Plaintiff’s fact witnesses Item No. 3 of the Court’s Order also required Plaintiff to provide dates for the depositions of Plaintiff’s fact witnesses, regardless of whether Plaintiff will call them as witnesses at trial. On May 16, 2022, defense counsel asked Plaintiff’s counsel to advise whether deposition dates would be provided for Plaintiff’s remaining fact witnesses. Counsel responded as follows: Plaintiff has produced Olivia and Mr. Renne for their depositions per your request. Those are the only two fact witnesses that we have control over and can produce for deposition through a notice. We are attempting to get the identity of [L.P.]’s foster parent so that we could take her/his deposition, but as you know, we have not been provided her/his full name by SCCS. If we are provided that information, we will provide it to you upon receipt. However, we feel that court intervention will likely be required and would hope that we could bring a joint motion in that regard since you have requested the identity of that person several times. No further information was provided. In addition to the depositions of the individuals with whom LP has lived, Plaintiff was also ordered to provide deposition dates for Angela Mendise and Jenny Howard, fact witnesses identified in Plaintiff’s answers to interrogatories. With respect to the depositions of Mrs. Mendise and Mrs. Howard, Plaintiff’s counsel represented to this Court, Plaintiff’s counsel had attempted to contact each of these witnesses without success since at least May 2020. All contact information for those individuals provided was not valid. All contact information available online had resulted in disconnected telephone numbers or individuals responding that are not the witnesses. -10- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 13 of 20 (See Exhibit J, attached hereto). Interestingly, despite alleged years of trying to reach Mrs. Mendise without success, Plaintiff’s counsel was able to make contact and obtain a date for her deposition within days of defense counsel notifying the Court of Plaintiff’s failure to comply with the Court’s Order. Also interesting was Mrs. Mendise’s testimony during her deposition that she was only recently contacted by counsel when he reached out to her through contact information available on her public, work website. But, perhaps most noteworthy was Mrs. Mendise’s testimony that she remains in contact with Olivia via text message. Thus, the representation that counsel has “attempted to contact each of these witnesses without success since at least May 2020” is questionable and perhaps illustrative of Plaintiff’s unwillingness to cooperate with discovery and disregard of this Court’s discovery order. Plaintiff has not provided a date for the deposition of Jenny Howard. Additionally, Plaintiff has not provided dates for the depositions of the individuals with whom LP has lived. Based on SCCS’s Motion to Quash, it does not appear that these individuals want to be identified or deposed. Regardless, Plaintiff has failed to comply with this Court’s Order. D. Provide full and complete answers to interrogatories Item No. 4 of this Court’s Order compelled Plaintiff to provide full and complete answers to interrogatories. Plaintiff has also failed to comply with this part of the Court’s order. Specifically, on April 18, 2022, Plaintiff supplied supplemental answers, but the answer to at least one of these interrogatories is incomplete as follows: INTERROGATORY NO. 2: Please identify L.P.’s current residence address, individuals with whom he resides, and their relationship with him. Answer: As stated in this letter, SCCS continues to refuse to provide the current residential address for L.P. or the name of his foster parent. We hope to resolve this issue through Court order and/or protective order. This is yet another way in which Plaintiff is in violation of the Court’s April 1, 2022 Order. -11- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 14 of 20 E. No later than April 14, 2022, produce photographs and videos of LP Finally, in Item No. 6 of this Court’s April 1, 2022 Order, Plaintiff was instructed to produce photographs and videos of LP. Apparently, Ms. Patterson’s phone broke between her first deposition in October 2021 and her second deposition in May 2021. Thus, due to Plaintiff’s failure to timely produce responsive, discoverable information, those records are no longer available. Plaintiff’s conduct with respect to the photographs further evidences Plaintiff’s obstructive and uncooperative conduct as it relates to discovery in this matter. Such conduct should not be tolerated. More importantly, Summa is prejudiced by Plaintiff’s failure to participate in discovery. V. LAW AND ARGUMENT One purpose of the Civil Rules is to eliminate surprise. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 85 (1985). This purpose is accomplished through “discovery procedure which mandates a free flow of accessible information between the parties upon request, and which imposes sanctions for failure to timely respond to reasonable inquiries.” Id. Accordingly, a trial court has the ability to dismiss a case where a party has failed to obey the court’s discovery orders. Specifically, Civil Rule 37(B)(1)(d) provides that if a party fails to obey or order to provide or permit discovery, the trial court may issue further just orders, including dismissing the action in whole or in part. Civ. R. 41(B)(1) states: [W]here the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion, may, after notice to the plaintiff’s counsel, dismiss an action or claim. (emphasis added). Before dismissing a case, the court must consider that disposition of cases on their merits is favored. Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 48 (1997). Nonetheless, -12- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 15 of 20 under the appropriate circumstances, dismissal is proper. Id. For example, where there is a flagrant, substantial disregard for court rules. Id. In determining whether the sanction of dismissal is warranted, the trial court should consider the history of the case; all the facts and circumstances surrounding the noncompliance, including the number of opportunities and the length of time within which the faulting party had to comply with the discovery or the order to comply; what efforts, if any, were made to comply; the ability or inability of the faulting party to comply; and such other factors as may be appropriate. Foley v. Nussbaum, Second Dist. No. 24572, 2011-Ohio-6701at ⁋ 31 (internal citations omitted). It is within the sound discretion of the trial court to dismiss an action pursuant to Civil Rule 37(B)(2) for failure to comply with a discovery order or Civil Rule 41(B)(1) for lack of prosecution. Quonset Hut, Inc., 80 Ohio St.3d at 47-48. The Supreme Court of Ohio has held that the “[o]rderly and timely administration of justice requires that courts exercise the power to dismiss cases where appropriate”: Proper factors for consideration in a Civ. R. 41(B)(1) dismissal with prejudice include the drawn-out history of the litigation, including the plaintiffs’ failure to respond to interrogatories until threatened with dismissal, and other evidence that a plaintiff is proceeding in dilatory fashion . . . Jones v. Hartranft, 78 Ohio St.3d 368, 372 (1997). “A trial court is in the best position to determine whether delays in the prosecution of a case are due to legitimate reasons.” Industrial Risk Insurers v. Lorenz Equipment Co., 69 Ohio St.3d 576, 581 (1994). Before a trial court can dismiss a case pursuant to Civ. R. 37 or 41, the party must be on notice that the case could be dismissed. With respect to the notice requirement, the Ohio Supreme Court has explained: For purposes of Civ.R. 41(B)(1), counsel has notice of an impending dismissal with prejudice for failure to comply with a discovery order when counsel has been informed that dismissal is a possibility and has had a reasonable opportunity to defend against dismissal. -13- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 16 of 20 Quonset Hut, Inc., 80 Ohio St.3d at syllabus. Specifically, “a court order compelling timely discovery under a threat of dismissal constitutes such notice, especially where a party has repeatedly failed to produce discovery materials, has been given extensions of trial dates, and has been given other opportunities to bring legitimate discovery problems to the court’s attention.” Foley v. Nussbaum, Second Dist. No. 24572, 2011-Ohio-6701 at ⁋ 25. In Quonset Hut, Inc., the Ohio Supreme Court addressed whether the trial court abused its discretion in dismissing the case with prejudice. In analyzing this question, the Court noted: Prior to dismissing the case, the trial court issued an order compelling discovery. Quonset did not comply with it. Consequently, the trial court issued an order of contempt. Still, Quonset did not comply with the discovery order. As noted above, the very purpose of notice is to provide a party with an opportunity to explain its default and/or to correct it. Quonset had notice and ample opportunity to explain its default and/or to correct. It did not do so. There was no reason for the trial court to expect that one more warning would have prompted Quonset to comply with the discovery order it had ignored for over four months, not to mention the contempt order that had been outstanding for one month. Quonset Hut, Inc., 80 Ohio St.3d at 49. Accordingly, the trial court acted within its discretion in dismissing plaintiff’s claims, with prejudice. Id. Similarly, in Lyons v. Kindell, 35 N.E.3d 7 (First Dist., 2015), default judgment was entered against the plaintiff due to the plaintiff’s failure to respond to discovery. In a concurring opinion, the court noted, Parties in civil discovery should not have to wait for months upon months to get some type of responses to basic discovery requests. In this case, the plaintiff, according to the only evidence in the record, made numerous extrajudicial attempts to get the information. And if there was no information to be “gotten,” as averred in the eleventh-hour affidavit submitted by the defendant, why is the record devoid of responses simply stating as much, without the need for a motion to compel? Without the need for a motion for sanctions? And without the need for numerous discovery hearings and pleadings to be filed? Where is a letter or an email in the record showing that the defendant so informed the plaintiff before the plaintiff was forced to file its first motion? This record is simply empty of any such communication. Thus, one can only conclude from this record that the -14- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 17 of 20 defendant willfully refused to participate in discovery until a motion for sanctions had been filed. Id. at ⁋ 61. The appellate court held that under the circumstances, the trial court did not abuse its discretion by entering a default judgment against the plaintiff as a discovery sanction under Civ. R. 37(B). The plaintiff’s failure to respond to discovery requests could not be considered a good faith effort to comply. Id. Summa understands that certain circumstances can impact the manner in which a case proceeds and can delay discovery. In this case, Summa has been more than patient and at some point has a right to have this case prosecuted in a timely fashion. Indeed, the prospect of litigation should not continuously burden a party, but that is exactly what is happening here. Plaintiff has failed to participate in discovery. It appears that Plaintiff does not have access to information related to LP and the individuals with this information do not want to be identified at this time. It is anticipated that Plaintiff will argue that he is trying to get the information that he was ordered to produce. Plaintiff however, did nothing for months, in total disregard for this Court’s Order. Plaintiff only issued a subpoena to SCCS, after months of delay and after Summa notified the Court of Plaintiff’s failure to comply the April 1, 2022 discovery order. Clearly Plaintiff does not intend to voluntarily participate in discovery. SCCS seeks to quash the subpoena. LP’s foster and prospective adoptive parents do not wish to be identified at this time. Even if SCCS is compelled to respond to Plaintiff’s subpoena, all documents must first be reviewed in-camera by the Court. This will result in further delay and further impedes Summa’s ability to identify experts and properly defend against Plaintiff’s claims. Further, it appears that SCCS seeks to have the names of LP’s care providers remain confidential and to refer to them only as foster parents and prospective adoptive parents. (See Exhibit K). More importantly, even if SCCS is ordered to respond to the subpoena, Plaintiff is no -15- Sandra Kurt, Summit County Clerk of Courts CV-2020-02-0578 ROWLANDS, MARY MARGARET 09/21/2022 14:45:36 PM DMTD Page 18 of 20 closer to complying with this Court’s Order. Specifically, Plaintiff has been ordered to provide deposition dates for the individuals with whom LP has lived. Plaintiff has not taken any steps to schedule these depositions. Plaintiff has engaged in a pattern of refusing to participate in discovery. This conduct has been ongoing; starting with Plaintiff refusing to comply with Summa’s request for recuts of the pathology slides from the placental pathology. (See Defendants’ Motion to Compel, pp. 4-8). Summa first requested the slides on August 26, 2020. Plaintiff refused to provide this information until after Summa filed its Motion to Compel, 18 months after Summa’s first request. Likewise, during her deposition, Ms. Patterson was improperly instructed by Plaintiff’s counsel not to respond to a number of questions. Again, Summa was forced to file a Motion to Compel, obtain an order from this Court, and depose Ms. Patterson a second time in order to obtain relevant, discoverable information. Further, during her first deposition in October 2021, Ms. Patterson indicated that she had pictures and video of LP that had not been produced despite being requested. Plaintiff’s counsel agreed to produce these documents, but the photographs and videos were never provided. Summa was forced to file a Motion to Compel. Following this Court’s April 1, 2022 Order, a small number of photographs were produced. No videos were provided. During her second deposition, Ms. Patterson testified that at the time of her first deposition she had video and photographs in her possession (i.e., the information counsel agreed to produce and that the Court odered to be produced), but that she no longer had such relevant information because her phone broke. Plaintiff has not complied with this Court’s April 1, 2022 Order. This case has been pending for years and Plaintiff has failed to provide the most basic information about LP. Because of Plaintiff’s failures, Summa is unable to adequately prepare its defense. Plaintiff is on -16- Sandra