On September 19, 2023 a
Answer
was filed
involving a dispute between
Shawnia A. Kelly,
and
Cleveland Clinic Foundation Ct Corporation System - Statutory Agent,
Fairview Hospital Ct Corporation System - Statutory Agent,
for MISCELLANEOUS - OTHER
in the District Court of Cuyahoga County.
Preview
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
ANSWER OF...
October 10,2023 14:35
By: DANIEL C. EGGER 0096903
Confirmation Nbr. 2986433
SHAWNIAA. KELLY CV 23 985701
vs.
Judge: NANCY MARGARET RUSSO
CLEVELAND CLINIC FOUNDATION, ET AL.
Pages Filed: 9
Electronically Filed 10/10/2023 14:35/ANSWERS / CV 23 985701 / Confirmation Nbr. 2986433 / BATCH
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
SHAWNIAA. KELLY, J CASE NO. CV 23 985701
)
Plaintiff, ) JUDGE NANCY MARGARET RUSSO
-vs- )
) ANSWER OF DEFENDANTS, CLEVELAND
CLEVELAND CLINIC FOUNDATION, ) CLINIC FOUNDATION AND FAIRVIEW
et al. ) HOSPITAL TO PLAINTIFF'S COMPLAINT
)
Defendants. ) (Jury Demand Endorsed Hereon)
)
)
Defendants, Cleveland Clinic Foundation and Fairview Hospital ("Defendants”),
through counsel, and for their Answer to Plaintiffs Complaint state as follows:
FACTS
1. Paragraph 1 is denied for want of knowledge.
2. Paragraph 2 is admitted to the extent that Defendant Cleveland Clinic
Foundation is an active corporation incorporated under the laws of Ohio with a principal
place of business in Cuyahoga County, but the remaining allegations of Paragraph 2 are
denied due to the vagueness of the allegations.
3. Paragraph 3 is admitted to the extent that Defendant Fairview Hospital is an
active corporation incorporated under the laws of Ohio with a principal place of business in
Cuyahoga County, but the remaining allegations of Paragraph 3 are denied due to the
vagueness of the allegations.
4. Paragraph 4 is denied due to the vagueness of the allegations and/or because
the allegations are untrue.
5. Paragraph 5 is denied due to the vagueness of the allegations and/or for want
of knowledge.
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6. Paragraph 6 is denied due to the vagueness of the allegations and/or for want
of knowledge.
7. Paragraph 7 is denied due to the vagueness of the allegations and/or for want
of knowledge and/or because the allegations are untrue.
8. Paragraph 8 is denied for want of knowledge.
9. Paragraph 9 is denied for want of knowledge.
10. Paragraph 10 is denied due to the vagueness of the allegations and/or for want
of knowledge.
11. Paragraph 11 is denied due to the vagueness of the allegations and/or for want
of knowledge.
12. Paragraph 12 is denied due to the vagueness of the allegations and/or for want
of knowledge.
13. Paragraph 13 is denied due to the vagueness of the allegations and/or for want
of knowledge.
14. Paragraph 14 is denied due to the vagueness of the allegations and/or for want
of knowledge and/or because the allegations are untrue.
15. Paragraph 15 is denied due to the vagueness of the allegations and/or for want
of knowledge and/or because the allegations are untrue.
16. Paragraph 16 is denied due to the vagueness of the allegations and/or for want
of knowledge and/or because the allegations are untrue.
17. Paragraph 17 is denied due to the vagueness of the allegations and/or for want
of knowledge.
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18. Paragraph 18 is denied due to the vagueness of the allegations and/or for want
of knowledge and/or because the allegations are untrue.
COUNT I
Breach of Bailment
19. Paragraph 19 is denied.
20. Paragraph 20 is denied.
21. Paragraph 21 is denied.
22. Paragraph 22 is denied.
AFFIRMATIVE DEFENSES AND ADDITIONAL DEFENSES
FIRST DEFENSE
1. Plaintiffs Complaint fails to state a claim against Defendants upon which relief
can be granted pursuant to Ohio Civ. R. 12(B)(6).
SECOND DEFENSE
2. Pursuant to Ohio Civ.R. 12(B)(5) there was insufficiency of service of process,
Summons and Complaint on Defendants.
THIRD DEFENSE
3. All or several of the claims set forth by Plaintiffin the Complaint are barred by
the applicable statutes of limitation including that which is set forth in R.C. 2305.113.
FOURTH DEFENSE
4. One or more of Plaintiffs claims are barred by the applicable statute of repose
including that which is set forth in R.C. 2305.113.
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FIFTH DEFENSE
5. The injuries to Plaintiff were as a consequence of Plaintiff expressly assuming
the risk of those injuries and damages and therefore Defendants are released from any
liability to Plaintiff and the claims set forth by Plaintiff in the Complaint are barred.
SIXTH DEFENSE
6. Plaintiff has failed to join a party pursuant to Ohio Civ. R. 19 or Ohio Civ. R.
19.1 and therefore Plaintiffs Complaint against Defendants must be dismissed.
SEVENTH DEFENSE
7. The injuries of Plaintiff are attributable to one or more persons from whom
the Plaintiff did not seek recovery in this action (R.C. 2307.23(C)).
EIGHTH DEFENSE
8. The injuries of Plaintiff as described by Plaintiff in the Complaint were
proximately caused by the acts and/or omissions of persons and/or entities other than
Defendants over whom Defendants had no control, no right to control, no duty to control and
in fact did not control, and therefore, Plaintiff cannot recover from Defendants.
NINTH DEFENSE
9. Although Defendants specifically deny any liability to the Plaintiff, Defendants
affirmatively state that the injuries and damages of Plaintiff as described by Plaintiff in the
Complaint were proximately caused by the intervening and superseding negligence and/or
other tortious conduct of another person and/or entity and therefore, Plaintiff cannot
recover from Defendants.
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TENTH DEFENSE
10. Plaintiff was comparatively negligent with regard to the injuries and damages
of Plaintiff as described by Plaintiff in the Complaint; accordingly, Plaintiff is either barred
from recovery against Defendants or any recovery obtained by Plaintiff against Defendant
must be reduced by an amount to be determined by the trier of fact.
ELEVENTH DEFENSE
11. Plaintiff failed to minimize or mitigate damages and injuries claimed to have
been suffered as a result of the event at issue; accordingly, any recovery by Plaintiff against
Defendants is either barred or to be reduced by an amount to be determined by the trier of
fact.
TWELFTH DEFENSE
12. Plaintiff lacks a reasonable good faith basis upon which to bring a medical
claim against Defendants thereby entitling Defendants to an award of attorneys' fees and
costs against Plaintiff as provided by R.C. 2323.42.
THIRTEENTH DEFENSE
13. The injuries and damages as described by Plaintiff in the Complaint were
caused by the acts and/or omissions of other individuals and/or entities whose conduct
Defendants had no reason to anticipate, said conduct not being the responsibility of
Defendants.
FOURTEENTH DEFENSE
14. One or several of the claims set forth for damages by Plaintiff in the Complaint
are subject to the limits on certain types of damages and this Court is without jurisdiction to
enter judgment for Plaintiff beyond such limitations.
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FIFTEENTH DEFENSE
15. Plaintiffs Complaint fails to comply with Ohio Civil Rule 10(D).
SIXTEENTH DEFENSE
16. One or more of the claims expressly or impliedly set forth by Plaintiff in the
Complaint was not brought in the name of the real party in interest pursuant to Ohio Civ.R.
17(A).
SEVENTEENTH DEFENSE
17. Defendants are entitled to a set-off from any verdict or judgment entered
against them, of any amount paid to Plaintiff by any other person or entity, pursuant to R.C.
2307.28.
EIGHTEENTH DEFENSE
18. Defendants are entitled to an apportionment of liability to other parties and
non-parties to this action pursuant to R.C. 2307.23.
NINETEENTH DEFENSE
19. Any damage or injury Plaintiff may have suffered as alleged in the Complaint
was solely and proximately caused by Plaintiff s own negligence.
TWENTIETH DEFENSE
20. Plaintiffs claim is barred and/or limited by Ohio Tort Reform Legislation.
TWENTY-FIRST DEFENSE
21. Plaintiffs Complaint is subject to the limitations set forth and SB281, SB120
and SB179 and corresponding revised code sections.
TWENTY-SECOND DEFENSE
22. Venue is improper.
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TWENTY-THIRD DEFENSE
23. Plaintiff lacks the capacity to sue.
TWENTY-FOURTH DEFENSE
24. Plaintiff lacks standing to sue.
TWENTY-FIFTH DEFENSE
25. There is no personal and/or subject matter jurisdiction for one or more of the
claims.
TWENTY-SIXTH DEFENSE
26. One or more of Plaintiffs claims are subject to principles of estoppel and/or
immunity.
TWENTY-SEVENTH DEFENSE
27. Some or all of the Plaintiffs claims for future medical care if any are limited by
the patient protection and Affordable Care Act, 42 USC §18001 et seq. and/or applicable case
law.
TWENTY-EIGHTH DEFENSE
28. These Defendants maintain that the only fair and proper evidence of medical
expense, as an item of damages, is the amount of medical expense actually incurred by a
payor. Amounts charged but not collected are improper evidence insofar as if awarded, they
would constitute a windfall recovery.
TWENTY-NINTH DEFENSE
29. These Defendants assert that the injury or harm suffered by Plaintiffs at issue
in this case was not foreseeable.
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THIRTIETH DEFENSE
30. Defendants are entitled to immunity under the Public Readiness and
Emergency Preparedness Act ("PREP Act"), 42 U.S.C. §247d, et seq.
THIRTY-FIRST DEFENSE
31. Defendants are entitled to qualified civil immunity for health care and
emergency services pursuant to 2019 Ohio HB 606.
THIRTY-SECOND DEFENSE
32. Defendants are entitled to immunity under the Law of the Land doctrine.
THIRTY-THIRD DEFENSE
33. Defendants are entitled to immunity as an emergency management agency
and/providers for the emergency management services and the good faith carrying out,
complying with, or attempting to comply with any state or federal law, pursuant to R.C
5502.30.
THIRTY-FOURTH DEFENSE
34. Plaintiffs claims are medical claims pursuant to R.C. 2305.113 et seq.
regardless if attempted to be pled otherwise.
THIRTY-FIFTH DEFENSE
35. Defendants did not breach any duty owed to Plaintiff.
THIRTY-SIXTH DEFENSE
36. These Defendants reserve the right to add any additional Affirmative Defenses
as the evidence and discovery so disclose.
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Respectfully submitted.
Zs7 Danny Egger____________
Danny Egger (0096903)
REMINGER CO., L.P.A.
200 Public Square, Suite 1300
Cleveland, Ohio 44115
(216) 687-1311-telephone
(216) 687-1841 - facsimile
degger@reminger.com
Attorney for Defendants
Cleveland Clinic Foundation
Fairview Hospital
IURY DEMAND
Trial by jury of the maximum number of jurists permitted is requested.
. /s/ Danny Egger
Danny Egger (0096903)
CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of October 2023, a copy of the foregoing Answer
was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic
filing system and e-mail to all parties indicated on the electronic filing receipt. Parties can
access this document through the Court’s system.
/s/ Danny Egger
Danny Egger (0096903)
Electronically Filed 10/10/2023 14:35 I ANSWERS / CV 23 985701 / Confirmation Nbr. 2986433 / BATCH
Document Filed Date
October 10, 2023
Case Filing Date
September 19, 2023
Category
MISCELLANEOUS - OTHER
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas ANSWER OF... October 10,2023 14:35 By: DANIEL C. EGGER 0096903 Confirmation Nbr. 2986433 SHAWNIAA. KELLY CV 23 985701 vs. Judge: NANCY MARGARET RUSSO CLEVELAND CLINIC FOUNDATION, ET AL. Pages Filed: 9 Electronically Filed 10/10/2023 14:35/ANSWERS / CV 23 985701 / Confirmation Nbr. 2986433 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO SHAWNIAA. KELLY, J CASE NO. CV 23 985701 ) Plaintiff, ) JUDGE NANCY MARGARET RUSSO -vs- ) ) ANSWER OF DEFENDANTS, CLEVELAND CLEVELAND CLINIC FOUNDATION, ) CLINIC FOUNDATION AND FAIRVIEW et al. ) HOSPITAL TO PLAINTIFF'S COMPLAINT ) Defendants. ) (Jury Demand Endorsed Hereon) ) ) Defendants, Cleveland Clinic Foundation and Fairview Hospital ("Defendants”), through counsel, and for their Answer to Plaintiffs Complaint state as follows: FACTS 1. Paragraph 1 is denied for want of knowledge. 2. Paragraph 2 is admitted to the extent that Defendant Cleveland Clinic Foundation is an active corporation incorporated under the laws of Ohio with a principal place of business in Cuyahoga County, but the remaining allegations of Paragraph 2 are denied due to the vagueness of the allegations. 3. Paragraph 3 is admitted to the extent that Defendant Fairview Hospital is an active corporation incorporated under the laws of Ohio with a principal place of business in Cuyahoga County, but the remaining allegations of Paragraph 3 are denied due to the vagueness of the allegations. 4. Paragraph 4 is denied due to the vagueness of the allegations and/or because the allegations are untrue. 5. Paragraph 5 is denied due to the vagueness of the allegations and/or for want of knowledge. Electronically Filed 10/10/2023 14:35 / ANSWERS / CV 23 985701 / Confirmation Nbr. 2986433 / BATCH 6. Paragraph 6 is denied due to the vagueness of the allegations and/or for want of knowledge. 7. Paragraph 7 is denied due to the vagueness of the allegations and/or for want of knowledge and/or because the allegations are untrue. 8. Paragraph 8 is denied for want of knowledge. 9. Paragraph 9 is denied for want of knowledge. 10. Paragraph 10 is denied due to the vagueness of the allegations and/or for want of knowledge. 11. Paragraph 11 is denied due to the vagueness of the allegations and/or for want of knowledge. 12. Paragraph 12 is denied due to the vagueness of the allegations and/or for want of knowledge. 13. Paragraph 13 is denied due to the vagueness of the allegations and/or for want of knowledge. 14. Paragraph 14 is denied due to the vagueness of the allegations and/or for want of knowledge and/or because the allegations are untrue. 15. Paragraph 15 is denied due to the vagueness of the allegations and/or for want of knowledge and/or because the allegations are untrue. 16. Paragraph 16 is denied due to the vagueness of the allegations and/or for want of knowledge and/or because the allegations are untrue. 17. Paragraph 17 is denied due to the vagueness of the allegations and/or for want of knowledge. Electronically Filed 10/10/2023 14:35 / ANSWERS / CV 23 985701 / Confirmation Nbr. 2986433 / BATCH 18. Paragraph 18 is denied due to the vagueness of the allegations and/or for want of knowledge and/or because the allegations are untrue. COUNT I Breach of Bailment 19. Paragraph 19 is denied. 20. Paragraph 20 is denied. 21. Paragraph 21 is denied. 22. Paragraph 22 is denied. AFFIRMATIVE DEFENSES AND ADDITIONAL DEFENSES FIRST DEFENSE 1. Plaintiffs Complaint fails to state a claim against Defendants upon which relief can be granted pursuant to Ohio Civ. R. 12(B)(6). SECOND DEFENSE 2. Pursuant to Ohio Civ.R. 12(B)(5) there was insufficiency of service of process, Summons and Complaint on Defendants. THIRD DEFENSE 3. All or several of the claims set forth by Plaintiffin the Complaint are barred by the applicable statutes of limitation including that which is set forth in R.C. 2305.113. FOURTH DEFENSE 4. One or more of Plaintiffs claims are barred by the applicable statute of repose including that which is set forth in R.C. 2305.113. Electronically Filed 10/10/2023 14:35 / ANSWERS / CV 23 985701 I Confirmation Nbr. 2986433 / BATCH FIFTH DEFENSE 5. The injuries to Plaintiff were as a consequence of Plaintiff expressly assuming the risk of those injuries and damages and therefore Defendants are released from any liability to Plaintiff and the claims set forth by Plaintiff in the Complaint are barred. SIXTH DEFENSE 6. Plaintiff has failed to join a party pursuant to Ohio Civ. R. 19 or Ohio Civ. R. 19.1 and therefore Plaintiffs Complaint against Defendants must be dismissed. SEVENTH DEFENSE 7. The injuries of Plaintiff are attributable to one or more persons from whom the Plaintiff did not seek recovery in this action (R.C. 2307.23(C)). EIGHTH DEFENSE 8. The injuries of Plaintiff as described by Plaintiff in the Complaint were proximately caused by the acts and/or omissions of persons and/or entities other than Defendants over whom Defendants had no control, no right to control, no duty to control and in fact did not control, and therefore, Plaintiff cannot recover from Defendants. NINTH DEFENSE 9. Although Defendants specifically deny any liability to the Plaintiff, Defendants affirmatively state that the injuries and damages of Plaintiff as described by Plaintiff in the Complaint were proximately caused by the intervening and superseding negligence and/or other tortious conduct of another person and/or entity and therefore, Plaintiff cannot recover from Defendants. Electronically Filed 10/10/2023 14:35 I ANSWERS / CV 23 985701 / Confirmation Nbr. 2986433 / BATCH TENTH DEFENSE 10. Plaintiff was comparatively negligent with regard to the injuries and damages of Plaintiff as described by Plaintiff in the Complaint; accordingly, Plaintiff is either barred from recovery against Defendants or any recovery obtained by Plaintiff against Defendant must be reduced by an amount to be determined by the trier of fact. ELEVENTH DEFENSE 11. Plaintiff failed to minimize or mitigate damages and injuries claimed to have been suffered as a result of the event at issue; accordingly, any recovery by Plaintiff against Defendants is either barred or to be reduced by an amount to be determined by the trier of fact. TWELFTH DEFENSE 12. Plaintiff lacks a reasonable good faith basis upon which to bring a medical claim against Defendants thereby entitling Defendants to an award of attorneys' fees and costs against Plaintiff as provided by R.C. 2323.42. THIRTEENTH DEFENSE 13. The injuries and damages as described by Plaintiff in the Complaint were caused by the acts and/or omissions of other individuals and/or entities whose conduct Defendants had no reason to anticipate, said conduct not being the responsibility of Defendants. FOURTEENTH DEFENSE 14. One or several of the claims set forth for damages by Plaintiff in the Complaint are subject to the limits on certain types of damages and this Court is without jurisdiction to enter judgment for Plaintiff beyond such limitations. Electronically Filed 10/10/2023 14:35 / ANSWERS / CV 23 985§01 / Confirmation Nbr. 2986433 / BATCH FIFTEENTH DEFENSE 15. Plaintiffs Complaint fails to comply with Ohio Civil Rule 10(D). SIXTEENTH DEFENSE 16. One or more of the claims expressly or impliedly set forth by Plaintiff in the Complaint was not brought in the name of the real party in interest pursuant to Ohio Civ.R. 17(A). SEVENTEENTH DEFENSE 17. Defendants are entitled to a set-off from any verdict or judgment entered against them, of any amount paid to Plaintiff by any other person or entity, pursuant to R.C. 2307.28. EIGHTEENTH DEFENSE 18. Defendants are entitled to an apportionment of liability to other parties and non-parties to this action pursuant to R.C. 2307.23. NINETEENTH DEFENSE 19. Any damage or injury Plaintiff may have suffered as alleged in the Complaint was solely and proximately caused by Plaintiff s own negligence. TWENTIETH DEFENSE 20. Plaintiffs claim is barred and/or limited by Ohio Tort Reform Legislation. TWENTY-FIRST DEFENSE 21. Plaintiffs Complaint is subject to the limitations set forth and SB281, SB120 and SB179 and corresponding revised code sections. TWENTY-SECOND DEFENSE 22. Venue is improper. Electronically Filed 10/10/2023 14:35 / ANSWERS / CV 23 985J01 / Confirmation Nbr. 2986433 / BATCH TWENTY-THIRD DEFENSE 23. Plaintiff lacks the capacity to sue. TWENTY-FOURTH DEFENSE 24. Plaintiff lacks standing to sue. TWENTY-FIFTH DEFENSE 25. There is no personal and/or subject matter jurisdiction for one or more of the claims. TWENTY-SIXTH DEFENSE 26. One or more of Plaintiffs claims are subject to principles of estoppel and/or immunity. TWENTY-SEVENTH DEFENSE 27. Some or all of the Plaintiffs claims for future medical care if any are limited by the patient protection and Affordable Care Act, 42 USC §18001 et seq. and/or applicable case law. TWENTY-EIGHTH DEFENSE 28. These Defendants maintain that the only fair and proper evidence of medical expense, as an item of damages, is the amount of medical expense actually incurred by a payor. Amounts charged but not collected are improper evidence insofar as if awarded, they would constitute a windfall recovery. TWENTY-NINTH DEFENSE 29. These Defendants assert that the injury or harm suffered by Plaintiffs at issue in this case was not foreseeable. Electronically Filed 10/10/2023 14:35 / ANSWERS / CV 23 985701 / Confirmation Nbr. 2986433 / BATCH THIRTIETH DEFENSE 30. Defendants are entitled to immunity under the Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. §247d, et seq. THIRTY-FIRST DEFENSE 31. Defendants are entitled to qualified civil immunity for health care and emergency services pursuant to 2019 Ohio HB 606. THIRTY-SECOND DEFENSE 32. Defendants are entitled to immunity under the Law of the Land doctrine. THIRTY-THIRD DEFENSE 33. Defendants are entitled to immunity as an emergency management agency and/providers for the emergency management services and the good faith carrying out, complying with, or attempting to comply with any state or federal law, pursuant to R.C 5502.30. THIRTY-FOURTH DEFENSE 34. Plaintiffs claims are medical claims pursuant to R.C. 2305.113 et seq. regardless if attempted to be pled otherwise. THIRTY-FIFTH DEFENSE 35. Defendants did not breach any duty owed to Plaintiff. THIRTY-SIXTH DEFENSE 36. These Defendants reserve the right to add any additional Affirmative Defenses as the evidence and discovery so disclose. Electronically Filed 10/10/2023 14:35 / ANSWERS / CV 23 985gp1 / Confirmation Nbr. 2986433 / BATCH Respectfully submitted. Zs7 Danny Egger____________ Danny Egger (0096903) REMINGER CO., L.P.A. 200 Public Square, Suite 1300 Cleveland, Ohio 44115 (216) 687-1311-telephone (216) 687-1841 - facsimile degger@reminger.com Attorney for Defendants Cleveland Clinic Foundation Fairview Hospital IURY DEMAND Trial by jury of the maximum number of jurists permitted is requested. . /s/ Danny Egger Danny Egger (0096903) CERTIFICATE OF SERVICE I hereby certify that on this 10th day of October 2023, a copy of the foregoing Answer was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system and e-mail to all parties indicated on the electronic filing receipt. Parties can access this document through the Court’s system. /s/ Danny Egger Danny Egger (0096903) Electronically Filed 10/10/2023 14:35 I ANSWERS / CV 23 985701 / Confirmation Nbr. 2986433 / BATCH