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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
November 9,2023 15:53
By: ERIC HENRY 0086750
Confirmation Nbr. 3014422
ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038
HARBAUGH
vs.
Judge: SHIRLEY STRICKLAND SAFFOLD
SOUTHWEST GENERAL, ET AL.
Pages Filed: 47
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANDREW HARBAUGH, individually and ) Case No: CV 23 975038
as administrator of the ESTATE OF JOHN)
HARBAUGH, )
JUDGE SHIRLEY STRICKLAND
) SAFFOLD
)
Plaintiff, )
)
v. ) PLAINTIFF’S BRIEF IN OPPOSITION
) TO DEFENDANT SHAH’S MOTION
SOUTHWEST GENERAL, ET AL. ) FOR AMENDMENT OF EXPERT AND
) DISPOSITIVE MOTION DEADLINES
)
Defendants. )
Plaintiff, by and through counsel, submits his Brief in Opposition to Defendant Shah’s
Motion for Amendment of expert and dispositive motion deadlines. Defendant’s Motion for
Extension of all defense expert reports is premised solely on attempts to obtain records/evidence
from Plaintiff pathology expert Dr. Cyril Wecht. However, Defendants were made aware over six
months ago that Dr. Wecht conducted Mr. Harbaugh’s autopsy. Most importantly, Dr. Wecht’s
office has already produced its complete file contents to Defendants six weeks before Defendants’
reports were due. See Defendant Shah’s Motion for Extension, Exhibit L.
The Court should deny Defendants’ improper efforts to delay this case and amend a
scheduling Order that was adopted by this Court after agreement of the parties on June 22, 2023 f
Plaintiff has voluntarily provided - and Defendant Shah has served - a HIPAA compliant
1The parties have held numerous status conferences on 7/19/23, 8/10/23, and 9/29/23. Defendants
never raised any concerns about expert report deadlines. Plaintiff has complied with his obligations
under the Order by producing affirmative expert reports by October 2, 2023.
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authorization to Dr. Wecht’s office. Dr. Wecht’s office responded on September 29, 2023, and
provided its complete file to Defendant Shah. Defendant Shah continued to seek “tissue samples”
which Dr. Wecht’s office confirmed it did not possess. Defendant Shah is now seeking to issue a
subpoena to Dr. Wecht’s office. The only additional request in the subpoena, however, is for
“policies regarding the retention of tissue samples obtained from autopsies.” Dr. Wecht’s internal
policies have no bearing on the substantive opinion of a defense expert report. Defendants’ experts
have the same autopsy report and case file available to them that Plaintiff’s experts used and relied
on in their reports. Defendant’s attempts to extend the expert report deadline are made solely for
the purpose of delay.
For these reasons, Plaintiff respectfully requests this Court deny Defendant Shah’s request
for an amendment to his expert deadline and the dispositive deadline. The reasoning and basis is
fully set forth in the memorandum in support, incorporated herein.
Respectfully submitted,
/s/ Eric W.Henry
Eric W. Henry, Esq. (0086750)
Katherine S. Knouff (0085566)
The Henry Law Firm
8401 ChagrinRoad, Suite 18
Chagrin Falls, Ohio 44023
440-337-0083 Telephone
440-337-0084 Facsimile
eric@erichenrylaw.com
Kathie@erichenrylaw.com
Attorneys for Plaintiff
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MEMORANDUM IN SUPPORT
I. ShortStatementofFacts
1. February 14, 2022, Southwest General’s Medical Treatment, Diagnosis and
Discharge of Mr. Harbaugh.
On February 15, 2022, John Harbaugh presented to Southwest General emergency room
for sudden onset pain to his left groin and thigh area. An X-Ray was performed, and he was given
Toradol and Flexor for pain. The Radiologist made an incidental finding of a critical abdominal
aortic aneurysm and initiated an emergency call to Dr. Shah to recommend a follow up CT scan
or ultrasound. Dr. Shah, however, disregarded the recommendation, diagnosed Mr. Harbaugh with
a left groin and thigh strain, and sent him home without further work up. Mr. Harbaugh died in his
home the next morning from a ruptured abdominal aortic aneurysm.
2. The Autopsy - Dr. Cyril Wecht & Associates
a. How the Autopsy of John Harbaugh Came to Be.
Mr. Harbaugh’s son, Andy Harbaugh, found his father dead in his home on February 16,
2022. The police and coroner arrived, and Andy told them that his father had told him he did not
wish to have an autopsy. The police and coroner agreed an autopsy was not necessary as they
determined the death to be of natural causes. As such, the coroner left, and Mr. Harbaugh was
transported to Waite & Son Funeral Home. After Mr. Harbaugh was taken to the funeral home,
Andy spoke with his father’s best friends who lived next door and he found out his dad had been
in the emergency room the evening before due to extreme gut and groin pain (Harbaugh depo2 p.
59-60.)
2 Relevant portions of Andrew Harbaugh’s deposition attached hereto as Exhibit 1.
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Upon returning to his father’s home, Andy found the Southwest General emergency
department discharge papers sitting on the table and he became troubled by the diagnosis of a groin
strain and had questions about what really happened to his dad. (Harbaugh depo p. 71-72.) Andy
did not believe someone could “pass away from a groin sprain” so he asked the funeral home about
obtaining an autopsy. The funeral home provided Andy with the contact information for Dr. Cycil
Wecht & Associates. Andy called their office from the funeral home to discuss the cost of the
autopsy and the funeral home-made arrangements for his father’s body to be transferred to
Pennsylvania for the Autopsy to be performed. (Id. at 72.) Mr. Harbaugh was cremated after the
Autopsy in Pennsylvania where his remains remain today.
Andy paid for the autopsy but never spoke to either of the pathologists involved in his
father’s autopsy prior to it occurring. (Id. at 74.). He later learned of the cause of death being a
ruptured abdominal aortic aneurysm when a female from Dr. Wecht’s office called him to explain
the results. (Id. at 76.) While Andy never read the autopsy himself - as it was too difficult. His
wife advised him of the results in more detail.
b. The Autopsy Results
The Autopsy report was performed on February 22, 2022, and the pathologists found Mr.
Harbaugh’s cause of death to be a ruptured aortic abdominal aneurysm. See Exhibit 2 - Autopsy
report. The pathologists produced a detailed 17- page autopsy report with eighty-six graphic photos
to support the findings. The Autopsy states that “representative samples of blood have been
retained for possible future toxicologic analysis.” The autopsy report makes no other
representation of any samples retained. See Exhibit 2, pg. 9.
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II. Analysis
1. Defendant Shah’s unsubstantiated, destruction of evidence/spoliation narrative is
a flagrant attempt to get the Court’s attention, not an exigent circumstance to
support a continuance.
This Court, in its June 22, 2023, Case Management Order, states that no further continuances
would be granted absent exigent circumstances. Defendant Shah has not presented any exigent
circumstances to support a continuance, nor has the defense raised any concerns about the expert
report deadlines in the numerous interactions the parties have had with the Court until after
Plaintiff produced his reports and defense reports are shortly due.
Defendant Shah’s motion improperly presents a wholly unsubstantiated, false narrative of
destruction and spoliation to this Court, as a purposeful distraction and delay tactic, disguised as
a possible exigent circumstance. It is not. Dr. Shah’s counsel falsely submits to this Court that he
needs an additional 30 days to issue a subpoena to Dr. Wecht because Valerie from the
pathologist’s office told them that “slides and tissues had likely been destroyed.” See Def.’s
Motion at p. 5. To the contrary, Defendant’s own exhibit shows the conversation wherein Valerie
indicated merely that “they do not have the slides you requested” with no reference to anything
having been destroyed. Id. at Exhibit L. Defendant Shah’s claims of destruction or spoliation are
unfounded and present no basis for an extension on the expert report deadline.
2. The subpoena is identical to the HIPAA release that Dr. Wecht responded to - the
only difference is that they are requesting policies regarding the retention of tissue
samples obtained from autopsies, in general.
The subpoena Defendant uses as his reason for requesting additional time, will not provide
Defendants with any additional information about Mr. Harbaugh’s autopsy. Defendants argue
they need the additional time to domesticate a subpoena “to confirm the location (or destruction)
of the tissue samples.”
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Defendant Shah’s subpoena will not answer that question. The HIPAA authorization,
which has already been responded to and the new subpoena are nearly identical - the only
difference between the two is the subpoena makes one new request for “any and all policies
regarding the retention of tissue samples obtained from autopsies.”
HIPAA COMPUAXTAVTHORIZATIOHFORMPVRSVAXT TO 45 CFS 164.566
EXHIBIT A
Name or specific identification of the per$on(s). or class of persons, authorized to make the
To Cyril Wecht Subpoena
requested disclosure:
Cyril H, Wecht and Pathology Associates, Inc.
900 Fifth Avenue Suite 505 1. All medical records, including inpatient, outpatient and emergency room
Pittsburgh, PA 15219
treatment, all clinical charts, reports, documents, correspondence, test
results, statements, questionnaires/histories. office and doctor's
handwritten notes, and records received by other physicians.
Patient Name: Andrew Harbuagh
DOB: 6/6/1947 2. Entire autopsy file including photographs, laboratory, histology, cytology,
SSN: nx-n-6436 re-cuts of pathology, radiology. CT Scan. MRI. echocardiogram and
cardiac catheterization report.
I authorize the disclosure of all protected medical infonnation. I expressly request that all health
3. Any and all reports and/or records relating to HIV/AIDS and
plans and all health care providers identified above disclose bill and complete protected medical
alcohol/substance abuse.
information spanning the time period of 01/01/2013 to present including the following:
• All medical records, including inpatient, outpatient and emergency room treatment, all 4. All radiology films, mammograms, myelograms. CT scans, photographs,
clinical charts, reports, documents, correspondence, test results, statements, bone scans, pathology/cytology/histology/autopsy/immunohistochemistry
questionnaires/histories. office and doctor’s handwritten notes, and records received by specimens, cardiac catheterization videos/CDs/films/reels. and
other physicians.
echocardiogram videos.
• Entire autopsy file including, photographs, laboratory, histology, cytology, re-cuts of 5. All phannacy/prescription records including NDC numbers and ding
pathology, radiology. CT Scan. MRI. echocardiogram and cardiac catheterization report. infonnation handouts/monographs.
• Any and all reports and'or records relating to HIV/AIDS and alcohol/substance abuse
6. All psychotherapy notes, psychiatric or psychological records.
• All radiology films, mammograms, myelograms. CT scans, photographs, bone scans,
pathology/cytology/histology/autopsy/immunoliistochemistry specimens, cardiac
7. All billing records including all statements, itemized bills, and insurance
catheteiization videos/CDs'films;reels. and echocardiogram videos.
records.
• All phannacy/prescription records including NDC numbers and ding information
handouts/monographs. 8. Any and all policies regarding the retention of tissue samples obtained
from autopsies.
• All psychotherapy notes, psychiatric or psychological records
• All billing records including all statements, itemized bills, and insurance records.
See Exhibit 3 - HIPAA Authorization and Exhibit 4 Subpoena.
The Subpoena will result in the same information Defendants already possess. If in fact a
policy exists, it will simply tell them IF a sample IS retained during an autopsy, how long you
retain it. The policy (if one exists) will not tell them whether slides and tissue were even taken
during the Autopsy. Most importantly, the policy (if one exists) will not tell a defense expert
anything about John Harbaugh. Defendants argument that they need this new information (a
policy) to prove whether any sample possibly obtained in Mr. Harbaugh’s autopsy was destroyed,
fails on its face. The requested information does not bear on an expert report.
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3. Defendant’s requested extensions will unreasonably delay this matter.
This Court in its June 12, 2023, Order, set a new case management schedule. The Court
stated that no continuances will be granted absent exigent circumstances. The dates proposed by
Defendant Shah, as set forth in the table below, would only give this Court six days to review and
rule on motions prior to the final pretrial and only 20 days prior to the trial.
Current Order Proposed by Defendants
Plaintiff Expert 10.2.23
Defense Expert 11.13.12 12.13.23
MSJ 11.27.24 12.27.23
BIO 12.25.23 1.24.24
Reply 1.1.24 1.31.24
Final Pre-trial 2.6.24 2.6.24
Trial 2.26.24 2.26.24
4. It has never been a secret that Plaintiff alleges Mr. Harbaugh’s cause of death was
a ruptured Abdominal Aortic Aneurysm which is supported by an autopsy.
Plaintiff has made his case very clear from the beginning that his medical negligence and
wrongful death claims arise from a fatal ruptured abdominal aortic aneurysm. Plaintiffs
Complaint and Amended Complaint allege:
On February 15, 2022, Mr. Harbaugh presented to the Southwest General located
at 18697 Bagley Road, Middleburg Heights, OH with indications of an abdominal
aortic aneurysm. Upon presentation to the Southwest General emergency room,
Mr. Harbaugh came under the medical care of Dr. Tushar Shah and providers
employed by Defendants. Defendant Shah and Defendants’ providers were
negligent and failed to act within the standard of care for Mr. Harbaugh by, among
other things, failing to properly evaluate, diagnose, test for, and/or treat Mr.
Harbaugh for an abdominal aortic aneurysm during the time which Mr. Harbaugh
was under their care. On February 15, 2022, Dr. Shah diagnosed Mr. Harbaugh
with a groin strain and discharged him to his home. On February 16, 2022, Mr.
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Harbaugh was discovered deceased in his home. His cause ofdeath was determined
to be a ruptured abdominal aortic aneurysm. Had Dr. Shah and Defendants’
providers met the applicable standard of care and treatment for Mr. Harbaugh prior
to and/or at the time of his discharge on September 15, 2022, Mr. Harbaugh would
not have suffered a fatal abdominal aortic aneurysm. Had Dr. Shah and
Defendants’ providers met the applicable standard of care and treatment for Mr.
Harbaugh prior to and/or at the time of his discharge on September 15, 2022, Mr.
Harbaugh would not have suffered a fatal abdominal aortic aneurysm.
(Plaintiffs Complaint at 15-19, Plaintiffs Amended Complaint ** 15-20).
Defendants have been in possession of the Dr. Wecht’s Autopsy listing Mr. Harbaugh’s
cause of death as a ruptured abdominal aneurysm and have had knowledge that Plaintiff was using
the autopsy in support of its claims since April 12, 2023 - when Plaintiff produced the autopsy in
his initial disclosures. See Exhibit 5 - Plaintiff's Initial Disclosures.
In fact, on May 15, 2023, Plaintiff produced the autopsy again, along with Mr. Harbaugh’s
pre-death cardiologist medical records in response to Defendants’ requests for production of
documents. See Def.’s Motion at p. 3.
On August 21, 2023, the deposition of Mr. Harbaugh’s son, Andy, was taken. Counsel for
the Hospital took the lead on his cross examination. Counsel marked the Autopsy as Exhibit 5 and
asked Andy many questions related to the autopsy. Counsel examined Andy in depth about the
autopsy. In total, the autopsy was mentioned forty-three times in his deposition. Defense counsel
was prepared to cross examine Mr. Harbaugh on the contents of the Autopsy.
Thereafter, on August 24, 2023, the undersigned took the Deposition of Dr. Shah.
Plaintiff's counsel also entered the Autopsy as an exhibit. Despite numerous attempts to ask Dr.
Shah questions related to the autopsy, including questions related to Mr. Harbaugh’s cause of
death, or whether the condition was present while being treated by Dr. Shah, Dr. Shah’s counsel
refused to let him answer any questions related to the autopsy.
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Q: Okay. Well, first of all, on the first page the medical examiner/pathologist
here writes "Final Pathological Diagnoses. "Hypovolemic shock due to
ruptured abdominal aortic aneurysm."
Q: Do you see that?
MS. HESS: I’m going to object and I’m not going to have him answer any
questions about an autopsy that he’s never seen before.
MR. HENRY: Well, he’s looking at it now.
MS. HESS: No, he’s not looking at it now.
MR. HENRY: I can’t ask him questions about that?
MS. HESS: No. Absolutely not. And I have multiple orders on that topic if
you want to -
MR. HENRY: What’s the basis?
MS. HESS: — go down that road. This came after his care. He’s only here
to talk about his own care, not as an expert. And we have not had to
disclose experts yet and ifl have him start giving expert opinions, I then
waive my right to identify experts. So he will not be answering any
questions about an autopsy.
(Dr. Shah Depo.3 at pp 149-150).
Dr. Shah and his counsel stated the Dr. Shah’s only knowledge of the contents of the
autopsy were what his counsel advised him, showing that defense counsel had carefully reviewed
the autopsy prior to his deposition and was working with potential Defense experts.
On September 20, 2023, Dr. Shah’s office sent authorizations to Plaintiff’s counsel,
seeking records for the last 10 years of John’s life, including his autopsy. On September 24, 2023,
the undersigned returned the executed authorizations. Dr. Shah’s counsel sent the executed
authorization to Dr. Wecht. On September 29, 2023, Dr. Wecht’s office produced the Autopsy
3 Relevant portions of Dr. Shah’s depo attached as Exhibit 6.
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report, 86 photographs and handwritten notes. On October 2, 2023, Plaintiff timely identified his
experts, including Dr. Wecht, and produced reports.
On October 13, 2023, Shah’s counsel put the Court on notice that they needed to
domesticate a subpoena and will need an extension of their expert reports. Instead, Defendant
Shah’s counsel waited until November 2, 2023, to provide the proper notice to get his subpoena
domesticated. Defendant’s lack of any urgency to get the subpoena served, further points to his
request, as nothing more than a reason to delay the proceedings.
5. Defendants did nothing to investigate whether pathology slides or tissue samples
were ever obtained in Mr. Harbaugh’s autopsy.
As set forth above, Defendants have known this cases centers around the aortic abdominal
rupture and Plaintiff were using the Autopsy as support for his claim. Counsel has had the Autopsy
report since April 12, 2023. Defendants made no attempt to investigate if samples were even taken
- they just say slides were destroyed - with no support. Had tissue samples been a real issue,
Defendants would have made it a priority to investigate the issue.
6. Defendants’ experts have the same autopsy report Plaintiff’s experts relied on in
their reports.
Defendant argues his experts should be able to rely on the same autopsy and finding that
plaintiff’s experts relied on. This argument has no merit. Plaintiff’s experts relied on the autopsy
- the same autopsy Defendants have had for seven months. Their Defendant expert can rely on
and/or rebut the same. If new evidence arises, their experts can supplement his/her reports up until
thirty days prior to trial.
7. Plaintiff identified Dr. Wecht as one of his experts
On October 2, 2023, in accordance with the Court’s case management schedule. Plaintiff
identified Dr. Wecht as an expert, among others, and produced his autopsy report for the third time
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to the Defendants. Defendants will have the opportunity to depose Dr. Wecht as an expert, should
they choose to do so and may examine him on tissue samples or policies as they see fit. However,
such attempts to impeach Dr. Wecht’s opinion have no bearing on any affirmative opinion that
would be offered by a defense pathologist . 4
Wherefore, for all these reasons set forth, Plaintiff respectfully requests this Court deny
Defendant Shah’s request for an amendment to his expert deadline and the dispositive deadline.
Respectfully submitted,
/s/ Eric W.Henry
Eric W. Henry, Esq. (0086750)
Katherine S. Knouff (0085566)
The Henry Law Firm
8401 ChagrinRoad, Suite 18
Chagrin Falls, Ohio 44023
440-337-0083 Telephone
440-337-0084 Facsimile
eric@erichenrylaw.com
Kathie@erichenrylaw.com
Attorneys for Plaintiff
4 Plaintiff’s claim is that Dr. Shah, an emergency medicine doctor, breached the standard of care. In support,
Plaintiff produced the expert reports of an emergency medicine doctor, a vascular surgeon, and Dr. Wecht.
Defendant does not even attempt to argue that the Dr. Wecht subpoena would have any impact on an emergency
medicine or vascular surgery expert report.
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CERTIFICATE OF SERVICE
Counsel for Plaintiff hereby certifies that a true and accurate copy of the foregoing has
been sent to all counsel of record via this Court’s e-filing system this 9th day ofNovember 2023.
ERIC W. HENRY (0086750)
Attorney for Plaintiff
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EXHIBIT 1
Andrew Harbaugh, Individually and as
Administrator of the Estate of John Harbaugh,
vs.
Southwest General, et al.,
Cuyahoga County Court of Common Pleas
Case No. CV 23 975038
Andrew Harbaugh
Monday, August 21, 2023
Reporter Rebecca Fumich
www^ariclaGuurtreportlnfl.com
216-241-3918 fax: 216-241-3935
J LITIGATION 1020 Ohio Savmos Phza
SOLUTIONS ' '
T/no/omq 15:53 / brief / cv 23 975038 / Confirmation Nbr. 3014422 / CLAJB i8oiE«t 9th Stmt
Clereland, OH 44114
am-.
I of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et
1 a decision that you initially made based on your
2 dad's wishes.
3
A Yes.
4 Q It wasn't a case that any medical provider
5 told you that you shouldn't have an autopsy —
6
you should or shouldn't have an autopsy done.
7 A Yes.
8 Q That was strictly your decision based on your
9 dad's wishes.
10
A Yes.
11 Q Where was your dad taken from the home? Do
12
you know? Was he taken to any hospital? Was
13 he — I'm just trying to find out because we
14 don't have any records after the ER visit. I'm
15 just trying to see if we can clarify where he --
16 I believe he went to — straight to Waite &
A
17 Son Funeral Home, but I don't know.
18 Q You weren't aware that he was ever taken to
19 some sort of hospital or some sort of facility
20 prior to going into the funeral home?
21 I do not know.
A
22 Q Okay. When did you first become aware that
23 he had gone to the ER the day before?
24
A I became aware when I talked to his neighbor.
25 Q When was that?
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ion of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et
1 A It was that day, on the 16th.
2 Q After you had found your dad?
3
A Yes.
4 Q Okay. And are we talking about the same
5 neighbor?
6
A Yes.
7 Q Tell me about the conversation.
8 A Well, I went over to tell him what happened,
9 and he had told me that dad had been at the
10 hospital and asked him -- you know, I was very
11 questionable, you know. I didn't understand.
12 And he told me your dad -- my dad had stopped at
13 his house to see him, and my neighbor had told my
14 dad he needs to go to the hospital because he
15 looks horrible, and my dad told the neighbor "I
16 just got back from the hospital."
17 Q And did your dad tell your neighbor why he
18 had gone to the hospital?
19 A He told him he was hurting. His gut was
20 hurting, groin, gut. He was hurting down below.
21 I don't recall exactly what the neighbor had told
22 me, but my dad -- he explained to me my dad was
23 in a lot of pain.
24 Q I want to be clear -- and if you don't
25 recall, that's fine -- do you know where the
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ion of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et
1 Q And I'm not asking you about any
2 conversation, but when did you first contact an
3 attorney in this case?
4 A I am unsure of the date.
5 Q Before or after the autopsy?
6 A It was after.
7 Q Okay. Who prompted this discussion with
8 Waite & Son to even get Dr. Wecht's name?
9 A I was fine with no autopsy because that was
10 my dad's wishes. And once I found out about him
11 being at the hospital the night before and found
12 his discharge papers, I had questions and was
13 troubled by it.
14 Q Did you ever call anyone at Southwest to say
15 "Hey, my dad was just in there the day before, he
16 now passed away"? Did you ever seek any
17 clarification?
18 A No, I did not.
19 Q So you never called anyone at Southwest and
20 attempted to speak to anyone that was involved in
21 his care in the ER?
22
A No.
23 Q The only thing that prompted you to say I
24 want to do something further is the fact that he
25 was in there the day before and what was on the
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ion of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et
1 discharge papers.
2 A Correct.
3 Q What was on the discharge papers that
4 troubled you?
5 A Well, I didn't think anybody can pass away
6 from a groin strain.
7 Q Who at Waite & Son told you about Dr. Wecht's
8 name?
9 A I believe it was the director. I'm not sure
10 who I spoke with that day.
11 Q Tell me about what prompted you to even get
12 it.
13 A To get what?
14 Q To get Wecht's name.
15 A I had gone to the funeral home and, you know,
16 we were supposed to be -- I had made an
17 appointment because I had to plan his cremation,
18 and when I went to the funeral home, I told them,
19 you know, that I'm having doubts here and I would
20 like to get an autopsy, and they said they could
21 provide me a name.
22 Q Was there any type of showing for your dad?
23
A No.
24 Q So he was taken there. Was there any type of
25 funeral?
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ion of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et
1 home. I don't recall, though.
2 Q When you say "took care of" —
3 A The bill and everything. We took care of it
4 right away.
5 Q But did you have — I guess my question —
6 A I don't think I had a conversation with them.
7 Q Okay. I mean -
8 A I don't remember a conversation with them at
9 all.
10 Q Okay. So prior to the autopsy being
11 performed, did you have a conversation with
12 Dr. Wecht?
13
A No.
14 Q Did you have a conversation with another
15 individual listed on the autopsy, a
16 Dr. Delmastro? Did you have any conversation
17 with him prior to the autopsy?
18
A No.
19 Q Did you have any conversations with either of
20 their offices other than what it's going to cost?
21
A No.
22 Q Did you have -
23 A I don't recall if I did or not.
24 Q It seemed -
25 A Correct that. Let me correct that. I did
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of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et
1 Q Okay. Do you know who was present during the
2 autopsy?
3 No, I do not.
A
4 Q Were you?
5 A I was not.
6 Q Was any family or friends present?
7 A No.
8 Q How did you first learn about the results of
9 the autopsy?
10
A The pathologist's office called me and
11 explained to me what happened.
12 Q Do you know who you spoke with?
13 A No, I do not.
14 Q Was it Dr. Wecht?
15 A Let me see that. Possibly. It was a female.
16 Q Dr. Wecht — I've seen Dr. Wecht enough.
17 He's not a female.
18 A Then, no. I spoke with a female pathologist.
19 I do not know whom offhand.
20 Q Do you know when you spoke to this female
21 pathologist?
22
A No.
23 Q Okay. What do you recall about the
24 conversation?
25 A Just that they had informed me what had
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Tackla Court Reporting, LLC PH: 216.241.3918 Page: 76
EXHIBIT 2
Cyril. H. Wecht and’Pathology Associates, inc.
0OO FIFTH AVENUE, SUITE 505
PITTSBURGH, PENNSYLVANIA 15210
CYRIL H. WECHT, M.D., J.D., PRESIDENT (412) 281-0000
FAX (412) 281-3850
EMAIL: wechtpath@cyrilwecht.coni
May 23, 2022
Andrew Harbaugh
10091 Garver Road
Litchfield, OH 44253
RE: John Harbaugh, Deceased
Dear Mr. Harbaugh,
Enclosed is the original copy of the postmortem protocol report relating to
the autopsy I performed on your father, John Harbaugh.
I believe the pathological diagnoses are self-explanatory. However, if you
have any questions, please do not hesitate to contact me.
I should like to take this opportunity to express my personal condolences to
you and all the members of your family.
With kind regards.
Sincerely,
/jlh
Enclosure (1)
Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB
Cyril H. Wecht and Pathology Associates, inc.
900 FIFTH AVENUE, SUITE 505
” - PITTSBURGH, PENNSYLVANIA 15218
CYRIL H. WECHT, M.D., J.D., PRESIDENT (412) 281-9000
FAX (412) 261-3850
EMAIL: wechtpath@cyrilwecht.com
JOHN HARBAUGH FEBRUARY 22, 2022
FINAL PATHOLOGICAL DIAGNOSES (CHW22-0086);
Hypovolemic shock due to ruptured abdominal aortic aneurysm:
Abdominal aortic aneurysm with open defect on left aspect.
Hemoperitoneum with liquid and clotted blood.
Hemorrhage within periaortic soft tissues.
Hemorrhage within left kidney pelvis and calyces.
Hemorrhage surrounding left adrenal gland.
Hemorrhage on external aspect of pancreas.
Hemorrhage within soft tissues surrounding bladder and prostate
Arteriosclerotic cardiovascular disease:
Near total occlusion of left anterior descending coronary artery.
Severe atherosclerotic stenosis of right coronary artery, multifocal.
Severe atherosclerotic stenosis of branch of left anterior descending
coronary artery.
Pallor of interventricular septum.
Moderate atherosclerotic stenosis of basilar artery and branches of circle
of Willis.
Cardiomegaly with dilated cardiomyopathy, marked.
Emphysematous changes, bilateral lungs.
Hepatomegaly with marked fatty change and fibrosis.
Chronic passive congestion of liver.
Blunt force trauma of head:
Laceration of left parietal scalp.
Subarachnoid hemorrhage of parietal lobes of cerebrum, bilateral, minimal,
focal.
Evidence of resolved remote hemorrhage on parietal dura mater, bilateral.
Acute cerebral edema, moderate.
Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB
JOHN HARBAUGH FEBRUARY 22, 2022 Page 2
Histoiy of brain surgery with surgical fasteners in skull parietal regions,
bilateral, remote.
Inguinal hernia with mild hemorrhage of left testis.
Fibrosis of testes.
Hemorrhage of prostate parenchyma.
OPINION:
This autopsy illustrates an instance of death of a 74-year-old white male as
a result of hypovolemic shock due to a ruptured abdominal aortic aneurysm.
The recent evidence of blunt force trauma of the head is likely due to peri-
mortem injury.
There is no evidence of any significant recent physical violence, injury, or
trauma.
Cyril H. We^ft, M.D., J.D., Forensic Pathologist
/csz
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JOHN HARBAUGH FEBRUARY 22,2022 Page 3
The autopsy is performed on Tuesday, February 22, 2022, at 10:00
A.M., at Westmoreland County Forensic Science Center, pursuant to the
request and authorization of the legal next of kin, Andrew Harbaugh, son
of the decedent. ;
John A. Delmastro, M.D., Forensic Pathologist, Prosector.
Cyril H. Wecht, M.D., J.D., Forensic Pathologist, has reviewed the
autopsy materials and this protocol.
EXTERNAL EXAMINATION;
The body is that of a well-developed, adequately nourished, white
male, whose appearance is consistent with the reported age of 74 years,
measuring 6 feet 1 inches in length, and weighing approximately 142
pounds.
The body is unembalmed and clad in the following articles of
wearing apparel:
1) Blue denim pants which are partially pulled down.
2) Black belt which is unfastened.
3) Long sleeve gray shirt.
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I
1
JOHN
Preview
NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION November 9,2023 15:53 By: ERIC HENRY 0086750 Confirmation Nbr. 3014422 ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038 HARBAUGH vs. Judge: SHIRLEY STRICKLAND SAFFOLD SOUTHWEST GENERAL, ET AL. Pages Filed: 47 Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANDREW HARBAUGH, individually and ) Case No: CV 23 975038 as administrator of the ESTATE OF JOHN) HARBAUGH, ) JUDGE SHIRLEY STRICKLAND ) SAFFOLD ) Plaintiff, ) ) v. ) PLAINTIFF’S BRIEF IN OPPOSITION ) TO DEFENDANT SHAH’S MOTION SOUTHWEST GENERAL, ET AL. ) FOR AMENDMENT OF EXPERT AND ) DISPOSITIVE MOTION DEADLINES ) Defendants. ) Plaintiff, by and through counsel, submits his Brief in Opposition to Defendant Shah’s Motion for Amendment of expert and dispositive motion deadlines. Defendant’s Motion for Extension of all defense expert reports is premised solely on attempts to obtain records/evidence from Plaintiff pathology expert Dr. Cyril Wecht. However, Defendants were made aware over six months ago that Dr. Wecht conducted Mr. Harbaugh’s autopsy. Most importantly, Dr. Wecht’s office has already produced its complete file contents to Defendants six weeks before Defendants’ reports were due. See Defendant Shah’s Motion for Extension, Exhibit L. The Court should deny Defendants’ improper efforts to delay this case and amend a scheduling Order that was adopted by this Court after agreement of the parties on June 22, 2023 f Plaintiff has voluntarily provided - and Defendant Shah has served - a HIPAA compliant 1The parties have held numerous status conferences on 7/19/23, 8/10/23, and 9/29/23. Defendants never raised any concerns about expert report deadlines. Plaintiff has complied with his obligations under the Order by producing affirmative expert reports by October 2, 2023. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB authorization to Dr. Wecht’s office. Dr. Wecht’s office responded on September 29, 2023, and provided its complete file to Defendant Shah. Defendant Shah continued to seek “tissue samples” which Dr. Wecht’s office confirmed it did not possess. Defendant Shah is now seeking to issue a subpoena to Dr. Wecht’s office. The only additional request in the subpoena, however, is for “policies regarding the retention of tissue samples obtained from autopsies.” Dr. Wecht’s internal policies have no bearing on the substantive opinion of a defense expert report. Defendants’ experts have the same autopsy report and case file available to them that Plaintiff’s experts used and relied on in their reports. Defendant’s attempts to extend the expert report deadline are made solely for the purpose of delay. For these reasons, Plaintiff respectfully requests this Court deny Defendant Shah’s request for an amendment to his expert deadline and the dispositive deadline. The reasoning and basis is fully set forth in the memorandum in support, incorporated herein. Respectfully submitted, /s/ Eric W.Henry Eric W. Henry, Esq. (0086750) Katherine S. Knouff (0085566) The Henry Law Firm 8401 ChagrinRoad, Suite 18 Chagrin Falls, Ohio 44023 440-337-0083 Telephone 440-337-0084 Facsimile eric@erichenrylaw.com Kathie@erichenrylaw.com Attorneys for Plaintiff Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 2 MEMORANDUM IN SUPPORT I. ShortStatementofFacts 1. February 14, 2022, Southwest General’s Medical Treatment, Diagnosis and Discharge of Mr. Harbaugh. On February 15, 2022, John Harbaugh presented to Southwest General emergency room for sudden onset pain to his left groin and thigh area. An X-Ray was performed, and he was given Toradol and Flexor for pain. The Radiologist made an incidental finding of a critical abdominal aortic aneurysm and initiated an emergency call to Dr. Shah to recommend a follow up CT scan or ultrasound. Dr. Shah, however, disregarded the recommendation, diagnosed Mr. Harbaugh with a left groin and thigh strain, and sent him home without further work up. Mr. Harbaugh died in his home the next morning from a ruptured abdominal aortic aneurysm. 2. The Autopsy - Dr. Cyril Wecht & Associates a. How the Autopsy of John Harbaugh Came to Be. Mr. Harbaugh’s son, Andy Harbaugh, found his father dead in his home on February 16, 2022. The police and coroner arrived, and Andy told them that his father had told him he did not wish to have an autopsy. The police and coroner agreed an autopsy was not necessary as they determined the death to be of natural causes. As such, the coroner left, and Mr. Harbaugh was transported to Waite & Son Funeral Home. After Mr. Harbaugh was taken to the funeral home, Andy spoke with his father’s best friends who lived next door and he found out his dad had been in the emergency room the evening before due to extreme gut and groin pain (Harbaugh depo2 p. 59-60.) 2 Relevant portions of Andrew Harbaugh’s deposition attached hereto as Exhibit 1. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 3 Upon returning to his father’s home, Andy found the Southwest General emergency department discharge papers sitting on the table and he became troubled by the diagnosis of a groin strain and had questions about what really happened to his dad. (Harbaugh depo p. 71-72.) Andy did not believe someone could “pass away from a groin sprain” so he asked the funeral home about obtaining an autopsy. The funeral home provided Andy with the contact information for Dr. Cycil Wecht & Associates. Andy called their office from the funeral home to discuss the cost of the autopsy and the funeral home-made arrangements for his father’s body to be transferred to Pennsylvania for the Autopsy to be performed. (Id. at 72.) Mr. Harbaugh was cremated after the Autopsy in Pennsylvania where his remains remain today. Andy paid for the autopsy but never spoke to either of the pathologists involved in his father’s autopsy prior to it occurring. (Id. at 74.). He later learned of the cause of death being a ruptured abdominal aortic aneurysm when a female from Dr. Wecht’s office called him to explain the results. (Id. at 76.) While Andy never read the autopsy himself - as it was too difficult. His wife advised him of the results in more detail. b. The Autopsy Results The Autopsy report was performed on February 22, 2022, and the pathologists found Mr. Harbaugh’s cause of death to be a ruptured aortic abdominal aneurysm. See Exhibit 2 - Autopsy report. The pathologists produced a detailed 17- page autopsy report with eighty-six graphic photos to support the findings. The Autopsy states that “representative samples of blood have been retained for possible future toxicologic analysis.” The autopsy report makes no other representation of any samples retained. See Exhibit 2, pg. 9. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 4 II. Analysis 1. Defendant Shah’s unsubstantiated, destruction of evidence/spoliation narrative is a flagrant attempt to get the Court’s attention, not an exigent circumstance to support a continuance. This Court, in its June 22, 2023, Case Management Order, states that no further continuances would be granted absent exigent circumstances. Defendant Shah has not presented any exigent circumstances to support a continuance, nor has the defense raised any concerns about the expert report deadlines in the numerous interactions the parties have had with the Court until after Plaintiff produced his reports and defense reports are shortly due. Defendant Shah’s motion improperly presents a wholly unsubstantiated, false narrative of destruction and spoliation to this Court, as a purposeful distraction and delay tactic, disguised as a possible exigent circumstance. It is not. Dr. Shah’s counsel falsely submits to this Court that he needs an additional 30 days to issue a subpoena to Dr. Wecht because Valerie from the pathologist’s office told them that “slides and tissues had likely been destroyed.” See Def.’s Motion at p. 5. To the contrary, Defendant’s own exhibit shows the conversation wherein Valerie indicated merely that “they do not have the slides you requested” with no reference to anything having been destroyed. Id. at Exhibit L. Defendant Shah’s claims of destruction or spoliation are unfounded and present no basis for an extension on the expert report deadline. 2. The subpoena is identical to the HIPAA release that Dr. Wecht responded to - the only difference is that they are requesting policies regarding the retention of tissue samples obtained from autopsies, in general. The subpoena Defendant uses as his reason for requesting additional time, will not provide Defendants with any additional information about Mr. Harbaugh’s autopsy. Defendants argue they need the additional time to domesticate a subpoena “to confirm the location (or destruction) of the tissue samples.” Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 5 Defendant Shah’s subpoena will not answer that question. The HIPAA authorization, which has already been responded to and the new subpoena are nearly identical - the only difference between the two is the subpoena makes one new request for “any and all policies regarding the retention of tissue samples obtained from autopsies.” HIPAA COMPUAXTAVTHORIZATIOHFORMPVRSVAXT TO 45 CFS 164.566 EXHIBIT A Name or specific identification of the per$on(s). or class of persons, authorized to make the To Cyril Wecht Subpoena requested disclosure: Cyril H, Wecht and Pathology Associates, Inc. 900 Fifth Avenue Suite 505 1. All medical records, including inpatient, outpatient and emergency room Pittsburgh, PA 15219 treatment, all clinical charts, reports, documents, correspondence, test results, statements, questionnaires/histories. office and doctor's handwritten notes, and records received by other physicians. Patient Name: Andrew Harbuagh DOB: 6/6/1947 2. Entire autopsy file including photographs, laboratory, histology, cytology, SSN: nx-n-6436 re-cuts of pathology, radiology. CT Scan. MRI. echocardiogram and cardiac catheterization report. I authorize the disclosure of all protected medical infonnation. I expressly request that all health 3. Any and all reports and/or records relating to HIV/AIDS and plans and all health care providers identified above disclose bill and complete protected medical alcohol/substance abuse. information spanning the time period of 01/01/2013 to present including the following: • All medical records, including inpatient, outpatient and emergency room treatment, all 4. All radiology films, mammograms, myelograms. CT scans, photographs, clinical charts, reports, documents, correspondence, test results, statements, bone scans, pathology/cytology/histology/autopsy/immunohistochemistry questionnaires/histories. office and doctor’s handwritten notes, and records received by specimens, cardiac catheterization videos/CDs/films/reels. and other physicians. echocardiogram videos. • Entire autopsy file including, photographs, laboratory, histology, cytology, re-cuts of 5. All phannacy/prescription records including NDC numbers and ding pathology, radiology. CT Scan. MRI. echocardiogram and cardiac catheterization report. infonnation handouts/monographs. • Any and all reports and'or records relating to HIV/AIDS and alcohol/substance abuse 6. All psychotherapy notes, psychiatric or psychological records. • All radiology films, mammograms, myelograms. CT scans, photographs, bone scans, pathology/cytology/histology/autopsy/immunoliistochemistry specimens, cardiac 7. All billing records including all statements, itemized bills, and insurance catheteiization videos/CDs'films;reels. and echocardiogram videos. records. • All phannacy/prescription records including NDC numbers and ding information handouts/monographs. 8. Any and all policies regarding the retention of tissue samples obtained from autopsies. • All psychotherapy notes, psychiatric or psychological records • All billing records including all statements, itemized bills, and insurance records. See Exhibit 3 - HIPAA Authorization and Exhibit 4 Subpoena. The Subpoena will result in the same information Defendants already possess. If in fact a policy exists, it will simply tell them IF a sample IS retained during an autopsy, how long you retain it. The policy (if one exists) will not tell them whether slides and tissue were even taken during the Autopsy. Most importantly, the policy (if one exists) will not tell a defense expert anything about John Harbaugh. Defendants argument that they need this new information (a policy) to prove whether any sample possibly obtained in Mr. Harbaugh’s autopsy was destroyed, fails on its face. The requested information does not bear on an expert report. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 6 3. Defendant’s requested extensions will unreasonably delay this matter. This Court in its June 12, 2023, Order, set a new case management schedule. The Court stated that no continuances will be granted absent exigent circumstances. The dates proposed by Defendant Shah, as set forth in the table below, would only give this Court six days to review and rule on motions prior to the final pretrial and only 20 days prior to the trial. Current Order Proposed by Defendants Plaintiff Expert 10.2.23 Defense Expert 11.13.12 12.13.23 MSJ 11.27.24 12.27.23 BIO 12.25.23 1.24.24 Reply 1.1.24 1.31.24 Final Pre-trial 2.6.24 2.6.24 Trial 2.26.24 2.26.24 4. It has never been a secret that Plaintiff alleges Mr. Harbaugh’s cause of death was a ruptured Abdominal Aortic Aneurysm which is supported by an autopsy. Plaintiff has made his case very clear from the beginning that his medical negligence and wrongful death claims arise from a fatal ruptured abdominal aortic aneurysm. Plaintiffs Complaint and Amended Complaint allege: On February 15, 2022, Mr. Harbaugh presented to the Southwest General located at 18697 Bagley Road, Middleburg Heights, OH with indications of an abdominal aortic aneurysm. Upon presentation to the Southwest General emergency room, Mr. Harbaugh came under the medical care of Dr. Tushar Shah and providers employed by Defendants. Defendant Shah and Defendants’ providers were negligent and failed to act within the standard of care for Mr. Harbaugh by, among other things, failing to properly evaluate, diagnose, test for, and/or treat Mr. Harbaugh for an abdominal aortic aneurysm during the time which Mr. Harbaugh was under their care. On February 15, 2022, Dr. Shah diagnosed Mr. Harbaugh with a groin strain and discharged him to his home. On February 16, 2022, Mr. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 7 Harbaugh was discovered deceased in his home. His cause ofdeath was determined to be a ruptured abdominal aortic aneurysm. Had Dr. Shah and Defendants’ providers met the applicable standard of care and treatment for Mr. Harbaugh prior to and/or at the time of his discharge on September 15, 2022, Mr. Harbaugh would not have suffered a fatal abdominal aortic aneurysm. Had Dr. Shah and Defendants’ providers met the applicable standard of care and treatment for Mr. Harbaugh prior to and/or at the time of his discharge on September 15, 2022, Mr. Harbaugh would not have suffered a fatal abdominal aortic aneurysm. (Plaintiffs Complaint at 15-19, Plaintiffs Amended Complaint ** 15-20). Defendants have been in possession of the Dr. Wecht’s Autopsy listing Mr. Harbaugh’s cause of death as a ruptured abdominal aneurysm and have had knowledge that Plaintiff was using the autopsy in support of its claims since April 12, 2023 - when Plaintiff produced the autopsy in his initial disclosures. See Exhibit 5 - Plaintiff's Initial Disclosures. In fact, on May 15, 2023, Plaintiff produced the autopsy again, along with Mr. Harbaugh’s pre-death cardiologist medical records in response to Defendants’ requests for production of documents. See Def.’s Motion at p. 3. On August 21, 2023, the deposition of Mr. Harbaugh’s son, Andy, was taken. Counsel for the Hospital took the lead on his cross examination. Counsel marked the Autopsy as Exhibit 5 and asked Andy many questions related to the autopsy. Counsel examined Andy in depth about the autopsy. In total, the autopsy was mentioned forty-three times in his deposition. Defense counsel was prepared to cross examine Mr. Harbaugh on the contents of the Autopsy. Thereafter, on August 24, 2023, the undersigned took the Deposition of Dr. Shah. Plaintiff's counsel also entered the Autopsy as an exhibit. Despite numerous attempts to ask Dr. Shah questions related to the autopsy, including questions related to Mr. Harbaugh’s cause of death, or whether the condition was present while being treated by Dr. Shah, Dr. Shah’s counsel refused to let him answer any questions related to the autopsy. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 8 Q: Okay. Well, first of all, on the first page the medical examiner/pathologist here writes "Final Pathological Diagnoses. "Hypovolemic shock due to ruptured abdominal aortic aneurysm." Q: Do you see that? MS. HESS: I’m going to object and I’m not going to have him answer any questions about an autopsy that he’s never seen before. MR. HENRY: Well, he’s looking at it now. MS. HESS: No, he’s not looking at it now. MR. HENRY: I can’t ask him questions about that? MS. HESS: No. Absolutely not. And I have multiple orders on that topic if you want to - MR. HENRY: What’s the basis? MS. HESS: — go down that road. This came after his care. He’s only here to talk about his own care, not as an expert. And we have not had to disclose experts yet and ifl have him start giving expert opinions, I then waive my right to identify experts. So he will not be answering any questions about an autopsy. (Dr. Shah Depo.3 at pp 149-150). Dr. Shah and his counsel stated the Dr. Shah’s only knowledge of the contents of the autopsy were what his counsel advised him, showing that defense counsel had carefully reviewed the autopsy prior to his deposition and was working with potential Defense experts. On September 20, 2023, Dr. Shah’s office sent authorizations to Plaintiff’s counsel, seeking records for the last 10 years of John’s life, including his autopsy. On September 24, 2023, the undersigned returned the executed authorizations. Dr. Shah’s counsel sent the executed authorization to Dr. Wecht. On September 29, 2023, Dr. Wecht’s office produced the Autopsy 3 Relevant portions of Dr. Shah’s depo attached as Exhibit 6. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 9 report, 86 photographs and handwritten notes. On October 2, 2023, Plaintiff timely identified his experts, including Dr. Wecht, and produced reports. On October 13, 2023, Shah’s counsel put the Court on notice that they needed to domesticate a subpoena and will need an extension of their expert reports. Instead, Defendant Shah’s counsel waited until November 2, 2023, to provide the proper notice to get his subpoena domesticated. Defendant’s lack of any urgency to get the subpoena served, further points to his request, as nothing more than a reason to delay the proceedings. 5. Defendants did nothing to investigate whether pathology slides or tissue samples were ever obtained in Mr. Harbaugh’s autopsy. As set forth above, Defendants have known this cases centers around the aortic abdominal rupture and Plaintiff were using the Autopsy as support for his claim. Counsel has had the Autopsy report since April 12, 2023. Defendants made no attempt to investigate if samples were even taken - they just say slides were destroyed - with no support. Had tissue samples been a real issue, Defendants would have made it a priority to investigate the issue. 6. Defendants’ experts have the same autopsy report Plaintiff’s experts relied on in their reports. Defendant argues his experts should be able to rely on the same autopsy and finding that plaintiff’s experts relied on. This argument has no merit. Plaintiff’s experts relied on the autopsy - the same autopsy Defendants have had for seven months. Their Defendant expert can rely on and/or rebut the same. If new evidence arises, their experts can supplement his/her reports up until thirty days prior to trial. 7. Plaintiff identified Dr. Wecht as one of his experts On October 2, 2023, in accordance with the Court’s case management schedule. Plaintiff identified Dr. Wecht as an expert, among others, and produced his autopsy report for the third time Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 10 to the Defendants. Defendants will have the opportunity to depose Dr. Wecht as an expert, should they choose to do so and may examine him on tissue samples or policies as they see fit. However, such attempts to impeach Dr. Wecht’s opinion have no bearing on any affirmative opinion that would be offered by a defense pathologist . 4 Wherefore, for all these reasons set forth, Plaintiff respectfully requests this Court deny Defendant Shah’s request for an amendment to his expert deadline and the dispositive deadline. Respectfully submitted, /s/ Eric W.Henry Eric W. Henry, Esq. (0086750) Katherine S. Knouff (0085566) The Henry Law Firm 8401 ChagrinRoad, Suite 18 Chagrin Falls, Ohio 44023 440-337-0083 Telephone 440-337-0084 Facsimile eric@erichenrylaw.com Kathie@erichenrylaw.com Attorneys for Plaintiff 4 Plaintiff’s claim is that Dr. Shah, an emergency medicine doctor, breached the standard of care. In support, Plaintiff produced the expert reports of an emergency medicine doctor, a vascular surgeon, and Dr. Wecht. Defendant does not even attempt to argue that the Dr. Wecht subpoena would have any impact on an emergency medicine or vascular surgery expert report. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 11 CERTIFICATE OF SERVICE Counsel for Plaintiff hereby certifies that a true and accurate copy of the foregoing has been sent to all counsel of record via this Court’s e-filing system this 9th day ofNovember 2023. ERIC W. HENRY (0086750) Attorney for Plaintiff Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB 12 EXHIBIT 1 Andrew Harbaugh, Individually and as Administrator of the Estate of John Harbaugh, vs. Southwest General, et al., Cuyahoga County Court of Common Pleas Case No. CV 23 975038 Andrew Harbaugh Monday, August 21, 2023 Reporter Rebecca Fumich www^ariclaGuurtreportlnfl.com 216-241-3918 fax: 216-241-3935 J LITIGATION 1020 Ohio Savmos Phza SOLUTIONS ' ' T/no/omq 15:53 / brief / cv 23 975038 / Confirmation Nbr. 3014422 / CLAJB i8oiE«t 9th Stmt Clereland, OH 44114 am-. I of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et 1 a decision that you initially made based on your 2 dad's wishes. 3 A Yes. 4 Q It wasn't a case that any medical provider 5 told you that you shouldn't have an autopsy — 6 you should or shouldn't have an autopsy done. 7 A Yes. 8 Q That was strictly your decision based on your 9 dad's wishes. 10 A Yes. 11 Q Where was your dad taken from the home? Do 12 you know? Was he taken to any hospital? Was 13 he — I'm just trying to find out because we 14 don't have any records after the ER visit. I'm 15 just trying to see if we can clarify where he -- 16 I believe he went to — straight to Waite & A 17 Son Funeral Home, but I don't know. 18 Q You weren't aware that he was ever taken to 19 some sort of hospital or some sort of facility 20 prior to going into the funeral home? 21 I do not know. A 22 Q Okay. When did you first become aware that 23 he had gone to the ER the day before? 24 A I became aware when I talked to his neighbor. 25 Q When was that? :tronfBally Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB Tackla Court Reporting, LLC PH: 216.241.3918 Page: 59 ion of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et 1 A It was that day, on the 16th. 2 Q After you had found your dad? 3 A Yes. 4 Q Okay. And are we talking about the same 5 neighbor? 6 A Yes. 7 Q Tell me about the conversation. 8 A Well, I went over to tell him what happened, 9 and he had told me that dad had been at the 10 hospital and asked him -- you know, I was very 11 questionable, you know. I didn't understand. 12 And he told me your dad -- my dad had stopped at 13 his house to see him, and my neighbor had told my 14 dad he needs to go to the hospital because he 15 looks horrible, and my dad told the neighbor "I 16 just got back from the hospital." 17 Q And did your dad tell your neighbor why he 18 had gone to the hospital? 19 A He told him he was hurting. His gut was 20 hurting, groin, gut. He was hurting down below. 21 I don't recall exactly what the neighbor had told 22 me, but my dad -- he explained to me my dad was 23 in a lot of pain. 24 Q I want to be clear -- and if you don't 25 recall, that's fine -- do you know where the ironically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB Tackla Court Reporting, LLC PH: 216.241.3918 Page: 60 ion of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et 1 Q And I'm not asking you about any 2 conversation, but when did you first contact an 3 attorney in this case? 4 A I am unsure of the date. 5 Q Before or after the autopsy? 6 A It was after. 7 Q Okay. Who prompted this discussion with 8 Waite & Son to even get Dr. Wecht's name? 9 A I was fine with no autopsy because that was 10 my dad's wishes. And once I found out about him 11 being at the hospital the night before and found 12 his discharge papers, I had questions and was 13 troubled by it. 14 Q Did you ever call anyone at Southwest to say 15 "Hey, my dad was just in there the day before, he 16 now passed away"? Did you ever seek any 17 clarification? 18 A No, I did not. 19 Q So you never called anyone at Southwest and 20 attempted to speak to anyone that was involved in 21 his care in the ER? 22 A No. 23 Q The only thing that prompted you to say I 24 want to do something further is the fact that he 25 was in there the day before and what was on the ironically Filed 11/09/2023 15:53 / BRIEF / CV 23^75038 / Confirmation Nbr. 3014422 / CLAJB Tackla Court Reporting, LLC PH: 216.241.3918 Page: 71 ion of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et 1 discharge papers. 2 A Correct. 3 Q What was on the discharge papers that 4 troubled you? 5 A Well, I didn't think anybody can pass away 6 from a groin strain. 7 Q Who at Waite & Son told you about Dr. Wecht's 8 name? 9 A I believe it was the director. I'm not sure 10 who I spoke with that day. 11 Q Tell me about what prompted you to even get 12 it. 13 A To get what? 14 Q To get Wecht's name. 15 A I had gone to the funeral home and, you know, 16 we were supposed to be -- I had made an 17 appointment because I had to plan his cremation, 18 and when I went to the funeral home, I told them, 19 you know, that I'm having doubts here and I would 20 like to get an autopsy, and they said they could 21 provide me a name. 22 Q Was there any type of showing for your dad? 23 A No. 24 Q So he was taken there. Was there any type of 25 funeral? ironically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB Tackla Court Reporting, LLC PH: 216.241.3918 Page: 72 ion of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et 1 home. I don't recall, though. 2 Q When you say "took care of" — 3 A The bill and everything. We took care of it 4 right away. 5 Q But did you have — I guess my question — 6 A I don't think I had a conversation with them. 7 Q Okay. I mean - 8 A I don't remember a conversation with them at 9 all. 10 Q Okay. So prior to the autopsy being 11 performed, did you have a conversation with 12 Dr. Wecht? 13 A No. 14 Q Did you have a conversation with another 15 individual listed on the autopsy, a 16 Dr. Delmastro? Did you have any conversation 17 with him prior to the autopsy? 18 A No. 19 Q Did you have any conversations with either of 20 their offices other than what it's going to cost? 21 A No. 22 Q Did you have - 23 A I don't recall if I did or not. 24 Q It seemed - 25 A Correct that. Let me correct that. I did ironically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB Tackla Court Reporting, LLC PH: 216.241.3918 Page: 74 of Andrew Harbaugh Andrew Harbaugh, Adm. of the Estate of John Harbaugh, vs. Southwest General, et 1 Q Okay. Do you know who was present during the 2 autopsy? 3 No, I do not. A 4 Q Were you? 5 A I was not. 6 Q Was any family or friends present? 7 A No. 8 Q How did you first learn about the results of 9 the autopsy? 10 A The pathologist's office called me and 11 explained to me what happened. 12 Q Do you know who you spoke with? 13 A No, I do not. 14 Q Was it Dr. Wecht? 15 A Let me see that. Possibly. It was a female. 16 Q Dr. Wecht — I've seen Dr. Wecht enough. 17 He's not a female. 18 A Then, no. I spoke with a female pathologist. 19 I do not know whom offhand. 20 Q Do you know when you spoke to this female 21 pathologist? 22 A No. 23 Q Okay. What do you recall about the 24 conversation? 25 A Just that they had informed me what had ironically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB Tackla Court Reporting, LLC PH: 216.241.3918 Page: 76 EXHIBIT 2 Cyril. H. Wecht and’Pathology Associates, inc. 0OO FIFTH AVENUE, SUITE 505 PITTSBURGH, PENNSYLVANIA 15210 CYRIL H. WECHT, M.D., J.D., PRESIDENT (412) 281-0000 FAX (412) 281-3850 EMAIL: wechtpath@cyrilwecht.coni May 23, 2022 Andrew Harbaugh 10091 Garver Road Litchfield, OH 44253 RE: John Harbaugh, Deceased Dear Mr. Harbaugh, Enclosed is the original copy of the postmortem protocol report relating to the autopsy I performed on your father, John Harbaugh. I believe the pathological diagnoses are self-explanatory. However, if you have any questions, please do not hesitate to contact me. I should like to take this opportunity to express my personal condolences to you and all the members of your family. With kind regards. Sincerely, /jlh Enclosure (1) Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB Cyril H. Wecht and Pathology Associates, inc. 900 FIFTH AVENUE, SUITE 505 ” - PITTSBURGH, PENNSYLVANIA 15218 CYRIL H. WECHT, M.D., J.D., PRESIDENT (412) 281-9000 FAX (412) 261-3850 EMAIL: wechtpath@cyrilwecht.com JOHN HARBAUGH FEBRUARY 22, 2022 FINAL PATHOLOGICAL DIAGNOSES (CHW22-0086); Hypovolemic shock due to ruptured abdominal aortic aneurysm: Abdominal aortic aneurysm with open defect on left aspect. Hemoperitoneum with liquid and clotted blood. Hemorrhage within periaortic soft tissues. Hemorrhage within left kidney pelvis and calyces. Hemorrhage surrounding left adrenal gland. Hemorrhage on external aspect of pancreas. Hemorrhage within soft tissues surrounding bladder and prostate Arteriosclerotic cardiovascular disease: Near total occlusion of left anterior descending coronary artery. Severe atherosclerotic stenosis of right coronary artery, multifocal. Severe atherosclerotic stenosis of branch of left anterior descending coronary artery. Pallor of interventricular septum. Moderate atherosclerotic stenosis of basilar artery and branches of circle of Willis. Cardiomegaly with dilated cardiomyopathy, marked. Emphysematous changes, bilateral lungs. Hepatomegaly with marked fatty change and fibrosis. Chronic passive congestion of liver. Blunt force trauma of head: Laceration of left parietal scalp. Subarachnoid hemorrhage of parietal lobes of cerebrum, bilateral, minimal, focal. Evidence of resolved remote hemorrhage on parietal dura mater, bilateral. Acute cerebral edema, moderate. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB JOHN HARBAUGH FEBRUARY 22, 2022 Page 2 Histoiy of brain surgery with surgical fasteners in skull parietal regions, bilateral, remote. Inguinal hernia with mild hemorrhage of left testis. Fibrosis of testes. Hemorrhage of prostate parenchyma. OPINION: This autopsy illustrates an instance of death of a 74-year-old white male as a result of hypovolemic shock due to a ruptured abdominal aortic aneurysm. The recent evidence of blunt force trauma of the head is likely due to peri- mortem injury. There is no evidence of any significant recent physical violence, injury, or trauma. Cyril H. We^ft, M.D., J.D., Forensic Pathologist /csz Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB JOHN HARBAUGH FEBRUARY 22,2022 Page 3 The autopsy is performed on Tuesday, February 22, 2022, at 10:00 A.M., at Westmoreland County Forensic Science Center, pursuant to the request and authorization of the legal next of kin, Andrew Harbaugh, son of the decedent. ; John A. Delmastro, M.D., Forensic Pathologist, Prosector. Cyril H. Wecht, M.D., J.D., Forensic Pathologist, has reviewed the autopsy materials and this protocol. EXTERNAL EXAMINATION; The body is that of a well-developed, adequately nourished, white male, whose appearance is consistent with the reported age of 74 years, measuring 6 feet 1 inches in length, and weighing approximately 142 pounds. The body is unembalmed and clad in the following articles of wearing apparel: 1) Blue denim pants which are partially pulled down. 2) Black belt which is unfastened. 3) Long sleeve gray shirt. Electronically Filed 11/09/2023 15:53 / BRIEF / CV 23 975038 / Confirmation Nbr. 3014422 / CLAJB I 1 JOHN