Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 Aug 10 6:15 PM-15CV006558
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Michael J. Simek, M.D., e¢ al.
Case No. 15-CV-006558
Plaintiffs,
v. : Judge Karen H. Phipps
Orthopedic & Neurological Consultants,
Inc., et al.,
Defendants.
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION IN
LIMINE TO EXCLUDE “EVIDENCE OF FACTS AND CLAIMS PREVIOUSLY
DISMISSED IN THIS ACTION”
Now come Plaintiffs Michael J. Simek, MD, Scott M. Otis, MD, and Emily J. Yu, MD,
and hereby request this Court deny Defendants’ Motion in Limine to Exclude “Evidence of Facts
and Claims Previously Dismissed in this Action.”
L ARGUMENT
Some claims in this case were concluded in the summary judgment proceedings.
Defendants are correct about that. And the parties should not themselves be offering commentary
to the jury about what pretrial rulings on claims this Court has made, or the Tenth District has
made, or what the courts’ reasons for those rulings may have been. But that certainly does not
support a broad ruling, in the abstract and with no context, that “all facts relating to” those
concluded claims are inadmissible as they relate to the remaining claim to be tried, as Defendants
presume.
Defendants’ motion suffers from two fundamental flaws. First, it assumes, illogically, that
a fact relevant to one claim cannot also be relevant to another claim. Second, it is too vague and
overbroad to be granted, given that it fails to identify with specificity the facts they think are now
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irrelevant to any issue to be decided at trial, or any specific piece of evidence they now are seeking
to exclude.
A couple of simple examples will illustrate the first flaw in Defendants’ motion.
Plaintiffs were shareholders of ONC. Defendants were shareholders of ONC. On or about
May 1, 2014, Plaintiffs were presented with three contracts to sign — one of which was a Stock
Purchase Agreement. Plaintiffs signed the Stock Purchase Agreement, and the other two contracts
presented to them. These are just a few of the many facts that “relate to” Plaintiffs’ claim for
breach of fiduciary duty against the individual defendants in their capacity as shareholders of ONC
(Count IV of the Amended Complaint), and these are facts the evidence of which should be
admissible at trial on this claim. For Plaintiff Simek, these facts also “related to” his previous
claim for breach of the Stock Purchase Agreement (Count I of the Amended Complaint), on which
the Court entered summary judgment in his favor. But there is no legal or logical reason why that
summary judgment ruling renders these facts, or other related facts, inadmissible at trial on the
claim to be tried
Similarly, Plaintiffs are partners in ONA. Defendants are partners in ONA. One of the
contracts presented to Plaintiffs on May 1, 2014 was an agreement to purchase their partnership
interests in ONA. Plaintiffs signed that agreement. Not all Defendants signed it. Dr. Berasi
gathered and destroyed copies of the agreement. Plaintiffs remained partners. These are just a
few of the many facts that relate to Plaintiffs’ claim for breach of fiduciary duty against the
individual defendants in their capacity as partners of ONA (Count III of the Amended Complaint),
and these are facts the evidence of which should be admissible at trial on this claim. These facts
also relate to Plaintiffs’ claim for breach of the purchase of partnership interest agreement (Count
IL of the Amended Complaint), on which the Court entered summary judgment against Plaintiffs.
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But there is no legal or logical reason why that summary judgment ruling renders these facts, or
other related facts, inadmissible at trial on the claim to be tried. Indeed, as the Tenth District
observed in its September 26, 2019 Decision, at paragraph 50: “Defendants further contend that
the court’s summary judgment ruling was not a final order because the ‘operative facts giving rise
to the disposed of claims involve the same facts and conduct at issue in the pending claims.’”
This case arises from the fiduciary relationship among Plaintiffs and Defendants as
shareholders of ONC and as partners of ONA. Essentially, every fact in the case is relevant to
these relationships, which reveals the second basic flaw in Defendants’ motion. Without a specific
identification of each fact that Defendants seek to preclude evidence of at trial, Plaintiffs are unable
to address the relevance of that fact to the claims being tried, and the Court is unable to determine
the admissibility of the evidence of that fact. All of these issues will need to be addressed and
decided at trial in any event, since a ruling on a motion in limine is not a final determination but
“a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory
treatment of the evidentiary issue. . . . [SJhould circumstances subsequently develop at trial, the
trial court is certainly at liberty ‘... to consider the admissibility of the disputed evidence in its
actual context.’” State v. Grubb, 28 Ohio St. 3d 189, 201-202 (1986) (citation omitted). Indeed,
even the lone case cited by Defendants in their motion demonstrates that issues regarding
admissibility of evidence should be made at trial:
Proper use of a motion in limine is to preclude evidence of a certain nature which is
inherently prejudicial and inadmissible without a proper foundation being established, until
such time as the trial court, through a voir dire examination or otherwise, may determine
during the court of the trial the admissibility of the evidence. A motion in /imine ordinarily
is not a substitute for a motion to suppress evidence and is not a means of determining the
admissibility of evidence.
Hammond y. Moon, 8 Ohio App. 3d 66, 70 (10 Dist. 1982).
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Il. | CONCLUSION
Plaintiff's motion is too abstract and too broad to provide any meaningful guidance to the
parties. Because many facts are common to both pending and dismissed claims, the Court should
tule on the admissibility of facts as those facts are presented during trial, For the reasons stated,
Defendants’ motion in limine should be denied.
Respectfully Submitted,
/s/ Philip F. Downey
Gary J. Saalman (0042064)
Philip F. Downey (0040308)
Kara M. Mundy (0091146)
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street / P.O. Box 1008
Columbus, OH 43216-1008
(614) 464-5678
(614) 719-4938 (Fax)
gjsaalman@vorys.com
pfdowney@vorys.com
kmmundy@vorys.com
-4.Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 Aug 10 6:15 PM-15CV006558
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing has been
served on all parties via their counsel of record through the Court’s ECF system this 10th day of
August 2020.
/s/ Kara M. Mundy
Kara M. Mundy (0091146)
5.
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 Aug 10 6:15 PM-15CV006558 OF204 - G25 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Michael J. Simek, M.D., e¢ al. Case No. 15-CV-006558 Plaintiffs, v. : Judge Karen H. Phipps Orthopedic & Neurological Consultants, Inc., et al., Defendants. PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE “EVIDENCE OF FACTS AND CLAIMS PREVIOUSLY DISMISSED IN THIS ACTION” Now come Plaintiffs Michael J. Simek, MD, Scott M. Otis, MD, and Emily J. Yu, MD, and hereby request this Court deny Defendants’ Motion in Limine to Exclude “Evidence of Facts and Claims Previously Dismissed in this Action.” L ARGUMENT Some claims in this case were concluded in the summary judgment proceedings. Defendants are correct about that. And the parties should not themselves be offering commentary to the jury about what pretrial rulings on claims this Court has made, or the Tenth District has made, or what the courts’ reasons for those rulings may have been. But that certainly does not support a broad ruling, in the abstract and with no context, that “all facts relating to” those concluded claims are inadmissible as they relate to the remaining claim to be tried, as Defendants presume. Defendants’ motion suffers from two fundamental flaws. First, it assumes, illogically, that a fact relevant to one claim cannot also be relevant to another claim. Second, it is too vague and overbroad to be granted, given that it fails to identify with specificity the facts they think are now 36584486Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 Aug 10 6:15 PM-15CV006558 OF204 - G26 irrelevant to any issue to be decided at trial, or any specific piece of evidence they now are seeking to exclude. A couple of simple examples will illustrate the first flaw in Defendants’ motion. Plaintiffs were shareholders of ONC. Defendants were shareholders of ONC. On or about May 1, 2014, Plaintiffs were presented with three contracts to sign — one of which was a Stock Purchase Agreement. Plaintiffs signed the Stock Purchase Agreement, and the other two contracts presented to them. These are just a few of the many facts that “relate to” Plaintiffs’ claim for breach of fiduciary duty against the individual defendants in their capacity as shareholders of ONC (Count IV of the Amended Complaint), and these are facts the evidence of which should be admissible at trial on this claim. For Plaintiff Simek, these facts also “related to” his previous claim for breach of the Stock Purchase Agreement (Count I of the Amended Complaint), on which the Court entered summary judgment in his favor. But there is no legal or logical reason why that summary judgment ruling renders these facts, or other related facts, inadmissible at trial on the claim to be tried Similarly, Plaintiffs are partners in ONA. Defendants are partners in ONA. One of the contracts presented to Plaintiffs on May 1, 2014 was an agreement to purchase their partnership interests in ONA. Plaintiffs signed that agreement. Not all Defendants signed it. Dr. Berasi gathered and destroyed copies of the agreement. Plaintiffs remained partners. These are just a few of the many facts that relate to Plaintiffs’ claim for breach of fiduciary duty against the individual defendants in their capacity as partners of ONA (Count III of the Amended Complaint), and these are facts the evidence of which should be admissible at trial on this claim. These facts also relate to Plaintiffs’ claim for breach of the purchase of partnership interest agreement (Count IL of the Amended Complaint), on which the Court entered summary judgment against Plaintiffs. 2-OF204 Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 Aug 10 6:15 PM-15CV006558 - G27 But there is no legal or logical reason why that summary judgment ruling renders these facts, or other related facts, inadmissible at trial on the claim to be tried. Indeed, as the Tenth District observed in its September 26, 2019 Decision, at paragraph 50: “Defendants further contend that the court’s summary judgment ruling was not a final order because the ‘operative facts giving rise to the disposed of claims involve the same facts and conduct at issue in the pending claims.’” This case arises from the fiduciary relationship among Plaintiffs and Defendants as shareholders of ONC and as partners of ONA. Essentially, every fact in the case is relevant to these relationships, which reveals the second basic flaw in Defendants’ motion. Without a specific identification of each fact that Defendants seek to preclude evidence of at trial, Plaintiffs are unable to address the relevance of that fact to the claims being tried, and the Court is unable to determine the admissibility of the evidence of that fact. All of these issues will need to be addressed and decided at trial in any event, since a ruling on a motion in limine is not a final determination but “a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue. . . . [SJhould circumstances subsequently develop at trial, the trial court is certainly at liberty ‘... to consider the admissibility of the disputed evidence in its actual context.’” State v. Grubb, 28 Ohio St. 3d 189, 201-202 (1986) (citation omitted). Indeed, even the lone case cited by Defendants in their motion demonstrates that issues regarding admissibility of evidence should be made at trial: Proper use of a motion in limine is to preclude evidence of a certain nature which is inherently prejudicial and inadmissible without a proper foundation being established, until such time as the trial court, through a voir dire examination or otherwise, may determine during the court of the trial the admissibility of the evidence. A motion in /imine ordinarily is not a substitute for a motion to suppress evidence and is not a means of determining the admissibility of evidence. Hammond y. Moon, 8 Ohio App. 3d 66, 70 (10 Dist. 1982). 3-Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 Aug 10 6:15 PM-15CV006558 OF204 - G28 Il. | CONCLUSION Plaintiff's motion is too abstract and too broad to provide any meaningful guidance to the parties. Because many facts are common to both pending and dismissed claims, the Court should tule on the admissibility of facts as those facts are presented during trial, For the reasons stated, Defendants’ motion in limine should be denied. Respectfully Submitted, /s/ Philip F. Downey Gary J. Saalman (0042064) Philip F. Downey (0040308) Kara M. Mundy (0091146) Vorys, Sater, Seymour and Pease LLP 52 East Gay Street / P.O. Box 1008 Columbus, OH 43216-1008 (614) 464-5678 (614) 719-4938 (Fax) gjsaalman@vorys.com pfdowney@vorys.com kmmundy@vorys.com -4.Franklin County Ohio Clerk of Courts of the Common Pleas- 2020 Aug 10 6:15 PM-15CV006558 OF204 - G29 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing has been served on all parties via their counsel of record through the Court’s ECF system this 10th day of August 2020. /s/ Kara M. Mundy Kara M. Mundy (0091146) 5.