Motion for Judgment on the Pleadings in CANDACE L MESSER vs RIVERVIEW HEALTH INSTITUTE LLC| Trellis.Law

On May 15, 2018 a Motion-Secondary was filed involving a dispute between Candace L Messer Executrix, Candace L Messer Individual, and Damian Lebamoff Md, George Chen Md, Jamal Taha Md, Riverview Health Institute Llc, for RIVERVIEW HEALTH INSTITUTE LLC in the District Court of Montgomery County.

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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, January 12, 2021 11:04:33 AM
CASE NUMBER: 2018 CV 02108 Docket ID: 35158229
MIKE FOLEY
CLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHIO

CANDACE MESSER, etc., )
) CASE NO. 2018 CV 02108
Plaintiff, )
) JUDGE: DENNIS J. ADKINS
v. )
) JAMAL TAHA, MD’S REPLY IN
RIVERVIEW HEALTH INSTITUTE, ) SUPPORT OF HIS MOTION FOR
LLC. ) JUDGMENT ON THE PLEADINGS
)
Defendant. ) Oral Argument Requested

I. INTRODUCTION

Dr. Jamal Taha, MD (“Dr. Taha”) through counsel, respectfully requests that this Court

grant Dr. Taha’s Motion for Judgment on the Pleadings. Plaintiff’s Brief in Opposition asks this

Court to ignore Civ. R. 10(A)’s requirements, Dr. Taha’s affirmative defenses and Plaintiff’s

inaction for almost a year and a half to revive time barred claims adding Dr. Taha back into this

case. Plaintiff offers the Court not a single case in the history of Ohio jurisprudence that permits

her to do so. Dr. Taha is not a party to this case and Plaintiff’s claims against him are barred. Dr.

Taha’s Motion should be granted for the following reasons:

First, Plaintiff failed to comply with Civ. R. 10(A). Mont. Co. C.P.R. 2.05 does not create

a unique and special exception abrogating Civ. R. 10(A) in Montgomery County.

Second, Plaintiff’s use of “et al” in the caption of the Second Amended Complaint or

reference to Dr. Taha in its body and/or the certificate of service do not comply with Civ. R. 10(A).

Third, Dr. Taha would be prejudiced as Plaintiff’s claims against Dr. Taha are time-barred

by the statute of limitations, savings statute and statute of repose for medical claims. The

“Corrected” Second Amended Complaint/Third Amended Complaint (even if allowed) cannot

“relate back” to revive time barred claims against Dr. Taha.

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Fourth, Plaintiff’s request to Correct the Second Amended Complaint is impermissible as

she is seeking to file an untimely Third Amended Complaint.

Finally, Dr. Taha’s Motion for Judgment on the Pleadings was timely. He raised

affirmatives filed because the issues did not become ripe until December 23, 2020, the same day

his motion was filed and Dr. Taha had not duty to file his motion.

II. LAW AND ARGUMENT

A. Civ. Rul. 10(A) applies to cases in Montgomery County.

Plaintiff contends she failed to comply with Civ. R. 10(A) because Montgomery County’s

local rules make it a special county where Civ. R. 10(A) does not apply. Alternatively, Plaintiff

contends she did not follow Civ. R. 10(A) because her counsel “believed” she was not required to

do so under the same unfounded premise. This argument is absurd.

None of the cases Plaintiff cites analyze the interplay between each county’s local rules

and Civ. R. 10(A) to determine if litigants in some counties are not required to follow Civ. R.

10(A) (or any other Ohio Civil Rule) while others are not. The reason for this is very simple.

Local rules from Ohio’s lower courts are not permitted to abrogate the requirements of the Ohio

Rules of Civil Procedure promulgated by the Ohio Supreme Court.

Under Civ. R. 83 (A) local rules of court must be consistent with the Ohio Civil Rules:

“A court may adopt local rules of practice which shall not be inconsistent with these rules or

with other rules promulgated by the Supreme Court and shall file its local rules of practice with

the Clerk of the Supreme Court.” (Emphasis added). Not surprisingly, Montgomery County’s

local rules reflect these same principles in their Scope and Construction. Mont. Co. C.P.R.

1.03(C) provides: “These Rules shall supplement and complement the Ohio Rules of Civil

Procedure (“Civ. R.”), the Ohio Rules of Criminal Procedure (“Crim. R.”), the Rules of

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Superintendence for the Courts of Ohio (“Sup. R.”), the Ohio Revised Code (“R.C.”) and any

other applicable authority.” (Emphasis added). Mont. Co. C.P.R. 1.03(D)(1) requires “[t]hese

Rules shall be interpreted and applied so as to avoid inconsistency with other governing

authority.” (Emphasis added). Plaintiff’s suggested application of Mont. Co. C.P.R. 2.05 is

incorrect and inconsistent with Civ. R. 10(A) and Civ. R. 83(A) and the Scope and Construction

of the local rules set forth in Mont. Co. C.P.R. 1.03.

1. Mont. Co. C.P.R. 2.05 requires the name and address of a Defendant to be
listed in the Caption.

Contrary to Plaintiff’s argument, Mont. Co. C.P.R. 2.05 is consistent with, and not

contradictory to Civ. R. 10 (A). Mont. Co. C.P.R. 2.05 does not abrogate Civ. R. 10(A) for

Montgomery County. Rather, Mont. Co. C.P.R. 2.05 is a reiteration of the same requirements set

forth in Civ. R. 10(A). And under both Civ. R. 10(A) and Mont. Co. C.P.R. 2.05 Plaintiff was

required to list Dr. Taha’s name and address in the Caption of the Second Amended Complaint.

Because Plaintiff did not include Dr. Taha’s name and address in the caption in the Second

Amended Complaint, Dr. Taha was not a Defendant as set forth below.

Under Civ. R. 10(A), when Plaintiff filed the Second Amended Complaint, all previously

filed Complaints are deemed never to have existed. See, Civ. R. 10 (A); Recovery Funding L.L.

C. v. Spiers, supra; Dynes Corp v. Seikel, Koly & Co, supra; Schaffer v. Huntington Nat’l Bank,

supra; Gehrke v. Cleveland Clinic Health System1. The rationale is clear and unambiguous. The

First Amended Complaint replaces the original Complaint. The Second Amended Complaint

replaces the First Amended Complaint. Id. As such, Civ. R. 10(A) provides that a Plaintiff must

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Plaintiff argues that because Montgomery Local rules differ from Cuyahoga Local rules, which Dr. Taha disputes,
Civ. R. 10(A) does not apply to this case. However, this line of cases were not decided on the local rules. Rather, Ohio
courts relied on Civ R 10(A), repeatedly holding that Complaints and any Amended Complaint filed thereafter must
contain the name and address of each Defendant and operate as a dismissal if they do not.

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“include the names and addresses of all the parties...” in the Second Amended Complaint. It does

not only require the names and addresses of newly named parties be listed—as Plaintiff argues—

but specifically states all parties must be named. And because Plaintiff failed to comply with Civ.

R. 10(A), she now misconstrues Mont. Co. C.P.R. 2.05 to correct this error.

Mont. Co. C.P.R. 2.05 states that “[t]he caption of all initial pleadings shall contain the

information required by Civ. R. 10(A).” (emphasis added). Plaintiff hangs her hat on the word

“initial” and ignores the word “all.” (P’s MIO p. 9). Under Plaintiff’s strained interpretation, there

is no need for the use of the word “all.” Instead of relying on Ohio law—which explains that all

captions (including in Amended Complaints) must include the name and address of all

Defendant(s)—Plaintiff uses the definition of “initial” from the Merriam Webster Dictionary. (P’s

MIO p. 9). Initial is defined as first. (P’s MIO p. 9). Plaintiff specifically argues that “initial”

means the first time a Complaint is filed against a Defendant. (P’s MIO p. 9).

Further, Plaintiff’s strained interpretation is a new development for her. If Plaintiff actually

believed her argument, then she would not have included Riverview and Dr. Chen in the caption

of her First Amended Complaint. Instead, she would have simply listed Dr. Lebamoff and Dr.

Taha as it was the “initial” filings as to them- or maybe a “Riverview, et al.”. Of course, she did

not. Plaintiff’s new theory that Civ. R. 10(A) is abrogated by Montgomery County’s Local Rules

was cobbled together only as a response to Dr. Taha’s Motion. (See Plaintiff’s First Amended

Complaint).

There can be no dispute: every Complaint (including the Amended Complaints) requires

compliance with Civ. R. 10(A). Plaintiff’s application of Mont. Co. C.P.R. 2.05 is incorrect and

Dr. Taha was not named as a Defendant in the Second Amended Complaint. Dr. Taha notified

Plaintiff of his affirmative defenses but Plaintiff ignored them.

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2. Mont. Co. C.P.R. 1.15(H)(2)(a) is entirely inapplicable to the situation.

Not surprising, Plaintiff also takes an inapplicable Local Rule and tries to pigeonhole this

case into it. Plaintiff uses Mont. Co. C.P.R. 1.15(H)(2)(a) to explain her rationale as to why Dr.

Taha’s name or address was not included on the second Amended Complaint: because the Clerk

of Court already had his information. (P’s MIO pp. 6-7). However, a close reading of the rule

establishes that Mont. Co. C.P.R. 1.15 specifically deals with “e-Filing of Documents” and

“Service” not the requirements for case captions or designations of parties.

Plaintiff relies on Porter v. Fenner to further make the point that it would be “superfluous

to separately list the names and address of parties who have already been served and filed responses

because the court record would contain all the information needed to determine the parties to the

action.” (P. MIO p. 7). Porter does not stand for that principle. In Porter, the defendant at issue

was named as a defendant in the caption. The title “executor” was not listed in the caption. Porter

v. Fenner, 5 Ohio St.2d 233, 235-236, 215 N.E.2d 389, 391-392 (1966). Porter did not allow a

party to be added through an amended complaint, it allowed the designation of the capacity of the

existing party who was identified in the caption to be changed. Id.

The bottom line is that Civ. R. 10 (A) and Mont. Co. C.P.R. 2.05 are consistent and Mont.

Co. C.P.R. 1.15 is inapplicable. In the case at bar, the Complaint, Amended Complaint and Second

Amended Complaint all were required to comply with the mandatory requirements of Civ. R. 10

(A). Plaintiff was required to state the name and address of each defendant in the caption but did

not. As such Dr. Taha was no longer a Defendant as of July 26, 2019. Plaintiff is now time barred

from adding Dr. Taha back into the case.

Dr. Taha’s Motion for Judgment on the pleadings should be granted.

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B. If a person is not properly identified in the caption, then he is not a Defendant,
even if he is mentioned in the body of the Amended Complaint or Second Amended
Complaint.

1. Adding “et al.” Does Not Comply With Civ. R. 10 (A).

Plaintiff argues that because she included “et al” in the caption after Riverview, Dr. Taha

was supposed to assume that there were other Defendants, including him. (P. MIO pp. 12-13). In

making such an argument, Plaintiff again wishes for this Court to turn a blind eye to Civ. R. 10(A).

As stated above, Civ. R. 10 (A) requires the names and address of all parties in the caption of the

Complaint, Amended Complaint, or Second Amended Complaint. In other pleadings in the case,

the use of “et al.” after the name of the first named defendant is permitted. Civ. R. 10 (A) provides

in pertinent part as follows:

…In the complaint the title of the action shall include the names and
addresses of all the parties, but in other pleadings it is sufficient to
state the name of the first party on each side with an appropriate
indication of other parties.

Ohio courts have addressed the reference to “et al.” in an Amended Complaint. Gehrke v.

Cleveland Clinic Health System, et al, Cuyahoga C.P. No. CV-12-774499.2 In that case, a medical

malpractice case was filed against several health care providers, including the Cleveland Clinic

Health System, The Cleveland Clinic Foundation and Dr. Hamidi. In the original Complaint, the

names and addresses of all parties were set forth in the caption. The plaintiff subsequently filed an

Amended Complaint listing the Cleveland Clinic System et al. However, The Cleveland Clinic

Foundation and Dr. Hamidi were not listed in the caption. The Court analyzed the issues and

clearly set forth its reasoning:

The Court finds that Plaintiff’s amended complaint does not
properly name or include defendants Cleveland Clinic Foundation
and Dr. Hamidi as Defendants are required by Civ. Rule 10(A) and
Ohio case law interpreting that Rule. Plaintiff’s use of “et al” in
2
Undersigned counsel David Krause was counsel to other defendants in Gehrke.

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the caption is insufficient. Although the original complaint
included or properly named The Cleveland Clinic Foundation
and Dr. Hamidi as defendants, the filing of the amended
complaint operated to make the original complaint a nullity or
of no effect. (Emphasis added).

Ex. A., exhibi v. Cleveland Clinic Health System – East Region, et al., Case No. CV-12-774499

(February 25, 2016) (emphasis added).3

In the case at bar, just like in Gehrke, supra, Plaintiff used the phrase “et al.” after the first

named defendant (Riverview) but did not set forth the name or address of Dr. Taha in the caption

of the Second Amended Complaint. Just like Gehrke found the plaintiff’s amended complaint

failed to comply with Civ. R 10(A) and constituted a dismissal of Dr. Hamidi and CCF, Plaintiff’s

Second Amended Complaint constituted a dismissal of Dr. Taha. Plaintiff did not comply with

Civ. R. 10 (A) and Plaintiff’s claims against Dr. Taha are barred.

Plaintiff tries to confuse the issue by attaching a later ruling from a different motion in

Gehrke as Exhibit H to her Brief in Opposition (attached hereto as Ex. B, Gehrke Opinion and

Journal Entry on Plaintiff’s Motion to Substitute Defendant of April 6, 2016). Plaintiff ignored

the Gehrke trial court decision which directly deals with the issues at hand from February 25,

2016. Ex. C., Docket Gehrke v. Cleveland Clinic Health System – East Region, et al., Case No.

CV-12-774499

After ruling that Gehrke had dismissed Dr. Hamidi and CCF by not following Civ.

R.10(A), Gehrke subsequently permitted the plaintiff to “substitute” one Cleveland Clinic entity

for another Cleveland Clinic entity which had been named in the caption of both the complaint

and the amended complaint. Here, Plaintiff is not seeking to substitute a different Riverview

3
Notably, Judge Pamela Barker (now US District Court Judge Barker) based her ruling on “Civ. R. 10(A) and Ohio
case law interpreting that rule”- not Cuyahoga County’s local rules. Id.

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entity for the existing Riverview defendant. Since Gehrke did not permit what Plaintiff seeks here,

Plaintiff disingenuously attached the later journal entry where the Gehrke trial court permitted

Gehrke to substitute a related corporate entity (CCF) for the other corporate entity (CCHS) that

had been named in the caption. Ex. B.

2. Dr. Taha was not identified as a Defendant in the body of the Second
Amended Complaint.

Ohio courts have also consistently held that when a person is not properly identified in the

caption of the Amended Complaint, that person is not a defendant even if he is mentioned in the

body of the Amended Complaint. Recovery Funding v Spiers, supra; Lelan v. Flinn, 10th Dist. No.

98AP-363, 1998 Ohio App. LEXIS 5598. Once note named in the caption, a purported defendant

has no duty to review the remainder of the complaint- “to peruse the body of the complaint and try

to determine whether…it was a defendant.” Heine v. Crall, 10th Dist. Franklin No. 93AP-65, 1993

Ohio App. LEXIS 2616, *5 (May 18, 1993). The determining factor is whether the person is

properly identified in the caption (i.e. name and address). Id. Mentioning the person in the body

of the Amended Complaint does not make him a party. Id.

Plaintiff argues that the Second Amended Complaint clearly asserts a claim against Dr.

Taha. (P. MIO p. 12). It does not. Specifically, Plaintiff alleges that “Defendant Taha is mentioned

20 times in the body of the Second Amended Complaint.” (P. MIO p. 20). However, in the caption

and body of the Second Amended Complaint Plaintiff never refers to Dr. Taha as a Defendant or

use the words “Defendant Taha”. Rather, he is referred to as “Dr. Taha” a physician licensed to

practice medicine. See Second Amended Comp. And the reference to Dr. Taha in the body of the

Complaint without mention of his name in the caption does not make him a Defendant.

Plaintiff relies on two cases to make this argument Gibbs, and Hoffman. Both are

distinguishable.

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• First, Gibbs involves another case involving a will contest, where the individual who was

the executor was named in the body of the Complaint and the caption, but not designated

as the capacity as executor in the caption. Gibbs v. Lemley, 33 Ohio App.2d 220, 220, 293

N.E.2d 324 (4th Dist.1972). The plaintiff simply changed/replaced the designation of an

existing party. Id.

• Second, Plaintiff cites to Hoffman. Throughout her Memorandum in Opposition, Plaintiff

criticizes Dr. Taha for relying on cases from other districts, which actually apply Ohio Civ.

R. 10(A). Inexplicably, she then relies on Hoffman from events in 1954 Oregon in the

Ninth Circuit which does not even apply Ohio Civ. R. 10(A). Hoffman was a civil rights

case dealing with whether a second amended complaint complied with the heightened

pleading elements for civil rights violations and conspiracy. The amended complaint did

not purport to revive time barred claims. Obviously, Hoffman had nothing to do with Ohio

law. Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959).

Plaintiff did not comply with Civ. R. 10(A). The body of the Second Amended Complaint

did not identify Dr. Taha as a Defendant. Thus, she “kitchen sinks” the remainder of her argument

with a word count and reference to the certificate of service- as if that makes Dr. Taha a defendant.

Under Plaintiff’s tortured interpretation of Ohio law:

1. Plaintiff did not need to comply with Civ. R. 10(A);

2. It does not matter that she never alleged Dr. Taha was a “defendant” because she used

his name multiple times.4

3. The linchpin that made Dr. Taha a party was the certificate of service.

4
Further adding to the confusion of Plaintiff’s argument, Plaintiff’s Second Amended Complaint also references
other medical providers who Plaintiff claims are not defendants, i.e. former Defendant, Dr. Damian Lebamoff,
multiple times.

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This is nonsensical and not the standard. Simply because Plaintiff referenced Dr. Taha or listed

David Krause “Counsel for Defendant, Jamal Taha, MD” does not make Dr. Taha a Defendant.

(P’s MIO p. 12). All Plaintiff had to do was comply with Civ. R. 10(A)- not employ the legal

gymnastics she now urges the Court to perform.

Lastly, Plaintiff repeatedly argues that her counsel “believed” she did not need to comply

with Civ. R. 10(A) and/or “believed” that the “et al” designation was sufficient. Plaintiff and her

counsel do not dispute that she was on notice of Dr. Taha’s affirmative defenses. Plaintiff’s

counsel’s “beliefs” do not change Ohio law from case to case. Dr. Taha is not a party and any

claims against him are now time barred. Almost every appellate decision arises because a lawyer

on one side “believes” the law is different.

Indeed, Plaintiff’s counsel’s firm recently succeeded before the Ohio Supreme Court in

Wilson v. Durrani, 2020-Ohio-6827, establishing that Wilson’s claims were barred by Ohio’s

statute of repose. Wilson’s counsel and associated plaintiffs’ amici counsel all undoubtedly

“believed” that Ohio’s savings’ statute permitted those plaintiffs to refile their medical claims more

than four years after the date of the alleged negligence. Wilson at ¶23. Their belief did not make it

so. Nor can it here. Dr. Taha’s Motion for Judgment on the pleadings should be granted.

C. Allowing time barred claims would extremely prejudice Dr. Taha.

Plaintiff claims that Dr. Taha was not prejudiced by the defective caption, which did not

name him as a Defendant. (P’s MIO pp. 16-17). She is incorrect. Dr. Taha will suffer extreme

prejudice should the Court overlook his affirmative defenses, deny his motion and retroactively

shoehorn him back into the case either by such denial or via a “corrected” the Second Amended

Complaint. The Court would be allowing Plaintiff the opportunity to proceed and/or refile time

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barred claims by belatedly naming Dr. Taha as an additional defendant. Dr. Taha will be forced

to incur the additional time and expense of a case that is plainly barred.

Plaintiff again cites to an inapplicable case to make her point. (P’s MIO p. 17). In Hartman,

the Plaintiff used her initials and attorney’s address in the Caption, because the case involved a

sexual assault by Perler. Hartman v. Perler-Tomboly, 2013-Ohio-1752, 2013 WL 1820825 (May

1, 2013). The Court held that defendant who was named in the caption, suffered no prejudice,

because the identity of the plaintiff was known to him when the Complaint was filed. Id. The

Court allowed the plaintiff to Amend the Caption to correct her identity, before the time

limitations expired. It did not allow plaintiff to fail to name a defendant and then add that

defendant to the case after her claim was time barred.

Plaintiff’s claims against Dr. Taha are undoubtedly time barred by Ohio’s wrongful death

statute of limitations, Ohio’s savings statute and now, Ohio’s medical claim statute of repose.

Plaintiff’s Decedent died on January 6, 2017 and the following apply:

1. Ohio’s two-year wrongful death statute of limitations, which expired on January 6,

2019. ORC 2125.02(D)(1).

2. Ohio’s one-year savings statute, which expired on July, 26, 2020, one year after

Plaintiff’s Second Amended Complaint (subsequently extended to December 22, 2020

by the Ohio Supreme Court COVID-19 Tolling Order). ORC 2305.19(A).

3. Now, also Ohio’s four-year statute of repose for medical claims, which expired on

January 6, 2021. ORC 2305.113(C). 5

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Plaintiff’s proposed addition of Dr. Taha is now also barred by the statute of repose based on the four-year anniversary
of Decedent’s death (January 6, 2021). Wilson v. Durrani, 2020-Ohio-6827

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Plaintiff cannot avoid the statutory time limitations with her “Corrected” Second Amended

Complaint. It would prejudice Dr. Taha to allow Plaintiff to avoid plainly pled affirmative

defenses, add him back into the case and revive her time barred claims.

Although Plaintiff “pounds the table” for adjudication on the merits based on her counsel’s

“beliefs”, her counsel’s law firm argued exactly the opposite in Wilson v. Durrani. Having raised

affirmative defenses that the plaintiffs’ claims were time barred, Dr. Durrani argued that case

should not proceed to trial on its merits because doing so would prejudice him. Those arguments

convinced the Ohio Supreme Court. Those same arguments are convincing here. Just like Dr.

Durrani, Dr. Taha would be extremely prejudiced by a trial on the merits of Plaintiff’s time barred

claims. Id.

D. The Court should deny Plaintiff’s request to Correct the Second Amended
Complaint as she is seeking to file an untimely Third Amended Complaint,
which is impermissible.

Rather than burden this Court with cumulative arguments, Dr. Taha incorporates his

contemporaneously filed Brief in Opposition to Plaintiff’s Motion for Leave to file “Corrected”

Second Amended Complaint as if fully set forth herein. Plaintiff’s proposed “Corrected” Second

Amendment Complaint is impermissible and Civ. R. 15(C) cannot be used to add Dr. Taha as a

defendant or revive time barred claims against him. For all these reasons and the reasons stated

therein, Plaintiff’s Motion for Leave to File “Corrected” Second Amended Complaint should be

denied.

E. Dr. Taha’s Motion for Judgment on the Pleadings was timely.

Rather than burden this Court with cumulative arguments, Dr. Taha incorporates his

contemporaneously filed Brief in Opposition to Plaintiff’s Motion for to Strike Dr. Taha’s Motion

for Judgment on the Pleadings as if fully set forth herein. The Ohio Supreme Court has ruled that

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a defendant who raises affirmative defenses in his answer does not waive them- even through trial,

and has no duty to file a motion on those affirmative defenses when there is stilltime for the

plaintiff to cure them. Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-

Ohio-3762. For all these reasons and the reasons stated therein, Plaintiff’s Motion to Strike Dr.

Taha’s Motion for Judgment on the Pleadings should be denied.

Dr. Taha requests oral argument on all of the within motions and issues.

III. CONCLUSION

For all the foregoing reasons, Dr. Taha’s Motion for Judgment on the Pleadings should be

granted.

Respectfully submitted,

/s/ David H. Krause
David H. Krause (0070577)
Jackie M. Jewell (0090499)
REMINGER CO., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, Ohio 43215
T(614)228-1311/ F(614)232-2410
dkrause@reminger.com
jjewell@reminger.com

Attorneys for Jamal Taha, MD

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CERTIFICATE OF SERVICE

I hereby certify that on this 12th day of January 2021, a copy of the foregoing has been filed

using the Court’s e-filing system and a copy will be served via electronic mail to the following

parties:

Mark T. Hayden, Esq. Patrick F. Smith, Esq.
TAFT STETTINIUS POLING
& HOLLISTER LLP 300 E. Broad Street, Suite 350
425 Walnut St., Suite 1800 Columbus, Ohio 43215
Cincinnati, OH 45202 psmith@poling-law.com
mhayden@taftlaw.com Counsel for George Chen, M.D.
awallin@taftlaw.com
Counsel for Plaintiff
Counsel for Plaintiff, Candace Messer and
the Estate of Donald G. Messer

David S. Lockemeyer, Esq.
Joshua F. DeBra, Esq.
CALDERHEAD, LOCKEMEYER &
PESCHKE
6281 Tri-Ridge Blvd., Suite 210
Loveland, OH 45140
Phone: 513-576-1060
Email: dlockemeyer@clp-law.com and
jdebra@clp.law.com
Counsel for Riverview Health Institute, LLC

s/David H. Krause
David H. Krause (0070577)

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93032383 Exhibit A
93032383

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ELLEN S. KAY GEHRKE Case No: CV-12-774499
Plaintiff
Judge: PAMELA A BARKER

CLEVELAND CLINIC HEALTH SYSTEM, ET AL
Defendant

JOURNAL ENTRY

PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT, FILED 02/10/2016, IS DENIED. THE COURT FINDS THAT
PLAINTIFF'S AMENDED COMPLAINT DOES NOT PROPERLY NAME OR INCLUDE DEFENDANTS CLEVELAND CLINIC
FOUNDATION AND DR. HAMIDI AS DEFENDANTS AS REQUIRED BY CIV. RULE 10(A) AND OHIO CASE LAW
INTERPRETING THAT RULE. PLAINTIFF'S USE OF "ET AL" IN THE CAPTION IS INSUFFICIENT. ALTHOUGH THE
ORIGINAL COMPLAINT INCLUDED OR PROPERLY NAMED THE CLEVELAND CLINIC FOUNDATION AND DR.
HAMIDI AS DEFENDANTS, THE FILING OF THE AMENDED COMPLAINT OPERATED TO MAKE THE ORIGINAL
COMPLAINT A NULLITY OR OF NO EFFECT.

yk/mL6
Judge Signature 02/25/2016

02/24/2016
RECEIVED FOR FILING
02/25/2016 08:45:27
NAILAH K. BYRD. CLERK
Page 1 of 1
CV12774499
93611396
93611396
Exhibit B

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

ELLEN S. KAY GEHRKE, Individually and CASE NO. CV-12-77449
As Executrixjof the Estate of CARSTEN
GEHRKE, Deceased JUDGE PAMELA A. BAR

Plaintiff, OPINION AND JOURNAL ENTRY
ON PLAINTIFF'S MOTION TO
v. SUBSTITUTE DEFENDANT

CLEVELAND CLINIC HEALTH SYSTEM- )
EAST REGION, et al. )

Defendants )

This matter is before the Court on Plaintiff's Motion To Substitute Defendant ("Plaintiff's

Motion"), Defendant Cleveland Clinic Health System-East Region a/k/a Hillcrest Hospital's

("CCHS") and Non-Defendant, The Cleveland Clinic Foundation's ("CFF") Opposition to Plaintiff's

Motion, Plaintiff's Reply, and CCHS's and CFF's Sur-Reply.

In Plaintiff's Motion, Plaintiff requests that this Court grant her leave to substitute CCF

for CCHS as a Defendant in this action pursuant to Civ.R. 15(C). Plaintiff's Motion was prompted

or necessitated by this Court's ruling that since CCF (and its employee, Ramin E. Hamidi, D.O.

("Dr. Hamidi")) had not been named in the caption of the Amended Complaint, they were no

longer proper parties to the action under Civ.R. 10(A).1

1 The caption of the Amended Complaint included or named "Cleveland Clinic Health System - East Region (a/k/a/
Hillcrest Hospital), et al," which
Plaintiff's counsel has asserted they "honestly believed...was a proper designation
that included CCF and Dr. Hamidi", and because thisCourt disagreed, Plaintiff's
counsel has asserted that they
"never meant to]exclude the Cleveland Clinic Foundation and Dr. Hamidi from this lawsuit." (Plaintiff's Reply, at p.
3.) Plaintiff soughta default judgment against CCF and Dr. Hamidi since they had not filed an Answer to the
Amended Complaint; and CCHS filed a motion inlimine seeking to preclude Plaintiff fromreferring to CCF or Dr.
Hamidi as defendants during the trial. Because this Court concluded that Plaintiff's Amended Complaint did not
properly identify]CCF and Dr. Hamidi as defendants pursuant to Civ.R. 10(A), Plaintiff's motion for default judgment
was denied.
Civ.R. 15(C) provides, in relevant part:
j
Whenever the claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to the date of the original
pleading. An amendment changing the party against whom a claim is asserted
relates back if the foregoing provision is satisfied and, within the period provided
by law for commencing the action against him, the party to be brought in by
amendment (1) has received such notice of the institution of the action that he
will not be prejudiced in maintaining his defense of the merits, and (2) knew or
should have known that, but for a mistake concerning the identity of the proper
party, the action would have been brought against them.

CCHS and CCF do not dispute, and this Court finds, that the claims asserted by

Plaintiff in the amended complaint arise out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original pleading. Therefore, the first of
|
three requirements for allowing an amendment to relate back to the original pleading

has been met.2

Plaintiff asserts, CCHS and CCF do not dispute, and this Court concludes, that CCF

has receivedj such notice of the institution of the action that it will not be prejudiced in

maintaining its defense on the merits.

The bases for CCHS's and CCF's opposition to Plaintiff's Motion are as follows: 1.)

Plaintiff is not seeking to "chang[e] the party against whom a claim is asserted" as that

phrase is used in Civ.R. 15(C), but, rather, Plaintiff is seeking to add a party to the cause

I
of action; and 2.) the third requirement has not been met because there has been no

2 In Cecil v. Cottrill (1993), 67 Ohio St.3d 367, 1993 Ohio 225, 618 N.E.2d 113, the Ohio Supreme Court summarized
the three requirements as follows. First, the amended complaint must arise from the same events which support
the originalcomplaint. Second, the party "brought in" by the amendment must receive, "within the period
provided by law for commencing the action," such notice of the action that the party is able to maintain a defense.
Third, within the same period as provided in the second requirement, the new party must have or should have
known that but,for a mistake concerning the proper party's identity, the action would have been brought against
the new party. Baeslach v. Dancy, 2004-0hio-4091, (8th Dist. No. 83371), at 10-12.
"mistake concerning the identity of the proper party". In support of their second
!
argument, CCHS and CCF rely upon the Eighth District Court of Appeals' decision in
ji

Greene v. Barrett, 102 Ohio App.3d 525, 657 N.E.2d 553 (8th Dist. No. 67156).
i'
This Court rejects CCHS's and CCF's first argument because it is clear from

Plaintiff's Motion that Plaintiff is seeking to change the named defendant from CCHS to

CCF3 because it is CCF, and not CCHS, that employs Dr. Hamidi.

This Court rejects CCHS's and CCF's second argument on the basis of the Eighth

District Court of Appeals' decision in Baeslach v. Dancy, supra, relied upon by Plaintiff.

In Baeslach,, the court found that evidence in the form of correspondence from the
l!
plaintiffs' attorney to her liability insurer, demonstrated that the party sought to be

added via the amended complaint, Lippett, knew or should have known that, but for a

mistake concerning her identity, a legal action might be instituted against her. CCHS

and CCF argue that because Plaintiff has always known the identity of CCF, as evidenced

by Plaintiff's original complaint including CCF as a named defendant, Baeslach is

distinguishable and does not support Plaintiff's position. However, the very evidence

relied upon by the Court in Baeslach to conclude that the third requirement under Civ.R.

15(C) had been met, i.e.,correspondence to the insurer, as well as other evidence, i.e.,

the police report, also demonstrate that the plaintiffs in Baeslach knew the identity of

Liggett, but by reason of a mistake, failed to include or name her in the original

complaint. Similarly, Plaintiff knew the identity of CCF, but by reason of a mistaken

3 The first paragraph of Plaintiff's Motion read

Case Info

Case No.

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Document Filed Date

January 12, 2021

Case Filing Date

May 15, 2018

County

Parties

ALEX E WALLIN Attorney for the Plaintiff
CANDACE L MESSER EXECUTRIX Plaintiff
CANDACE L MESSER INDIVIDUAL Plaintiff
DAMIAN LEBAMOFF MD Defendant
DAVID H KRAUSE Attorney for the Defendant
DAVID S LOCKEMEYER Attorney for the Defendant
GEORGE CHEN MD Defendant
JACKIE M JEWELL Attorney for the Defendant
JAMAL TAHA MD Defendant
JOHN B WELCH Attorney for the Defendant
JOSHUA F DEBRA Attorney for the Defendant
KENTON H STEELE Attorney for the Defendant
MARK T HAYDEN Attorney for the Plaintiff
PATRICK F SMITH Attorney for the Defendant
RIVERVIEW HEALTH INSTITUTE LLC Defendant
VALERIE M TALKERS Attorney for the Plaintiff
William Longbrake Attorneys for Plaintiffs
Donald Richardson Attorney
Michael Ockerman Attorneys for Plaintiffs
Patrick Adkinson Attorneys for Defendants

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Motion-Secondary: CANDACE L MESSER vs RIVERVIEW HEALTH INSTITUTE LLC

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