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IN THE SUPREME COURT OF OHIO
EVELINE GULBRANDSEN, Executorof the Estate of Franklin Gulbrandsen,Deceased, et al.
Plaintiff,
vs.
SUMMIT ACRES, INC, et al.
Defendants.
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a '1./ U r,
On Appeal from the Washington CountyCourt of Appeals,Fourth Appellate District
Court of AppealsCase No. 14CA38
MEMORANDUM IN SUPPORT OF JURISDICTION OFAPPELLANT KENNETH WRITESEL, D.O.
G. Brenda Coey (0075879)Jason A. Paskan (0085007)Bonezzi Switzer Polito & Hupp Co LPA1300 E. 9th St., Ste. 1950Cleveland OH 44114Tel: 216-875-2767Fax: [email protected]@bsphlaw.com
COUNSEL FOR APPELLANT KENNETH WRITESEL, D.O.
Susan E. Petersen (0069741)Todd Petersen (0066945)428 South StreetChardon OH 44024Tel: 440-279-4480Fax: 440-279-4486sep@pe [email protected]
COUNSEL FOR APPELLEE EVELINE GULBRANDSEN
IRECIE WEDAPR 0 9 2015
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CLERK OF COURTREME COURT OF OHIO
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................
TABLE OF AUTHORITIES .................. . ..... .... ...... ................. .......................... .
STATEMENT OF THE CASE AND FACTS .....................
ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW .................
A. PROPOSITION OF LAW ONE ............................................................
A NON-PARTY EXPERT'S TAX RETURN INFORMATIONSHOULD NOT BE DISCOVERABLE UNLESS THEINFORMATION IS DIRECTLY RELEVANT TO THE SUBJECTMATTER OF THE ACTION OR THERE IS A COMPELLINGNEED FOR THE INFORMATION.
B. PROPOSITION OF LAW TWO ..........................
THE DENIAL OF A NON-PARTY'S MOTION TO QUASH IS AFINAL, APPEALABLE ORDER.
Page
ii
111
4
7
7
14
CONCLUSION ............................. .................................................................. 15
CERTIFICATE OF SERVICE....................................................................... 16
APPENDIX:
Gulbrandsen v. Summit Acres, Inc., Opinion and Judgtnent Entry, WashingtonCounty Court of Appeals Case No. 14CA38 (Feb. 25, 2015)........... A-1
Gulbrandsen v. SummitAc.res, Inc., Opinion and Judgment Entry, WashingtonCounty Court of Common Pleas Case No. lIPT403 (May 7, 2013). A-2
Gulbrandsen v. Summit Acres, Inc., Opinion and Judgment Entry, WashingtonCountry Court of Appeals Case Nos. 13CA20, 13CA24 (July 29, 2013) A-3
Gulbrundsen v. SummitAcres, Inc., Entry, The Supreme Court of Ohio CaseNo. 2013-1814 (Feb. 19, 2014) ............................................................. A-4
Gulbrandsen v. Summit Acres, Inc., Opinion and Judgment Entry, WashingtonCounty Court of Common Pleas Case No. 11PT403 (Nov. 5, 2014)... A-5
ii
TABLE OF AUTHORITIES
CasesPage
Cooper v. Hallgarten & Co., 34 F.R.D. 482 (S.D.N.Y. 1964) .................... 8
Crow v. Dotson, 8th Dist. Cuyahoga No. 76674, 2000 WL 1867262(Dec. 14, 2000) ............................. ................................................................ 9
Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir.1998) ....................... 14
DeMasi v. Weiss, 669 F.2d 114 (3d Cir.1982) ........................ g
Elkins v. Syken, 672 So.2d 517 (Fla.1996) ................................ 11,12..................
Expart-eMorris v. Craddock, 530 So.2d 785 (Ala.1988),,,,,,,,,,,,,,,,,,, 10,11,12
Fredricks v. Good Samaritan Hosp., 2d Dist. No. 22502,2008-Ohio-3480 ................... . 15
Future Cornmunications v. Hightower, 10th Dist. No. 01AP-1175,2002-Ohio-2245 ..................... ..................................................................... 15
Gibson-Myers & Assocs. v. Pearce, 9th Dist. No. 19350,1999 WL 980562 (Oct. 27, 1999) ............................. .................................. 15
Gulbrattdsen v. Summit Acres, Inc., 4th Dist.Nos. 13CA20, 13CA24 (Oct. 2. 2013) ....................... 15.................................
Hudson v. United Servs. Auto. Assn. Ins. Co., 150 Ohio Misc.2d 23,2008-Ohio-7084, 902 N.E.2d 101 (C.P.) ......................... 8
Katz v. Batavia Marine & Boating Supplies, Inc., 984 F.3d 422,(Fe d. Cir.1993 ) . .. .. ........ ........ ... ... .. ..... .. .. .. .... ... . ....... .... . ................................ 9
Marron v Stromsttad, 123 P.3d 992 (Alaska 2005) ........................ 10
Plante v. Gonzalez, 575 F.2d 1119 (5th Cir.1978),,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 8
Primm v. Isaac, 127 S.W.3d 630 (Ky.2004) ............................... 11,12,13
Scott Process Sys., Inc. v.1vIitchell, 5th Dist. No. 2012CA00021,2012-Ohio-5971 ............... ............................................................................ 15
Smith v. Bader, 83 F.R.D. 437 (S.D.N.Y. 1979) ....................... 8..................
111
State ex rel. Corn v. Russo, 133 Ohio App.3d 57, 726 N.E.2d 1052(8th Dist. 1999) .................. 8,9.....................................................................
State ex rel. Fisher v. Cleveland, 8th Dist. Cuyahoga No. 83945,2004-Ohio-4345 ................ ........................................................................ 8
Stinchcomb v. Mammone, 166 Ohio App.3d 45, 2006-Ohio-1276,849 N.E.2d 54 (5th Dist.) ...................................................... ................... 9 , 10
Tisco Trading USA, Inc. v. Cleveland Metal Exchange, Ltd.,8th Dist. No 97114, 2012-Ohio-493 ................ ......................................... 15
Statutes
R.C. 2505.02(B)(4) ...................................................... ............................ 1,4,15
Rules
Civ.R. 45 ..................................... .............................................................. 2
iv
I. WHY THIS CASE PRESENTS A MATTER OF GREAT GENERAL INTEREST
The Fourth District Court of Appeals declined to address the issue of whether a non-party
medical expert's tax return information is discoverable by the opposing party by holding that a
review of the issue in this case is moot. In doing so, the Fourth District has foreclosed the non-
party medical expert, Kenneth Writesel, D.O. (hereinafter "Dr. Writesel"), from seeking any
appellate review of this issue. Accordingly, this case is ripe for this Honorable Court's review in
order to allow the non-party medical expert in this case to obtain review of an unsettled but
exceedingly important area of the law in Ohio.
The central issue is whether a non-party medical expert may be compelled to produce
their private and personal tax return information pursuant to a subpoena propounded by the
opposing party. The trial court compelled D. Writesel to produce portions of his private tax
return information to the opposing party pursuant to a subpoena because such records were
relevant to the issue of his credibility. (See Trial Court Order on May 7, 2013, attached hereto as
Appendix A-2). Importantly, the trial failed to consider the burden on a non-party of producing
the documents, the intrusive nature of such an order upon the non-party expert and whether the
plaintiff had a compelling need to seek such documents.
Dr. Writesel immediately retained counsel for the sole purpose of appealing the order.
The Fourth District determined that they did not have jurisdiction over the disclosure of the tax
return information issue because the discovery order was not a final appealable order pursuant to
R.C. 2505.02. (See Fourth District Entry of July 29, 2013, attached hereto as Appendix A-3).
The Fourth District stated that discovery rulings are generally not final and appealable because
any harm is correctable on appeal at the conclusion of the case. Id. at 3. The Fourth District, in
denying Dr. Writesel's Motion for Reconsideration, noted that a non-party physician expert is
able to appeal the discovery order after final judgment under the protections afforded in Civ.R.
45. (See Fourth District Entry of Oct. 2, 2013). Thereafter, Dr. Writesel appealed to this Court
arguing that the denial of a non-party's motion to quash is a final, appealable order because a
non-party has no way to appeal an order absent a final judgment, which may never come to
fruition. In a 4-3 decision, this Court declined to accept jurisdiction of the appeal. (See Supreme
Court Entry, attached hereto as Appendix A-4).
The litigation proceeded and was eventually dismissed with prejudice pursuant to a
settlement agreement. (See Trial Court Entry on Nov. 5, 2014, attached hereto as Appendix A-5).
Dr. Writesel again appealed the order of the trial court allowing the production of tax return
information to the opposing party. The Fourth District held that the appeal was moot because the
case had been dismissed and none of the exceptions to the mootness doctrine applied. (See
Fourth District Entry on Feb. 25, 2015, attached hereto as Appendix A-1). The Fourth District's
decisions denied Dr. Writesel of any review of the trial court's order that he produce his tax
return information. Dr. Writesel had expressed this concern to this Court when he argued that a
denial of a non-party's motion to quash should be a final appealable order.
The Fourth District's failure to review the trial court's decision creates inconsistent
rulings on the issue throughout the District Courts in Ohio. Consequently, this case demands
review by this Court to make clear whether a non-party expert's private and personal tax return
information is subject to production to the opposing party and to find that a denial of a motion to
quash is a final, appealable order to protect non-parties from harassing discovery requests.
This Court should accept review of this case to provide authoritative guidance to lower
courts in the appropriate standard and considerations for ordering the production of tax return
information of a non-party expert. This issue has not been frequently addressed in Ohio but has
2
yielded conflicting results in the District Courts. As discussed below, the Eighth and Fifth
Districts have reviewed the issue and have found that the expert's tax return information was not
discoverable by the opposing party. In contrast, the Fourth District, in declining to review the
issue, has acquiesced to the production of an expert's tax return information. A review by this
Court will provide guidance to lower courts in the proper standard to apply to non-party experts
and the considerations when deciding if the information is discoverable.
Furthermore, allowing trial court's to uphold liberal discovery of tax information will
have significant ramifications on experts from Ohio. Mandating a medical expert to produce tax
return information will have a chilling effect on Ohio physicians from serving as experts in
litigation within the state. Physicians from world-class hospitals in Ohio would be deterred from
serving as medical experts in civil and criYninal cases if their tax information can be freely
obtained by the opposition. Parties will be forced to use out-of-state or lower quality medical
experts.
Moreover, the trial court in this case failed to consider the expert's status as a non-party
and allowed discovery of tax information despite the fact that such information was not directly
relevant to the subject matter of the action and there was not a compelling need for such
information. Compelling the production of an expert's tax returns is unduly intrusive and
burdensome upon the expert. Less intrusive means can be used to establish bias or attack the
credibility of an expert which are more effective than obtaining tax information.
Ultimately, the attempt to discover an expert's income tax information is a powerful
tactical tool to harass and intimidate the other party's experts. Indeed, the other defense expert in
this case, Dr. Keith Armitage, declined to continue to serve as an expert after the trial court
ordered the production of his income tax information. This Honorable Court should review this
3
issue to provide guidance to lower courts in the appropriate standard for compelling non-party
expert's tax return information and to establish the circumstances under which the discovery of
an expert's tax return information is justified. Additionally, this Court should review this case to
make a determination that a denial of a motion to quash is a final, appealable order, pursuant to
R.C. 2505.02(B)(4)(b), for the adequate protection of non-parties from discovery abuses and to
ensure meaningful judicial review for non-parties.
H. STATEMENT OF THE CASE AND FACTS
Plaintiff, Eveline Gulbrandsen, commenced this action on December 9, 2011, in the
Washington County Court of Common Pleas, Case No. 11 PT 000403, seeking damages for
injuries suffered by Franklin Gulbrandsen as a result of the alleged negligence of Summit Acres
nursing home.
Franklin Guibrandsen was a resident at Summit Acres from December 13, 2010 through
December 15, 2010. See Complaint at 1112. He passed away on January 3, 2011. See Complaint
at 111. Plaintiff alleged that Summit Acres failed to provide adequate care to Mr. Gulbrandsen by
giving him nutrition through a feeding tube that became dislodged. See Complaint at IT1114, 18.
During the course of litigation, Summit Acres retained Ohio physician Kenneth Writesel,
D.O. as a medical expert. On April 2, 2013, Plaintiff issued a Subpoena Ditices Tectam to Dr.
Writesel for the production of the following documents:
6. All records, including all form 1099 or W-2, or other tax records, whichreflect the total amount of income received by Misken Consulting,Inc./Kenneth Writesel, D.O. or any related entity for the performance ofexpert services (other than those pertaining to Dr. Writesel's own patients)during the period from January 1, 2003 to the present;
22. All tax forms, including any 1099 form or completed W-9 form, and anyother document containing information or data, sent to or received fromany attorney, law firm or insurance company for each of the years 2003
4
to date in 2013 in connection with any testimony given by MiskenConsulting, Inc. or Kenneth Writesel, D.O., its officers, agents oremployees in connection with a medical legal expert matter.
On April 17, 2013, Summit Acres moved to modify Plaintiff's Subpoena by striking any
requirement that Dr. Writesel produce tax records and related documents on the grounds that
such information was not relevant to the underlying matter, invaded the privacy of the physician,
and was confidential.l The trial court held a hearing on the issue wherein counsel for Summit
Acres objected to the production of the tax return documents on the above-stated grounds. The
trial court determined that certain tax return documents were relevant to the issue of credibility
and issued an order on May 7, 2013 requiring Dr. Writesel to produce "any form attached to his
income tax returns over the last ten years showing payment from insurance companies or defense
firms in relation to medical-legal work." (See Trial Court Order on May 7, 2013, attached hereto
as Appendix A-2).
Dr. Writesel subsequently retained separate counsel and moved the trial court to modify
or quash the subpoena issued to him. In the motion, Dr. Writesel challenged the subpoena on the
basis that the subpoena was unduly burdensome, disclosure of tax information would infringe
upon his privacy, and a ruling requiring him to produce tax records would have a chilling effect
on the quality and availability of experts in Ohio. The trial court held a second hearing regarding
the issue on May 30, 2013 and, once again, found that the tax return documents were relevant to
the issue of the expert's credibility. The trial court disregarded existing case law and Dr.
Writesel's status as a non-party. Consequently, the trial court issued an order on June 7, 2013
1 This motion also addressed defense expert and Ohio physician Keith Armitage, M.D., however,he is not a party to the instant appeal because upon learning that he was required to produce histax records, he withdrew as an expert witness. Accordingly, this brief will only address the issuewith respect to Dr. Writesel.
5
denying Dr. Writesel's Motion to Modify or Quash and reaffirmed its order from May 7, 2013.
(See Trial Court Order of June 7, 2013).
Summit Acres and Dr. Writesel appealed both orders compelling Dr. Writesel to produce
his tax return information from the past ten years regarding medical-legal work. The Fourth
District Court of Appeals consolidated the appeals for judicial economy as the issue in both
appellate cases was identical. Ultimately, the Fourth District determined that it did not have
jurisdiction over the trial court's orders with regard to the production of tax return information
because the orders were not final appealable orders as the tax information addressed in the order
was not privileged. Dr. Writesel appealed to this Court arguing that a denial of a motion to quash
a non-party's subpoena should be immediately appealable because a non-party has no control
over the direction and resolution of the case and, consequently a discovery order directed at a
non-party could evade review when the case is resolved without a final judgment. This Court
declined to accept jurisdiction of the case in a 4 to 3 decision (See Supreme Court Entry on Feb.
19, 2014, attached hereto as Appendix A-4).
The case was remanded and was subsequently dismissed with prejudice subject to a
settlement agreement. Upon dismissal of the action, Dr. Writesel timely appealed to the Fourth
District to review the trial court order compelling the production of his tax return information to
Plaintiff. The Fourth District Court of Appeals found that because the case was dismissed with
prejudice, a ruling in favor of Dr. Writesel would not provide him with meaningful relief and
therefore, the issue was moot. The Fourth District court foreclosed Dr. Writesel from having any
review of the trial court's order in this case.
Dr. Writesel now urges this Honorable Court to review the trial court's order compelling
him to produce his income tax return information to the opposing party. Although other
6
jurisdictions have addressed this issue, few Ohio jurisdictions have had occasion to review the
issue. The Ohio courts wliich have addressed the issue have agreed that an expert's tax
information should not be discovered. Conversely, the Fourth District in this case has indicated
that such information is discoverable. Accordingly, the Court should accept jurisdiction to
provide guidance to the lower courts, to establish uniformity in how to analyze the issue and to
create a well-founded standard to be applied when determining whether a non-party should be
required to disclose tax information.
III. ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW
PROPOSITION OF I.AW NO.1
A NON-PARTY EXPERT'S TAX RETURN INFORMATIONSHOULD NOT BE DISCOVERABLE UNLESS THEINFORMATION IS DIRECTLY RELEVANT TO THE SUBJECTMATTER OF THE ACTION OR THERE IS A COMPELLINGNEED FOR THE INFORMATION.
Liberal discovery of a non-party expert's tax return information regarding income
derived from medical-legal work unnecessarily and improperly infringes on the non-party's
privacy and improperly seeks confidential personal information. An expert's compensation is a
personal and private matter that should be protected from abusive discovery tactics. Any
potential benefit derived from the discovery of tax return information is markedly outweighed by
the prejudice exacted on the expert as a non-party witness. Experts assist juries in understanding
complex concepts to which they have superior knowledge. They have not agreed to have their
personal finances dissected for the general public, particularly when income is not an indicator of
competency, the amount of time performing medical-legal reviews can be obtained through other
less intrusive means, and an expert's income is immaterial to proving the essential elements of
the case.
7
Courts in various Ohio jurisdictions historically have been opposed to the production of
tax returns in discovery. An Ohio Common Pleas Court aptly noted:
Although there is no privilege in protecting the production of tax returns, thecourts have been reluctant to order routinely their discovery. This historictrend seems to stem in part from the private nature of the sensitive informationcontained therein, and in part from the public interest in encouraging the filingby taxpayers of complete and accurate returns.
(Emphasis added.) Hudson v. United Servs. Auto. Assn. Ins. Co., 150 Ohio Misc.2d 23, 30-31,2008-Ohio-7084, 902 N.E.2d 101 (C.P.) quoting Smith v. Bader, 83 F.R.D. 437 (S.D.N.Y. 1979).
The Hudson Court stated that federal jurisdictions have found that "the production of tax
returns should not be ordered unless it clearly appears they are relevant to the subject matter of
the action or to the issues raised thereunder, and further, that there is a compelling need therefor
because the information contained therein is not otherwise readily obtainable." Hudson, 150
Ohio Misc.2d at 31, quoting Cooper v. Hallgarten & Co., 34 F.R.D. 482, 484 (S.D.N.Y. 1964).
The Eighth District has discussed the issue of discoverable tax return information noting
that "[t]hough tax return inforination is not statutorily privileged when obtained from taxpayers
themselves, it has long been held that such information is not freely available in discovery
in litigation, as a matter of public policy." State ex rel. Fisher v. Cleveland, 8th Dist.
Cuyahoga No. 83945, 2004-Ohio-4345, ¶22. The Fisher Court further stated that "[s]ome courts
have suggested that the privacy of tax return information may be constitutionally protected."
State ex rel. Fisher, 2004-Ohio-4345 at 1f22 citing Plante v. Gonzalez, 575 F.2d 1119 (5th
Cir.1978) and DeMasi v. Weiss, 669 F.2d 114 (3d Cir.1982).
In a similar situation to the matter before this Court, the Eighth District Court of Appeals
found that the plaintiff could not discover the expert physician's confidential tax information.
See State ex rel. Corn v. Russo, 133 Ohio App.3d 57, 726 N.E.2d 1052 (8th Dist. 1999). In Corn,
the defendant identified Dr. Robert Corn as an expert in a medical malpractice action. Id. at 60.
8
The trial court ordered the production of Dr. Corn's 1099 forms received from "any liability
carrier or any law firm or attorney and/or records showing income received from such sources
from 1991-1997." Id. at 61. When Dr. Corn did not disclose the information, the court scheduled
the matter for a contempt hearing and Dr. Corn sought a writ of prohibition. Id. The Eighth
District determined that although the trial court had the authority to conduct a contempt hearing,
there was no need because the plaintiff could not discover Dr. Corn's confidential tax
information. Id. at 63.
In the subsequent appeal of the underlying malpractice case, the Eighth District declined
to issue a blanket statement prohibiting trial courts from ordering disclosure of tax return
information, but chastised the trial court for failing to consider the burden on Dr. Corn as a non-
party to the case:
Caselaw (sic) recognizes, however, that the standard of relevance fordiscovery from persons who are not parties to the litigation is more rigorousthan when such information is sought from parties. E.g., Katz v. BataviaMarine & Boating Supplies, Inc. (Fed.Cir.1993), 984 F.3d 422.2 We shareappellants' concern that the trial court did not adequately consider theseprinciples before compelling them to complete the request forms in the case atbar and have disapproved of the court's independent investigatory practices inour prior cases.
Crow v. Dotson, 8th Dist. Cuyahoga No. 76674, 2000 WL 1867262, *3 (Dec. 14, 2000).
The Fifth District has similarly found that an expert's tax return inforination was not
discoverable when evidence of bias was available through less invasive means. See Stinchcomb
v. Mammone, 166 Ohio App.3d 45, 2006-Ohio-1276, 849 N.E.2d 54 (5th Dist.). In Stinchcomb,
the plaintiff issued a subpoena to a non-party physician performing independent medical
examinations for the defense seeking all tax form 1099's received by him for any defense firm or
2 The Katz Court held that a non-party status is a significant factor in determining whetherdiscovery is unduly burdensome and placed the burden on the plaintiff to establish a need for theinforination sought.
9
insurance company form 2001-2005. Id. at 118-10. When the physician objected, plaintiff sought
a motion to compel arguing that the documents were relevant to demonstrate bias. Id. at 1[16. The
Fifth District affirmed the trial court's denial of the plaintiff's motion to compel on the ground
that the physician provided more than sufficient information regarding his financial information
and that the plaintiffs were not entitled to the privileged information sought in the subpoena. Id.
at 1i¶40, 45.
Courts in other jurisdictions liave similarly found the tax returns of non-party expert
witnesses to be protected from discovery. For example, the Supreme Court of Alaska held that
the tax returns of expert witnesses were not discoverable. See Marron v Stromstad, 123 P.3d 992
(Alaska 2005). While recognizing that tax returns could establish bias, the court agreed with the
appellate court when it held that non-party expert witnesses "retain[ed] a right of privacy in their
tax returns." Id. at 999. The court reasoned that opposing counsel could ask questions during
deposition regarding the expert's propensity to testify on behalf of the plaintiff/defendant which,
in and of itself, was sufficient to establish bias. Id.
The Supreme Court of Alabama held similarly in Ex parte Morris v. Craddock, 530
So.2d 785 (Ala.1988). In Morris, the defendant sought the tax returns of plaintiff's expert
witnesses. Id. at 786. While recognizing the liberal policy of the discovery rules, the court
refused to allow discovery of expert tax returns on the basis that "[t]he incremental value that
such information would provide respondent for purposes of showing bias is substantially
outweighed by the prejudice that would be imposed on a person not a party to the proceedings,
and involving an issue that is not controlling." Id. at 789. The court acknowledged that the tax
returns of a litigant who placed his finances at issue would be discoverable, but that a non-party
10
would be treated differently in that his finances did not prove or disprove any essential. element
of the claim. See id.
Florida and Kentucky have adopted a two-part standard for obtaining a non-party expert
witness's tax returns. See Primm v. Isaac, 127 S.W.3d 630 (Ky.2004); and Elkins v. Syken, 672
So.2d 517 (Fla.1996). In Primm, the trial court denied the expert witness's motion to quash a
subpoena duces tecum and compelled the production of his tax returns including documents and
forms attached thereto. Id. at 633. The appellate court denied the non-party's writ of prohibition,
finding that the requesting party had no "substantial[ly] equivalent or other means of obtaining
the desired information." Id. The Kentucky Supreme Court disagreed.
The Kentucky Supreme Court conceded that the docurnents were relevant to establish
bias, but found the "probative value is far-outweighed by the prejudicial and burdensome effects
of such a request." Id, at 634-35. The court reasoned that the scope of discovery, while broad, is
not unfettered. Id. at 635. "There must be a point beyond which inquiry is to be considered too
prejudicial and intrusive." Id. at 636. The court was especially concerned about the impact
discovery would have on the availability of expert witnesses. A party "has a corresponding right
to choose its expert witness and not have such witness burdened to the extent that the witness
will refuse to testify." Id. "It is unreasonable to compel experts to produce financial documents
prior to any attempt to obtain the information through a less intrusive, burdensome, and costly
means." Id. at 639. Less intrusive means include inquiring at the expert's deposition about the
amount and percentage of income attributable to litigation-related activities. Id. at 637-38.
Ultimately, the Kentucky Supreme Court adopted the two-part test as set forth in Elkiazs.
To compel discovery of expert tax returns and related documents, a party must show a
compelling need for the information and demonstrate that the information is not otherwise
11
available. See Primm, supra. In announcing this test, the Florida Supreme Court poignantly
wrote: "[d]iscovery was never intended to be used as a tactical tool to harass an adversary in a
manner that actually chills the availability of information by non-party witnesses; nor was it
intended to make the discovery process so expensive that it could effectively deny access to
information and witnesses or force parties to resolve their disputes unjustly." Elkins at 522.
As evidenced by the case law above, multiple states have provided guidance to their
respective lower courts in the standard and considerations to be applied in determining whether a
non-party expert's tax return information is subject to disclosure during discovery. Ohio has yet
to set forth guiding principles regarding this issue to lower courts. Therefore, not only is it a
matter of great general interest, the issue is a matter of first impression upon this Court. Further,
acceptance of jurisdiction by this Court in this case will give Dr. Writesel, a non-party to the
action, the opportunity for judicial review of the trial court's order which he was effectively
denied by the Fourth District's rulings.
Appellant submits that the appropriate standard to be utilized in determining whether an
expert's tax return information is discoverable is whether it is directly relevant to the subject
matter of the action or whether there is a compelling need. Although compensation to an expert
is relevant to the issue of bias and credibility, requiring the expert to disclose private and
confidential tax information on this basis alone is unduly burdensome and harassing. Such
disclosure is prejudicial to a non-party and is intrusive into private financial affairs. See. Morris,
supra and Primm, supra. Bias and credibility of an expert can be easily ascertained through less
invasive means of discovery including questioning of the experts at deposition. For example, a
party can ask the opposing expert their propensity for testifying on behalf of plaintiffs and
defendants during deposition and can inquire about the income derived from medical-legal work.
12
Such inquiries have been found to be sufficient in other jurisdictions to discover an expert's bias
without using unduly harassing and invasive means.
Admittedly, there may be circumstances in which the disclosure of an expert's tax return
information is appropriate. Exceptions to the discovery standard, to include the showing of a
compelling need for the documents, would appropriately address situations in which a party may
obtain an expert's tax return information.
Allowing liberal discovery of an expert's tax return information has a chilling effect on
an expert's willingness to serve as an expert. Cases from other jurisdictions have recognized this
fact. See Primm, supra. Expert witnesses from within the state are uniquely susceptible to Ohio
subpoenas requesting the production of tax information to an opposing party. Without legal
guidance to protect an expert's private and confidential tax information, experts within the state
will be unwilling to serve as experts in litigation in Ohio. This causes increased litigation costs to
retain out-of-state experts and a preclusive effect on utilizing physicians from world renowned
institutions located within the state. Parties would be forced to potentially seek lower quality
experts or pay a premium to hire experts from top institutions in other states. Such an unintended
consequence can easily be avoided by establishing a rule that tax return information is not
discoverable merely because it is possibly relevant to an expert's bias and credibility.
Finally, this issue should be heard by this Court to quell the conflict among the District
Courts reviewing the issue. As noted above, the Eighth and Fifth Districts have found that an
expert's tax information is not discoverable by the opposition. Conversely, the Fourth District, in
acquiescing to the trial court's order compelling the production of an expert's tax information,
has indicated that such information is discoverable. Accordingly, this Court should review the
issue to establish uniformity throughout the state with respect to this issue.
13
PROPOSITION OF LAW NO. 2
THE DENIAL OF A NON-PARTY'S MOTION TO QUASH IS AFINAL, APPEALABLE ORDER.
Dr. Writesel previously asserted the above proposition of law to this Court when he
submitted his memorandum of jurisdiction in November of 2013. At that time, Dr. Writesel
expressed concern that if a denial of a motion to quash were not immediately appealable, there
was a substantial risk that a non-party may never obtain review of a trial court's abusive
discovery order. The risk that concerned Dr. Writesel came to fruition in this case. Due to the
fact that the case settled, through no control of Dr. Writesel, the Fourth District determined that
review of the issue was moot, thereby affording Dr. Writesel no opportunity for review of the
order compelling discovery of his tax information. Injustice results if a non-party to an action is
ordered to produce private and personal information by the trial court without any judicial review
or effective recourse.
The only sufficient remedy to adequately protect a non-party from an intrusive subpoena
request is to allow a pre-disclosure interlocutory appeal of the trial court order denying the non-
party's motion to quash. The First Circuit Court of Appeals noted that non-parties should be
protected from unduly burdensome discovery requests stating:
Although discovery is by definition invasive, parties to a lawsuit must acceptits travails as natural concomitant of modern civil litigation. Non-parties havea different set of expectations. Accordingly, concern for the unwanted burdenthrust upon non-parties is a factor entitled to special weight in evaluating thebalance of competing needs.
Cusumano v. lllicrosoft Corp., 1.62 F.3d 708, 717 (1st Cir.1998).
A pre-disclosure appeal is required because once information is disclosed in discovery, it
can never be recovered and the proverbial bell cannot be unrung, If forced to wait until after final
judgment, an appellant would have no meaningful remedy "because appellant would have
14
already produced the disputed documents." Futrtre Commtcnications v. High.tower, 10th Dist. No.
01AP-1175, 2002-Ohio-2245, 1113. Further, a non-party may be foreclosed from seeking any
review of the trial court order compelling the discovery as occurred in this case.
Furthermore, there is a split in the District Courts regarding whether the denial of a non-
party's motion to quash is a final, appealable order. The Fifth, Eighth, Ninth and Tenth Districts
have found that such a denial was a final, appealable order, pursuant to R.C. 2505.02(B)(4). See
id.; see also Scott Process Sys., Inc. v. Mitchell, 5th Dist. No. 2012CA00021, 2012-Ohio-5971;
Tisco Trading USA, Inc. v. Cleveland Metal Exchange, Ltd., 8th Dist. No 97114, 2012-Ohio-493;
Gibson-Myers c^'z Assocs. v. Pearce, 9th Dist. No. 19350, 1999 WL 980562 (Oct. 27, 1999).
In contrast, the Second and Fourth Districts have held that such orders are not final
appealable orders. See Fredrick.s v. Good Samaritan Hosp., 2d Dist. No. 22502, 2008-Ohio-3480
and Gulbrandsen v. Summit Acres, Inc., 4th Dist. Nos. 13CA20, 13CA24 (Oct. 2. 2013).
Accordingly, this Court should review this case in order to make a conclusive determination as to
whether a denial of a motion to quash is a final, appealable order.
This Court should review this issue to determine that a denial of a motion to quash is a
final, appealable order in order to provide non-parties with an opportunity for review of the trial
court order and to establish uniformity among the District Courts to avoid inconsistent and
potentially unjust consequences.
IV. CONCLUSION
For each of the foregoing reasons, Appellant Dr. Writesel requests that this Court accept
jurisdiction of this case so a definitive ruling can be made on the Propositions of Law set forth
herein.
15
Respectfully submitted,
4
4G-enda Cocy, E . (0075879)ason A. Paskan, . (0085007)
Bonezzi Switzer Polito & Hupp Co. L.P.A.1300 East 9th Street, Suite 1950Cleveland, Ohio 44114-1501Office: (216) 875-2767Facsimile: (216) 875-1570E-mail: [email protected]
[email protected] forAppellatztKenn.eth Writesel, M.D.
CERTIFICATE OF SERVICE
The foregoing was served by regular U.S. mail on this 8th day of April, 2015 upon the
following:
Susan Petersen, Esq.Todd Petersen, Esq.428 South StreetChardon OH 44024Attorneys for Appellee
GCoey, Es (0075879)Jason A. Paskan, Esq. (0085007)
16
IN THE SUPREME COLJRT OF OHIO
EVELINE GULBRANDSEN, Executorof the Estate of Franklin Gulbrandsen,Deceased, et al.
Plaintiff,
vs.
SUMMIT ACRES, INC, et al.
Defendants.
)))))))))))
On Appeal from the Washington CountyCourt of Appeals,Fourth Appellate District
Court of AppealsCase No. 14CA38
APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTKENNETH WRITESEL, D.O.
G. Brenda Coey (0075879)Jason A. Paskan (0085007)Bonezzi Switzer Polito & Hupp Co LPA1300 E 9`h St Ste 1950Cleveland OH 44114Tel: 216-875-2767Fax: [email protected]@bsphlaw.com
COUNSEL FOR APPELLANT KENNETH WRITESEL, D.O.
Susan E. Petersen (0069741)Todd Petersen (0066945)428 South StreetChardon OH 44024Tel: 440-279-4480Fax: [email protected]@petersenlegal.com
COUNSEL FOR APPELLEE EVELINE GULBRANDSEN
IN THE COURT OF APPEALS4 rH APPELLATE DISTRICT
205 PUTNAM STREETMARIETTA, OH 45750
EVELINE GULBRANDSEN EXECUTOR et al vs. SUMMIT ACRES INC et al
TO : ATTY MICHAEL J BURNS303 MARCONI BOULEVARD 2ND FLOOR CASE NO. 14CA000038COLUMBUS OH 43215
PURSUANT TO APPELLATE RULE 22-8, YOU AREHEREBY NOTIFIED THAT A DECISION ANDJUDGMENT ENTRY, COPY HERETO ATTACHED, NOTICE OF FILINGHAS BEEN FILED IN SAID COURT OF APPEALS INTHE ABOVE STYLED ACTION ON 02/25/15 RULE 22-B
PAPERS ATTACHED:
DECISION AND JUDGMENTENTRY DATED: 02/25/15
BRENDA L WOLFECLERK OF COURTS
D̂EPUTYORIGINAL NOTICE 'TO:
DATED 02/26/15ATTY G BRENDA COEYA"I°I'Y SUSAN E PETERSENATTY BRET C PERR.YATTY SUSAN C RODGERSATTY TODD PETERSENATTY JASON A PASKAN
^^^
^^^;^^^ ^^R^̂ Y^r^ ^^'TC QU, ^^^ G ^: APP^A US
FILE Dt.-'L.y R" O F CGUR i
IN THE COURT OF APPEALS OF OHIO 70-15FE825 AMII: 22FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY WASHJhdGTON CO; OHIO
Eveline Gulbrandsen, Executor, et af. :' . . .. . ..., . . ,. .. . :.e21.',:;,'_
Plaintiffs-Appellees, : Case Nos. 14CA38
V.
Summit Acres, Inc. dba Summit AcresSkilled Nursing & Rehabilitation, et al. DECISION AND Jt1DGIVIENT ENTRY
Defendants-Appellants.
APPEARANCES:
G. Brenda Coey and Jason A. Paskan, Bonezzi Switzer Polito & Hupp Co. LPA,Cleveland, Ohio for Appellant Kenneth Writesel, D.O.
Susan E. Petersen and Todd Peterson, Petersen & Petersen, Chardon, Ohio forAppellees.
HOOVER, P.J.
Appellee Eveline Guibrandsen, Executrix of the Estate of Franklin Gulbrandsen,
filed a motion to dismiss this appeal on the ground that, because the underlying dispute
between the parties has been settled and the case has been dismissed with prejudice,
the appeal is moot. Appellant Kenneth Writesel, D.O. opposes the motion on the
grounds that an appellate decision in his favor would provide meaningful relief and the
issues raised are capable of repetition yet evading review. We find that the appeal is
moot and grant Appellee's motion to dismiss the appeal.
Washington App. No. 14CA38
Procedural Backqround
The Estate filed an action in the Washington County Court of Common Pleas
against Summit Acres following the death of Franklin Guibrandsen. Mr. Gulbrandsen
was a patient at Summit Acres, and the Estate alleges that Mr. Guibrandsen's death
resulted from negligent care he received there.
Summit Acres identified Writesel as a medical expert witness. The Estate
subpoenaed documents from Writesel, including certain documents attached to his
income tax returns. Summit Acres filed a motion to modify the subpoena. The trial court
granted the motion in part, but required Writesel to produce certain income tax
information and all expert reports prepared in the last two years from his review of
medical-legal cases. The court further ordered that all identifying information be
redacted from the reports.
Writesel filed an appeal from the court's discovery order on the ground that it
required the disclosure of privileged information. The Estate filed a motion to dismiss
arguing that none of the information was privileged, thus the discovery order was not a
final, appealable order. We issued an entry in which we found that we lacked
jurisdiction over that portion of the trial court's order compelling the production of
Writesel's tax return information because income tax information is not confidential
inf®rmation protected by a privilege. However, we found that we had jurisidiction over
the portion of the trial court's order compelling the production of all medical expert
reports on the grounds that an appeal of the order compelling discovery of these
materials involved a colorable claim of doctor-patient privilege and attorney work-
2
Washington App. No. 14CA38
product privilege and thus was a final, appealable order. Gulbrandsen v. Summit Acres,
Inc., 4th Dist. Washington App. Nos. 13CA20, 13CA24 (July 29, 2013).
In August, 2014 the parties reached a settlement agreement as to all the claims
and Appellees submitted a stipulation of dismissal, with prejudice of all claims against
all the defendants. A final order dismissing all claims against all parties, with prejudice
was entered by the trial court on November 5, 2014. Appellant Writesel filed this
appeal, seeking review of the trial court's discovery order concerning the production of
certain income tax documentation.
Legal Analysis
We must determine whether the appeal presents a case or controversy or,
instead, an abstract question not capable of judicial review. E.g., Babbitt v. United Farm
Workers Nat. Union, 442 U.S. 289, 297, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); Muskrat
v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 55 L.Ed. 246 (1911). "jljt is the duty
of every judicial tribunal to decide actual controversies between parties legitimately
affected by specific facts and to render judgments which can be carried into effect. It
has become settled judicial responsibility for courts to refrain from giving opinions on
abstract propositions and to avoid the imposition by judgment of premature declarations
or advice upon potential controversies." Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257
N.E.2d 371 (1970), citing Section 4(B), Article IV, of the Ohio Constitution. Accord
Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, & 9.
Moreover, the Supreme Court of Ohio has advised us that it is reversible error for an
appellate court to consider the merits of an appeal that has become moot. See State v.
3
Washington App. No. 14CA38
Berndt (1987), 29 Ohio St3d 3, 4, 504 N.E.2d 712.
A case or controversy is lacking and the case is moot "'when the issues
presented are no longer "live" or the parties lack a legally cognizable interest in the
outcome."` LosAnge%s v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642
(1979), quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d
491 (1969). Accord Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d
265 (2000). "No actual controversy exists where a case has been rendered moot by an
outside event. 'It is not the duty of the court to answer moot questions, and when,
pending proceedings in error in this court, an event occurs without the fault of either
party, which renders it impossible for the court to grant any relief, it will dismiss the
petition in error.' Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21, syllabus.'° Tschantz
v. Ferguson, 57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991). "A cause will become
moot only when it becomes impossible for a tribunal to grant meaningful relief, even if it
were to rule in favor of the party seeking relief." Joys v. Univ. of Toledo, 10th Dist. No.
96APE08-1040 (April 29, 1997), citing Miner, 82 Ohio St. at 238-239; Crossings Dev.
Ltd. Partnership v. l l O. T., Inc., 96 Ohio App.3d 475, 479-80, 645 N.E.2d 159
(1994)("'[A] moot case arises * * * where a judgment is sought, upon a matter which
when it is rendered, cannot have any practical effect upon the issues raised by the
pleadings.").
In view of the fact that the entire controversy has been settled and the case
dismissed with prejudice, we must determine whether the appeal presents a case or
4
controversy or, instead, is moot. We find that this case has become moot by the parties'
Washington App. No. 14CA38
settlement and dismissal. The issue presented by the trial court's order is no longer live
and we are unable to grant meaningful relief. It would be reversible error for us to
consider the merits of an appeal that has become moot. State v. Bemdt, 29 Ohio St. 3d
3, 4, 504 N.E.2d 712 (1987).
Appellant argues that the case is not moot because in our July 2013 entry, when
we dismissed a portion of his prior appeal as lacking in finality, we specifically
contemplated correcting discovery rulings at the conclusion of the entire case. Because
the case has concluded, appellant desires a ruling on the trial court's discovery order.
However, because the case has been dismissed with prejudice, a review of the trial
court's discovery order is meaningless; it is impossible for us to grant meaningful relief,
even if we were to rule in favor of Writesel.
Additionally, he argues that this case falls within one of the exceptions to the
mootness doctrine because it is likely that he will serve as an expert witness in other
litigation in the future and that he will be subpoenaed to produce his tax information
regarding his medical-legal work in those future cases.
There are several exceptions to the mootness doctrine. A court may hear an
appeal that is. otherwise moot when the issues raised are "capable of repetition, yet
evading review." Id at %14 (citing State ex rel. Plain Dealer Pub. Co. V. Barrtes, 38 Ohio
St. 3d 165, 527 N.E.2d 807). An appellate court may also hear a case when "the issue
involves `a matter of great public interest' or when 'there remains a debatable
constitution question to resolve.'" Millennia Housing, at ¶9-10. The "great public interest"
exception to the mootness doctrine should be used with caution and only on rare
5
Washington App. No. 14CA38
occasions. Ordinarily it is only the highest court of the state that adopts this procedure
rather than a court whose decision does not have binding effect over the entire state...
." See Robinson v. Industrial Commission of Ohio, Franklin App. No. 04AP-1010, 2005-
Ohio-2290 (10th Dist.) citing Harshaw v. Farrell, 55 Ohio App.2d 246, 251, 380 N.E.2d
749 (10th Dist. 1977).
Here, none of those exceptions apply. Appellant has not shown that a reasonable
expectation exists that he will be subject to the same disputed discovery request but
that the dispute will evade our review. We routinely review a trial court's discovery
orders after final judgment has been rendered under the abuse of discretion standard.
Breech v. Turner, 127 Ohio App.3d 243, 712 N.E.2d 776 (4th Dist. 1998). Here,
however, the parties setfled their dispute and dismissed their claims. As a result, any
erroneous discovery orders related to the income tax documents are moot. Nor does
this case involve a matter of great public interest or a debatable constitutional question.
Accordingly, we GRANT Appellee's motion and dismiss this appeal as moot.
The clerk shall serve a copy of this order on all counsel of record at their last
known addresses by ordinary mail. APPEAL DISMISSED. IT IS SO ORDERED.
McFarland, A.J. & Harsha, J.: -Concur.
FOR THE COURT
& 4Marie HooverPresiding Judge
6
^ ^ILED^^ r,^4 tt?T (°^.L UtrI`'f^•• 1V !J r's l8 s3
!N THE COURT OF COMMON PLEASWASHINGTON COUNTY, OHIO
EVELINE GULBRANDSEN, EXECUTOR, et at
Plaintiffs,
vs.
SUMMIT ACRES, INC. dba SUMMIT ACRESSKILLED NURSING & REHABILITATION, et al.
Defendants.
1E113 MAY -7 t;,^ !0.. 13
`dASSHINGTON CO. 0,HI0CASE NO.11 PT 000403
JUDGE ED LANE
JUDGMENT ENTRY
))))))))))))
A hearing on Plaintiff's Motion to Compel, Piaintiff's Motion for Extension of Time Period to
Depose Defense Experts, and Defendant's Motion to Modify Subpoena was held in the above-captioned
matter on April 17, 2013. Also discussed at this hearing was Piaintiff s First Amended Complaint.
Participating in the hearing were Attorney Todd Petersen on behalf of Plaintiff and Attorney Brenda
Coey on behalf of Defendant Summit Acres, Inc.
During the hearing, defense counsel represented that Plaintiff's First Amended Complaint was
not in accordance with this Court's Decision and Order of February 20, 2013 because it named the
Centers for Medicare and Medicaid Services ("CMS") as an invoiuntary plaintiff rather than a defendant
or involuntary defendant. Upon further review, It appears the Decision and Order of February 20, 2013
required Plaintiff to join CMS as either a defendant or an involuntary plaintiff. However, because the
Court did not tiave the benefit of reviewing the Decision and Order of February 20, 2013 during the
hearing, and because neither counsel offered a copy during the course of the hearing, the Court ordered
Plaintiff to file a Second Amended Complaint within seven (7) days naming CMS as a defendant or
involuntary defendant and requiring CMS to set forth its claims, if any, for Plaintiff's decedent's medical
expenses that were paid by CMS or be forever barred from doing so.
^k )L
a-a
The Court further ordered Plaintiff to modify any and all averments in the Second Amended
Complaint that referred to various nurses as individual defendants.
Defendant Summit Acres, Inc. is not required to file an Answer to the First Amended Complaint.
Defendant Summit Acres, Inc. shall, however, respond to the Second Amended Complaint in accordance
with the Civil Rules.
Piaintiff's Motion to Compel Defendant to provide a more complete response to Plaintiffs
Interrogatory No. 12 is DENIED.
Plaintiffs Motion for Extension of Time Period to Depose Experts is GRANTED IN PART. The
Court's Judgment Entry oflanuary 23, 2013 is revised as follows:
• Defendant shall make its expert witnesses available for deposition by providing dates
between April 18, 2013 and May 17, 2013 to Plaintiff.
+ The deadline for Plaintiff to depose Defendant's expert witnesses shall be May 17, 2013. No
further continuances or extensions will be entertained.
• The last day to file substantive and dispositive Pre-Trial Motions shall be May 30, 2013.
Thereafter, the Court will schedule any motions for non-oral hearing.
Defendant's Motion to Modify Subpoena is GRANTED IN PART as follows:
+ Defendant's experts, Drs. Writesel and Armitage, shall be required to produce their "entire
files" in this matter, with the exception of medical records and bills and depositions.
• Subject to stipulated protective order, Defendant's experts, Drs. Writesel and Armitage, are
required to produce any form attached to their Income tax returns over the last ten years
that shows payment from insurance companies or defense firms in relation to medical-legal
work.
2
M ^ r ^ }
} • Subject to stipulated protective order, Defendant's experts, Drs. Writesel and Arrnitage, are
required to produce all expert reports prepared in the last two years from their review of
medical-legal cases. All identifying information should be redacted from the reports.
All documents to be produced by Defendant's experts, Drs. Writesel and Armitage, shall be
provided to Plaintiff no less than one week before the producing expert's deposition.
• The Court reserves jurisdiction to award fees and expenses to Drs. Writesel and Armitage for
the collection of the forms evidencing payment from insurance companies and defense
firms and for the redaction of the expert reports. The Court will be the ultimate arbiter of
what amount is fair.
In the interest of consistency in these proceedings, the Court also orders that Attorney Susan
Petersen be present for all future hearings and conferences.
IT IS SO ORDERED.
ENTERED AS OF TF4E DATE OF FILING:
Judge Ed L ne
cc: All attorneys of record
3
;^. . ^
IN THE COURT OF APPEALS4TH APPELLATE DISTRICT
205 PUTNAM STREETMARIETTA, OH 45750
EVELINE GULBRANDSEN EXECUTOR et al vs. SUMMIT ACRES INC et al
TO : ATTY CHRISTOPHER S HUMPHREY
3800 EMBASSY PARKWAY SUITE 300 CASE NO. 13CA 20
13CA24AKRON OH 44333
^̂
^
PURSUANT TO APPELLATE RULE 30-A, YOU AREHEREBY NOTIFIED THAT AN ENTRY, COPY HERETOATTACHED, IN THE ABOVE STYLED ACTION WASFILED FOR JOURNALIZATION IN THIS COURTON 7/29/13
ORIGINAL NOT'ICE TO:
ATTY G BRENDA COEYATTY RAYMOND WATTS JRATTY SUSAN E PETERSENATTY JUSTIN S GREENFELDERATTY RICHARDS FORDATTY TODD PETERSENATTY MICHAEL J I3URNS
NOTICE OF FILING
RULE 30-A
PAPERS ATTACHED:
COURT ORDER DATED:7/29/13
BRENDA L WOLFECLERK OF COUR S
DEPUTY
DATED 7/31 / 13
^N20-ILky
A- 3
^ IN THE COURT OF APPEALS OF OHIOFOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
F®URTH DISTRICTCOUR.T pF-APpEALS
. s ...^, t._. ,...>
F ^ r4 nn + ^4. ,^
Eveline Gulbrandsen, Executor, et al
Plaintiffs-Appellees,
V.
Summit Acres, Inc. dba Summit AcresSkilled Nursing & Rehabilitation, et al.
Case Nos. 13CA2013CA24
ENTRY
Defendants-Appellarots
APPEARANCES:
^
G. Brenda Coey, Buckingham, Doolittle & Burroughs, LLP, Canton, Ohio, for AppellantSummit Acres, Inc., dba Summit Skilled Nursing & Rehabilitation
Justin S. Greenfelder, Buckingham, Doolittle & Burroughs, LLP, Canton, Ohio, forAppellants Kenneth Writesel, D.O., and Keith Armitage, M.D.
Susan E. Petersen and Todd Peterson, Petersen & Petersen, Chardon, Ohio forAppellees.
MCFARLAND, P.J.
Appellee Eveline Gulbrandsen, Executrix of the Estate of Franklin Gulbrandsen,
filed a motion to dismiss this appeal on the ground that the entry appealed from is not a
final appealable order.' Appellants Summit Acres, Inc., Kenneth Writesel, D.O., and
Keith Armitage, M.D., oppose the motion. Upon consideration, we find that we lack
' This case involves a consolidated appeal of two related discovery orders. Prior to consolidation,Appellee filed two separate motions to dismiss based on the same grounds. This decision addresses bothmotions.
Washington App. Nos. 13CA20 & 13CA24
jurisdiction over the part of the trial court's order compelling the production of Writesel
2
and Armitage's tax return information, but we find that we have jurisdiction over the part
of the trial court's order compelling the production of Writesel and Armitage's expert
medical reports. Therefore we, GRANT in part, and DENY in part, Appellee's motion to
dismiss.
The Estate filed an action in the Washington County Courtof Common Pleas
against Summit Acres following the death of Franklin Guibrandsen. Mr. Gulbrandsen
was a patient at Summit Acres, and the Estate alleges that Mr. Gulbrandsen's death
resulted from negligent care he received there.
Summit Acres identified Writesel and Armitage as medical expert witnesses. The
Estate subpoenaed documents from Writesel and Armitage, including their income tax
^ returns and all expert reports prepared from their review of other medical-legal cases.
Summit Acres filed a motion to modify the subpoenas. The trial court granted the
motion in part, but required the expert witnesses to produce certain income tax
information and all expert reports prepared in the last two years from their review of
medical-legal cases. The court further ordered that all identifying information be
redacted from the reports.
Summit Acres, Writesel, and Armitage filed an appeal from the court's discovery
order on the grounds that it required the disclosure of privileged information. Appellants
argue that the tax return information is protected by a privilege because it is personal,
sensitive, and confidential. Appellants argue that the medical expert reports are
privileged because they contain privileged medical records of non-parties and because
^
Washington App. Nos. 13CA20 & 13CA24
(ra they are subject to the attorney work-product privilege. The Estate filed a motion to
3
dismiss arguing that none of the information is privileged, thus the discovery order is not
a final, appealable order.
It is well established that an order must be final before it can be reviewed by an
appellate court. See Section 3(B)(2), Article IV of the Ohio Constitution. See, also,
General Acc. Ins. Co. v. Insurance Co. of North America, 44 Ohio St. 3d 17, 20, 540
N.E.2d 266 (1989). If an order is not final and appealable, then an appellate court has
no jurisdiction to review the matter and must dismiss the appeal. Lisath v. Cochran, 4th
Dist. Lawrence No. 92CA25, 1993 WL 120627 (Apr. 15, 1993); In re Christian, 4 th Dist.
Athens No. 1507, 1992 WL 174718 (July 22, 1992).
Generally, discovery rulings are interlocutory orders that are not final and
appealable because any harm in an erroneous ruling is correctable on appeal at the
conclusion of the entire case. See Walters v. Enrichment Center of Wishing Well, Inc.
78 Ohio St. 3d 118, 1997-Ohio-232, 676 N.E.2d 890, 893. However, R.C. 2505.02(B)(4)
defines a final order as:
An order that grants or denies a provisional remedy and to which both ofthe following apply:
(a) The order in effect determines the action with respect to the provisionalremedy and preverits a judgment in the action in favor of the appealingparty with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effectiveremedy by an appeal following final judgment as to all proceedings,issues, claims, and parties in the action.
R.C. 2505.02(A)(3) defines a "provisional remedy" as a remedy sought in a°proceeding
ancillary to an action, including, but not limited to, a proceeding for a preliminary
^,.
Washington App. Nos. 13CA20 & 13CA244
injunction, attachment, discovery of a privileged matter, (Emphasis added).
Therefore, if a trial court orders a party to disclose privileged material, the entry is a final
appealable order pursuant to R.C. 2505.02(A)(3) and (B)(4). See Briggs v. Mt. Carmel
Health Sys., 10th Dist. Franklin No. 07AP-251, 2007-Ohio-5558. Cons+~quently, our
determination as to whether the entry appealed from is a final appealable order hinges
on whether the trial court ordered the disclosure of privileged information.
Tax Return Information
As to Writesel and Armitage's obligation to produce tax information, the trial
court's order provides:
Subject to stipulated protective order, Defendant's experts, Drs. Writeseland Armitage, are required to produce any form attached to their incometax returns over the last ten years that shows payment from insurancecompanies or defense firms in relation to medical-legal work.
Judgment Entry, May 7, 2013, p. 2.
Income tax information is not protected by Ohio's privileged communication
statute, R.C. 2317.02. Income tax information is discoverable if it meets the relevancy
standard under Civ. R. 26(B)(1). Civ. R. 26(B)(1) provides that "parties may obtain
discovery regarding any matter, not privileged, which is relevant to the subject matter
involved in the pendirig action." See, Hope Academy Broadway Campus v. White Hat
Mgt., LLC, 10lh Dist. Franklin No. 12AP-116, 2013-Ohio-911. In Hope Academy, the
appellate court determined that it did not have jurisdiction to consider an assignment of
error addressing that part of the trial court's order requiring the production of tax returns
because it did not involve the discovery of privilege matters. "If it is not privileged
material there is no issue with being denied an effective remedy following the end of the
Washington App. Nos. 13CA20 & 13CA24
^ entire cause." Id. at ^ 43, quoting Ramun v. Ramun, 7t" Dist. Mahoning No. 08MA185,
5
2009-Ohio-6405; Kasapis v. High Point Furniture Co., Inc., 9th Dist. Summit Nos. 22758,
22762, 2006-Ohio-255 (holding that tax returns are not protected by a privilege); Guest
v. Erie Metro. Hous. Auth., 6th Dist. Erie No. E-04-035, 2005-Ohio-1552 (holding that tax
returns are discoverable if they are relevant to the case).
Appellants argue that Writesel and Armitage have an expectation of privacy and
an interest in maintaining confidentiality of their tax return information". They cite State
ex reL Fisher v. City of Cleveland, 109 Ohio St. 3d 33, 2006-Ohio-1827, 845 N.E.2d 500
to support their argument. Fisher did not involve a discovery order compelling the
production of tax return information. Instead, the case addressed the question of
whether or not a municipality could require employees to submit income tax returns as a
(„! part of residency investigations. The Court held that the employees had a legitimate
expectation of privacy in income tax returns, which was not outweighed by the benefits
of disclosing them for the residency investigation. However, the question we must
determine is not whether tax returns are private documents, but whether they are
privileged documents for purposes of R.C. 2505.02.
Appellants cite trade secret cases in which courts have found that orders
compelling the production of trade secrets are final appealable orders under R.C.
2505.02 because they involve confidential information under R.C. 1333.61(D), Ohio's
trade secret statute. However, for financial information to be a trade secret, it must have
economic value from not being generally known and others must be able to obtain
economic value from its disclosure. See R.C. 1333.61(D)(1) and (2). Appellants do not
Washington App. Nos. 13CA20 & 13CA24
^ identify how their income tax return information constitutes a trade secret as defined by
the statute. "An entity claiming trade secret status bears the burden to identify and
demonstrate that the material is included in categories of protected information under
6
the statute. . . ." Svobodo v. Clear Channel Communications, Inc., 6th Dist. Lucas No. L-
02-1149, 2003-Ohio-6201 (holding that personal income and salary information do not
constitute trade secrets under R.C. 1333.61).
Because the tax return information addressed in the order is not privileged, that
part of the order compelling its production is not a final appealable order. Thus, we lack
jurisdiction to review it. The AppelJee's motion to dismiss the appeal is GRANTED in
part to the extent the appeal seeks review of the trial court's order compelling tax return
information.
^ Medical Expert Reports
The trial court ordered Writesel and Armitage to produce medical expert reports
prepared in other lawsuits in the last two years:
Subject to stipulated protective order, Defendant's experts, Drs. Writeseland Armitage, are required to produce all expert reports prepared in thelast two years from their review of medical-legal cases. All identifyinginformation should be redacted from the reports.
Judgment Entry, May 7, 2013, p. 3.
Appellants contend that the medical expert reports contain physician-patient
privileged material and attorney work-product privileged materials. They claim that ttie
expert reports were prepared in earlier lawsuits involving patients who are not parties to
the current lawsuit and contain summaries of, or excerpts from, these patient's medical
records. Additionally, they claim that the order makes no distinction between draft and
Washington App. Nos. 13CA20 & 13CA24 7
^ final expert reports or those that were prepared by them as consulting, but non-testifying
experts, and those prepared and disclosed to the opposing parties as testifying expert
witnesses. Thus, some of the medical expert reports may be protected by the attorney
work-product privilege.
The physician-patient privilege is set forth in R.C. 2317.02(B)(1) and protects
communications made by patients to physicians in relation to medical advice.
Communications include any facts, opinions, or statements made to enable a physician
or dentist to diagnose, treat, prescribe, or act for a patient and includes, "a record, chart,
letter, memorandum, laboratory test and result, x-ray, photograph, financial statement,
diagnosis, or prognosis." R.C. 2317.02(B)(5)(a).
Patients may waive the physician-patient privilege by filing a civil action involving
( a medical claim. R.C. 2317.02(B)(1)(a)(iii). However, even then the waiver is limited to
a communication "that related causally or historically to physical or mental injuries that
are relevant to issues in the medical claim," and does not result in a complete waiver of
the patient's entire medical history. R.C. 2317.02(B)(3)(a). Most importantly, a patient's
waiver of the physician-patient privilege only acts a waiver as to that particular case.
Hageman v. Southwest General Health Center, 119 Ohio St. 3d 185. 2008-Ohio-3343.
893 N.E.2d 153 ("when the cloak of confidentiality that applies to medical records is
waived for the purposes of litigation, the waiver is limited to that case").
Writesel and Armitage may have gained access to and use of a number of
patients' medical records because the patients waived the physician-patient privilege by
filing civil actions. However, the patients who waived their physician-patient privilege in
Washington App. Nos. 13CA20 & 13CA24
those earlier lawsuits are not parties in the current suit brought by the Estate. Under
Hageman, their medical records are protected by the physician-patient privilege for
purposes of the current litigation.
The Estate argues that the trial court's order does not involve privileged
information because it does not compel the disclosure of actual medical records, but
only the medical expert reports, and any identifying information is to be redacted.
However, because Appellants claim that the medial expert reports contain detailed
summaries of the medical records, including the patient's name, summaries of their
medical conditions, diagnoses, and test results, we find that the Appellants have
presented at least a colorable claim that the medical expert reports contain physician-
patient privileged materials. After these medical expert reports are revealed, the bell will
( have rung, and, if in fact they contain physician-patient privileged materials, Appellants
will have no adequate remedy on appeal. Bennett v Martin, 186 _Ohio App. 3d 412,
2009-Ohio-6195, 928 N.E.2d 763 (10th Dist.)(for an appellate court to have jurisdiction
over a discovery order, the appellant must present a "colorable claim" that the document
is privileged); Callahan v. Akron General Medical Center, 9#h Dist. Summit No. Civ. A.
22387, 2005-Ohio-5103.
An order requiring redaction of identifying information does not remove the
privileged status of physician-patient medical records. Roe v. Planned Parenthood
Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61. In Roe,
the trial court compelled the disclosure of non-party patient medical records, but ordered
all patient-identifying information redacted. The Supreme Court of Ohio held:
8
Washington App. Nos. 13CA20 & 13CA24
The confidential abuse reports and medical records at issue are privilegedfrom disclosure per R.C. 2317.02 and former 2151.421(H)(1). Redactionof personal, identifying information does not remove the privileged statusof the records. Therefore the reports and medical records are not subjectto discovery pursuant to Civ.R. 26(B)(1).
9
Roe, at 409. Thus, the order requiring the redaction of the patient identifying information
in the medical expert reports does not remove the physician-patient privilege at issue
here.
Appellants also claim that the medical expert reports may be protected by the
attorney work-product privilege. The order requires the disclosure of all expert reports
Writesel and Armitage have prepared in medical-legal cases in the past two years.
Under Civ.R. 26(B)(5)(b), a party may discover final expert reports of any expert the
other party,expects to call as a witness at trial. However, draft expert reports are
protected under Civ.R. 26(B)(3) as trial preparation materials and only discoverable
upon a showing of good cause. Discovery of non-testifying experts is governed by
Civ.R. 26(B)(5)(a) and is protected and can be compelled only "upon a showing that the
party seeking discovery is unable without undue hardship to obtain facts and opinions
on the same subject by other means or upon a showing of other exceptional
circumstances indicating that denial of discovery would cause manifest injustice."
The requirements established under Civ. R. 26(B)(3) and (B)(5)(a) protect the
attorney work-product doctrine. Squires Sanders & Dempsey, L.L.P., Givaudan Flavors
Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533 ("Civ.R. 26(B)(3)
describes the work-product doctrine as it applies in civil cases in Ohio"). The attorney
work-product doctrine protects trial preparation efforts of attorneys, creates a zone of
Washington App. Nos. 13CA20 & 13CA24
^ privacy, and provides a qualified privilege protecting their disclosure. Id. at 174.
Because the trial court's order requires the disclosure of all medical expert reports
prepared by Writesel and Armitage, including any draft medical expert reports or
medical expert reports prepared by them as non-testifying experts, the order compels
the disclosure of medical expert reports that may be protected by the attorney work-
product doctrine.
The part of the trial court's order requiring Writesel and Armitage to disclose all
10
medical expert reports they prepared within the past two years compels the discovery of
materials that are potentially protected by the physician-patient privilege and the
attorney work-product privilege. Appellants have presented at least a colorable claim
that the materials are privileged. Thus, that part of the trial court's order compelling the
production of all medical expert reports prepared by Writesel and Armitage within the^
last two years is a final appealable order and we hereby DENY in part Appellee's motion
to dismiss.
For these same reasons, Appellee's motion to dismiss filed on July 1, 2013 is
likewise GRANTED in part and DENIED in part. Additionally, Appellee's motions for
sanctions for frivolous appeal pursuant to App.R. 23, filed June 11, 2013 and July 1,
2013, are DENIED.
The clerk shall serve a copy of this order on all counsel of record at their last
known addresses by ordinary mail. SO ORDERED.
Harsha, J. & Hoover, J.: Concur.
^.^
^,.
Washington App. Nos. 13CA20 & 13CA24
FOR THE COURT
16 o 0Matthew W. McFarlandPresiding Judge
11
T4E $upnme TIIuxt itf OD41IIHLED
CLERK OF COURTSUPREME COURT OF QHi
Eveline Guibrandsen, Executor, et al.Case No. 2013-1814
V.
Summit Acres, Inc. dba Summit Acres SkilledNursing & Rehabilitation, et al.
ENTRY
Upon consideration of the jurisdictional memoranda filed in this case, the courtdeclines to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4).
(Washington County Court of Appeals; Nos. 13CA20 and 13CA24)
Maureen O'ConnorChief Justice
^^ w T> 1y
A-4
:^B 19 Z014
IN THE COURT OF COMMON PLEASGENERAL DIVISION - WASHINGTON COUNTY
205 PUTNAM STREETMARIETTA, OH 45750
EVELINE GULBRANDSEN EXECUTOR et al vs. SUMMIT ACRES INC et al
To: ATTY G BRENDA COEY1300 EAST 9TH STREET, SUITE 1950CLEVELAND OH 44114
NOTICE OF FILING ON 11/5/14YOU ARE HEREBY NOTIFIED A THAT ACOURT ORDER WAS FILED IN COURT OFCOMMON PLEAS.
CASE NO. I 1PT000403JUDGE: ED LANE
COURT ORDER FILED11/5/14
YOU MAY WISH TO CHECK THIS ENTRY ASIT MAY BE AN APPEALABLE ORDER.
APPELLATE RULE 4A & B PROVIDES THATNOTICE OF APPEAL SHALL BE FILED WITHTHE CLERK OF THE TRIAL COURT WITHIN30 DAYS OF THE DATE OF THE ENTRY OFTHE JUDGMENT OR ORDER APPEALED FROM.
SUPREME COURT OF OHIO HAS HELD THATWITHIN THREE (3) DAYS OF THE ENTRY OFANY FINAL APPEALABLE JUDGMENT ORORDER, THE CLERK OF COURTS SHALLSERVE A NOTICE OF THE ENTRY IN ANYMANNER PROVIDED IN CIVIL RULE 5, UPONEVERY PARTY WHO IS NOT IN DEFAULTFOR FAILURE TO APPEAR.
ORIGINAL NOTICE TO:ATTY RAYMOND WATTS JRATTY SUSAN E PETERSENATTY BRET C PERRYATTY SUSAN C RODGERSATTY RICHARDS FORDATTY TODD PETERSENATTY CHRISTOI?HER S HUMPHREYATTY JASON A PASKANATTY MICHAEL J BURNS
YOU MAY WISH TO CHECKTHIS ENTRY AS IT MAYBE AN APPEALABLE ORDER
BRENDA L WOLFECLERK OF COURTS, BY
DEPUTYDATED: 11/7/14
p^PPENDox
A^5
IN THE COURT OF COMMON PLEAS
WASHINGTON COUNTY, OHIO
EVELINE GULBRANDSEN, Executrix of theEstate of Franklin Guibrandsen, Deceased
Plaintiff
-v-
SUMMMITACRES, INC., et al.
Defendants
))))))
))))
FILEDGLE,^ff OF COURTS
7014 NOV -5 PH f: 02WASHINGTON cQ. OHIOCASE NO. 11 PT 000403
JUDGE ED LANE
DISMISSAL, WITH PREJUDICE
We, the attorneys for Plaintiff, do hereby stipulate that the claims against the remaining
defendants, i.e. Summit Acres, Inc., et ai., in the above-captioned case have been settled and
dismissed, with prejudice. All costs with respect to the underlying proceedings incurred on or
before August 29, 2014 are to be paid by Defendants.
It is specifically agreed, however, because the issues relative to this Court's Order
awarding sanctions, attorney fees and expenses against Defendants' attorney Brenda Coey,
Esq. and the law firm of Buckingham, Doolittle, & Burroughs, LLP have been appealed, the
Court has on-going jurisdiction over any and all issues related to its August 7, 2014 Order, untilsaid issues are resolved.
Wherefore, Plaintiff respectfully requests that the Court enter an
with prejudice, allocating costs as set forth above.
NOTICE TO Gt.fElR9CS OFFICEFINAI. APPEALABLE ORDER
SUSAN E. AUASEN (0069741)TODD PETERSEN (0066945)
Petersen & Petersen, Inc.428 South StreetChardon, OH 44024
(440) 279-4480
seof?petersenieeai com
Counsel for Plaintiff
of Dismissal,
Reviewed and approved by:
G. BRENDA COEY (0075$79Attorney for Defendants
^ -b--t--^
IT IS 50 DER
JUDGE ED LANE