IN THE SUPREME COURT OF OHIO

MONICA FLETCHER, INDIVIDUALLYAND AS ADMINISTRATRIX OF THEESTATE OF VICTOR SHAW, DECEASED

Appellee,

Supreme Court Case No. 07-1529

Appeal from the Cuyahoga CountyCourt of Appeals, Eighth AppellateDistrict

vs.

UNIVERSITY HOSPITALS OFCLEVELAND, et al.,

Court of AppealsCase.No. CA-06-088573

Appellants.

MERIT BRIEF OF APPELLANT UNIVERSITY HOSPITALS OF CLEVELAND

Thomas J. Travers, Jr. (0010967)Thomas J. Travers, LLC3870 Starr Centre Drive - Suite BCanfield, Ohio 44406(330) 533-1700

COUNSEL FOR APPELLEE MONICAFLETCHER, INDIVIDUALLY AND ASADMINISTRATRIX OF THE ESTATE OFVICTOR SHAW

MAR t17100B

ULERK OF COURTSUPRFME COUH'o

Kevin M. Norchi (0034695) (Counsel of Record)Michael L. Golding (0062587)Norchi, Barrett & Forbes LLCCommerce Park IV

Beachwood, Ohio 4412223240 Chagrin Boulevard, Suite 600

(216) 514-9500Fax No. (216) 514-4304kmn@norchilaw.commgolding@norchilaw.com

UNIVERSITY HOSPITALS OF CLEVELANDCOUNSEL FOR APPELLANT

John V.Jackson,II(0025051)Sutter, O'Connell & Farchione3600 Erieview Tower1301 East Ninth StreetCleveland, Ohio 44114(216) 928-2200

COUNSEL FOR APPELLANTRAYMOND ONDERS, M.D.

TABLE OF CONTENTSPme

TABLE OF AUTHORITIES .................................................................................................... iv

STATEMENT OF FACTS AND OF THE CASE ................................................................... 1

ARGUMENT ............................................................................................................................. 6

Proposition of Law: A Motion For Failure To State A Claim Upon Which ReliefCan Be Granted Pursuant To Civil Rule 12(B)(6) Is The Proper Procedure ForChallenging The Failure To File An Affidavit Of Merit In Accordance With CivilRule 10(D)(2) ................................................................................................................ 6

1. A Civ.R. 10(D)(2) Affidavit of Merit is Necessary to Establish theSufficiencv of the Complaint ........................................................................... 6

II. The Sufficiency of a Complaint is Appropriately Challenged by aCiv.R. 12(B)(6) Motion to Dismiss ........................ .......................................... 8

III. The Clear Language and Intent of Civ.R. 10(D)(2) Demonstrates thatDismissal is the Appropriate Sanction for Failure to Comply with theAffidavit of Merit Requirement ........................................................................ 11

IV. The Majority of Jurisdictions with Affidavit of Merit RequirementsUtilize a Motion to Dismiss to Address a Failure to Attach the RequiredAffidavit ............................................................................................................. 14

CONCLUSION .......................................................................................................................... 20

CERTIFICATE OF SERVICE .................................................................................................. 22

APPENDIX Appx. Page

Notice of Appeal to the Supreme Court of Ohio(August 15, 2007) ...................................................................................................... 1

Journal Entry and Opinion of the Cuyahoga County Court of Appeals(July 2, 2007) ............................................................................................................. 4

Journal Entry and Opinion of the Cuyahoga County Court of Appeals(June 7, 2007) ............................................................................................................. 5

Opinion of the Cuyahoga County Court of Common Pleas(July 13, 2006) ........................................................................................................... 14

ii

UNREPORTED CASES: Appx. Pace

Abear v. Teveliet (W.D.Wash. Dec. 21, 2006),Case No. C06-5550, 2006 WL 3813560 ...................................................... 15

Ahonen v. Garden City Hospital (Mich.App. Feb. 27, 2007),Case No. 264072, 2007 WL 601593 ............................................................ 18

Byrd v. Aetna Life Ins. Co. (D.Ariz. Aug. 1, 2006),Case No. CV-05-2469, 2006 WL 2228829 .... .............................................. 19

STATUTES:

R.C. § 2305.113 ............................................................................................. 22

RULES:

Civ.R. 10 ........................................................................................................ 25

Civ.R. 10(D) (July 1, 2005 Amendments) ..................................................... 27

Civ.R. 10(D)(2) (July 1, 2007 Amendments) ................................................ 36

Civ.R. 12 ........................................................................................................ 46

iii

TABLE OF AUTHORITIES

CASES Page(s)

A bear v. Teveliet(W.D.Wash. Dec. 21,2006), Case No. C06-5550, 2006 WL 3813560 19

Ahonen v. Garden City Hospital(Mich.App. Feb. 27, 2007), Case No. 264072, 2007 WL 601593 16

Anderson v. Wagner(Fla. App. 1 Dist. 2006), 955 So.2d 586 15

Assn. for Defense of Washington Local School Dist. v. Kiger(1989), 42 Ohio St.3d 116, 537 N.E.2d 1292 9

Bommersbach v. Ruiz(S.D.I11. 2007), 461 F.Supp.2d 743 15

Bramson v. Sulayaman(3d Cir. (N.J.) 2007), 251 Fed. Appx. 84 17

Broehm v. Mayo Clinic Rochester(Minn. 2005), 690 N.W.2d 721 16

Byrd v. Aetna Life Ins. Co.(D.Ariz. Aug. 1, 2006), Case No. CV-05-2469, 2006 WL 2228829 14

Byrd v. Faber(1991), 57 Ohio St.3d 56, 565 N.E.2d 584 10

Carroll v. Konits(2007), 400 Md. 167, 929 A.2d 19

Chromik v. Kaiser Permanente,81h Dist. No. 89088, 2007-Ohio-5856

Colon v. Fortune,81n Dist. No. 89527, 2008-Ohio-576

Community Hosp. ofJackson v. Goodlett ex rel. Goodlett(Miss. 2007), 968 So.2d 391 16

Davis v. Mound View Health Care(2006), 220 W.Va. 28, 640 S.E.2d 91 19

iv

Flanagan v. Eden,81h Dist. No. 85252, 2006-Ohio-3133 10

Herakovic v. Catholic Diocese of Cleveland,8th Dist. No. 85467, 2005-Ohio-5985 10

Krukrubo v. Fifth Third Bank,10`h Dist. No. 07AP-270, 2007-Ohio-7007 10

New 52 Project, Inc. v. Proctor,10`h Dist. No. 07AP-487, 2008-Ohio-465 8

Papadoris v. Snively,7`11 Dist. No. 06-CO-5, 2007-Ohio-6910 10

Parker v. U.S.(E.D.Va. 2007), 475 F.Supp.2d 594 19

Phelps v. Office of Attorney Gen.,10tl' Dist. No. 06AP-751, 2007-Ohio-14 9

Rzayeva v. U.S.(D.Conn. 2007), 492 F.Supp.2d 60 15

Serby v. Long Island Jewish Medical Center(N.Y.A.D. 2 Dept. 2007), 34 A.D.3d 441, 824 N.Y.S.2d 119 17

SSMHealth Care St. Louis v. Schneider(App. E.D. Mo. 2007), 229 S.W.3d 279, 281 16

State ex rel. Boggs v. Springfi'eld Local School Dist. Bd. ofEdn.,72 Ohio St.3d 94, 1995-Ohio-202, 647 N.E.2d 788 9

State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.(1992), 65 Ohio St.3d 545, 605 N.E.2d 378 8,9

State ex rel. Seikbert v. Wilkinson(1994), 69 Ohio St.3d 489, 633 N.E.2d 1128 9

State ex rel. Watley v. State of Ohio Bd. ofNursing,10`1i Dist. No. 07AP-69, 2007-Ohio-3295 9

Thigpen v. Ngo(2002), 355 N.C. 198, 558 S.E.2d 162 17

v

Vanderwerffv. Beathard(Tex.App.-Dallas 2007), 239 S.W.3d 406 18

Washoe Medical Center v. Second Judicial Dist. Court of State ofNevada ex rel. County ofWashoe (Nev. 2006), 148 P.3d 790 17

Williams v. Alvista Healthcare Center, Inc.(2007), 283 Ga.App. 613, 642 S.E.2d 232

Williams v. Boyle(Colo.App.2003), 72 P.3d 392

Williamson v. Correctional Medical Services(D.Del. 2007), 494 F.Supp.2d 285

Womer v. Hilliker(Pa. 2006), 589 Pa. 256, 908 A.2d 269

STATUTES

R.C. § 2305.19

R.C. § 2305.113

15

14

15

18

RULES Page(s)

Civ.R. 10 11,20

Civ.R. 10(D) 6, 7, 11

Civ.R. 10(D)(1) 1, 4, 5, 7

Civ.R. 10(D)(2) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 20

Civ.R. 10(D)(2)(c) 7

Civ.R. 10(D)(2)(d) 11

Civ.R. 12(B) 8

Civ.R. 12(B)(6) 1, 4, 6, 8, 9, 10, 21

Civ.R.12(C) 13

vi

Civ.R. 12(E) 1, 5, 9, 13

Civ.R. 41(A)(1) 2

Civ.R. 86(BB) 3

vii

STATEMENT OF THE FACTS AND CASE

Civ.R. 10(D)(2) was promulgated with the specific purpose of discouraging the filing of

non-meritorious medical claims. Civ.R. 10(D)(2) imposes a heightened standard of pleading for

medical negligence claims by requiring that liability and causation allegations be supported by a

qualified expert affidavit. If a plaintiff does not attach an affidavit of merit, a complaint for

medical negligence is not adequate or sufficient and therefore fails to state a claim. The procedural

mechanism to address a complaint that fails to state a claim is found in Civ.R. 12(B)(6), which

requires a motion to dismiss. Civ.R. 10(D)(2) was clarified by recent amendment and reaffinns

that dismissal of a complaint that violates Civ.R. 10(D)(2) is appropriate.

The present appeal arises from the Eighth District Court of Appeals' reversal of the trial

court's decision to dismiss, even while affirming the issue before it: that Civ.R. 10(D)(2) applies to

wrongful death actions premised upon medical claims. (Appx. 9). The Court of Appeals

incorrectly held that the sufficiency of the complaint is not affected by the absence of an affidavit

of merit and therefore is not subject to a challenge by Civ.R. 12(B)(6). (Appx. 9). Instead, the

Court determined that the appropriate challenge is pursuant to Civ.R. 12(E) and the filing of a

Motion for More Definite Statement. (Appx. 9-10).

The reason offered was that Civ.R. 10(D)(1) addresses attachments to pleadings, such as

contracts and written instruments, and the failure to attach such documents is tested by Civ.R.

12(E). (Appx. 9-10). The Court of Appeals did not consider the qualitative and substantial

differences between a contract or written instrument, which is the best evidence for that type of

claim, and an affidavit of merit which is not evidence and only serves to provide support to

otherwise unsupported allegations of medical negligence. The Court of Appeals also ignored the

specific language of the Staff Notes to Civ.R. 10(D)(2), which states that the affidavit of merit does

1

establish the sufficiency of the complaint. Moreover, the appellate court failed to consider that the

effect of its ruling would essentially eviscerate Civ.R. 10(D)(2), thereby rendering it ineffective in

discouraging the filing of non-meritorious medical claims. The Court of Appeals invited further

appellate review as this was a case of first impression with regard to delineating the proper

procedure for ensuring compliance with Civ.R. 10(D)(2). (Appx. 7).

A brief procedural history follows. On September 2, 2003, Plaintiff-Appellee Monica

Fletcher ("Fletcher") filed a Complaint in the Mahoning County Court of Common Pleas, Case No.

2003 CV 03014, alleging that certain health care providers were negligent in their care and

treatment of her decedent, Victor Shaw ("Mr. Shaw"). (Supp. 1). Discovery commenced and

medical records were produced., Plaintiffs expert disclosure date passed and the Defendants filed

Motions for Summary Judgment. (Supp. 7, 8). On March 30, 2005, Fletcher voluntarily dismissed

her Complaint, without prejudice, pursuant to Civ.R. 41(A)(1). (Supp. 15).

On March- 29, 2006, Fletcher refiled her Complaint in the Cuyahoga County Court of

Common Pleas against Defendants-Appellants University Hospitals of Cleveland ("University

Hospitals") and Raymond Onders, M.D. ("Dr. Onders"). (Supp. 17). Fletcher did not attach an

Affidavit of Merit to her Complaint and never requested an extension of time in which to file an

Affidavit of Merit. (Supp. 17, 58).

On April 5, 2006, University Hospitals timely filed a Motion to Dismiss Plaintiffs

Complaint for failure to comply with Civ.R. 10(D)(2). (Supp. 22). On May 23, 2006, Fletcher

filed a Brief in Opposition in which she argued that her Complaint was not subject to Civ.R.

10(D)(2) because R.C. § 2305.19 permitted her to refile her Complaint within one year without

being subject to the Affidavit of Merit requirement. (Supp. 47-48). Plaintiff also argued that the

2

Affidavit of Merit requirement set forth in that rule only referenced "medical claims" and thus did

not apply to wrongful death claims. (Supp. 45-46).

On June 21, 2006, the trial court held a Case Management Conference at which time

University Hospitals was granted leave to file a reply to Plaintiff's Brief in Opposition. (Supp. 58).

On June 27, 2006, University Hospitals filed a Reply Brief responding to Plaintiff s two

arguments. (Supp. 61). First, Civil Rule 86(BB)l applied Civ.R. l0(D)(2) to all civil actions

pending or filed after July 1, 2005. (Supp. 61-62). Second, Civ.R. 10(D)(2) applied to a wrongful

death claim arising out of a medical claim as a matter of law. (Supp. 63-64). On July 13, 2006, the

trial court issued an Order granting the Motion to Dismiss and dismissing the Complaint with

prejudice as to University Hospitals. (Appx. 12). Dr. Onders was not required to answer or move

to dismiss because Plaintiff failed to perfect service of the Complaint Z

On August 11, 2006, Fletcher filed a Notice of Appeal to the Eighth District Court of

Appeals challenging only the trial court's dismissal of her wrongful death claim and the

applicability of Civ.R. 10(D)(2) to that claim. (Supp. 67). Thereafter, Fletcher filed her Appellate

Brief and argued that the trial court erred in ruling that Civ.R. 10(D)(2) required an Affidavit of

1 Civil Rule 86(BB) addressed the applicability and effective date of the 2005 amendments toCivil Rule 10 and provided as follows:

The amendments to Civil Rules 3, 10, 34 36, 42, 45, 47, and 51filed by the Supreme Court with the General Assembly on January14, 2005 and revised and refiled on Apri120, 2005 shall take effecton July 1, 2005. They govern proceedings in actions brought afterthey take effect and also all further proceedings in actions thenpending, except to the extent that their application in a particularaction pending when the amendments take effect would not befeasible or would work injustice, in which event the formerprocedure applies.

2 Plaintiff failed to serve Dr. Onders with the Complaint prior to the trial court granting theMotion to Dismiss and the instant appeal being instituted.

3

Merit be filed with a complaint to establish the adequacy of a wrongful death claim arising out of

an underlying medical negligence claim. (Supp. 70-71). Specifically, Fletcher argued that a

wrongful death claim is distinct from a medical claim and therefore is not subject to the

requirement of Civ.R. 10(D)(2). (Supp. 77-82). In reply, University Hospitals asserted that Civ.R.

10(D)(2) applies to wrongful death actions arising out of a medical claim and that Civ.R. 12(B)(6)

provides the appropriate mechanism to test the sufficiency of a complaint. (Supp. 92-98). Based

upon these arguments, University Hospitals maintained that the trial court properly dismissed the

Complaint for failure to provide the Affidavit of Merit necessary to establish the adequacy of the

medical negligence and wrongful death claims as mandated under Civ.R. 10(D)(2). (Supp. 99-

100).

On June 7, 2007, the Eighth District Court of Appeals issued its Journal Entry and Opinion

and held that "the [trial] court erred by dismissing the complaint for failure to state a claim." (Appx.

10). The Court of Appeals found that "[t]he common pleas court correctly determined that

appellant's complaint presented a medical claim as to which she was required to supply an

affidavit of inerit pursuant to Civ.R. 10(D)(2), and that appellant failed to include an affidavit with

her complaint." (Appx. 8). Despite reaching this conclusion, the Court of Appeals decided that

"[i]t does not follow, however, that a complaint which does not contain an affidavit of merit fails to

state a claim, and is therefore subject to dismissal." (Appx. 8).

The Court held that the failure to attach an Affidavit of Merit did not affect the sufficiency

of the complaint and therefore did not subject that complaint to a motion to dismiss for failure to

state a claim upon which relief can be granted, pursuant to Civil Rule 12(B)(6). (Appx. 8).

Discounting the specific language of the Civil Rule and the Staff Notes, the Eighth District Court of

Appeals created a unique procedural remedy contrary to the clear language and intent of Civ.R.

4

10(D)(2) and instead followed the procedure set forth relative to Civ.R. 10(D)(1) regarding failure

to attach the documentary evidentiary basis of a contract claim. (Appx. 8-9). The trial court's

decision was reversed and remanded. (Appx. 10). The Court of Appeals recognized that this case

presented "an issue of first impression" and "found no appellate cases construing Civ.R. 10(D)(2) or

determining the proper procedure for ensuring compliance with it "(Appx. 7).

Because the applicability of a Civ.R. 12(E) motion for more definite statement was never

briefed or argued before the Appellate Court, University Hospitals filed an Application for

Reconsideration and requested that the Court of Appeals reconsider its decision requiring a Motion

for More Definite Statement as the appropriate procedural mechanism for responding to a Civil

Rule 10(D)(2) violation. (Supp. 146). On July 2, 2007, the Court of Appeals denied the

Application for Reconsideration and entered judgment on the Journal Opinion and Entry reversing

and remanding this matter to the trial court. (Appx. 4). In its decision denying reconsideration, the

Court of Appeals maintained that "the sufficiency of the complaint was not affected by the absence

of an affidavit of merit." (Appx. 1).

On August 30, 2007, University Hospital filed a timely Notice of Appeal and Memorandum

in Support of Jurisdiction. (Appx. 1). This Court accepted jurisdiction over the present matter

through a Journal Entry issued on December 28, 2007.

5

ARGUMENT

Pronosition of Law:

A Motion For Failure To State A Claim Upon Which Relief Can Be Granted Pursuant ToCivil Rule 12(B)(6) Is The Proper Procedure For Challenging The Failure To File AnAffidavit Of Merit In Accordance With Civil Rule 10(D)(2).

I. A Civ.R. 10(D)(2) Affidavit of Merit is Necessary to Establish theSufficiencv of the Complaint.

Civ.R. 10(D)(2) requires a plaintiff asserting a medical claim in a complaint to include an

affidavit of merit from a qualified expert. Civ.R. 10(D)(2) states, in pertinent part, as follows:

(2) Affidavit of merit; medical liability claim.

(a) Except as provided in division (D)(2)(b) of this rule, acomplaint that contains a medical claim ... as defined insection 2305.113 of the Revised Code, shall include anaffidavit of merit relative to each defendant named in thecomplaint for whom expert testimony is necessary to establishliability. The affidavit of merit shall be provided by an expertwitness pursuant to Rules 601(D) and 702 of the Ohio Rules ofEvidence. The affidavit of merit shall include all of thefollowing:

(i) A statement that the affiant has reviewed all medicalrecords reasonably available to the plaintiff concerning theallegations contained in the complaint;

(ii) A statement that the affiant is familiar with theapplicable standard of care;

(iii) The opinion of the affiant that the standard of care wasbreached by one or more of the defendants to the action andthat the breach caused injury to the plaintiff.

(b) The plaintiff may file a motion to extend the period of timeto file an affidavit of merit. The motion shall be filed by theplaintiff with the complaint. For good cause shown, the courtshall grant the plaintiff a reasonable period of time to file anaffidavit ofinerit.

6

(c) An affidavit of merit is required solely to establish theadequacy of the complaint and shall not otherwise beadmissible as evidence or used for purposes of impeachment.

Civ.R. 10(D)(2) (July 1, 2005). (Appx. 35-36).

Specifically establishing that the affidavit of merit is "...required solely to establish the

adequacy of the complaint..." clarifies that the purpose of the rule is not to establish an

evidentiary basis for the claim,3 but instead to determine the sufficiency of the pleading. (Appx.

36-37). As stated in the 2005 Staff Notes to Civ.R. 10(D):

Division (D)(2)(c) provides that an affidavit of merit is intendedto establish the sufficiency of the complaint filed in a medicalliability action and specifies that an affidavit of merit is nototherwise admissible as evidence or for purposes of impeachment.

See 2005 Staff Note to Civ.R. 10(D) (emphasis added). (Appx. 37).

The sufficiency of a complaint is a function of the factual averments in the complaint.

Some causes of action have minimal notice pleading requirements in order to set forth a claim.

Other causes of action have more specific, heightened pleading requirements. In such cases, a

complaint is insufficient if' it does not set forth the necessary elements required to support a

particular claim.

Before the enactment of Civ.R. 10(D)(2), a complaint in a medical negligence action

would merely offer the statement of the plaintiff, without support or qualification, that there was

a breach of the standard of care which caused injury to the plaintiff. It could not be challenged

until significant discovery had been completed. With the enactment of Civ.R. 10(D)(2), the

allegations regarding breach of standard of care and causation must be supported by a qualified

3 This is in direct distinction to the requirement of Civ.R. 10(D)(1) in which the instrumentwhich is the best evidence of the account or contract is required to be produced.

7

expert witness. It is a threshold to be met by plaintiffs asserting medical claims that allegations

of professional negligence are supported by a competent expert witness.

Thus, Civ.R. 10(D)(2) addresses a unique cause of action - a medical claim as defined in

R.C. 2305.113. (Appx. 20-21). It must be pled with particularity and, to that end, must be

supported by a qualified and competent averment of the claim. Thus, a medical negligence

complaint is sufficient when the allegations setting forth the applicable medical standard of care,

the departure from standard of care and causation are supported by an affidavit of merit. Quite

simply, the absence of an affidavit of merit renders the medical negligence complaint insufficient

and subject to challenge by Civ.R. 12(B)(6).

II. The Sufficiency of a Complaint is Appropriately Challenged By a Civ.R. 12(B)(6) Motion to Disntiss.

Civ.R. 12(B) governs motions for judgments on the pleadings and states, in relevant part,

as follows:

Every defense, in law or fact, to a claim for relief in any pleading,whether a claim, counterclaim, cross-claim, or third-party claim,shall be asserted in the responsive pleading thereto if one isrequired, except that the following defenses may * * * be made bymotion: (1) lack of jurisdiction over the subject matter, (2) lack ofjurisdiction over the person, (3) improper venue, (4) insufficiencyof process, (5) insufficiency of service of process, [and] (6) failureto state a claim upon which relief can be granted ***."

Civ.R. 12(B) (emphasis added). (Appx. 44).

Civ.R. 12(B)(6) authorizes a defendant to assert by motion that the plaintiffs complaint

fails to state a claim upon which relief may be granted. (Appx. 44). Such a motion tests the

sufficiency of the complaint. New 52 Project, Inc. v. Proctor, 10`h Dist. No. 07AP-487, 2008-

Ohio-465, ¶ 3, quoting State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio

St.3d 545, 548, 605 N.E.2d 378. Therefore, the recognized method in Ohio for testing the

8

suffciency of a complaint is through the filing of a motion to dismiss for failure to state a claim

pursuant to Civ.R. 12(B)(6) without need for first filing a motion for more definite statement

under Civ.R. 12(E). Assn. for Defense of Washington Local School Dist. v. Kiger (1989), 42

Ohio St.3d 116, 117, 537 N.E.2d 1292. As a general rule, a motion to dismiss for failure to state

a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint

and all attachments to the complaint. State ex rel. Hanson, 65 Ohio St.3d at 548, 605 N.E.2d

378; see also State ex rel. Boggs v. Springfield Local School Dist. Bd. ofEdn., 72 Ohio St.3d 94,

1995-Ohio-202, 647 N.E.2d 788; State ex rel. Watley v. State of Ohio Bd. of Nursing, 10`s Dist.

No. 07AP-69, 2007-Ohio-3295.

Previously, a medical negligence complaint was impervious to challenge because the

material allegations of the complaint were taken as admitted in the analysis of a Civ.R. 12(13)(6)

motion to dismiss. However, the promulgation of Civ.R. 10(D)(2) requires the opinion of an

expert witness to establish, with particularity, the necessary elements of a medical claim. This is

a heightened pleading requirement requiring plaintiffs to support, with a competent, qualified

affidavit, the allegations of medical professional negligence. In cases involving a heightened

pleading requirement, "unsupported conclusions of a complaint are not considered admitted and

are not sufficient to withstand a motion to dismiss." Phelps v. Office ofAttorney Gen., 10Ih Dist.

No. 06AP-751, 2007-Ohio-14, ¶ 4, quoting State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio

St.3d 489, 490, 633 N.E.2d 1128.

The Civ.R. 10(D)(2) requirement is not dissimilar from other causes of action which

impose specific pleading requirements to establish the sufficiency of the complaint. Claims for

fraud, breach of contract, RICO violations and OCPA violations, among others, have specific

pleading requirements which must be satisfied in order to establish the sufficiency of the

9

complaint and to avoid being subject to dismissal through a Civ.R. 12(B)(6) motion. See, e.g.,

Krukrubo v. Fifth Third Bank, 10`h Dist. No. 07AP-270, 2007-Ohio-7007 (dismissing a

complaint asserting a breach of contract claim where plaintiff failed to plead the required

elements of that claim); Papadoris v. Snively, 7"' Dist. No. 06-CO-5, 2007-Ohio-6910, ¶ 69

("The failure to plead with sufficient particularity the elements of fraud results in a defective

claim that cannot withstand a motion to dismiss under Civil Rule 12(B)(6)."); Flanagan v. Eden,

8th Dist. No. 85252, 2005-Ohio-3133, ¶ 11 ("The failure of a plaintiff to plead any of the

elements necessary to establish a RICO violation results in a defective complaint which cannot

withstand a motion to dismiss based upon a failure to state a claim upon which relief can be

granted."); Herakovic v. Catholic.Diocese of Cleveland, 8h Dist. No. 85467, 2005-Ohio-5985

(holding that a claim made pursuant to the Ohio Pattern of Corrupt Activity Act (OPCA) must

allege each element in order to survive a Civ.R. 12(B)(6) motion).

In Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584, this Court recognized

that Civ.R. 12(B)(6) motions are especially appropriate for disposing of complaints that are

subject to a heightened pleading requirement to protect against fi-ivolous claims and promote

public policy. In Byrd, the Court affirmed a Civ.R. 12(B)(6) dismissal of a lawsuit for clergy

malpractice and negligent hiring, concluding that a two-pronged public policy of avoiding First

Amendment entanglements and frivolous suits justified a higher pleading standard. Id. at 60-61.

Similarly, the affidavit of merit requirement in Civ.R. 10(D)(2) is the result of a public

policy analysis which concluded that a heightened pleading requirement would limit frivolous

and non-meritorious claims. Failure to abide by the fnndamental pleading requirements in a

medical negligence lawsuit should not be sanctioned by shifting the burden to the defendant to

pursue intermediary pleading practice. Therefore, when a complaint that contains a medical

10

claim does not include an affidavit of merit, it must be deemed insufficient and should be

dismissed for failure to state a claim upon which relief can be granted.

III. The Clear Language and Intent of Civ.R. 10(D)(2) Demonstrates thatDismissal is the Appropriate Sanction for Failure to Comply with theAffidavit of Merit Requirement.

Effective July 1, 2007, Civ.R. 10(D)(2) was amended to clarify the Rule. (Appx. 38).

The Staff Notes (July 1, 2007 Amendments) to Civ.R. 10(D) state as follows:

Civ. R. 10 is amended to clarify what constitutes "good cause" topermit the plaintiff an extension of time to file an affidavit of meritand to define the effect of dismissal for failure to comply with theaffidavit of merit requirement.

The rule is intended to make clear that the affidavit is necessary toestablish the sufficiency of the complaint. The failure to complywith the rule can result in the dismissal of the complaint, and thisdismissal is considered to be a dismissal otherwise than upon themerits pursuant to Civ. R. 10(D)(2)(d).

See 2007 Staff Note to Civ.R. 10(D) (emphasis added). (Appx. 41-42). As is evident from the

plain language of Civ.R. 10(D)(2), an affidavit of merit is required to establish the adequacy of

the complaint and failure to comply can result in dismissal. (Appx. 24, 41).

Since its decision in this case, the Eighth District Court of Appeals issued two opinions in

similar cases that affirmed the dismissal of a complaint for failure to attach an affidavit of merit.

In Chromik v. Kaiser Permanente, 8`h Dist. No. 89088, 2007-Ohio-5856, plaintiff had previously

filed a malpractice action that was dismissed because he could not produce expert reports. When

he refiled his suit, plaintiff also filed a motion for extension of time to file affidavits of merit

pursuant to Civ.R. 10(D)(2). Id. at ¶ 3. Defendants filed a motion for judgment on the pleadings

based upon plaintiff s failure to file an affidavit of merit as required by Civ.R. 10(D). Id. The

11

trial court granted plaintiffs motion for extension and advised that defendants' motion for

judgment on the pleadings would be held in abeyance. Id. Plaintiff subsequently moved for, and

was granted, another extension of time in which to file his affidavits of merit, with the

specification that no more extensions would be granted. Id. at ¶ 4. After plaintiff s third request

for an extension was denied, the trial court granted defendants' motion for judgment on the

pleadings. Id. The Court of Appeals affirmed the trial court's dismissal on the basis that, "in

essence, the trial court gave Chromik the opportunity to provide a more definite statement by

allowing a 107-day extension, but Chromik failed to comply" and attempted to distinguish its

earlier ruling in this case by stating that "[i]n Fletcher, the plaintiff never requested an extension

to file the required affidavit of merit." Id. at ¶¶ 16-17.

In an even more recent case, Colon v. Fortune, 8a' Dist. No. 89527, 2008-Ohio-576,

plaintiff refiled a medical malpractice lawsuit and requested an extension of time to file an

affidavit of merit. Despite being granted an extension of time, plaintiff was unable to comply

with Civ.R. 10(D)(2) which resulted in defendants filing motions for summary judgment. Id. at

¶ 4. The trial court treated defendants' motions for summary judgment as motions to dismiss and

dismissed the complaint with prejudice for failure to comply with Civ.R. 10(D)(2). Id. The

Court of Appeals upheld the dismissal on the grounds that plaintiff had the requisite medical

records and had the burden of submitting an affidavit with her complaint. Id. at ¶ 12.

In the case at bar, Fletcher had the medical records since late 2003 and had expert

disclosure dates to meet in order to avoid summary judgment. (Supp. 7). Plaintiff voluntarily

dismissed the case. (Supp. 15). Upon refiling the matter in 2006, Fletcher was certainly aware

of the need for an affidavit of merit by the time University Hospitals filed its Motion to Dismiss

on April 5, 2006. (Supp. 17, 22). The trial court did not grant the Motion to Dismiss until July

12

13, 2006. (Appx. 12). Prior to that time, Fletcher did not make any attempt to cure her defective

Complaint by producing the required affidavit or seeking leave to amend. Although Chromik

and Colon involved similar facts, the Court of Appeals did not feel that Fletcher's complete

failure to comply with Civ.R. 10(D)(2) warranted dismissal when it first addressed this issue.

The Eighth District Court of Appeals' subsequent decisions in Chromik and Colon are

not only inconsistent with the earlier decision in this case, but also stand as an implicit

acknowledgment that the original procedural mechanism devised in this case to respond to

Civ.R. 10(D)(2) violations is simply unworkable. In Chromik, the Court of Appeals did not

require defendants to file a Motion for More Definite Statement, pursuant to Civ.R. 12(E), and

instead determined that a Motion for Judgment on the Pleadings, pursuant to Civ.R. 12(C), was

appropriate to challenge a Civ.R. 10(D)(2) violation. Chromik, at ¶ 12. Utilizing different

procedural mechanisms in Colon, the Court of Appeals found that the trial court properly granted

the motions to dismiss and that, pursuant to Civ.R. 6(B), the trial court properly decided to deny

any further extension of time. Colon, at ¶ 16.

In this case, dismissal of Plaintiff's Complaint was, and is, the appropriate remedy.

Fletcher already had innumerable opportunities to litigate the allegations of medical negligence

and to produce the required expert testimony to support those allegations. It is apparent that

Fletcher did not retain an expert witness despite facing a summary judgment motion in her

original action and a motion to dismiss in the present matter. (Supp. 8, 22). She did not seek an

extension of time or attempt to explain her failure to produce the required expert testimony.

(Supp. 58). Instead, Fletcher erroneously maintained that she was not required to comply with

Civ.R. I 0(D)(2). (Supp. 45-46).

13

The plain language of Civ.R. 10(D)(2) is clear and unambiguous. The Eighth District

Court of Appeals has struggled with identifying the correct procedural challenge. However,

recent decisions from the Court of Appeals reveal an evolution that is consistent with the plain

and unambiguous language of the Rule. This Court should adopt a uniform procedural approach

that permits a trial court to dismiss a medical negligence complaint where there is a failure to

attach an affidavit of merit as required by Civ.R. 10(D)(2).

IV. The Majority of Jurisdictions with Affidavit of Merit RequirementsUtilize a Motion to Dismiss to Address a Failure to Attach theRequired Affidavit.

The Court of Appeals recognized that this Court has not addressed the appropriate

mechanism for challenging a Civ.R. 10(D)(2) violation. (Appx. 7). Therefore, it is reasonable to

look for guidance from other jurisdictions. The decisions from other state and federal courts

have consistently held that a motion to dismiss provides the proper mechanism for responding to

a failure to comply with a statutory or procedural requirement for an affidavit or certification in a

complaint alleging a medical claim.

• Byrd v. Aetna Life Ins. Co. (D.Ariz. Aug. 1, 2006), Case No. CV-05-2469, 2006 WL 2228829 ("Section 12-2602(F) of the ArizonaRevised Statutes provides that the court `shall dismiss the claimagainst the licensed professional[the defendant] without prejudiceif the claimant fails to file and serve a preliminary expert opinionaffidavit after the claimant [] has certified that an affidavit isnecessary or the court has ordered the claimant to file and serve anaffidavit.' ARIZ.REV.STAT. § 12-2602(F). As noted above,Plaintiff has not furnished an expert affidavit as required by A.R.S.§ 12-2602. The Court, pursuant to A.R.S. § 12-2602(F), mustdismiss this action without prejudice due to Plaintiff's failure tocomply with the expert affidavit requirement. Consequently, theCourt will grant Defendants' Motion to Dismiss.")

• Williams v. Boyle (Colo.App. 2003), 72 P.3d 392 (holding that trialcourt did not err in granting motion to dismiss patient's medical

14

malpractice claims against physician for failure to file certificate ofreview required under C.R.S.A. § 13-20-602.)

• Rzayeva v. U.S. (D.Conn. 2007), 492 F.Supp.2d 60, 84-85("Plaintiffs have not filed a certificate of good faith with anattached supportive report by a qualified health care provider,which is required to commence a medical malpractice action inConnecticut. See Conn. Gen.Stat. § 52-190a. Section 52-190aexplicitly provides that the "failure to obtain and file the writtenopinion required by subsection (a) of this section shall be groundsfor the dismissal of the action. Id. § 52-190(a)(c). (Internalcitations omitted.) Because Plaintiffs have failed to obtain and filea certificate of good faith, any claim of medical malpractice raisedin the Complaint must be dismissed.")

• Williamson v. Correctional Medical Services (D.Del. 2007), 494F.Supp.2d 285, 287 ("FCMI and CMS both move to dismiss anymedical negligence claims on the basis that plaintiff failed toaccompany the complaint with an affidavit of merit as required by18 Del. C. § 6853(a)(1). Plaintiff argues defendants belatedly filedmotions to dismiss and, therefore, they have waived any defensesthey have and their motions should be stricken ... Plaintiff has notfiled the required affidavit and, therefore, the court will grantFCMI and CMS' motions to dismiss the medical negligenceclaims.")

• Anderson v. Wagner (Fla. App. 1 Dist. 2006), 955 So.2d 586, 590(Holding that motion to dismiss is proper remedy for responding toa medical malpractice complaint filed without a corroboratingexpert opinion as required under F.S.A. § 766.203)

• Williams v. Alvista Healthcare Center, Inc. (2007), 283 Ga.App.613, 616, 642 S.E.2d 232 ("A motion to dismiss based upon thelack of an expert affidavit is a motion to dismiss for failure to statea claim under OCGA § 9-11-12(b)(6) . .. [B]ecause theadministration of medication involves the professional skill andjudgment of a nurse, and nurses are professionals to whom OCGA§ 9-11-9.1 explicitly applies, we hold that the children's claims forfailing to properly administer Stanford's medication is a claim ofprofessional negligence. Therefore, the trial court correctlydismissed this claim based on the children's failure to comply withOCGA § 9-11-9.1.")

• Bommersbach v. Ruiz (S.D.III. 2007), 461 F.Supp.2d 743 (Holdingthat negligence claim sounded in medical malpractice andtriggered affidavit of merit requirement under Section 2-622 of the

15

Illinois Code and that correct remedy for failure provide requiredaffidavit was granting motion to dismiss and ordering dismissalwithout prejudice)

• Carroll v. Konits (2007), 400 Md. 167, 180, 929 A.2d 19("Although the statutory scheme is slightly more complex, it isclear that unless the Certificate and the attached attesting expert'sreport are filed within a maximum of 180 days (absent the grant ofa good cause extension), dismissal is mandatory. Thus, just as aplaintiff in a medical malpractice claim must file a satisfactorycomplaint, he or she must also file a satisfactory Certificate andreport or risk dismissal.")

• Ahonen v. Garden City Hospital (Mich.App. Feb. 27, 2007), CaseNo. 264072, 2007 WL 601593 ("Plaintiff failed to provide noticeof her intent to file suit more than 180 days before she filed hercomplaint, MCL 600.2912b(l), and failed to file an affidavit ofmerit signed by a qualified health professional, MCL 600.2912d(1)... The requirements are mandatory, and the circuit court wasobliged to dismiss on this basis. The dismissal with prejudice wasproper because even if all plaintiff's arguments with respect tostatute of limitations are accepted, the complaint filed in 2005 didnot toll the statute because it did not comply with the requirementsfor filing a complaint, and plaintiff's complaint would have beentime-barred in the interim.")

• Broehm v. Mayo Clinic Rochester (Minn. 2005), 690 N.W.2d 721,726 ("So as not to undermine the legislative aim of expert reviewand disclosure, we have stressed that plaintiffs must adhere to strictcompliance with the requirements of Minn.Stat. § 145.682 ... Wehave been firm in holding that failure by the plaintiff to strictlysatisfy the requirements under Minn.Stat. § 145.682, subd. 4(a)results in dismissal of the claim with prejudice.")

• Community Hosp. of Jackson v. Goodlett ex rel. Goodlett (Miss.2007), 968 So.2d 391 (Reversing denial of motion to dismiss andholding that failure of patient's daughter, who brought medicalmalpractice suit against nursing home on behalf of patient, tostrictly comply with Miss. Code Ann. § 11-1-58 requiringcertificate of expert consultation or expert medical report to beattached to complaint at time of filing warranted dismissal)

• SSM Health Care St. Louis v. Schneider (App. E.D. Mo. 2007),229 S.W.3d 279, 281 ("The language in section 538.225.5-6 isclear and unambiguous. The plain and ordinary meaning is that if aparty files a motion to dismiss for failure to file a health care

16

affidavit, and a statutorily adequate health care affidavit has notbeen timely filed, the trial court must dismiss the complaintwithout prejudice ... In enacting the current language of section538.225.6, which substitutes `shall' for `may,' the legislatureclearly intended the dismissal of the action is mandatory, notdiscretionary, where a plaintiff or his attorney does not timely filean adequate health care affidavit ")

• Washoe Medical Center v. Second Judicial Dist. Court of State ofNevada ex rel. County of Washoe (Nev. 2006), 148 P.3d 790, 794-795 ("[W]e conclude that a medical malpractice complaint filedwithout a supporting medical expert affidavit is void ab initio,meaning it is of no force and effect. Because a complaint that doesnot comply with NRS 41A.071 is void ab initio, it does not legallyexist and thus cannot be amended. Therefore, NRCP 15(a)'samendment provisions, whether allowing amendment as a matterof course or leave to amend are inapplicable. A complaint thatdoes not comply with NRS 41A.071 is void and must bedismissed; no amendment is permitted ... Therefore, the districtcourt erred by denying Washoe Medical's motions to dismiss andto strike.")

• Serby v. Long Island Jewish Medical Center (N.Y.A.D. 2 Dept.2007), 34 A.D.3d 441, 824 N.Y.S.2d 119 (Holding that trial courtabused discretion in denying defendants' motion to dismiss whereplaintiffs failed to submit affidavit of medical expert todemonstrate merits of medical negligence action or to provide areasonable excuse to justify their failure to comply with theaffidavit requirement)

• Bramson v. Sulayaman (3d Cir. (N.J.) 2007), 251 Fed. Appx. 84,86-87 ("The District Court dismissed Branson's negligence claimfor failure to serve an affidavit of merit as required by New Jerseylaw. We agree with that determination as well. In medicalmalpractice cases, New Jersey law requires Plaintiffs to serve,within a certain period of time, an affidavit of merit by anappropriate licensed physician stating that there is a reasonableprobability that each defendant's conduct fell outside acceptableprofessional standards. See N.J. Stat. Ann. 2A:53A-27. Failure tocomply with these requirements is deemed a failure to state aclaim. See N.J. Stat. Ann. 2A:53A-29.")

• Thigpen v. Ngo (2002), 355 N.C. 198 202, 558 S.E.2d 162("Medical malpractice complaints have a distinct requirement ofexpert certification with which plaintiffs must comply. Such

17

complaint will receive strict consideration by the trial judge.Failure to include the certification necessarily leads to dismissal.")

• Womer v. Hilliker (Pa. 2006), 589 Pa. 256, 270-271, 908 A.2d 269("Rule 1042.3 is clear and unambiguous in its mandate that inevery professional liability action a specific representation aboutthe plaintiffs claim must be filed in the official record in adocument called a"certificate of merit" at the time the complaint isfiled or within sixty days thereafter. Pa.R.C.P. No. 1042.3(a) ...Moreover, Pa.R.C.P. No. 1042.3(d), which allows for the filingand granting upon good cause shown of a motion to extend thetime for filing a COM, sets forth the one and only step that aplaintiff is to take if he finds himself unable to secure a COM anddesires to avoid the consequences of not satisfying Rule1042.3(a)'s COM filing requirement in a timely fashion. Womer,however, did nothing of the sort. Rather, he served discoverymaterials on Hilliker, which included an expert report. In our view,this was no procedural misstep within the meaning of Pa.R.C.P.No.126. It was instead, a wholesale failure to take any of the actionsthat one of our rules requires, of the type that we have heretoforerefused to overlook under Rule 126 ... Therefore, we conclude thatWomer did not substantially comply with Pa.R.C.P. No. 1042.3 forpurposes of Pa.R.C.P. No. 126's application, and hold that theSuperior Court erred in including Pa.R.C.P. No. 126 as a factor inits analysis as to whether the trial court correctly denied Womer'srequest that the judgment of non pros be opened.)

• Vanderwerff v. Beathard (Tex.App.-Dallas 2007), 239 S.W.3d406, 408-409 ("Section 74.351(a) of the civil practice andremedies code requires that a claimant bringing a health careliability claim must, not later than the 120th day after filing suit,serve on each party or the party's attorney one or more expertreports for each physician or health care provider against whom aliability claim is being asserted. See Tex. Civ. Prac. & Rem. CodeAnn. § 74.351 (a) (Vernon Supp.2006). If a report has not beenserved by the 120-day deadline, the statute requires that uponmotion by the affected physician or health care provider, the trialcourt "shall" dismiss the action with prejudice and awardreasonable attorney's fees and costs. Tex. Civ. Prac. & Rem. CodeAnn. § 74.351 (b) (Vernon Supp.2006) ... The conduct aboutwhich Beathard complains occurred during the course of treatmentby a health care professional and is therefore inseparable from therendition of health care services. As a result, Beathard's claim is ahealth care liability claim subject to the expert report requirementsof section 74.351 (b). Because Beathard failed to file an expertreport as required by section 74.351 (b), we reverse the trial court's

18

order denying the motion to dismiss, and render judgment inVanderwerffs favor dismissing Beathard's claims with prejudice.")

• Parker v. U.S. (E.D.Va. 2007), 475 F.Supp.2d 594, 597 ("As athreshold matter, the Virginia Medical Malpractice Act(`VMMA'), Va.Code §§ 8.01-581.1, et seq., requires that a partyalleging medical malpractice obtain an expert certification of meritprior to serving process upon defendant. Va.Code § 8.01-20.1.Significantly, the failure to comply with this certificationrequirement is grounds for dismissal.")

• Davis v. Mound View Health Care (2006), 220 W.Va. 28, 32, 640S.E.2d 91 ("The provisions of W. Va.Code § 55-7B-6 (a) and (b)are clear and unambiguous, and thus should be applied as written.W. Va.Code § 55-7B-6 (a) provides that `no person may file amedical professional liability action against any health careprovider without complying with the provisions [of W. Va.Code §55-7B-6].' W. Va.Code § 55-7B-6(b) clearly provides, in pertinentpart, that `[a]t least thirty days prior to the filing of a medicalprofessional liability action against a health care provider, theclaimant shall serve by certified mail, return receipt requested, anotice of claim[.]' Reading subsections (a) and (b) in para materiaand acknowledging the mandatory nature of the term `shall,' wefind that the circuit court did not err in applying the terms of thestatute as written and dismissing Appellant's suit for failure tocomply with the notice of claim provision contained in W.Va.Code § 55-7B-6 (b).")

• Abear v. Teveliet (W.D.Wash. Dec. 21, 2006), Case No. C06-5550,2006 WL 3813560 ("RCW 7.70.150(1) had been passed in June ofthis year. It requires a plaintiff in a medical malpractice case to filea`certificate of inerit' at the time the complaint is filed. For thosefiling at the end of the limitations period (within 45 days of theperiod's expiration), the statute permits an additional 45 days fromthe date of filing to file a certificate of merit ... Teveliet andFamily Practice Center seek to dismiss the claim for failure to filethe required certificate of merit. Plaintiff argues that RCW7.70.150(1) requires such a filing only when the complaint iscommenced prior to the expiration of the limitations period ...There is literally no legal or logical support for this position. At thetime the complaint in this case was filed, RCW 7.70.150(1) was ineffect. The limitations period on the claims was either expired ortolled, and even the most generous reading on the statute wouldrequire plaintiff to file a certificate of merit within 45 days of hercomplaint. It has been far longer than that, and no certificate hasbeen filed ... The Defendants' Motion to Dismiss based on the

19

Plaintiffs failure to file the required certificate of merit isGRANTED.")

These cases recognize an established jurisprudence in addressing the issue before this

Court. In jurisdictions having a similar requirement, a complaint in a medical negligence action

must contain an affidavit of merit in order to be adequate and sufficient. Courts in other

jurisdictions unanimously agree that the sufficiency of a complaint should be tested through a

motion to dismiss for failure to state a claim upon which relief can be granted.

CONCLUSION

If allowed to stand, the Court of Appeals' decision will undermine the stated purpose of

Civ.R. 10(D)(2) in preventing unsubstantiated claims against health care providers and reducing

unnecessary expenses in terms of loss of professional time and incurring legal costs associated with

the defense of frivolous lawsuits. Defendants will be deprived of the cost-effective recourse

provided through Civ.R. 10(D)(2) to quickly challenge insufficient medical claims. Instead, the

practical effect of filing a motion for more definite statement, obtaining a trial court order after

further briefing and then, where there is non-compliance, a motion to dismiss, followed by further

briefing and argument, serves only to increase the time and expense that this Court sought to

reduce by the amendment of Civ.R. 10.

The only way to prevent this unintended, expensive and time-consuming result is for this

Court to reverse the Court of Appeals and make clear that Civ.R. 12(B)(6) provides the appropriate

procedural mechanism for responding to a failure to file the Affidavit of Merit required under

Civ.R. 10(D)(2).

This Court and the General Assembly certainly did not intend that Civ.R. l0(D)(2) would

make insufficient medical claims more difficult to dismiss, thereby increasing the burden and

20

expense on health care providers in defending these claims. In order to prevent this unintended

and inequitable result, this Court should reverse the decision of the Eighth District Court of

Appeals and hold that a Motion to Dismiss, pursuant to Civ.R. 12(B)(6), constitutes the appropriate

procedural remedy for addressing a party's failure to attach an Affidavit of Merit to a complaint

alleging a medical claim or to seek an extension of time to provide sucb affidavit.

Respectfully submitted,

KEVIN M.ORCHI (0034659)MICHAEL L.GOLDING (0062587)NORCHI, BARRETT & FORBES LLCCommerce Park IV23240 Chagrin Boulevard, Suite 600Beachwood, Ohio 44122Telephone: (216) 514-9500Facsimile: (216) 514-4304Email: kmn@norchilaw.com

mgolding@norchilaw.com

Counsel for AppellantUniversity Hospitals of Cleveland

21

CERTIFICATE OF SERVICE

A copy of the foregoing Merit Brief of Appellant University Hospitals of Cleveland has

been sent via regular U.S. mail, postage prepaid, this 6th day of March, 2008 to:

Thomas J. Travers, Jr., Esq.Thomas J. Travers, LLC3870 Starr Centre Drive - Suite BCanfield, Ohio 44406

Counsel for AppelleeMonica Fletcher, Individuallyand as Administrator of the Estate of Victor Shaw

John V. Jackson II, Esq.Suffer, O'Connell & Farchione3600 Erieview Tower1301 East Ninth StreetCleveland, Ohio 44114

Counsel for AppellantRaymond Onders, M.D.

One of the Att rne ys for AppellantUniversity Hosp'tals of Cleveland

102.0016

22

IN THE SUPREME COURT OF OHIO

MONICA FLETCHER, INDIVIDUALLYAND AS ADMINISTRATRIX OF THEESTATE OF VICTOR SHAW, DECEASED

Appellee,

On Appeal from the Cuyahoga CountyCourt of Appeals,Eighth Appellate District

vs.

UNIVERSITY HOSPITALS OFCLEVELAND, ot al.,

Appellants.

Court of AppealsCase No. CA-06-088573

NOTICE OF APPEALOF APPELLANT UNIVERSITY HOSPITAIS OF CLEVELAND

Ii Kevin M. Norchi (0034695) (Counsel ofReoord)Michael L. Golding (0062587)Norchi, Barrett & Forbes LLCCommerce Park iV23240 Chagrin Boulevard, Suite 600Beachwood, Ohio 44122(216) 514-9500Fax No. (216) 514-4304ktnn®norchilaw.commgoldingQnorchilaw.com

Thomas J. Travers, Jr. (0010967)Thomas J. Travers, LLC3870 Starr Centre Drive - Suite BCanfield, Ohio 44406(330) 533-1700 .

COUNSEL FOR APPELLEE MONICAFLETCHER, INDIVIDUALLY AND ASADMINISTRATRIX OF THE ESTATE OFVICTOR SHAW

COUNSEL FOR APPELLANTUNIVERSITY HOSPITALS OF CLEVELAND

John V. Jackson, II (0025051)Sutter, O'Connell & Farchione3600 Erieview Tower1301 East Ninth StreetCleveland, Ohio 44114(216) 928-2200

R

AUG i 5 2007

CLERK OF COURTSUPRENIE COURT OF OF{IO

COUNSEL FOR APPELLANTRAYMOND ONDERS, M.D.

Notice of Appeal of Appellant Universitv Hospitals of Cleveland

Appellant University Hospitals of Cleveland hereby gives notice of appeal to the

Supreme Court of Ohio from the judgment of the Cuyahoga County Court of Appeals, Eighth

Appellate District, entered in Court of Appeals Case No. CA-06-088573 on July 2, 2007.

This case is one ofpublic or great general interest.

Respectfully submitted,

^^ ^nvrV^._ •KE IN M. RCHI (0034659) Counsel of Record)MI AEL L. GOLDING (0062587)NOkCHI, BARYtETT & FOI2BES LLCCommerce Park IV23240 Chagrin Boulevard, Suite 600Beachwood, Ohio 44122Telephone: (216) 514-9500Facsimile: (216) 514-4304E-mail: kmn@norohilaw.com

mgolding@norchilaw.coin

Counsel for AppellantUniversity Hospitals of Cleveland

2

CERTIFICATE OF SERVICE

A copy of the foregoing Notice of Appeal has been sent via regular U.S. niail, postage

prepaid, this 10 day of August, 2007 to:

Thomas J. Travers, Jr., Esq.Thomas J. Travers, LLC3870 Starr Centre Drive - Suite BCanfield, Ohio 44406

Counsel fnr AppelleeMonica Fletcher, Individuallyand as Administrator of the Estate of Victor Shaw

John V. Jackson II, Esq.Sutter, O'Connell & Farchione3600 Erieview Tower1301 East Ninth StreetCleveland, Ohio 44114

Counsel for AppellantRaymond Onders, M.D.

One of the At meys for AppeantUni ersitals of Cleveland

102,0016

-2- 3

(LJ^.^^.`. t .^^ Ap-pra1# of l04to, 7L'1#10 3t^towLi

Coun[y of CuyahogaGerald E. Fuerst, C(erk of Courts

MONICA FLETCHER; ETC.

Appellgrtt COA NO. LOW Ef2 COURT NO.88573 CP CV-587892

COMMON PLEAS COURT

UNIVI=RSITY HOSPITALS OF CLEVE., ETAL

Appellee MOTION NO. 397703

Date 07/0212007

Journal Fattty

APPELLEE'S MOTION FOF2-RECONSiDERATION IS DENIED. IN FINDING•THAT A MOTION'FORA::.

MORE DEFINITE STATEMENT SHOULD BE,FILED, WE NECESSARILY CONCLUDED THAT THE

SUF'FICIENCY OF THE COMPLAINT WAS NOT AFFECTED BY THE ABSENCE OF AN AFFIDAVIT OF

MERIT, DESPITE APPELLEE'S CONTRARYARGUMENTS. THfS IS APf I$SIJE'OFEfRST

IMP'RESSION IN THIS STATE; APAELLEE HAS NOT DEMONSTRATED THAT CASE LAW FROM

THOROUCH ANALYSFS THAN THIS COURT DIDINrTIALLY.

OTHER JURISDICTIONS INVOLVING THEIR OWN STATUTES OR COURT RULES WOULD AID OUR

REVIEW OF OHIO CIV.R.'10(D)(2). HENCE, RECONSIDERATION WOULD NOT PERMIT ANY MORE

Presidicig Judge CCILLEEN CONWAY COONEY, "Concurs.,

,Judae CHRISTINE T. MCMONAGLE. Concurs

RECEIVED FOR FILING

JUL ° 2 7.W

fiER ED^FUdFRSTCLEflK FIECOI1FtT PAPAL'AkSgy..__ cEP.

JUi 2 2007

EIGHTH AP'1'BI.LATB DISTRICT

COUNTY OP CTJYAHOGA

JOURNAL ENTRY AND OPINIONNo. 88573

MONICA FLETCHER,. ETC.

PLAINTIFF-APPELLANT

UNTVERSITY HOSPITALSOF CLEYELANH, ET AL.

DEFENDANTS-APPELLEES

JJU'DGMENTiREVER^SED AND REMANDED.

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No. CV-587892

BEFORE: Rocco, J., Cooney, P.J., MoMonagle, J.

RELEASED: June 7, 2007CAO6osssr3

JOURNAL.IZED: JUL- $*2007

10638 U0298 5

-1-

ATTORNEY FOR APPELLANP ^

Thomas J. Travers3870 Starr Centre Drive, Suite BCanfield, Ohio 44406

ATTORNEY FOR APPELLEE UNIV.EIi,SIT'Y HOSI'ZTALSOF CLEVELAND

Kevin M. NorchiNorchi & Associates, LLC23240 Chagrin Blvd., Suite 600Beachwood, Ohio 44122

EM AND JOUMAL1ZEDPER APP. R. 2*)

JUL -2 2007

BY.

ATTORNEY FOR APPELLEE RAYMOND ONDERS, M.D.

J'ohn V. Jackson IISutter, O'Conne]l, Mannion & Farchi.one Co., L.PA.3600 Erieview Tower1301 East Ninth StreetClevelan.d, Ohio 44114

E.FtlER9T7N8 CgtlRT OF ApPEAl4

MOURWi1^F̂f QgD^Cl81oNF^RAPpt

C^LIaD 26W

dUN - 7 2©0 i

FUERSTa R.Iw^^FCA06088573 45626293 atok

I InIB IIIp Ina mIl Nil 11111 oI lf vi le ueR

N.B.. ThiS' entry is an o.nnouncexnent of the court's decision. See App.R. 22(B), 22(D)and 26(A); LocApp.R. 22. This decision will be journalized and will become thejudgment and• order of the court pursaant to. App.R.. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is Sled within ten (10) days ofthe anllouncexnent of the oourt's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalizationof this court's announcementof decision by the ckerk per App.R. 22(E). See, also, S.Ct. Prae.R. TI, Section 2(A)(1).

638 80299. 6

KENNETH A. ROCCO, J::

Appellant Monica Fletcher claims the trial court erred by dismissing her

wrongful death claim for failure to attach an affidavit of merit to the complaint

as required by Civ.R.10(D)(2). We remove this case from the accelerated docket,

. sua sponte, because it presents "a unique issue of Iaw of substantial precedential

- value in 'iieteimining sunilar cases." We have found no appellate cases

construing Civ.R. 10(D)(2) or determining -the proper procedure for ensuring

compliance with it.' Thus, this appears to be an issue of 5rst impression,

Appellant filed her complaint in this case on March 29; 2006 on behalf of

herself and as administratrix of the estate of Victor Shaw, having previously .

filed and voluntarily dismissed the same claims in an action in the Mahoning

County Common Pleas Court. She alleged that defendants University Hospitals

of Cleveland and Dr. Raymond Onders provided negligent medical care to Victor

Shaw, and sought damages for both medical malpractice and wrongful death.

Appellee University Hospitals filed a motion to dismiss the complaint for

failure to state a claim because appellant failed. to attach to the compl:aint an

'The lack of authority on these poiuits should not be surpris'vag: Civ.R. 10(D)(2)became effeetive July 1, 2005, so there has been little opportunity for.appeIlate review:..of this issixe. .

40638 110300 7

-2-

affidavit of inerit, as required by Civ.R. 10(D)(2). Appellant responded to this

motion. The court subsequently'dismissed the case, with prejudice.

Civ.R. 10(D)(2), effective July 1, 2005, provides, in pertinent part:

(a) Except as provided in division (D)(2)(b) of this rule, acomplaint that contains a medical claim * * * as defined in section2305.113 of the Revised Code, shaT! include an a^'idavit of meritrelative to each defendant named in the complaint for whom .experttestimony is necessary to establish liability. The affidavit of meritshaIl be provided by an expert witness ***'^ [and] shall include allof the following:

(i) A statement that the. affiant, has reviewed all medicalrecords reasonably available to the plaintiff concexning- theallegations contained in the complaint;

•(ii) A statement that the afffant is famil.iar with the applicablestandard of care;.

(iii) The opinion of the affiant that the.standard of care wasbreached by one or more of the defendants to the action and that thebreach caused injury to the plaintiff.

(b) The plaintiff may file a motion to extend the period of timeto file an affidavit of merit. The motion shall be filed by the plaintiffwith the complaint. For good cause shown, the couA shall grant theplaintiff a reasonable period of time to fi1e an affidavit of inerit.

(c) An affidavit of inerit is required solely to establish theadequacy of the complaint and shall not otherwise be admissible asevidence or used for purposes of impeachment.

Appellant did not request an extension of time to ffle an affidavit of merit.

Rather, she argued that no affidavit was required. Therefore, subsection

(D)(2)(b) is inapplicable.

9638. Mal

-3_

Appellant argues that. a wrongful death action is not a"niedical claim."

Civ.R. 10(D)(2) specifically refers to a medical claim "as defined by section

2305.113 of the Revised Code," Therefore, we must look to this statute for

guidance as to the meaning of this term.

R.C. 2305.113(E)(3) defiines a inedical claim a.s follows:

(3) "Medieal elaim" means any claim that is assertedin anycivil action against a physician, -podiatrist, hospital, home, ^ orresidential faeility, against any employeeor agent of a physician,podiatrist, hospital, home, or residential facility, or against alicensed practical nurse, registered nurse, advanced practice nurse,physical therapist, physician assistant, emergency medicaltechnician-basic, emergency medical technician-intermediate, oremergency medical technician-paramedie, andthat arises out of the. medical diagnosis, care, or treatment of any person. "1VIedical claim"includes the following:

(a) Derivative claims for relief that arise from the medicaldiagnosis, care, or treatment of a person;

(b) Claims that arise out of the medical diagnosis, care, ortreatment of anyperson andto which either. of the following applies:

(i) The claim, results from acts or oniissions in providingmedical care.

(ii) The claim results from• the hiring, training, supervision,retention, or termination of caregivers providing medical diagnosis,care, or treatment.

(e) Claims that arise out of the. medical diagnosis, care, ortreatment of any person and that are brought under section 3721.17of the Revised Code. •

638. B03fl2

-4-

The wrongfixt death claim asserted by appellant was a medical claim as

defined by R.C. 2305. ],18. It was a claim against a physician and a hospital that

arose out of the medical diagnosis, care or treatment of the decedent, and the

claim resulted from alleged acts or omissions in providing medical care. We are

well aware that R.C. 2305.113 does not supply the statute of limitations for a

wrongful death claim. See Koler v. St. Joseph Hosp. (1982), 69 Ohio St.2d 477;

Evans v. Southern Ohio Med. Center (1995), 103 Ohio App.3d 250; Brosse v.

Cumming (1984), 20 Ohio App:3d 224. However, that fact does not preclude a

olaim for wrongful death from being a "medical claim". as defined in R.C.

2305.113. The coinmon pleas court in this case correctly determined that

appellant's compla.int presented a medical claim as to which she was required

to supply an affidavit of merit pursuant toCiv.R. 10(II)(2), and that appellant

failed toinclude an affidavit with her complaint. l.'ursuant to CivR: 10(D)(2)(c),

the afS.davit is required to "establish the adequacy of the eomplaint: '

It does not follow, however, that a complaint which does not contain an

affidavit of merit fails to state a claim, and is therefore subject to dismissal. A

well-developed body of law establis4es the remedy for the related situation in

which a party fails to attaeh a written instrument to a pleading which includes.

a clsim or defense founded on it, as required by Civ.R. 10(D)(1). fihe proper

procedure in attacking the failure of a plaintiff to attach a copy of a written..

6.38 60303 . .. 10.

-s-

instzument *** ie to serve a motion for a definite statement pursuant to Civ.R.

12(E):' Point Rental Co. v. Posani (1976), 52 Ohio App.2d 183, 186; see also

Natl. Cheek Bureau v. Buerger, Lorain App. No. 06CA008882; 2006-Ohio-6673,

y 14; Lorain Music Co a. Eidt, CrawfordApp. No. 3-2000-17, 2000-Ohio=1799 and

cases cited'therein. We can conceive of no reason why.the procedure for

challenging a failure to comply with Civ.R. 10(D)(1) should not also apply to

CivR.10(D)(2); indeed, the very fact that they are grouped together implies that

they should be treated alike. Both sections promote the same purpose: Even

though Ohio .is a notice pleading' state, our public policy requires parties

asserting these special kinds of claims to provide some minimal evidence to

support them before the opposing party will be required to respond. Therefore,

we hold that the proper remedy for failure to attach the required affidavit(s) is

for the dofendant to request a more definite statement.. If the plaintiff fails to

comply with an order to provide a more definite statement, "the court may strike

the pleadin.g to which the motion was directed, or make any other orders. as it

deems just, which would include involuntary dismissal with prejudice pursuant

to Civ. R. 41(B)(1)." Point Rental, 52 Ohio App.2d at 186.

A defend&nt who fa i.ls to file a motion for a more definite statement before

filing his answer has been held to have waived the right to assert the plaintiffs

failure to attach. a copy of a written instrument as a basis for dismissing the

'VA638 60304

-6-

complaint. See Castle Hill Holdings, LLC v. Al Hut, Inc., Cuyahoga App. No.

86442, 2006-Ohio-1353, g29. Furthermore, Civ.R. 12(G) requires a partyto join

all available motions, so the filing of a motion to dismiss for failure to state a

claim wiIl generally waive the right to assert that a more definite statement is

. required. However,'in light of the faet that the procedure for enforcing Civ.R..

. J.0(D)(2) was not settled at the time the motion to dismiss was filed, defendants-

appellees may request leave to,amend their motion to seek a..more definite

statement.

We hold that the court erred by dismissing the complaint for failura to

state a claim. We reverse and remand with instructions for further proceedings

consistent with this opinion.

Reversed and remanded..

It is ordered that appellant recover fromappellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

0638 IM0305 ^ . 12

-^-

A certified copq of this entry shall constitute the-mandate pursuant to •

Rule 27 of the Rules of Appellate Procedure.

KENNETH A. ROCCO, JI3DGP,

COLLEEN CONWAY COONEY, P.J., anctCHRISTINE T. MeMONAGLE, J., CONCUR.

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Slip CopySlip Copy, 2006 WL 3813560 (W.D.Wash.)(Cite as: Slip Copy)

Abear v. TevefietW.D.Wash.,2006.Only the Westlaw citation is currently available.

United States District Court, W.D, Washington,at Tacoma.

Debra ABEAR, Personal Representative of the Estateof Jason Raffeson, Plaintiffs,

V.Craig TEVELIET, individually; Family Practice

Center Of Gmys Harbor, P.C., a Washingtonprofessional service corporation; et.al., Defendants.

No. C06-5550 RBL.

Dec. 21, 2006.

Patrick J. Kang, Premier Law Group, Seattle, WA,for Plaintiffs.Marina Lamps Alvarez, Thomas Howard ain. FainSheldon Anderson & Vanderhoef, Alfred E.Donohue, John D. Wilson. Jr.. Wilson Smith Cochran& Dickerson, Bradley S. Keller. Steven C. Minson,Bymes & Keller, Seattle, WA, for Defendants.

ORDER ON REMAND AND MOTION TODISMISS FOR FAILURE TO FILE A

CERTIFICATE OF MERTT

RONALD B. LEIGHTON. United States DistrictJudge.

*1 This matter is before the court on thePlaintiffs' Motion to Remand this case to state court.[Dkt. #20] Also pending is the Defendants Teveliet'sand Family Practice Center of Grays Harbor's Motionto Disntiss Plaintiffs claims against them for failingto file a "certificate of inerit" as required under RCW7.70.150(1). [Dkt. # 171. The Motion to Dismiss wasfiled earlier in time, but this Coutt must firstdetermine whether it has diversity jurisdiction overthe case. At issue in the Motion to Remand is thevalidity of Plaintiffs clairos against Teveliet's andFamily Practice Center of Grays Harbor, given thepassage of time between the events at issue and thedate of filing the subject case.

The case has a long and unusual proceduralhistory. Plaintiffs initial complaint waa filed in this

Page 1

court two days prior to the expiration of the threeyear limitations period for her claims, on April 19,2006. At that time, RCW 7.70.150(1) was not ineffect. The defendants moved to dismiss that casebased on the obvious lack of diversity among theparties. Rather than go to state court, plaintiff soughtto add a trademark claim under the Lanham Act,apparently to create federal question jurisdiction. TheDefendants sought to dismiss that claim on July 16,2006.

In the meantime, RCW 7.70.150(1) had beenpassed in June of this year. It requires a plaintiff in amedical malpractice case to file a"certifrcate ofmerit" at the time the complaint is filed. For thosefiling at the end of the iimitations period (within 45days of the period's expiration), the statute pernrits anadditional 45 days from the date of filing to file acertificate of merit. The obvious purpose of thisprovision is to pemuit one in danger of having herclaims expire to promptly file the complaint and then,witbin 45 days, to supplement her filing with therequired certificate of merit.

On August 24, 2006, four days befbre theDistrict Court dismissed plaintiffs complaint, shefiled a similar complaint (identical in all respectsother than the Lanham Act claim) in state court. Shedid not file, and to date has not filed, a certificate ofmerit. On August 28, the District Court dismissedplaintiffs initial complaint. The "Purdue Phamia"defendants then removed the state court action to thiscourt, alleging that there was diversity jurisdictionbecause thc "in state" Defendants (Teveliet andFamily Practice Center of Grays Harbor) werefraudulently joined because the claims against themwere time barred. It also removed on the ground thatthe plaintiffs claims did in fact raise a federalquestion.M

F'NI. This basis has apparently beenabandoned, at least for purposes of thepending motions.

Plaintiffs seek remand of the matter, arguing thatDefendants Teveliet and Family Practice Center ofGrays Harbor were not fraudulently joined, and thatthere fs no federal question basis for jurisdiction.

150 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Slip CopySlip Copy, 2006 WL 3813560 (W.D.Wash.)(Cite as: Slip Copy)

1. Remand/Jurisdiction

The PlaintifPs Motion to Remand is based on hercontention that Defendants Teveliet and FamilyPractice Center v)ere not fraudulently joined, and thattheir presence in the case destroys diversity . Sheemphasizes the fatniliar ndes regarding this couresremoval jurisdiction: Under Conrad Associates v.Hartford Accident' & Indemnjtv Co.. 994 F.Suno.1196 (N.D.Ca1:1998) and numerous other authorities,the party asserting fefleral jurisdiction has the burdenof proof on a motion to remand to state court. Theremoval statute is strietly construed against removaljurisdiction. The simng presumption against removaljurisdiction means that the defendant always has theburden of establishing if iomoval is proper. Conm994 F.Supp. at 1198. It is obligated to do so by apreponderance of the evidence. Id at 1199; see alsoGaus v. Miles. 980 F.2d 564. 567 (9th Cir 1992).Federal jurisdiction must be rejected if there is anydoubt as to the right of removal in the first instance.Id. at 566.

*2 The defendants counter that they havedemonstrated that the in state or resident defendants,Teveliet and Family Practice Center, are shamdefendants, joined fraudulently within the meaning of28 U.S.C. § 144(b). It is commonplace thatfraudulently joined defendants will not defeatremoval on diversity grounds, Emriche v.. ToucheRoss & Co.. 846 F .2d 1190 1193 (9th Cir.1988). But,"[f]raudulent joinder is a term of art. If the plaintifffails to state a cause of action against a residentdefendant, and the failure is obvious according to thesettled rules of the state, the joinder of the residentdefendant is fiaudulent."McCabe v. General FoodsCorD.. 811 F.2d 1336, 1389 (9th Cir.1887); see alsoRiteev v Upjohn Drug Co 139 F 35t 1313 {9^Cir.199 .

Defendants here argue that the claims againstDefendants Teveliet and Family Practice Center areobviously time barred, as this action was comrnencedmore than three years after the events giving rise tothis action. Thus, they claim, under well-settledWashington law, the tbree year limitations period hadexpired and the joinder of the resident defendants isinsufficient to defeat diversity.

Plaintiff argues that the prior filing against these

Page 2

same defendants was timely, and therefore thelimitations period was tolled under state and federallaw. She relies primarily on state law, citing RCW4.170. This statute says literally nothing about theeffect of a timely, earlier filing on the lirnitationsperiod applied to a second action regarding the samesubject matter. Instead, as the Defendants point out,this issue has been settled against the Plaintiffsposition in DQ^11 Co. v. Gaenon. 36 Wn.App. 775.677 P.2d 783 (1984):

The complaint in the latter action (the one beforethe court) was not filed within the statutory periodand is barred unless a tolling statute controls. There isnothing in either of these statutes fRCW 4.16.170 and.180] or in the common law permitting a cause ofaction to remain in existence virtually in perpetuityby filing and forgetting a complaint. The purpose ofthe statute of limitations is to force cases to trialwhile witnesses are still available and memories arestill clear. That purpose would be effectivelythwarted if the frling of a complaint in the samevenue but under a different filing number 10 yearsbefore tolled the statute.

In her Reply, Plaintiff argues that under 28U.S.C. § 1367(d), the limitations period on her claimsagainst the resident defendants was tolled during thependency of the original suit and for 30 daysfollowing the District Coures dismissal of thecomplaint asserting those claims. Defendants arguethat Judge Burgess never exercised supplementaljurisdiction over the Plaintiffs state law claims andthat 1367(d) therefore does not apply to extend tltelimitations period for 30 days following the court'sdismissal of Plaintiffs first complaint. (It should benoted that if the 30-day extension applies, the secondaction is. timely). This case does not present thetypical & 1367(11) sitaation. Neverthelesa, thejustification for tolling the litnitations period on statelaw claims when a plaintiffs claimed basis for federaljurisdiction is deemed incorrect applies with equalforce here. The limitations period on the state lawclaims was tolled for 30 days following the earlierdismissal, under 1 367(d) .

*3 This does not fully resolve the instant motion,however, because there is another fatal flaw in thePlaintiffs state law claims against the residentdePendauts.

2. Plaintiffs Failure to File the Required Certificate

16® 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Slip CopySlip Copy, 2006 WL 3813560 (W.D.Wash.)(Cite as: Slip Copy)

of Merit.

There is an altemate basis for concluding that theclaims against the resident defendants are faciallyflawed and are therefore not sufficient to defeatdiversity. TeveGet and pamily Practice Center seek todismiss the claim for failure to file the requiredcertificate of merit. Plaintiff argues that RCW7.70.150(1) requires such a filing only when thecomplaint is conunenced prior to the expiration of thelimitations period. She apparently argues that thestatate has no application where, as here, the periodhas lapsed but was arguably U" tolled due to someother, timely complaint.

FN2. As is discussed above, Plaintiffscitation to and quotation of RCW 4.16.070does not address this issue in any respect.

There is literally no legal or logical support forthis position. At the time the complaint in this casewas filed, RCW 7.70.150(1) was in effect. Thelimitations period on the claims was either expired ortolled, and even the most generous reading on thestatute.would require phtintiff to file a certificate ofmerit within 45 days of her complaint. It has been farlonger than that, and no certificate has been filed.

Plaintiff now seeks a 90-day extension of thotime for filing, claiming without demonstrating that"good cause" exists. The Court does not agree.Plaintiffs Motion to Remand is DENIED becauseher claims against the resident defendants are fatallyflawed and their presence in the case does not defeatdiversity.

The Defendants' Motion to Dismiss based on thePlaintiffs failure to file the required certificate ofmerit is GRANTED.Plaintiffs claims. againstDefendants Teveliet and Family Practice Center areDISMISSED.

W.D.Wash.,2006.Abear v. TevelietSlip Copy, 2006 WL 3813560 (W.D.Wash.)

END OF DOCUMENT

® 2008 Thomson/West, No Claim to Orig. U.S. Govt. Works.

Page 3

17

Not Reported in N.W.2dNot Reported in N.W.2d, 2007 WL 601593 (Mich,App.)(Cite as: Not Reported in N.W.2d)

Ahonen v. Garden City Hosp.Mich.App.,2007.Only the Westlaw citation is currently available,

UNPUBLISHED OPfiIION. CHECK COURTRULES BEFORE CITING.

Court of Appeals of Michigan.Peggy AI3ONEN, Plaintiff-Appellant,

V.GARDEN CITY HOSPTTAL, Med Stop Ciinic,

Botsford Hospital, Dr. Richardson, D.O., Dr.Kleiman, D.O., Gerald F. Robbins, D.O., AnnePawlaksimpson, D.O., Michigan Institate for

Neurological Disorders, Detroit Institute Of PhysicalMedicine & Rehabilitation, And Dr. Steven Edward

Newman, Defendants-Appellees,andDr. Gibson and Medicolegal Services, lnc.,

Defendants.Docket No. 264072.

Feb.27,2007.

Wayne Circuit Court; LC No. 05-501203-NH.

Before: OWENS, P:J., and NHFF and WHTCE, JJ.

PER CURIAM.*1 Plaintiff appeals as of right, challenging

several opinions and orders granting summarydisposition in favor of defendants pursuant to MCR2.116jC1(7) and (8). We affirm.

Plaintiff filed this medical malpractice action inJanuary 2005, based on treatment she received fromdefendants in 1992 and 1993. The circuit courtdeterntined that plaintiffs claims were banrd by thestatute of limitations, MCL 600.5805(6) and IvICL600.5838a(2) , and that disnussal of plaintiffscomplaint was also warranted because plaintiff failedto comply with the notice-of-intent requirement ofMCL 600.2912b(J.) and the affldavit-of ineritrequirement of MCL 600.2 12d(1). T'he circuit courtadditionally determined that plaintiff failed to state aclaim on which relief could be granted with respect todefendants Dr. Gerald F. Robbins and Medicolegal

Page 1

Services, Inc.

We need not address all of the court'sdetetminations because it is clear that plaintiff failedto comply with the statutory requirements forcommencing medical malpractice actions. Plaintifffailed to provide notice of her intent to file suit moreahan 182 days before shc filed her complaint, ivLCl.600.2912b(1), and failed to file an affidavit of ineritsigned by a qualified health professional, MCL600.2912d(L). Although plaintiff has questionedwhether these provisions apply under thecircumstance that her claims arose before October 1,1993, the statutes involved do, in fact, apply. Whilethe 1993 act provides that certain provisions applyonly to causes of action arising on or after October 1,1993, 1993 PA 78 expressly provides in § 4(4) thatseotion 2912b applies to cases filed on or afterOctober 1, 1993, and in § 4(3) that § 2912d does notapply to cases filed before October 1, 1993. Becauseplaintiff filed this action in January 2005, theprovisions apply. The requirements are tnaadatory,and the circuit court was obliged to dismiss on thisbasis. The dismissal with prejudice was properbecause even if all plaintiffs arguments with respectto the statute of limitations are accepted, thecomplaint actually filed in January 2005 did not tollthe statute because it did not comply with therequirements for filing a complaint, and plaintiffsclaim would have been time-barred in the interim,

Affirmed.

Mich.App.,2007.Ahonen v. Garden City Hosp.Not Reported in N.W.2d, 2007 WL 601593(Mich.App.)

END OF DOCUMENT

0 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 18

Not Reported in F.Supp.2dNot Reported in F.Supp.2d, 2006 WL 2228829 (D.Ariz.)(Cite as: Not Reported in F.Supp.2d)

Byrd v. Aetna Life Ins. Co.D.Ariz.,2006.Only the Westlaw citation is cun-ently available.

United States District Court,D. Arizona.Vicld Jean BYRD, Plaintiff,

v.AETNA LIFE INSURANCE COMPANY, et al.,

Defendants.No. CV-05-2469-PHX-SMM.'

Aug. 1, 2006.

Vicki Jean Byrd, Scottsdale, AZ, pro se.Frederick M. Cummines, Jennings Strouss & SalmonPLC, Phoenix, AZ, for Defendants.

MEMORANDUM OF DECISION AND ORDER

STEPHEN M. McNAMEE, District Judge.*1 Pending before the Court are Plaintiffs

Motion to Amend her Complaint [Doe. No. 42],Plaintiffs Motion to Remand this matter to state court[Doe. No. 46], and Defendants' Motion to Dismiss[Doe. No. 50].

BACKGROUND

On April 1, 2005, Plaintiff, appearing pro se,filed a Complaint in Maricopa County Superior Courtagainst St. Joseph's Hospital, Catholic HealthcareWest ("CHW"), unnamed doctors and staff, BarrowsNeurological Institute ("Barrows"), Aetna LifeInsurance Company ("Aetna"), and Aetna's staff andnurses. In her Complaint, Plaintiff alleges medicalmalpractice by all Defendants regarding their careandlor treatment of her late husband. Aetna removedthe case to this Court on August 15, 2005. [Doc. Nos.1, 2] Plaintiff moved to remand the case to SuperiorCourt on August 23, 2005, but withdrew the Motionon September 19, 2005. [Dcc. Nos. 10, 19] Thismatter was previously assigned to the HonorableDavid G. Campbell, and was subsequently assignedto the Honorable Earl H. Carroll. [Doc. Nos. 31, 35]Judge Carroll recused himself from this case onJanuary 26, 2006, when this case was assigned to thisCourt. [Doc. No. 35]

Page 1

On February 6, 2006, the Court conducted a Rule16 prelinunary pretrial conference. [Doc. No. 37]Plaintiff appeared on her own behalf, and counsel forAetna and counsel for Defendants St. Joseph'sHospital, Barrows, and CHW also appeared. [Id.] Inan Order dated Febmary 7, 2006, the Court orderedPlaintiff to file the expert opinion affidavit requiredin medical malpractice cases by the applicableArizona Revised Statutes by June 2, 2006. [Doc. No.38] The Court noted that if Plaintiff failed to submitthe requisite report, motions to dismiss would beentertained. [Id.] To date, Plaintiff bas filed no suchreport. Rather, Plaintiff has filed the inatant Motionto Amead her Complaint and the instant Motion toRemand to Superior Court. [Doc. Nos. 42, 46] Aetnawas voluntarily dismissed from this action on May23, 2006. [Doe. No. 45] In an Order dated May 26,2006, the Court reminded Plaintiff of her burden tofutnish the affidavit required by Arizona law, [Doe.No. 47] The Court also deferred its ruling onPlaintiffs Motions until after the June 2, 2006deadline had passed. [Id.]

On June 14, 2006, the remaining Defendantsfiled a Motion to Dismiss due to Plaintiffs failure tothe required expert opinion affidavit. [Doe. No. 50]The Court issued an Order on June 26, 2006,allowing Plaintiff ten days to file a Response to theMotion. [Doe. No. 51 ] Plaintiff filed her Responseon July 3, 2006 [Doc. No. 52], and Defendantsreplied on July 10, 2006. [Doc. No. 53] The fhreepending motions have been fully briefed and are nowripe for consideration by the Court.

DISCUSSION

A. PlaintifPs Motion to Remand

Plaintiff moves to remand this matter to statecourt because the defendant who removed the case tothis Court on federal law grounds, Aetna, has beendismissed from this action. Plaintiff argues thatfederal jurisdiction no longer exists because thefederal question basis for subject matter jurisdiction,ERISA, disappeared when Aetna was dismissed fromthis case. Defendants counter that the Court may

® 2008 ThomsotilWest. No. Claim to Orig. U.S. Govt. Works. 19

Not Reported in F. Supp.2dNot Reported in F.Supp.2d, 2006 WL 2228829 (D.Ariz.)(Cite as: Not Reported in F.Supp.2d)

exercise its pendent jurisdiction over Plaintiffs statelaw claims pursuant to 28 U.S.C. & 1367.

*2 Plaintiffs Complaint asserts state laiv medicalmalpractice claims, and some of Plaintiffs claims, asthey related to Aetna, sounded in ERISA. Under 28U.S.C. & 1367, a federal district court may exercisesupplemental, or pendent, jurisdiction over state lawclaims "when the federal claim is sufficientlysubstantial to confer federal jurisdiction, and there isa common nucleus of operative fact between the stateand federal claims:'Brady v , Browp. 51 F.3d 810.816 (9th Cir. 1995) (quoting Gilder v. PGA Tonr. Inc..936 F.2a 417. 42i (9th Cir.1991) ) (internal quotationmarks omitted). Here, the ERISA claim wassubstantial enough to confer jurisdietion in thisCourt, and PlaintifPs claims arise from the same coreof facts, which concern the care of her late husbandby all the defendants listed in the Complaint. Thus,the Court concludes that the Court may exercisesupplemental jurisdiction in this case.

28 U.S.C. 1367(c), however, provides that adistrict court may decline to exercise supplementaljurisdiction when the claims over which the court hadoriginal jurisdiction have been dismissed. Thelanguage of 1367(c)367(c) is discretionary, though, andthe Ninth Circuit has clearly held that a federaldistrict court "may retain jurisdiction even if thefederal claims over which it had original jurisdictionare dismissed."Bradv. 51 F.3d at 816. The Courtloses subject matter jurisdiction only when thefederal claim was "absolutely devoid of merit orobviously frivolous."Gilder. 936 F.2d at 421. Here,the claims sounding in ERISA were not devoid ofmerit or obviously frivolous. Thus, it is within theCourt's discretion whether to remand the remainingstate law claims, and the Court considers such factorsas judicial economy, convenience, faintess, andcomity in making its determination.Bra y 51 F.3d at$16. The Court now considers those factors indeciding whether to remand this case.

At the outset, the Court notes that this case hasbeen pending since April 2005 and in federal courtsince August 2005. In February 2006, the Court helda thorough preliminary pretrial conference hearing.[Doc. No. 37] After carefully listening to all parties atthe hearing, the Court allowed Plaintiff until June 2,2006 to comply with Arizona law in bringing hermedical malpractice clafms. [Id., Doc. No. 38] Thus,

Page 2

the Court is quite familiar with the facts of this caseand the legal issues involved. The "commonsensepohcy of pendent jurisdiction" is "the conservation ofjudicial energy and the avoidance of multiplicity oflitigation."Rosado v. iF+lman 397 U.S. 397. 405(19701; see also Imarineering. Inc. v. Kiewit Pac.Co. 976 E2d 1303. 1399 (9th Cir.1992) (noting thatthe Ninth Circuit frequently upholds "decisions toretain pendent claims on the basis that returtting themto state couR would be a waste of judicialresources"). The Court therefore conaludes thatjudicial economy, convenience, and faimess areserved by exercising supplemental jurisdiction andretaining this case.

*3 Thus, this Court's original jurisdiction overthe ERISA claim gives it the power to exercisesupplemental jurisdiction over Plaintiffs state-lawclaims under 28 U.S.C. 1367(a).See Sea-Land Serv..Inc, v. Lozen Int'1. LLC. 285 F.3d 808. 818 (9thCir.2002). The Court, in the interest of judicial.economy, convenience, and faimess, will exercisesupplemental.jurisdiction over the remaining statelaw alaims in this matter. Plaintiffs Motion toRenaand will accordingly be denied.

B. Defendants' 141otion to Dismiss

I Defendants move to dismiss this case fnrPlaintiffs failure to file the expert opinion affidavitrequired for this medical malpractice action. Inresponse to Defendants' Motion, Plaintiff asserts thatstate court is the proper jurisdiction for this case[Doc. No. 52] and, in another filing with the Court,Plaintiff details her efforts to, retain an expert [Doc.No. 49]. Plaintiff states in her filing that one expert"would be a terrible witness" and another "was notinterested" in her case. [Id. ]

Section 12-2602(F) of the Arizona RevisedStatutes provides that the court "shall dismiss theclaim against the licensed professional [thedefendant] without prejudice if the claim fails to fileand serve a preliminary expert opinion affidavit afterthe claimant [] has certified that an affidavit isnecessary or the court has ordered the claim to fileand serve an affidavit" ARIZ.REV.STAT. $ 12-2602 F(eniphasis added). As noted above, Plaintiffhas not futnished an expert affidavit as required byA.R.S. & 12-2602. The Court, pursuant to A.R.S. 512-2602fF), must dismiss this action without

200 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Not Reported in F.Supp.2dNot Reported in F.Supp.2d, 2006 WL 2228829 (D.Ariz.)(Cite as: Not Reported in F.Supp.2d)

prejudice due to PlaintifPs failure to comply with theexpert affidavit requirement. Consequently, the Courtwill grant Defendants' Motion to Dismiss,

C. Plaintiff's Motion to Amend

Plaintiff also moves to amend her Complaint toname the physicians and hospital staff by name.However, because the Court has concluded that thiscase shall be dismissed, the Motion to Amend will bedenied as moot.

CONCLUSION

Accordingly,

. 1T IS ORDERED that Defendants' Motion toDismiss [Doc. No. 501 is GRANTED. This matter ishereby DISMISSED WPTHOUT PREJUDICE.

IT IS FURTHER ORDERED that PlaintiffsMotion to Remand (Doc. No. 46] is DENIED.

IT IS FURTHER ORDERED that PlaintiffsMotion to Amend [Doc. No. 42] is DENIED ASMOOT.

IT IS FURTHER ORDERED that the Clork ofCourt shall enter judgment accordingly.

D.Ariz.,2006.Byrd v. Aetna Life Ins. Co.Not Reported in F.Supp.2d, 2006 WL 2228829(D.Ariz.)

END OF DOCUMENT

0 2008 Thornson/West. No Claim to Orig. U.S. Govt. Works.

Page 3

21

2305.113 Medical malpractice actions.

(A) Except as otherwise provlded in this section, an action upon a medical, dental, optometric, or chiropractic claimshall be commenced within one year after the cause of action accrued.

(B)(1) If prior to the expiratioh of the one-year period specified in division (A) of this section, a claimant whoallegedly possesses a medical, dental, optometrEc, or chiropractic claim gives to the person who is the subject ofthat claim written notice that the claimant is considering bring[ng an action upon that claim, that action may becommenced against the person notified at any timewithln one hundred eighty days after the notice is so given.

(2) An insurance company shall not consider the existence or nonexistence of a written notice described in division(B)(1) of this section in setting the liability insurance premium rates that the company may charge the company'sinsured person who is notified by that written notice.

(C) Except as to persons within the age of minority or of unsound mind as provided by section 2305.16 of theRevised Code, and except as provided in division (D) of this section, both of the following apply:

(1) No action upon a medical, dental, optometric, or chiropractic cialrp shall be commenced more than four yearsafter the occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, orchiropractic claim.

(2) If an action upon a medical, dental, optometric, or chiropractic claim is not commenced within four years afterthe occurrence of the act or omission constituting the alleged basis of the medical, dental, optometric, orchiropractic claim, then, any actiohupon that claim Is barred.

(D)(1) If a person making a medical claim, dental claim, optometric claim, or chiropractic claim, in the exercise ofreasonable care and diligence, could not have discovered the injury resulting from the act or omission constitutingthe alleged basis of the claim within three years after the occurrence of the act or omission, but, in the exercise ofreasonable care and diligence, discovers the injury resulting from that act or omission before the expiration of thefour-year period specified in division (C)(1) of this sectlon, the person may commence an action upon the claim notlater than one year after the person discovers the injury resulting from that act or omission.

(2) If the alleged basis of a medical claim, dental claim, optometric claim, or chiropractic daim Is the occurrence ofan act or omission that involves a foreign object that is left in the body of the person making the claim, the personmay commence an action upon the claim not later than one year after the person discovered the foreign object ornot later than one year after the person, with reasonable care and diligence, should have discovered the foreignobject.

(3) A person who commences an action upon a medical claim, dental claim, optometric claim, or chiropractic cialmunder the circumstances described in division (D)(1) or (2) of this section has the affirmatlve burden of proving, bydear and convincing evfdence, that the person, with reasonable care and diligence, could not have discovered theInjury resulting from the act or omission constituting the alleged basis of the claim within the three-year perioddescribed In division (D)(1) of this section or within the one-year period described In division (D)(2) of this section,whichever Is appllcable.

(E) As used in this section;

(1) "Hospltal" Includes any person, corporation, association, board, or authority that is responsible for theoperation of any hospital licensed or,registered In the state, inciuding, but not limited to, those that are owned oroperated by the state, political subdivisions, any person, any corporation, or any combinatlon of the state, politicalsubdivisions, persons, and corporations. "Hospital" also includes any person, corporation, assdclation, board,entity, or authority that Is responsible for the operation of any clinic that employs a full-time staff of physicianspractlcing in more than one recognized medical specialty and rendering advice, diagnosis, care, and treatment toindividuals. "Hospital" does not include any hospital operated by the government of the United States or any of itsbranches.

(2) "Physlcian" means a person who is licensed to practice medicine and surgery or osteopathic medlcine and22

surgery by the state medical board or a person who otherwise Is authorized to practice medicine and surgery orosteopathic medicine and surgery in this state.

(3) "Medical claim" means any claim that is asserted in any civil actlon against a physician, pod[atrist, hospital,home, or residential facility, against any employee or agent of a physician, podiatrist, hospital, home, or residentialfacility, or against a licensed practfcal nurse, registered nurse, edvanced practice nurse, physical therapist,physician assistant, emergency medical technician-basic, emergency medical technician-intermediate, oremergency medical technician-paramedic, and that arises out of the medical diagnosis, care, or treatment of anyperson. "Medical claim" includes the following:

(a) Derivative ciaims for relief that arise from the medical diagnosis, care, or treatment of a person;

(b) Claims that arise out of the medicafdiagnosis, care, or treatment of any person and to which either of thefoflowing applies:

(i) The ciaim results from acts or omissions in providing medical care.

(Ii) The claim results from the hiring, training, supervision, retention, or termination of caregivers providing medicaldiagnosis, care, or treatment.

(c) Claims that arise out of the medical diagnosis, care, or treatment of any person and that are brought undersection 3721.17 of the Revised Code.

(4) "Podiatrist" means any person who is licensed to practice podiatric medicine and surgery by the state medicalboard.

(5) "Dentist" means any person who is licensed to practice dentistry by the state dental board.

(6) "Dental ciaim" means any claim that is asserted in any civil action against a dentist, or against any employeeor agent of a dentist, and that arises out of a dental operation or the dental diagnosis, care, or treatment of anyperson. "Dental claim" includes derivative claims for relief that arise from a dental operation or the dentaldlagnosis, care, or treatment of a person.

(7) "Derivative claims for reiief" Include, but are not limited to, claims of a parent, guardian, custodlan, or spouseof an individuai who was the subject of any medical diagnosis, care, or treatment, dental diagnosis, care, ortreatment, dental operation, optometric diagnosis, care, or treatment, or chiropractic diagnosis, care, or treatment,that arise from that diagnosis, care, treatment, or operation, and that seek the recovery of damages for any of thefollowing:

(a) Loss of society, consort€um, companionship, care, assistance, attention, protection, advice, guidance, counsel,Instruction, training, or education, or any other Intangible loss that was sustained by the parent, guardian,custodian,or spouse;

(b) Expenditures of the parent, guardian, custodian, or spouse for medical, dental, optometric, or chiropractic careor treatment, for rehabiiitation services, or for other care, treatment, services, products, or accommodationsprovided to the Individual who was the subject of the medical diagnosis, care, or treatment, the dental diagnosis,care, or treatment, the dental operation, the optometric diagnosis, care, or treatment, or the chiropracticdiagnosis, care, or treatment.

(8) "Registered nurse" means any person who is licensed to practice nursing as a registered nurse by the board ofnursing.

(9) "Chiropractic claim" means any claim that Is asserted in any civil action against a chiropractor, or against anyemployee or agent of a chiropractor, and that arises out of the chiropractic diagnosis, care, or treatment of anyperson. "Chiropractic claim" includes derivative claims for relief that arise from the chiropractic diagnosis, care, ortreatment of a person.

(10) "Chiropractor" means any person who is licensed to practice chiropractic by the state chiropractic board.

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(11) "Optometric claim" means any claim that is asserted in any civil action against an optometrist, or against anyemployee or agent of an optometrist, and that arises out of the optometric diagnosis, care, or treatment of anyperson. "Optometric claim" includes derivative claims for relief that arise from the optometric diagnosis, care, ortreatment of a person.

(12) "Optometrist" means any person licensed to practice optometry by the state board of optometry.

(13) "Physical therapist" means any person who is licensed to practice physical therapy under Chapter 4755. of theRevised Code,

(14) "Home" has the same meaning as In sectlon 3721.10 of the Revised Code.

(15) "Residential facility" means a facltlty licensed under section 5123.19 of the Revised Code.

(16) "Advanced practice nurse" means any certified'nurse practitioner, clinical nurse specialist, certified registerednurse anesthetist, or certified nurse-midwife who holds a certificate of authority issued by the board of nursingunder Chapter 4723. of the Revised Code.

(17) "Licensed practical nurse" means any person who Is licensed to practice nursing as a licensed practical nurseby the board of nursing pursuant to Chapter 4723, of the Revised Code.

(18) "Physician assistant" means any person who holds a vaiid certificate to practice issued pursuant to Chapter4730. of the Revised Code.

(19) "Emergency medical technician-baslc," "emergency medical technician-lntermediate," and "emergencymedical technician-paramedic" means any person who is certifled under Chapter 4765. of the Revised Code as anemergency med[cal technician-basic, emergency medical technician-intermediate, or emergency medicaltechnician-paramedic, whichever Is applicable.

Effective Date: 04-11-2003; 04-07-2005; A5-17-2006

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RULE 10. Form of Pleadings

(A) Caption; names of parties. Every pleading shall contain a caption setting forththe name of the oourt, the title of the action, the case number, and a designation as in Rule 7(A).In the complaint the title of the action sball include the names and addresses of all the parties, butin other pleadings it is sufficient to state the name of the first party on each side with anappropriate indication of other parties.

(B) Paragraphs; separate statements. All averments of claim or defense shall bemade in numbered paragraphs, the contents of cach of which shall be rmiited as far as practicableto a statement of a single set of circumstances; and a paragraph may be referred to by number inall succeeding pleadings. Each claim founded upon a separate transaction or occurrence andeach defense other than denials shall be stated in a separate count or defense whenever aseparation facilitates the clear presentation of the matters set forth.

(C) Adoption by reference; exhibits. Statements in a pleading may be adopted byreference in a different part of the same pleading or in another pleading or in any motion. Acopy of any written instnnnent attached to a pleading is a part of the pleading for all purposes.

(D) Attachments to pleadings.

(1) Account or written instrument. When any claim or defense is founded on anaccount or other written instrument, a copy of the account or written instrument must be attachedto the pleading. If the account or written instrument is not attached, the reason fnr the omissionmust be stated in the pleading.

(2) .4ffadavit of merit; medical liability claim.

(a) Except as provided in division (D)(2)(b) of this rule, a complaint that contains a medicalclaim, dental claim, optometric claim, or chiropractic claim, as defined in section 2305.113 ofthe Revised Code, shall include one or more affrdavits of merit relative to each defendant namedin the complaint for whom expert testimony is necessary to establish liability. Affidavits ofmerit shall be provided by an expert witness pursuant to Rules 601(D) and 702 of the Ohio Rulesof Evidence. Affidavits of merit shall include all of the following:

(i) A statement that the affiant has reviewed all medical records reasonablyavailable to the plaintiff conceniing the allegations contained in the oomplaint;

(ii) A statement that the affrant is familiar with the applicable standard of care;

(iii) The opinion of the affiant that the standard of care was breached by one ormore of the defendants to the action and that the breach caused injury to theplaintiff.

(b) The plaintiff may file a motion to extend the period of time to file an affidavit of merit.The motion shall be filed by the plaintiff with the complaint. For good cause shown and in

25

accordance with division (c) of this rule, the court shall grant the plaintiff a reasonable period oftime to file an affidavit of merit, not to exceed ninety days, except the time may be extendedbeyond ninety days if the court determines that a defendant or non-party has failed to cooperatewith discovery or that other circumstances warrant extension.

(c) In dctermining whether good cause exists to extend the period of time to file an affidavitof inerit, the court shall consider the following:

(i) A description of any information necessary in order to obtain an affidavit ofmerit;

Whether the informafion is in the possession or control of a defendant or third

party;

(iii) The scope and type of discovery necessary to obtaiu the information;

(iv) What efforts, if any, were taken to obtain the information;

(v) Any other facts or circumstances relevant to the ability of the plaintiff to obtain anaffidavit of merit.

(d) An affidavit of merit is required to establish the adequacy of the complaint and shall nototherwise be admissible as evidence or used for purposes of impeachment. Any dismissal for thefailure to comply with this rule shall operate as a failure otherwise than on the merits.

(e) If an affidavit of merit as required by this rule has been filed as to any defendant alongwith the complaint or amended complaint in which claims are first asserted against thatdefendant, and the affidavit of merit is determined by the court to be defective pursuant to theprovisions of division (D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time,not to exceed sixty days, to file an affidavit of merit intended to eure the defect.

(E) Size of paper filed. All pleadings, motions, briefs, and other papers filed with theclerk, including those filed by electronic means, shall be on paper not exceeding 8 1/2 x 11inches in size without bacldng or cover.

[Effective: July 1, 1970; amended effective July 1, 1985; July 1, 1991; July 1, 2005; July1, 2007.]

Staff Note (July 1, 2007 Amendments)

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Rule 10(D). Attachment to pleadings

Civ. R. 10 is amended to ciarify what constitutes "good cause" to permit the plaintiffan extension of time to file an affidavit of merit and to define the effect of dismissal forfailure to comply with the affidavit of merit requirement.

Rule 90(D) Attachments to pleadings

The language af division (D)(2)(a) is amended in recognition of the fact that morethan one affidavit may be required as to a particular defendant due to the number ofdefendants or other circumstances.

Because there may be circumstanoes in which the plaintiff is unable to provide anaffidavit of merit when the complaint is filed, division (DX2Xb) of the rule requires the trialcourt, when good cause Is shown, to provide a reasonable period of time for the plaintiff toobtain and file the affidavit. Division (DX2)(c) details the circumstances and factors whichthe Court should consider in determining whether good cause exists to grant the plaintiff anextension of time to fiie the affidavit of inerit. For example, "good cause" may exist in acircumstance where the plaintiff obtains counsel near the expiration of the statute oflimitations, and counsel does not have sufficient time to idenfify a qualified health careprovider to conduct the necessary review of applicable medical records and prepare anafHdavit. Similarly, the relevant medical records may not have been provided to the plainfiffin a timely fashion by the defendant or a nonparty to the litigation who possesses therecords. Further, there may be situations where the medical records do not reveal thenames of all of the potentiai defendants and so until discovery reveals those names, itmay be necessary to name a"John Doe" defendant. Once discovery has revealed thename of a defendant previously designated as John Doe and that person is added as aparty, the affidavit of merit is required as to that newly named defendant. The medicalrecords might also fail to reveal how or whether medical providers who are identified inthe records were involved in the care that led to the malpractice. Under these and othercircumstances not described here, the caurt must afford the plaintiff a reasonable period oftime to submit an affidavit that satisfies the requirements set forth in the rule.

It is intended that the granfing of an extension of time to file an affidavit of ineritshould be liberally applied, but within the parameters of the "good cause" requirement. Thecourt should also exercise its discretion to aid plaintiff in obtaining the requisite information.To acx:omplish these goals, the plaintiff must specifically inform the Court of the nature ofthe information needed as opposed to a general averment that more information is needed.The plaintiff should apprise the court, to the extent that it is known, the identity of theperson who has the information and the means neoessary to obtain the information, toallow the court to grant an appropriate extension of time. If medical records In thepossession of a defendant or non-party must be obtained, the court may issue an ordercompelling the production of the records. If inedical records are non-existent, incomplete,or othennAse inadequate to, permit an expert to evaluate the care, the court may, inappropriate circumstances, permit a plaintiff to conduct depositions of parties or non-

27

parties to obtain the information necessary for an expert to complete such a review andprovide an affidavit.

Division (DX2)(b) of the rule sets an outside limit of 90 days to extend the time forthe filing of an affidavit of inerit, unless the court determines that the defendant or anonparty in possession of the records has failed to cooperate with discovery, and in thatcircumstance the court may grant an extension beyond 90 days. This division also veststhe trial court with the discretion to determine whether any other circumstances justifygranting an extension beyond the 90 days.

The rule is intended to make clear that the affidavit is necessary to establish thesufflaency of the complaint. The failure to comply with the rule can result in the dismissal ofthe complaint, and this dismissal Is considered to be a dismissal otherwise than upon themerits pursuant to Civ. R. 10(Dx2xd).

Finally, new Civ. R. 10(D)(2xe) allows a plaintiff a reasonable time, not to exceedsixty days, to cure any defects identified by the court in any affidavit filed with acomplaint.

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Staff Note (July 1, 2005 Amendment)

Civ. R. 10 is amended in response to a request from the General Assemblycontained in Section 3 of Sub. H.B. 215 of the 125th General Assembly, effectiveSeptember 13, 2004. The act amends and enacts provisions relative to medical, dental,optometric, and chiropractic malpractice actions, and Sectfon 3 contains a request that theSupreme Court adopt a rule that "require[s] a plaintiff filing a medical liability claim toinclude a certificate of expert review as to each defendant."

Rule 10(D) Attachments to pleadings

Civ. R. 10(D) is retitled and reorganized to reflect the inclusion of a requirement indivision (D)(2) that a medical llabifity c:omplafnt indude an affidavit of inerft concerning thealleged breach of the standard of care by each defendant to the action. Division (Dx2xa)specifies three items that must be induded in the affidavit and sets forth the qualificaflonsof the person providing the affidavit of inerit.

There may be instances in which multiple affidavits of inerit are required as to aparticular plaintiff. For example, the plaintiff may find it necessary to provide oneaffidavit that addresses only the issue of "standard of care" and a separate affidavit thataddresses only the issue of injury caused by the breach of the standard of care.

Because there may be circumstances in which the pfaintiff is unable to provide anaffidavit of merit when the complaint is filed, division (DX2Xb) of the rule requires the trialcourt, when good cause is shown, to provide a reasonabfe period of time for the plaintiff toobtain and file the affidavit. For example, "good cause" may exist in a circumstance wherethe plaintfff obtains counsel near the expiration of the statute of limitations, and counseldoes not have suffident time to identify a qualified health care provider to oonduct thenecessary review of applicable medical records and prepare an affidavit. Similarly, therelevant medical records may not have been provided to the pfainliff in a timely fashion.Further, there may be situations where the medical records do not reveal the names ofall of the potential defendants and so until discovery reveals those names, it may benecessary to name a"John Doe" defendant. Once discovery has revealed the name ofa previously unknown defendant and that person is added as a party, the affidavit ofmerit would then be required as to that newly named defendant. Under these or similarcircumstances, the court must afford the plaintiff a reasonable period of tfine, once aqualified health care provider is identffied, to have the records reviewed and submit anaffidavit that satisfies the requirements set forth in the rule.

Division (D)(2)(c) provides that an affidavit of merit is intended to establish thesufficiency of the complaint filed in a medical liability action and specifies that an affidavit ofmerit is not otherwise admissible as evidence or for purposes of impeachment.

The amendments to Rule 10 also indude nonsubstantfve changes.

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AMENDMENTS TO THEOHIO RULES OF CIVIL PROCEDURE

AND OHIO RULES OF EVIDENCE

I Amendments to the Ohio Rules of Civil Procedure (Rules 10 and 86) and OhioRules of Evidence (Rules 104,.106, 404,411, 602, 603, 604, 606, 610, 611, 612, 701,703, 705, 801, 803, 902, 1004, 1007; and 1102) were filed by the Supreme Court of Ohiowith the General Assembly pursuant to Article IV, Section 5(B) of the Ohio Constitutionand became effective July 1, 2007. The history of these amendments is as follows:

October 9, 2006 Initial publication for comment

January 11, 2007

February 5, 2007

April30,2007

July 1, 2007

Proposed amendments frled with the GeneralAssembly

Publication for second public commentperiod

Revised proposed amendments filed withthe General Assembly

Effective date of revised proposedamendments

A Staff Note prepared by the Commission on Rules of Practice and Procedurefollows each amendment. Although the Supreme Court uses the Staff Notes during itsconsideration of proposed amendments, the Staff Notes are not adopted by the Court andare not a part of the rule. As such, the Staff Notes represent the views of the Commissionon Rules of Practice and Procedure and not necessarily those of the Supreme Court. TheStaff Notes are not filed with the General Assembly but are included when the proposedamendments are published for comment and are made available to the public and tolegislative committees.

Following is a summary of the proposed amendments. In addition to thesubstantive amendments, nonsubstantive grammar and gender-neutral language changesare made throughout any rule that is proposed for amendment.

Affidavit of Merit - Civ. R. 10(D)

The Commission on the Rules of Practice and Procedure recommends the Courtamend Civ. R. 10(D)(2) governing attachments to pleadings in medical malpracticelitigation to respond to problems that have arisen in interpreting "good cause'. The rule isamended to clarify what constitutes "good cause" to permit the plaintiff an extension oftime to file an affidavit of merit and to define the effect of dismissal for failure to complywith the affidavit of merit tequirement. [Civ. R. 10(D)(2), lines 20-731.

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The revisions are intended to clarify that more than one affidavit of inerit may benecessary as to a particular defendant [Civ. R. 10(D)(2)(a), line 24] and to allow judgesgreater discretion in enlarging the time to file the affidavit of merit [Civ. R. 10(D)(2)(b),lines 44-45]. The revisions also remove language initially proposed which made theaffidavit requirement a prerequisite to the trial court's exercise of jurisdiction, but retains-the proposed language that clarifies that a dismissal for failure to comply with the ruleoperates as a failure otherwise than on the merits. [Civ. R. 10(D)(2)(d), lines 63-66].

No revisions have been made to these rules from the version published on February 5,2007.

Use of Video Teleconferencing - Crim. R. 10 and 43

The Commission on the Rules of Practice and Procedure initially recommendedthe Court amend Crim. R. 10 and 43 to give trial courts more flexibility to utilize modemtechnology, specifically video teleconferencing, in misdemeanor cases if certain criteriaare met.

After the second comment period the Commission recommended that Courtwithdraw the proposed amendments so that the Commission could make farther revisionsto the proposed amendments. The Supreme Court of Ohio thereafter decided to withdrawthe proposed amendments.

Discovery - Crim. R. 16

The Commission recommended 'several revisions to Crim. R. 16 governingdiscovery procedures. The amendments were intended to encourage an earlier and morecomplete disclosure of information on both sides in criminal litigation which wouldbenefit the judicial system by reducing the need for court intervention in the discoveryprocess, facilitate the process of plea bargaining, and ease the congestion on the eiiminaldocket. After consideration of the comments submitted during the first comment period,the Supreme Court of Ohio deoided against filing the proposed amendments with theGeneral Assembly.

Ohio Rules of Evidence

The Commission recommends non-substantive amendments to Ohio Rules of.Evidence 104, 106, 404, 411, 602, 603, 604, 606, 610, 611, 612, 701, 703, 705, 801, 803,804, 902, 1004, and 1007 to make the rules gender neutral. [Lines 315-814].

No revisions have been made to. these rules from the version that was firstpublished on October 9, 2006.

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AIV'iENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE

FILED BY THE SUPREME COURT OF OHIO 'PURSUANT TO ARTICLE IV, SECTION 5 OF THE OHIO CONSTITUTION

OHIO RULES OF CIVII. PROCEDURE

^+*

Rule 10. Form of pleadings

(D) Attachment to pleadings

(2) Rffidavft of inerit,• medical liability claim.

(a) Except as provided in division (D)(2)(b) of this rule, a complaint that contains amedical claim, dental claim, optometric claim, or chiropractic claim, as definedin section2305.113 of the Revised. Code, shall include one or more affidavits of merit relative toeach defendant named in the complaint for whom expert testimony is necessary toestablish liability: Affidavits of merit shall be provided by an expert witness pursuant toRules 601(D) and 702 of the Ohio Rules of Evidence. Affidavits of merit shall includeall of the following:

(i) A statement that the affiant has reviewed all medical records reasonablyavailable to the plaintiff concertning the allegations contained in thecomplaint;

A statement that the affiant is familiar with the applicable standard of care;

The opinion of the affiarit that the standard of care was breached by one ormore of the defendants to the action and that the breach caused injury tothe plaintiff.

(b) The plaintiff may file a motion to extend the period of time to file an affidavit ofmerit. The motion shall.be filed by the plaintiff with the complaint. For good causeshown and in accordance with division (c) of this rule, the court shall grant the plaintiff areasonable period of time to file an affidavit of merit, not to exceed ninety days, exceptthe time may be extended beyond ninety days if the couit determines that a defendant ornon-party has failed to cooperate with discovery or that other cireamstances warrantextension

32

:(c) In determining whether good cause exists to extend the period of time to file anaffidavit of inerit, the court shall consider the following:

(i) A description of any information necessary in order to obtain an affidavitof merit;

(ii) Whether the information, is: in the possession or control of a defendant orthird party;

(iii) The scope and.type of.discovery necessary to obtain the infonnation;

(iv) What efforts, if any, were taken to obtain the information;

(v) Any other facts or circumstances relevant to the ability of the plaintiff toobtain an affidavit of merit.

(d) . An affidavit of merit is required to establish the adequacy of the complaint andshali not otherwise be admissible as evidence or used for purposes of impeachment. Anydismissal for the failure to comply with this rule shall operate as a failure otherwise thanon the merits.

(e) . If an affidavit•of inerit.as required by this rule has been filed as to any defendantalong with the complaint or amended complaint in which claims are first asserted againstthat defendant, and the affidavit of inerit is determined by the oourt to be defectivepursuant to the provisions of division.(D)(2)(a) of this rule, the court shall grant theplaintiff'a.reasonable time, not to exceed sixty days, to file an affidavit ofinerit intendedto cure the defect.

Staff Note (July 1, 2007 Amendments)

Rule 10(D). Attachment to pleadings

Civ. R. 10 is amended to clarify what constitutes "good cause" to permit theplaintiff an extension of time to file an atfldavit of inerit and to define the effect ofdisniissai for faiiure to comply with the affidavit of merit requirement:

Rule 70(D) Attachments to pleadings

The language df division (DX2)(a) is amended in recognition of the fact thatmore than one affidavit may be required as to a particular defendant due to thenumber of defendants or other circumstances.

Because there may be circumstances in which the piaintiff is unabie toprovide an affidavit of inerit when the coinplaint is filed, division (D)(2)(b) of the rulerequires the trial court, when good cause is shown, to provide a reasonabie periodof .time for the plaintiff to obtain and file the affidavit. Division (D)(2Xc) details the

4 33

circumstances and factors which the Court should consider in determining whethergood cause exists to. grant the plaintiff an extension of time to.fiie the affidavit ofmer7t. For example, "good cause" may exist in a circumstance where the plaintiffobtains counsel near the expiration of the statute of iiniitations, and counsel does

.not have sufficient time to identify a quaiified health care provider to conduct thenecessary review of applicable medical records and prepare an afftdavit. Similarly,the relevant medical records may not have been provided to the plaintiff in a timelyfashion by the defendant or a nonparty to the iitigation who possesses the records.Further, there may be situations where the medical records do not reveal thenames of all of the potential defendants and so until discovery reveals thosenames, it may be necessary to name a "John Doe° defendant. Once discoveryhas revealed the name of a defendant previously designated as John Doe andthat person is added as a party, the affidavit of inerit is required as to that newlynamed defendant. The medicai records might also faii to reveal how or whethermedicai providers who are identified in the records were involved in the care thatled to the malpractice. Under these and other circumstances not described here,the court must afford the plaihtiff a reasonable period of time to submit an affidavitthat satisfies the requirements set forth in the rule.

It is intended that the granting of an extension of time to file an affidavit ofmertt should be liberally applied, but within the parameters of the "good caUse"requirement. The court should also exercise its discretion to aid plaintiff inobtaining the requisite infomnation. To.accomplish these goals, the plaintiff mustspecificaiiy inform.the Court of the nature of the information needed as opposed toa general avemnent that more information is needed. The plaintiff should apprisethe court, to the extent that it is known, the identity of the person who has theinformatfon and the means necessary to obtain the information, to allow the court togrant an appropriate extension of time. If inedicai records in the possession of adefendant or non-party must be obtained, the court may issue an order compellingthe production of the records. if medical records are non-existent, incomplete, orotherwise inadequate to permit an expert to evaluate the care, the court may, inappropriate circumstances, pennit a plaintiff to conduct depositions of parties ornon-parties to obtain the infonnation necessary for an expert to complete such areview and provide an affidavit.

Division (D)(2Xb) of the rule sets an outside limit of 90 days to extend thetime for the filing of an affidavit of merit, unless the court deterrnines that thedefendant or a nonparty in possession of the reoonis has failed to cooperate withdiscovery, and in that circumstance the court may grant an extension beyond 90days. This division also vests the trial court with the discretion to deterrnine whetherany other.circumstances Justify granting an extension beyond the 90 days.

The rule is intended to make clear that the affidavit is necessary to establishthe sufficiency of the complaint. The failure to comply with the rule can resuit in thedismissal of the complaint, and this dismissal is considered to be a dismissaiotherwise than upon the merits pursuant to Civ. R. 10(D)(2)(d).

Finally; new Civ. R. 10(D)(?)(e) allows a plaintiff a reasonable time, not toexceed sixty. days, to cure any defects identified by the court in any affidavit filedwith a complaint.

***

Rule 86. Effective Date

r^*

(DD) Effective date of amendtnents.

The amendments to Civil Rule 10 filed by the Supreme Coust with the GeneralAsssembly bn January 11; 2007 and.refled April 30, 2007 shall take effect on July 1,2007. They govern all proceodings in actions brought after they take effect and also allfurther proceedings in actions then pending, except to the extent that their application in apartieutar action pending when the amendments take effect would not be feasible orwouldwork injustice, in which event the former procedure applies.

***

35

AMENDMENTS TO THE OHIO RULESOF PRACTICE AND PROCEDURE

Amendments to the rules of practice and procedure that were filed by the Supreme Courtof Ohio with the General Assembly pursuant to Article IV, Section 5(B) of the Ohio Constitutionbecame effective on July 1, 2005. The history of these amendments is as follows:

October 18, 2004 Initial publication for comment

January 14, 2005 Proposed amendments filed with the GeneralAssembly

February 7, 2005 Publication for second public comment period

April 20, 2005 Revised proposed amendments filed with theGeneral Assembly

July 1, 2005 Effective date of revised proposed amendments

A Staff Note prepared by the Rules Advisory Committee follows eaah substantiveamendment. Although the Supreme Court uses the Staff Notes during its consideration of theproposed amendments, the Staff Notes are not adopted by the Supreme Court and are not a partof the rule; they represent the views of the Rules Advisory Committee and not necessarily thoseof the Supreme Court. For these reasons, the Staff Notes are not fded with the GeneralAssembly but are included when the amendments are published and are made available to thepublic and to legislative committees.

Following is a summary of the July 1, 2005 amendments. In addition to the substantiveamendments, nonsubstantive grammar and gender-neutral language changes have been madethroughout any rule that is amended.

Civ. R. 3(B)(11) and (E[) and 42(A)(2) and (3)-Venue in and Consolidation of Asbestos,Silicosis, and M9xed Dust Disease Claims

Civ. R. 3(B)(11) is amended to include specific venue provisions that govem asbestosis,silicosis, and nuxed dust disease claims. Civ. R. 42(A)(2) is amended to provide specificprovisions governing the consolidation of asbestosis, siliaosis, or mixed dust disease actions.

Civ. R.10(D)(2)-Affidavit ofMerit in Medical Liability Claims

Civ. R. 10(D)(2) is amended to provide that the plaintiff in a medical liability action mustattach an affidavit of merit with respect to each medical care provider named as a defendant inthe action. The amendment specifies qualifications for a person who provides an affidavit ofmerit, sets forth the required content of the affidavit, and includes a provision under which theplaintiff, upon a showing of good cause, may.obtain an extension of time to file the requiredaffidavit.

2005 Ameadmats (with StaffNatee) FINAL.doc

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Civ. R. 34(C) & 45(A)(3)-Notice of Issuance of Subpoenas to Nonparties

Civ. R. 45(A)(3) is retitled and amended to require a party who issues a subpoena to anonparty to serve all opposing parties with written notice and a copy of the subpoena, as well asany subsequent modifications. The proposed amendment replaces language currently containedin Civ. R. 34(C).

Civ. R. 36(C)-Requests for Admission

Civ. R. 36(C) is amended to require that any document containing a request for admissionmust so indicate in the caption of the document.

Civ. R. 47(A) & Crim. R. 24(A)-Case Summary Prior to Voir Dire

Civ. R. 47(A) and Crim. R. 24(A) are amended to allow the trial judge, in consultationwith the parties, to provide prospective jurors with a brief statement of the case prior to voir dire.

Civ. R. 47(C) & Crim. R. 24(E)- Exercise of Peremptory Challenges

Civ. R. 47(C) and Crim. R. 24(E) are modified to clarify that the waiver of a singleperemptory challenge does not constitute a waiver of all subsequent challenges.

Civ. R. 47(E) & Crim. R. 24(I)-Turor Note Taldng

Civ. R. 47(E) and Crim. R. 24(1) are added to permit juror note taking and to allow thenotes to be used by the juror during delibemtions. The amendments further require that. the trialjudge give the jurors appropriate cautionary instmctions and collect and destroy the notes afterthe jury renders its verdict.

Civ. R. 47(F) & Crim. R. 24(J)-Juror Questions to Witnesses

Civ. R. 47(F) and Crim. R. 24(1) are added to set forth procedures to be used if a triatcourt permits jurors to propose questions to be asked of witnesses during trial. See State v.Fisher (2003), 99 Ohio St.3d 127 and Report and Recommendations of the Supreme Court ofOhio Task Force on Jury Service (February 2003).

Civ. R. 51(A) & Crim. R. 30(A)-Written Jury Instructions

Civ. R. 51(A) and Crint. R. 30(A) are amended to require the trial judge to provide jurorswith at least one written or recorded copy of the judge's final instructions for use duringdeliberations.

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AMENDMENTS TOTHE OHIO RULES OF CIVIL PROCEDURE

RULE 3. Commencement of Action; Venue

(A) Commencement. A civil action is commenced by filing a complaint with thecourt, if service is obtained within one year from such filing upon a named defendant, or upon anincorrectly named defendant whose name is later corrected pursuant to Civ.R. 15(C), or upon adefendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D).

(B) Venue: where proper. Any action may be venued, commenced, and decided inany court in any county. When applied to county and municipal courts, "county," as used in thisrule, shall be construed, where appropriate, as the tenitorial limits of those courts. Proper venuelies in any one or more of the following counties:

relief;

(1) The county in which the defendant resides;

(2) The county in which the defendant has his or her principal place of business;

(3) A county in which the defendant conducted activity that gave rise to the ciaim for

(4) A county in which a public officer maintains his or her principal office if suit isbrought against the officer in the officer's official capacity;

(5) A county in which the property, or any part of tlie property, is situated if thesubject of the action is real property or tangible personal property;

(6) The county in which all or part of the claim for relief arose; or, if the claim forrelief arose upon a river, other watercourse, or a road, that is the boundary of the state, or of twoor more counties, in any county bordering on the river, watercourse, or road, and opposite to theplace where the claim for relief arose;

(7) In actions described in Civ.R. 4.3, in the county where plaintiff resides;

(8) In an action against an executor, administrator, guardian, or trustee, in the countyin which the executor, administrator, guardian, or trustee was appointed;

(9) In actions for divorce, annulment, or legal separation, in the county in which theplaintiff is and has been a resident for at least ninety days immediately proceding the filing of thecomplaint;

(10) In actions for a civil protection order, in the county in which the petitionercurrently or temporarily resides;

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(11) In tort actions involving asbestos claims, silicosis claims, or mixed dust diseaseclaims, only in the county in which all of the exposed plaintiffs reside, a county where all of theexposed plaintiffs were exposed to asbestos, silica, or mixed dust, or the county in which thedefendant has his or her principal place of business.

(12) If there is no available forum in divisions (B)(1) to (B)(10) of this rule, in thecounty in which plaintiff resides, has his or her principal place of business, or regularly andsystematically conducts business activity;

(13) If there is no available fonmi in divisions (B)(1) to (B)(11) of this nile:

(a) In a county in which defendant has property or debts owing to the defendantsubject to attachment or garnishment;

(b) In a county in which defendant has appointed an agent to receive service ofprocess or in which an agent has been appointed by operation of law.

(C) Change of venue.

(1) When an action has been commenced in a county other than stated to be proper indivision (B) of this rule, upon timely assertion of the defense of improper venue as provided inCiv.R. 12, the court shall transfer the action to a county stated to be proper in division (B) of thisrule.

(2) When an action is transferred to a county which is proper, the court may assesscosts, including reasonable attomey fees, to the time of transfer against the party whocommenced the action in a county other than stated to be proper in division (B) of this rule.

(3) Before entering a default judgment in an action in which the defendant has notappeared, the court, if it finds that the action has been conrruenced in a county other than statedto be proper in division (B) of this rule, may transfer the action to a county that is proper. Theclerk of the court to which the action is transferred shall notify the defendant of the transfer,stating in the notice that the defendant shall have twenty-eight days from the receipt of the noticeto answer in the transferred action.

(4) Upon motion of any party or upon its own motion the court may transfer anyaction to an adjoining county within this state when it appears that a fair and impartial trialcannot be had in the county in which the suit is pending.

(D) Venue: no proper forum in Ohio. When a court, upon motion of any party orupon its own motion, determines: (1) that the county in which the action is brought is not aproper fonun; (2) that there is no other proper forum for trial within this state; and (3) that thereexists a proper forum for trial in another jurisdiction outside this state, the court shall stay theaction upon condition that all defendants consent to the jurisdiction, waive venue, and agree thatthe d&te of commencement of the action in Ohio shall be the date of commencement for the

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application of the statute of limitations to the action in that forurn in another jurisdiction whichthe court deems to be the proper forum. If all defendants agree to the conditions, the court shallnot dismiss the action, but the action shall be stayed until the court receives notioe by affidavitthat plaintiff has recommenced the action in the out-of-state forum within sixty days after theeffective date of the order staying the original action. If the plaintiff fails to recommence theaction in the out-of-state forum within the sixty day period, the court shall dismiss the actionwithout prejudice. If all defendants do not agree to or comply with the conditions, the court shallhear the action

If the court detennines that a proper forum does not exist in another jurisdiction, it shallhear the action.

(E) Venue: multiple defendants and multiple claims for reHef. In any action,brought by one or more plaintiffs against one or more defendants involving one or more claimsfor relief, the forum shall be deemed a proper forum, and venue in the forum shall be proper, ifthe venue is proper as to any one party other than a nominal party, or as to any one claim forrelief.

Neither the dismissal of any claim nor of any party except an indispensable party shallaffect the jurisdiction of the court over the remaining parties.

(F) Venue: notice of pending litigation; transfer of,judgments.

(1) When an action affecting the title to or possession of real property or tangiblepersonal property is commenced in a county other than the county in which all of the realproperty or tangible personal property is situated, the plaintiff shall cause a certified copy of thecomplaint to be filed with the clerk of tlt.e court of common pleas in each county or additionalcounty in which the real property or tangible personal property affected by the action is situated.If the plaintiff fails to file a certified copy of the complaint, third persons will not be chargedwith notice of the pendency of the action.

To the extent authorized by the laws of the United States, division (F)(1) of this rule alsoapplies to actions, other than proceedings in banlauptcy, affecting title to or possession of realproperty in this state commenced iin a United States District Court whenever the real property issituated wholly or partly in a county other than the county in which the permanent records of thecourt are kept.

(2) After frnal judgment, or upon dismissal of the action, the clerk of the court thatissued the judgment shall transmit a certified copy of the judgment or dismissal to the clerk of thecourt of common pleas in each county or additional county in which real or tangible personalproperty affected by the action is situated

(3) When the clerk has transmitted a certified copy of the judgment to another countyin accordance with division (F)(2) of this nale, and the judgment is later appealed, vacated, ormodified, the appellant or the party at whose instance the judgment was vacated or modifiedmust cause a certified copy of the notice of appeal or order of vacation or modification to be filed

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with the clerk of the court of common pleas of each county or additional county in which the realproperty or tangible personal property is situated. Unless a certified copy of the notice of appealor order of vacation or modification is so filed, third persons will not be charged with notice ofthe appeal, vacation, or modification.

(4) The clerk of the court receiving a certified copy filed or transmitted in accordancewith the provisions of division (F) of this rule shall number, index, docket, and file it in therecords of the receiving court. The clerk shall ind'ex the first certified copy received inconnection with a particular action in the indices to the records of actions commenced in theclerk's own court, but may number, docket, and file it in either the regular records of the court orin a separate set of records. When the clerk subsequently receives a certified copy in connectionwith that same action, the clerk need not index it, but shall docket and file it in the same set ofrecords under the same case number previously assigned to the action.

(5) When an action affecting title to registered land is commenced in a county otherthan the county in which all of such land is situated, any certified copy required or permitted bythis division (F) of this rule shall be filed with or transmitted to the county recorder, rather thanthe elerk of the court of common pleas, of each county or additional county in which the land issituated.

(G) Venue: collateral attack; appeal. The provisions of this mle relate to venue andare not jurisdictional. No order, judgment, or decree shall be void or subject to collateral attacksolely on the ground that there was improper venue; however, nothing here shall affeat the rightto appeal an en•or of court conceming venue.

(H) Definitions. As used in division (13)(11) of this rule:

Code;(1) "Asbestos claim" has the same meaning as in section 2307.91 of the Revised

(2) "Silicosis claim" and "mixed dust disease claim" have the same meaning as insection 2307.84 of the Revised Code;

(3) In reference to an asbestos claini, "tort action" has the same meaning as in section2307.91 of the Revised Code;

(4) In reference to a silicosis claim or a mixed dust disease claim, "tort action" has thesame meaning as in section 2307.84 of the Revised Code.

Staff Note (July 1, 2005 Amendment)

Civ. R. 3 is amended in response to reuests from the General Assembly oontainedin Section 3 of Am. Sub. H.B. 342 of the 125 General Assembly, effective September 1,2004, and Section 4 of Am. Sub. H.B. 292 of the 125th General Assembly, effectiveSeptember 2, 2004. These acts contain provisions goveming tort daims that allege

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exposure and injury by persons exposed to asbestos, silica, or mixed dust. Each actincludes a request that the Supreme Court amend the Rules of Civil Procedure "to specifyprocedures for venue and consolidation" of asbestosis, silicosis, and mixed dust diseaseclaims.

Rule 3(B) Venue: where proper

Civ. R. 3(B) is amended to include an exclusive venue provision that applies to thefiling of actions involving asbestos, silicosis, or mixed dust disease claims. Division (B}(11)states that a civil action alleging one or more of these claims may be filed only in either thecounty in which all exposed. plaintiffs reside, a county where all exposed plaintiffs wereexposed to asbestos, silica, or mixed dust occurred, or the county in which the defendanthas his or her principal place of business.

Existing divisions (Bx11) and (12) have been renumbered to reflect the addition ofnew division (Bx11).

Rule 3(H) Definitions

Division (H) is added to reference the statutory definifions of "asbestos claim,"°siiicosis ciaim ""mixed dust disease claim," and "tort action" for purposes of Civ. R.3(B)(11).

Separate Opinion of Pfeifer, J., on Proposed Amendments toCiv.R. 3 & 42 [Venue and Consolidation].

PFEwEB, J., dissenting.

The Supreme Court Rules Advisory Committee is composed of exemplary attorneysappointed by this court based on their expertise and experience. The attorneys on the committeehave spent a lifetime developing their legal skills through legal practice or teaching and wereappointed because this court believes them to be among the best at their profession. The missionof the committee is to help us impartially develop the law.

Our hand-piclced committee of experts has considered the proposed nile changes fourseparate times; each time it voted against recommend'tttg the proposed rule changes. The reasonsfor the Cotnmittee's failure to recommend the proposed rule changes are articulated in theminutes of its November 5, 2004 meeting.

The Civil Rules Subcommittee voted against recommeuding the proposed change to thevenue rule because "(1) such a nzle would be contrary to the general policy of the Civil Rules tohave general venue provisions rather than provisions applicable to a particular class of cases orlitigants; (2) the proposed rule is unnecessary to aid in the management of asbestos cases in Ohioand, in fact, would be contrary to the actions undertaken by the Supreme Court to promote theefficient management of these cases; [and] (3) the examples of abuse cited by the proponents asjustification for a specific venue rule have been occasioned by application of Civil Rules other

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than the venue rules." The Civil Rules Subcommittee voted against recommending the proposedchange to the consolidation rule because "(4) there is no evidence of misuse by plaintiffs of theexisting consolidation mles; and (5) the consolidation rule suggested by the proponents wouldtransfer the ability to consolidate cases from the discretion of the trial judge to the parties."

This court should have voted against recommending the proposed rule changes based onthe sound reasons advanced by the Civil Rules Subcommittee. I dissent.

RESNtcK, J., concurs in the foregoing opinioa

RULE 10. Form of Pleadings

(A) Caption; names of parties. Every pleading shall contain a caption setting forththe name of the court, the title of the action, the case number, and a designation as in Rule 7(A).In the complaint the title of the action shall include the names and addresses of all the parties, butin other pleadings it is sufficient to state the name of the first party on each side with anappropriate indication of other parties.

(B) Paragraphs; separate statements. All averments of claim or defense shall bemade in numbered paragraphs, the contents of each of which shall be limited as far as practicableto a statement of a single set of circumstances; and a paragraph may be referred to by number inall succeeding pleadings. Each claim founded upon a separate transaction or occurrence andeach defense other than denials shall be stated in a separate count or defense whenever aseparation facilitates the clear presentation of the matters set forth.

(C) Adoption by reference; exhibits. Statements in a pleading may be adopted byreference in a different part of the same pleading or in another pleading or in any motion. Acopy of any written instrament attached to a pleading is a part of the pleading for all purposes.

(D) Attachments to pleadings.

(1) Account or written instrument. When any claim or defense is founded on anaccount or other written instrument, a copy of the account or written instnunent must be attachedto the pleading. If the account or written instrument is not attached, the reason for the omissionmust be stated in the pleading.

(2) Affidavit of inerit; medical liability claim.

(a) Except as provided in division (D)(2)(b) of this tule, a complaint that contains amedical claim, dental claim, optometric claim, or chiropractic claim, as defined in section2305.113 of the Revised Code, shall include an affidavit of merit relative to each defendantnamed in the complaint for whom expert testimony is necessary to establish liability. The

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affidavit of merit shall be provided by an.expert witness pursuant to Rules 601(D) and 702 of theOhio Rules of Evidence. The affidavit of merit shall include all of the following:

(i) A statement that the affiant has reviewed all medical records reasonably availableto the plaintiff conceming the allegations contained in the complaint;

(ii) A statement that the affiant is familiar with the applicable standard of care;

(iii) The opinion of the affrant that the standard of care was breaahed by one or moreof the defendants to the action and that the breach caused injury to the plaintiff.

(b) The plaintiff may file a motion to extend the period of time to file an affidavit ofmerit. The motion shall be filed by the plaintiff with the complaint. For good cause shown, thecourt shall grant the plaintiff a reasonable period of time to file an affidavit of merit.

(c) An affidavit of inerit is required solely to establish the adequacy of the complaintand shall not otherwise be admissible as evidence or used for purposes of impeachment.

(E) Size of paper filed. All pleadings, motions, briefs, and other papers filed with theclerk, inaluding those filed by electronic means, shall be on paper not exceeding 8 1/2 x 11inches in size without backing or cover.

Staff Note (July 1, 2005 Amendment)

Civ. R. 10 is amended in response to a request from the General Assemblycontained in Section 3 of Sub. H.B. 215 of the 125"' General Assembly, effectiveSeptember 13, 2004. The act amends and enacts provisions relative to medical, dental,optometric, and chiropractic malpractice actions, and Section 3 contains a request that theSupreme Court adopt a rule that "require[s] a plaintiff filing a medical liability daim toinclude a certificate of expert review as to each defendant."

Rule 10(D) Attachments to pleadings

Civ. R. 10(D) is retitled and reorganized to reflect the inclusion of a requirement indivision (D)(2) that a medical liability complaint include an affidavit of inerit concerning thealleged breach of the standard of care by each defendant to the action. Division (D)(2)(a)specifies three items that must be included in the affidavit and sets forth the qualificationsof the person providing the affidavit of inerit.

There may be instances in which multiple affidavits of merit are required as to aparticular plaintiff. For example, the plaintiff may find it necessary to pravide oneaffidavit that addresses only the issue of "standard of care" and a separate affidavit thataddresses only the issue of injury caused by the breach of the standard of care.

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Because there may be circumstances in which the plaintiff is unable to provide anaffldavit of inerit when the complaint is filed, division (D)(2)(b) of the rule requires the trialcourt, when good cause is shown, to provide a reasonable period of time for the plaintiff toobtain and file the affidavit. For example, "good cause" may exist In a circumstance wherethe plaintiff obtains counsel near the expiration of the statute of limitations, and counseldoes not have sufficient time to identify a qualified heafth care provider to conduct thenecessary review of applicable medical records and prepare an affidavit. Similarly, therelevant medical records may not have been provided to the plaintiff in a timely fashion.Further, there may be situations where the medical records do not reveal the names ofall of the potentiai defendants and so until discovery reveals those names, it may benecessary to name a "John Doe" defendant. Once discovery has revealed the name ofa previously unknown defendant and that person Is added as a party, the affidavit ofmerit would then be required as to that newly named defendant. Under these or similarcircumstances, the court must afford the plaintiff a reasonable period of time, once aqualified health care.provider is identified, to have the records reviewed and submit anaffidavit that satisfies the requirements set forth in the rule.

Division (D)(2Xc) provides that an affidavit of inerit is intended to establish thesufficiency of the complaint filed in a medical liability action and specifies that an affidavitof merit is not otherwise admissible as evidence or for purposes of impeachment.

The amendments to Rule 10 also include nonsubstantive changes.

RULE 34. Production of Documents and Things for Inspection, Copying, Testingand Entry Upon Land for Inspection and Other Purposes

(A) Scope. Subject to the scope of discovery provisions of Civ. R. 26(B), any partymay serve on any other party a request to produce and permit the party making the request, orsomeone acting on the requesting party's behalf (1) to inspect and copy any designateddocuments (including writings, drawings, graphs, charts, photographs, phonorecords, and otherdata compilations from which intelligence can be perceived, with or without the use of detectiondevices) that are in the possession, custody, or control of the party upon whom the request isserved; (2) to inspeot and copy, test, or sample any tangible things that are in the possession,custody, or control of the party upon whom the request is served; (3) to enter upon designatedland or other property in the possession or control of the party upon whom the request is servedfor the purpose of inspection and measuriing, surveying, photographing, testing, or sampling theproperty or any designated object or operation on the property.

(B) Procedure. Without leave of court, the request may be served upon the plaintiffafter commencement of the action and upon any other pany with or after service of the summonsand complaint upon that party. The request shall set forth the items to be inspected either byindividual item or by category and describe each item and category with reasonable particularity.The request shall specify a reasonable time, place, and manner of making the inspection andperforming the related acts.

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RULE 12. Defenses and Objections--When and How Presented-by Pleading orMotion--Motion for Judgment on the Pleadings

(A) When answer presented.

(1) Generally. The defendant shall serve his answer within twenty-eight days afterservice of the sumnwns and complaint upon him; if service of notice has been made bypublication, he shall serve his answer within twenty-eight days after the completion of service bypublication.

(2) Other responses and motions. A party served with a pleading stating a cross-claim against him shall serve an answer thereto within twenty-eight days after the service uponhim. The plaintiff shall serve his reply to a counterclaim in the answer within twenty-eight daysafter service of the answer or, if a reply is ordered by the court, within twenty-eight days afterservice of the order, unless the order otherwise directs. The service of a motion permitted underthis rule alters these periods of time as follows, unless a differcnt time is fixed by order of thecourt: (a) if the court denies the motion, a responsive pleading, delayed because of service of themotion, shall be served within fourteen days after notice of the court's action; (b) if the courtgrants a motioa, a responsive pleading, delayed because of service of the motion, shall be servedwithin fourteen days after service of the pleading which complies with the court's order.

(B) How presented. Every defense, in law or fact, to a claim for relief in anypleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted inthe responsive pleading thereto if one is required, except that the following defenses may at theoption of the pleader be made by motion: (1) lack ofjurisdiction over the subject matter, (2) lackof jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiencyof service of process, (6) failure to state a claim upon which relief can be granted, (7) failure tojoin a party under Rule 19 or Rule 19.1. A motion making any of these defenses shall be madebefore pleading if a Rnther.pleading is permitted. No defense or objection is waived by beingjoined with one or more other defenses or objections in a responsive pleading or motion. If apleading sets forth a claim for relief to which the adverse party is not required to serve aresponsive pleading, he may assert at the trial aiiy defense in law or fact to that claim for relief.When a motion to dismiss for failure to state a claim upon which relief can be granted presentsmatters outside the pleading and such matters are not excluded by the court, the motion shall betreated as a motion for summary judgment and disposed of as provided in Rule 56. Providedhowever, that the court shall consider only such matters outside the pleadings as are specificallyenumerated in Rule 56. All parties shall be given reasonable opportunity to present all materialsmade pertinent to such a motion by Rule 56.

(C) Motion for judgment on the pleadings. After the pleadings are closed butwithin such tinie as not to delay the trial, any party may move for judgment on the pleadings.

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(D) Preliminary hearings. The defenses specifically enumerated (1) to (7) insubdivision (B) of this rule, whether made in a pleading or by motion, and the motion forjudgment mentioned in subdivision (C) of this rule shall be heard and determined before trial onapplication of any party.

(E) Motion for defmite statement. If a pleading to which a responsive pleading ispermitted is so vague or ambiguous that a party cannot reasonably be required to frame aresponsive pleading, lie may move for a definite statement before interposing his responsivepleading. The motion shall point out the defects complained of and the details desired. If themotion is granted and the order of the court is not obeyed within fourteen days after notice of theorder or witbin such other time as the court may fix, the court may strike the pleading to whichthe motion was directed or make such order as it deems just.

(F) Motion to strike. Upon motion made by a party before responding to a pleadingor, if no responsive pleading is permitted by these ndes, upon motion made by a party withintwenty-eight days after the service of the pleading upon him or upon the court's own initiative atany time, the court may order stricken from any pleading any insufficient claim or defense or anyredundant, immaterial, impertinent, or scandalous matter.

(G) Consolidation of defenses and objections. A party who makes a motion underthis tttle must join with it the other motions herein provided for and then available to him. If aparty makes a motion under this rule and does not include therein all defenses and objectionsthen available to him which this rale permits to be raised by motion, he shall not thereafter assertby motion or responsive pleading, any of the defenses or objections so oniitted, except asprovided in subdivision (H) of this nile.

(H) Waiver of defenses and objections.

(1) A defense of lack ofjurisdiction over the person, improper venue, insufficiency ofprocess, or insufficiency of service of process is waived (a) if omitted from a motion in thecircumstances described in subdivision (C3), or (b) if it is neither made by motion under this ruienor included in a responsive pleading or an amendment thereof pernritted by Rule 15(A) to bemade as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense offailure to join a party indispensable under Rule 19, and an objection of failure to state a legaldefense to a claim may be made in any pleading permitted or ordered under Rule 7(A), or bymotion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacksjurisdiction on the subject niatter, the court shall dismiss the action.

[Effective: July 1, 1970; amended effective July 1, 1983.]

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