Eil LiE D - Ohio Supreme Court OF ACTION 1. Relators bring this Original Action, pursuant to Article IV, Section 2(B) of the Ohio Constitution and S. Ct. R. X, and seek a Writ of Mandamus

IN THE SUPREME COURT OF OHIO

State of Ohio ex rel. CFCP Properties LLC,et al.,

Relatorvs.

JUDGE TED SCHNEIDERMAN

Respondent

CASE NO.:

Original Action in Mandamus

EMERGENCY COMPLAINT FOR A WRIT OF MANDAMUS AND REQUEST FOREXPEDITED CONSIDERATION

JOHN T. MCLANDRICH (0021494)TODD M. RASKIN (0003625)TIMOTHY R. OBRINGER (0055999)FRANK H. SCIALDONE (0075179)100 Franklin's Row34305 Solon RoadCleveland, OH 44139(440) 248-7906(440) 248-8861 - FaxEmail: [email protected]

traskin. @mirklaw.comtobringer a„nirrklaw.conlPs ci aldone(a,anrrkl aw. com

Counsel for Relators

Judge Ted SchneidermanSummit County Court of Common Pleas209 South High StreetAkron, OH 44308(330) 643-2400

Respondent, Judge Ted Scl-meiderman

E"il LiE DMAY 0 3 2007

IWARCIH j iVIENGEL, CLERKSUPREME COURT OF OHIO



CASE NO.:

Relatorvs.


Respondent


EMERGENCY COMPLAINT FOR A WRIT OF MANDAMUS AND REQUEST FOREXPEDITED CONSIDERATION

JOHN T. MCLANDRICH (0021494)TODD M. RASKIN (0003625)TIMOTHY R. OBRINGER (0055999)FRANK H. SCIALDONE (0075179)100 Franklin's Row34305 Solon RoadCleveland, OH 441.39(440) 248-7906(440) 248-8861 - FaxEmail: jmclandrich(a).mirklaw.com

trask in (cr^.mrrlclaw. comtobringer@mrrkl aw. comfsci aldonenmrrlclaw. com


Judge Ted SclmeidennanSummit County Cottrt of Common Pleas209 South High StreetAkron, OH 44308(330) 643-2400

Respondent, Judge Ted Schneidennan

NATURE OF ACTION

1. Relators bring this Original Action, pursuant to Article IV, Section 2(B) of the

Ohio Constitution and S. Ct. R. X, and seek a Writ of Mandamus conipelling Respondent to

place a stay on the underlying action while the ethical conflict in the Relators' legal

representation is resolved. This will prevent Respondent from proceeding under the current

discovery schedule and conunencing trial on May 14, 2007 in the Summit County Common

Pleas Court in Case NTo. CV 2004-09-4954. The Respondent's rulings, failures to rule (on the

pending motions for trial continuance and for withdrawal as counsel), and representations that

discovery must go forward, will cause an iimninent ethical violation to the detriment of Relators

and their counsel. See Ex. "1," Aff. of Attorney Todd Raskiri. Underr t'ne Respondent's

authorized trial schedule, the Plaintiff in the underlying action intends to proceed with the taking

preservation of trial depositions on May 3, May 7 and May 8. See Ex. "D." As a result, the

undersigned requests expedited consideration of this matter.

THE PARTIES

2. CFCP Properties, L.L.C. is a limited liability corporation organized and existing

pursuant to the law of the State of Ohio. CFCP Properties is the owner of Cuyahoga Falls

Country Place, a nursing home located at 2728 Bailey Road, Cuyahoga Falls, Ohio. Cathleen

Naugle was an employee of Cuyahoga Falls Country Place.

3. Respondent, Judge Ted Schneiderman, is a visiting judge in the Summit County

Common Pleas case here.

FACTUAL BACKGROUND

4. This original action arises from the wrongful death and survivorship action

initiated by Plaintiff Dolly Burkliart, Executrix of the Estate of Michael Haddad, against

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Defendants Cuyahoga Falls Country Place (CFCP) and Cathleen Naugle. Plaintiff contends,

among other things, that the Relators were negligent in providing care and treatment to

Plaintiff's decedent, Michael Haddad. Plaintiff also contends that Relator CFCP negligently

hired, supervised and retained Defendant Cathleen Naugle. Plaintiff's claims are based upon

Relators' alleged failure to properly respond to an "acute medical event" suffered by Mr. Haddad

on September 7, 2003, which allegedly resulted in Mr. Haddad's subsequent respiratory failure

and death on September 9, 2003.

5. During this litigation, the Defendants CFCP, Country Place, and Ms. Naugle were

represented by the same counsel (i.e., Timothy Obringer and Todd Raslcin) and no prospect of a

conflict of interest arose until April 27, 2007.

6. On April 27, 2007, Respondent ruled during a hearing that he would admit

evidence at the trial of this case a criminal court Joumal Entry that details the nature of Ms.

Naugle's criminal conduct while an employee of CFCP. The Respondent denied the Relators'

attorneys' efforts to prevent this evidence from being admitted. See Mot. In Limine, attached as

Ex. "A." The Relators' attorneys for the facility are now in a position where they must elicit

testimony that is favorable to the facility and detrimental to Ms. Naugle. Specifically, since

Plaintiff is now permitted to argue that Naugle was impaired and under the influence of drugs

while providing care to PlaintifPs decedent, counsel for the facility must be permitted to argue

that such conduct, if true, violates the rules and regulation of the facility. As such, Ms. Naugle

was acting outside of the course and scope of her employment for which there is no respondeat

superior liability attributable to CFCP.

7. Pursuant to Rule 1.9 of the Ohio Rules of Professional Conduct, undersigned

counsel would be prohibited from representing either Defendant (Naugle or the facility) unless

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the other client gives "informed consent, confirmed in writing" permitting undersigned counsel

to represent one party or the other. That consent has not been given at this time.

8. On Friday April 27, 2007, Attomey Todd Raskin initiated a telephone conference

with the parties and the Respondent to notify the Court of the conflict of interest and his inability

to represent his clients without obtaining informed consent in writing. During that conference,

Attorney Raskin made Respondent aware that he prepared and would be filing a "Motion to

Withdraw as Counsel, to Continue the Trial, and to Stay Discovery." See Motion to Withdraw

etc., attached as Ex. "B." That motion was filed on April 30. The Respondent stated during that

telephone conference that he would not stay discovery and directed the Relators to "spend the

money" to engage in the five previously scheduled depositions in weeks before trial on May 14,

2007. Respondent also stated that he was leaving town and would not be available until May 7,

2007 at the earliest.

9. The Respondent's rulings, failures to rule (on the pending motions for trial

continuance and for withdrawal as counsel), and representations violate of the Relators' clear

legal right to legal counsel free from conflicts of interest that would be detrimental to their just

representation when it failed to place a moratorium on the action while Relators' chosen counsel

resolves the ethical conflicts. No adequate remedy exists for the Relators and their attorneys.

CAUSE OF ACTION

10. Paragraphs 1 through 9 are incorporated as if fully re-written herein.

11. With respect to the Writ of Mandamus, the Relators have a clear legal right to

legal counsel free from conflicts of interest that would be detrimental to their just representation

and the remedy prayed for: to place a moratorium on the action while Relators' chosen counsel

resolves the ethical conflicts. Pursuant to Judicial and Attorney Rules of Ethical conduct and the

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binding precedent of this Court, Respondent is under a clear legal duty to perform the requested

acts. In re Disqualification of Floyd, 101 Ohio St.3d 1215, 2003-Ohio-7354 (judge has an

affirmative duty to ensure that an attorney does not violate any ethical consideration pertaining to

the attorney-client relationship). It is well-established that a party has a clear legal right to

counsel of his or her choice free from ethical conflict. See 155 North High, Limited v. Cincinnati

Insurance Company (1995), 72 Ohio St.3d 423, 429; See generally CANON 3 of Code of

Judicial Conduct; Ohio Rules of Professional Conduct.

12. Relators have no plain and adequate remedy in the ordinary course of the law.

Under Respondent's rulings, failures to rule, and representations, Relators will be forced to have

counsel represent them where a conflict exists in violation of ethical rules.

13. The Respondent is a person who has exercised judicial power with regard to

denying Relators requests to place a moratorium on discovery while the ethical conflicts are

resolved in violation of a clear legal duty to prohibit such conflicts.

14. Refusal of this Writ will result in injury for which no other adequate remedy

exists -- to wit: the Relators will be forced to have counsel impaired by existing conflicts of

interest that may harm their representation and by forcing present counsel to engage in ethical

violations or face judicial sanction. By denying the moratorium on this case until the ethical

violations are resolved, the Respondent poses a conflict for which no adequate remedy exists for

both the Relators and their attomeys.

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Wherefore, Relators request that this Court immediately issue a Writ of Mandamus

compellnig Respondent to stay all proceedings in the underlying action, including discovery and

trial on May 14, 2007, in the Summit County Common Pleas Court in Case No. CV 2004-09-

4954.

Respectfully submitted,

RY7

JOHN T. CL RICH 021494)TODD RASKIN 625)TIMOT R.OBRINGER (0055999)FRANK H. SCIALDONE (0075179)100 Fraiilclin's Row34305 Solon RoadCleveland, OH 44139(440) 248-7906(440) 248-8861 - FaxEmail: [email protected]

trasltin lmrrkl aw. comtobringcr(ilrm•rklaw.comfscialdone a mrrklaw.com


6

CERTIFICATE OF SERVICE

A copy of the foregoing Emergency Complaint for Writ of Mandanlus and Reqtiest for

Expedited Consideration was served on May 2, 2007 by depositing same in first-class United

States mail, postage prepaid, to the following:

The Honorable Judge Ted SchneidermanSummit County Court of Common Pleas209 South High StreetAkron, OH 44308

JOHN T MCILANDRXJ^K0021494)TODD . RASKIN (0003625)TIMOTHY R. OBRINGER (0055999)FRANK H. SCIALDONE (0075179)


PCMNH-0403411Emergency Complaint - Writ ofMandamus

7



Relatorvs.


Respondent


AFFIDAVIT OF TODD M. RASKIN

STATE OF OHIO )) SS:

COUNTY OF SUMMIT )

Now comes Affiant, Todd M. Raskin, first being duly cautioned and sworn according tolaw, and deposes and states the following:

1. I am an adult of sound body and mind and herby make this affidavit based upon my ownpersonal knowledge, information and belief.

2. I am one of the attorneys representing Defendants CFCP Properties, L.L.C., CuyahogaFalls Country Place, and Cathleen Naugle.

3. On behalf of the Relators, being duly cautioned and sworn, Afflant deposes and says thathe has read the foregoing Complaint for a Writ in Mandamus and the statementscontained in the Coniplaint, which are specifically incorporated by reference as ifcompletely rewritten in this Affidavit, are true based on my personal lcnowledge.

4. CFCP Properties, L.L.C. is a limited liability coiporation organized and existing pursuantto the law of the.State of Ohio. CFCP Properties is the owner of Cuyahoga Falls CountryPlace, a nursing home located at 2728 Bailey Road, Cuyahoga Falls, Ohio. CathleenNaugle was an employee of Cuyahoga Falls Country Place.

5. Respondent, Judge Ted Schneiderman, is a visiting judge in the Sunnnit County CommonPleas case here.

6. This original action atises from the wrongful death and survivorship action initiated byPlaintiff Dolly Burlchart, Executiix of the Estate of Michael Haddad, against DefendantsCuyahoga Falls Country Place (CFCP) and Catlileen Naugle. Plaintiff contends, among

1

other things, that the Relators were negligent in providing care and treatment toPlaintiff's decedent, Michael Haddad. Plaintiff also contends that Relator CFCPnegligently hired, supervised and retained Defendant Cathleen Naugle. Plaintiff's claimsare based upon Relators' alleged failure to properly respond to an "acute medical event"suffered by Mr. Haddad on September 7, 2003, which allegedly resulted in Mr. Haddad'ssubsequent respiratory failure and death on September 9, 2003.

7. During this litigation, the Defendants CFCP, Country Place, and Ms. Naugle wererepresented by the same counsel (i.e., Timothy Obringer and Todd Raskin) and noprospect of a conflict of interest arose until Apri127, 2007.

8. On April 27, 2007, Respondent ruled during a hearing that he would admit evidence of acriminal court Joutnal Entry that details the nature of Ms. Naugle's ciiniinal conductwhile an employee of CFCP. The Respondent denied the Relators' attorneys' efforts toprevent this evidence from being admitted. See Mot. In Limine and Order, attached asEx. "A" and "C" as true and accttrate copies incorporated herein by reference. TheRelators' attomeys for the facility are now in a position where they must elicit testitnonythat is favorable to the facility and detrimental to Ms. Naugle. Specifically, since Plaintiffis now permitted to argue that Naugle was impaired and under the influence of drugswhile providing care to Plaintiff's decedent, counsel for the facility must be permitted toargue that such conduct, if true, violates the rules and regulation of the facility. As such,Ms. Naugle was acting outside of the course and scope of her employment for whichthere is no respondeat superior liability attributable to CFCP.

9. Pursuant to Rule 1.9 of the Ohio Rules of Professional Conduct, undersigned counselwould be prohibited from representing either Defendant (Naugle or the facility) unlessthe otlier client gives "infonned consent, confirmed in writing" permitting undersignedcounsel to represent one party or the other. That consent has not been given at this time.

10. On Friday Apri127, 2007, I initiated a telephone conference with the parties and theRespondent to notify the Court of the conflict of interest and his inability to represent hisclients without obtaining informed consent in writing. During that conference, I madeRespondent aware that he prepared and would be filing a "Motion to Withdraw asCounsel, to Continue the Trial, and to Stay Discovery." See Motion to Withdraw etc.,attached as Ex. "B" as a true and accurate copy incorporated herein by reference. Thatmotion was filed on Apri130. The Respondent stated during that telephone conferencethat he would not stay discovery and directed the Relators to "spend the money" toengage in the five previously scheduled depositions in weeks before trial on May 14,2007. Respondent also stated that he was leaving town and would not be available untilMay 7; 2007 at the earliest.

11. On May 2, 2007, I contacted the Respondent's Staff attomey as a courtesy to let herknow about the filing of the present mandamus action; she later that day left a voicemessage. The Staff Attorney stated that she spoke with Respondent to inform him of thefiling of the writ of mandamus and he told her he would not reconsider his decision ofApril 27, 2007 and discovery must go forward.

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12. As is reflected in Ex. "D," counsel for Plaintiff in the underlying action intends toproceed with the taking preservation of trial depositions on May 3, May 7 and May 8.Exhibit "D" is a true and accurate copy of the Plaintiff s correspondence and isincorporated here by reference.

13. The Respondent's rulings; failures to rule, and representations violate of the Relators'clear legal right to legal counsel free from conflicts of interest that would be detrimentalto their just representation when he failed to place a moratorium on the action whileRelators' chosen counsel resolves the ethical conflicts. No adequate remedy exists for theRelators and their attomeys.

FURTHER AFFIANT SAITH NAUGHT.

Todd M. Raskin

Sworn to before me and subscribed in my presence by the said Todd M. Raskin on thisday of May, 2007.

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?OoIAPr?j A^ 7;88

SÎ^rf^li COU?V1YCÊR< OF COURTS

IN THE COURT OF COMMON PLEASSUNI[vIIT COUNTY, OHIO

Dolly Burldiatt, Executrix of the Estate of ) CASE NO.: CV-2004-09-4954Michel S. Haddad, Deceased,

Plaintiff,JUDGE SCHNEIDERIvIAN

DEFE?. .ANT S' MOTION IN LFiYitNE T-C'vs• ) EXCLUDE EVIDENCE OF CATHLEEN

NAUGLE'S SUBSEQUENT CRIMINALCFCP Properties LLC, et al., ) CONVICTION OR TERMINATION OF

Defendants.EMPLOYNIENT

Now come Defendants, Cuyahoga Falls Countiy Place atid Cathleen Naugle, by aud

tlu•ough counsel, Mazanec, Raskin, Ryder & ICeller, and hereby move this Court for an Order in

Limine excludiug fi•om the trial of this inatter, any and all evidence, testimony or argument given

or presented by Plaintiffs, which relates or refers in any way to (1) the nanie, nature or details of

Defendant Catlileen Naugle's conviction for illegal processing of drug docwnents, theft of dnigs

and tampering with drugs rendered by the Sununit County Court of Conunon Pleas in case

number CR 05 01 0283 on 7tme 6, 2005, or (2) the details or cn-cumstances stinoi.md'uig the

tennination of Defendant Cathleen Naugle's employment by Defendaut Cuyahoga Falls Country

Place.

EXHIBIT

b ^^

MEMORANDUM IN SUPPORT

1. STATEMENT OF FACTS

This is a wrongful death and survivorship action initiated by Plaintiff Dolly Burkhart,

Executrix of the Estate of MichaeI Haddad, against Defendants Cuyalioga Falls Cotmtry Place

(CFCP) and Cathleen Naugle. In her Aniended Complaint, Plaintiff contends, aiilong other

things, that Defendants were negligent in providing care and treatment to Plaintiffs decedent,

Dvlichael Haddad. Plaintiff also contends that Defendant CFCP negligently hired, supervised and

retained Defendant Cathleen Naugle. Plaintiffs claims are based upon Defendants alleged

failure to properly respond t0 an "acute medical event" suffered by Mr. Haddad on September 7,

2003, which allegedly resulted in Mr. Haddad's subseqttent respiratory failure and death on

September 9, 2003.

Based upon correspondence and conununications with Plaintiff's counsel, the deposition

testhnony of Plaintiff's purported expert witnesses, Lance Youles and Debi Luther, and the refief

requested by Plaintiff in the rnemoranda in support of her Motion for Sanctions, Defendants have

reason to believe that Plaintiff will seek to introduce evidence at the hial of this matter regarding

Defendant Cathleen Naugle's drug-related conviction and employinent teimination, both of

which were based upon conduct that occun-ed several months after the care and treatment

complained of by Plaintiff and the death of Plaintiff's decedent. The Ohio State Board of

Phannacy conducted an investigation regarding certain dntg-related rnisconduct on the part of

Defendant Cathleen Naugle. Subsequently, on June 6, 2005, Ms. Naugle plead guilty to various

dnrg -related charges in Si.unnnit Cotuity case munber CR 05 01 0283. As noted in the Board's

investigation report and in Cotu-f's Journal Entiy of conviction (copies of which are attached

3

hereto as Exhibits A and B, respectively), the conduct giving rise to the charges against Ms.

Naugle occuiTed between January 1, 2004 and May 9, 2004. This conduct ultiinately led to the

tennination of Ms. Naugle's employnient by Defendant Cuyahoga Falls Country Place. Plaintiff

apparently intends to introduce such evidence to establisli that Ms. Naugle was "chemically

impaired, abusing drngs or otherwise engaged in dttiig seeking behavior" at the time Defendants

rendered care and treatment to Plaintiff's decedent, despite having absolutely no independent

evidence to support their contention (See Plaintiff's Motion for Sanctions; Plahrtiff's

Supplemental Brief in Support of Her Motion For Sanctions). The deposition testimony of

Plaintiff's own expert witness, Lance Youles, reveals that absolutely no direct evidence exists to

establish that Ms. Naugle was cheniicaliy unpaIred or abusing drugs at the time she provided

care to Mr. Haddad (Youles Depo. pp. 49-53, 250)1. hideed, Mr. Youles relied on Ms. Naugle's

"history" and the "suspicion" of drug use before and after September 7, 2003, ui fonning his

opinion that "it was more likely than not" that Ms. Naugle had consumed drugs on September 7,

2003 (Youles Depo. pp. 49-5.1). Despite his opinions, however, Mr. Youles admitted that he did

not lmow what if any dtugs Ms. Naugle may have taken on Septeniber 7, 2003 (Yotdes Depo.

pp. 51-53). Specifically, Mr. Youles testified as follows:

Q. On September 7, 2003, what diugs did Ms. Naugleconsutne7

A. I don't know that answer.

(Youles Depo. p. 51). Mr. Youles further aclniowledged that he did not observe Ms. Naugle's

behavior on September 7, 2003 and could point to no facts indicating that Ms. Naugle was

actually under tl-ie influence of any drugs on September 7, 2003 (Youles Depo. pp. 69-71). He

testified as follows:

' The cited portion.s of Mr. Youles' deposition testimony are attached hereto as Exhibit C.4

Sir, are you aware of any facts that lead you to concludethat Cathleen Naugle on September 7, 2003 by virtue ofyotu review of her chatting was under the itifluence ofmedication?

Ms. 7udge: Objection

A. I don't know that I recall any facts.

(Youles Depo. pp. 70-71). Rather, Plaintiff relies on mere guesswork, based tipon subsequent,

tnuelated condttct, to stun-use that Ms. Natigle was impaired and suffering from dtug addiction at

the titne of Mr. Haddad's treatment (Youles Depo. pp. 49-53, 250).

Oliio law prohibits Plaintiffs use of tlvs irrelevant, highly prejudicial evidence. Indeed,

the introduction of testimony or evidence relating Ms. Naugle's conduct, which took place four

months after the death of Plaintiff's decedent, would constitute a wliolly inappropriate attempt to

establish that Ms. Naugle acted in conformity with that conduct at an earlier, muelated event in

time. Furthetrnore, such evidence is completely in•elevant to the resolution of Plahitiff's clanns.

Nevertheless, even if such evideiice was relevant to any of the material facts at issue in this case,

wluch it is not, any probative value is substantially outweiglied by the extreme danger of unfair

prejudice to Defendants. As such, any and all testunony, evidence or argument relating to the

conduct giving rise to Ms. Naugle's crinunal conviction or to the termination of her employment

must be excluded fl'oni the trial of this matter.

U. LAW AND ARGUMENT

Generally, "a trial court has broad discretion in the adinission or exclusion of

evidence...so long as such discretion is exercised in line witli the ntles of procedure and

evidence". Perry v. University Hosp. Of Cleveland (Aug. 5, 2005), Cuyahoga App. No. 83034,

2004 Ohio 4098, at P 25 (attached hereto as Exlvbit D). Evid. R. 402 articulates the basic

principle that all relevant evidence is admissible, and evidence which is not relevant is

5

nladmissible. Ohio Evid. R. 402. "Relevant evidence" is defined by Evid. R. 401 as "evidence

having any tendency to rnalce the existence of auy fact that is of corisequence to the

determination of the action more probable or less probable than it would be witliout the

evidence." Evid. R. 401. Thus, evidence which has no probative value upon the issue or issues

being tried is in•elevant and must be excluded. Dellenbach v. Robinson (1993), 95 Ohio App.3d

358, 376; Cleveland v. Hill (1989), 63 Ohio App.3d 194, 197.

Even relevant evidence is inadmissible if its probative value is outweiglzed by the danger

of unfair prejudice. Specifically, Evid. R. 403 provides, in pertinent part, that:

Although relevant, evidence is not adinissible if its probative valueis substantially outweighed by the danger of unfair prejudice, ofconfusion of the issues, or ofnlisleading the jury.

Evid. R. 403(A). Thus, where the probative value of proffered evidence is outweighed by the

strong probability that it will be unfairly prejudicial, sucli evidence rnust be excluded. Lurnpkin

v. YY'ayne Hosp. (7an. 23, 2004), Darke Cotuity App. No. 1615, 2004 Ohio 264, at P16 (attached

hereto as Exhibit E). That is, "when the trial court finds that the probative value of the evidence

is substantially outweighed by the danger of unfair prejudice, confasion of the issues, or the

misleading of the jury, exclusion of the evidence is not discretionary, but mandatory." Balcer v.

Ohio Bureau Of Workers' Con2pensation (Dec. 15, 2000), 140 Ohio App.3d 766, 772.

Snbject to the foregoing preconditions of adnussibility, Ohio law petmits the introduction

of evidence of other ctimes, wrongs or acts under very limited circttmstances. Evid. R. 404(B);

Evid. R. 609. Specifically, Evid. R. 404(B) provides that such evidence may be admissible to

establish "proof of motive, opportunity, intent, preparation, plan, Icnowledge, identity, or absence

of mistalce or accident." However, as recognized by the Oluo Supreme Court, because this rule

codifies "an exception to the common law with respect to evidetice of other acts of wrongdoing,

6

[it] n-iust be constnted against admissibility, and the standard for detetznining admissibility of

such evidence must be strict. State v. Broom (1988), 40 Ohio St.3d 277, 281-82. Furthennore,

Evid. R. 404(B) expressly states that "[e]vidence of otlier crimes, wrongs, or acts is not

adtnissible to prove the character of a person in order to show that he acted in confonnity

therewith."

In Cappara v. Schibley (1999), 85 Ohio St.3d 403, the Ohio Supretne Coutt contemplated

whether the ttial court erred in admitting evidence of a defendant's convictions for drivnig under

the influence to establish a"pattern of...misconduct" and the defendant's state of muid at the

time of an accident, which predated the convictions. Id at 406. Holding that the evidence was

irtetevant, highly prejudicial and ultimately inadmissible, the Supreme Court reasoned as

follows:

[Defendant's] DUI convictions that occtm•ed subseqtient in tnne tothe accident in qtiestion are clearly not relevant toward his state ofniind at the tirue of the accident:

To hold that [Defendant's] subsequent driving record is relevantand admissible to establish an ongoing "pattem of vehicularmisconduet" would essentiatly allow a cotnplaining party to use aperson's subsequent crinies and bad acts "in order to show that heacted 'ni confonnity therewith" at the time of the accident inquestion. This is precisely what Evid. R. 404(B) is designed toprevent.

It is implausible that one's record of subsequent DUI convictionswould have any relevance upon his state of mind at an earlier,tuuelated event. There is no corollary between the subsequentconvictions in 1993 and 1994 and [Defendant's] negligence inOctober 1992.

Id. at 406-407 (citation omitted). The Coutl fotmd that there was no direct evidence that the

defendant was intoxicated at the titne of the accident. Id. at 407. Rather the jury's belief that the

7

defendant was intoxicated was based solely upon his unrelated DUI convictions. Id. at 407.

Concluding that the trial court connnitted reversible error by adinitting evidence of the

defendant's subsequent convictions, the Supreme Court stated as follows:

It would be inherently unfair to allow the admission of a person'ssubsequent record of drivuig while intoxicated to establish his orher state of mind at an earlier, unrelated event in tnne. Suchevidence is not relevant, highly prejudicial, and consequently, notadmissible.

Id at 408-409 (citations ornitted).

In the instant matter, Plaintiff contends that Defendants were negligent in the care and

treatment provided to Mr. Haddad on September 7, 2003 and that such negligence caused Mr.

Haddad's death oli Septernber 9, 2003. Clearly, arry evidence of cnniinal activity or misconduct

on the part of Ms.,Naugle, which began on 7anuary 1, 2004, is eonipletely irlelevant to her

alleged *.iegligence four rnorxths earlier. Furthennore, as revealed 'ni the memoranda in suppoit of

her. Motion for Sanctions, Plaintiff intends to utilize evidence of Ms. Naugle's subsequent

conduct and drug-related conviction to establish that she was "cheniically inipaired, abusing

dnigs" aud "engaged in drug seeking behavior" when she rendered care and treatinent to Mr.

Haddad, a use that is expressly prolubited by Evid. R. 404(B). Indeed, as recognized by the Olrio

Supreme Court in Cappara, "allowing a complaining party to use a person's subsequent crimes

and bad acts ìn order to show that [she] acted in conf'onnity therewith' at the time of the [event]

in question...is precisely what Evid. R. 404(B) is designed to prevent." Cappara, supra at 407.

Fhially, any evidence of the details and circumstances surrounding Ms. Naugle's subsequent

conviction and employment tennination would be extrernely prejudicial and would confuse and

mislead the jury regarding the material facts at issue in this case. Any conceivable probative

valae of such evidence is outweighed by its prejudicial nature, as an iinpaitial consideration by

8

the jury of Defendants' alleged negligence on September 7, 2003 would be foreclosed.

Accordingly, any and all evidence of the details and circumstances relatnig to Ms. Nattgle's

ciiniinal conviction and the teimination of her employment must be excluded froin trial.

III. CONCLUSION

For the forgoing reasons, Defendants Cuyahoga Falls Country Place and Cath.leen Naugle

respectfiilly subniit that this Court should issue an Order in Limine, prohibiting Plaintiff from

offering any evidence, testimony or argument at the trial of this matter referrmitug or relatinig in

any way the conduct that gave rise to Defendant Naugle's conviction in Surnnut County Case

Number CR 05 01 0283, or to the termination of her employment by Defendant Cuyahoga Falls

Country Place.


MAZANEC, RASKIN, RYDER & KELLER CO., L.P.A.

7x

TODD M. RASICKI (0003625) QTIMOTHY R. OBRINGER (0055999)100 Franlclin's Row34305 Solon RoadCleveland, OH 44139(440) 248-7906(440) 248-8861- FaxEmail: traskin a.inrrlcl aw. com

tobrniger(@.mrrklazv.com

Counsel for Defendants

9


A copy of the foregoing Defendants' Motion In Limine To Exclude Evidence Of

Subsequent Criminal Conviction was served Friday, April 27, 2007 by hand-deliveiy to the

following:

Betli A. Judge, Esq.Lawrence Landskroner and Associates55 Public SquareSuite 1040Cleveland, Ohio 44113-1901

Michael M. Djordjevic, Esq.Djordjevic Casey & Mamiaros17 S. Maui Street, Suite 201Alaron, OH 44308

Attorneys for Dolly Btuldia.rt, Executrix of theEstate of Michel S. Haddad, Deceased

TODD M. RASI{IIW(0003625) . ITIMOTHY R. OBRINGER (0055999)


PCMNH-0403411Defeiidants' Motion In Linune To Exclude Evidence OfSubsequent Crimuial Conviction

10

OH10 STATE BOARD OF PHARMACY

REPORT OF INVESTIGATION

CASE NO.: 04-1249

REPORT BY: Compliance Specialist L. R. Mandi, R.Ph.

REPORT DATE: 05-17-04

RE: "TAMPERING" with DRUGS

THEFT OF DANGEROUS DRUGS

ILLEGAL PROCESSING OF DRUG DOCUMENTS

02 Hydromorphone 2 mg (Dilaudid'"d), schedule It02 Oxycodone 5 mg (Oxy{RT"`), schedule 1101 Oxycodone/APAP 51325 (Percocet""), schedule 1108 Hydrocodone/APAP 5/500 (Vicodin'""), schedule III01 Lorazepam 0.5 mg (AtivanT°d), schedule IV

SUSPECT: CATHLEEN A. NAUGLE, RN OH RN249270

SSfV:299-58-2717 13013:04^-29-56Hgt: 5'3" Wgt:130 Hair: Brown Eyes: Brown ODL:RH578518

2227 - 7th St., Cuyahoga Falls, OH 44221

H: (33O) 923-0624

SITE: CUYAHOGA FALLS COUNTRY PLACE

%NCS Eastlake TDD #02-09105502728 Bailey Rd, Cuyahoga Falls, OH 44221(330) 929-4231

DATES: 01 /01 j04 to 05/09/04

REQUESTED CHARGES:

01 CT. (F-3) "TAMPERING WITH DRUGS"

04 CTS. (F-4) THEFT OF A DANGEROUS DRUG

03 CTS. (F-4) ILLEGAL PROCESSING OF A DRUG DOCUMENT

01 CT. (F-5) ILLEGAL PROCESSING OF A DRUG DOCUMENT

E7CFlIB{T

7his rcporl mny not be distributed without pcnnission or thc Bnnrd oF Phammcy's Complinnce f.dministrntor,

4age: 2Case#: 04-1249Date: 05-17-04

COUNT 1(F-3): TAMPERING WITH DRUGS

ORC 2925.24 (A) Vicodln'M 5/500 tablets

COUNT 2(F-4): Theft of a dangerous drug, 05/09/04ORC 2913.02 (B)(6) PercocetT" 5/325 tablet, Rx #9541260 (patientJD) at 10:00 hours

VicodinTTM 51500 tablet, Rx #9546975 (patient PB) at 9:00 hours

COUNT 3(F-4): Illegal Processing of a Drug Document, 05/09/04

ORC 2925.23 (A) PercocetTM 5/325 tablet, Rx #9541260 (patientJD) at 10:00 hrs

VicodireTM' 5/500 tablet, Rx #9546975 (patient PB) at 9:00 hrs

COUNT 4 (F-4): Theft of a dangerous drug, 05/04/04ORC 2913.02 (B)(6) 1 VicodinT"' S/500 tablet, Rx #9539990 (patient PD) at 10:00 hrs

2 VicodinT'" 5/500 tablets, Rx #9503077 (patient DV) at 9:00 hrs

COUPIT 5(F-5): Illegal F'rocessing of a Drug Document, 05/04/04ORC 2925.23 (A) 1 VicodinT''' S/500 tablet, Rx #9539990 (patient PD) at 10:00..hrs

2 VicodinT" 5/500 tablets, Rx #9503077 (patient DV) at 9:00 hrs

COUNT 6 (F-4): Theft of a dangerous drug, 05(03 j04

ORC 2913.02 (B)(6) 2 Oxy(R"' 5 mg capsules, Rx #9551538 (patient EH) at 13:00 hrs

1 VicodinTM 5/500 tablet, Rx #9539990 (patient PD) at 10:00 hrs

2 VicodinTM 5/500 tablets, Rx #9503077 (patient DV) at 9:00 hrs

COUNT 7 (F-4): Illegal Processing of a Drug Document, 05/03/04ORC 2925.23 (A) 2 Oxy1RT" 5 mg capsules, Rx #9551538 ( patient EH) at 13:00 hrs

1 VicodinT`" 5/500 tablet, Rx #9539990 (patient PD) at 10:00 hrs2 Vicodin'TM 5/500 tablets, Rx#9503077 (patient DV) at 9:00 hrs

COUNT 8 (F-4): Theft of a dangerous drug, 05/02/04

ORC 2913.02 (B)(6) 2 DElaudid'TM 2mg tablets, Rx#9549113 (patient LB) at 15:00 hrs

1 Vicodin'TM 5/500 tablet, Rx#9539990 (patient PD) at 8:00 hrs

1 Ativan'M 0.5 mg tablet, Rx #9448417 (patient DL) at 13:00 hrs

COUNT 9(F-4): Illegal Processing of a Drug Document, 05102/04

ORC 2925.23 (A) 2 Dilaud id-I"' 2mg tablets, Rx #9549113 (patient LB) at 15:00 hrs

I V[codfnTM' 5(500 tabfet, Rx #9539990 (patient PD) at 8:00 hrs

1 AtivanT'" 0.5 mg tablet, Rx #9448417 (patient DL) at 13:00 hrs

This mpon muynot bc dislribmeJ rvilhoutpcrmfxsion n((Lc BooN of PLmmucy's Cmnpltuncc Ailministmmor.

Page: 3Case #E: 04-1249Date: 05-17-04

Synapsis: On Thursday, 5/13/04 at approximately 11:30 hours, Cathleen

Naugle, RN confessed to ntampering" with drugs, theft of

dangerous drugs, and illegal processing of drug documents

(falsification) while employed at Cuyahoga Falls County Place to

OSHP Compliance specialist Mandi and Ohio Board of Nursing

lnvestigator Dennis Corrigan, RN. RN Naugle stated her last theft

occurred Sunday, 5 j9/04 from the patient prescription containers

of Rx #9546975 (PB) and Rx #9541269 QD).

RN Naugle admitted to illegally removing 2 - 3 tablets/day ( 8 to

10 tablets/week) of controlled substances from patient

prescription containers for her personal consumption. RN Naugle

stated she would administer. 1 VicodinT"' and I Tylenoi'TM 500mg

Extra-strength tablet and document the removai/administration of2 VicadinTM tablets..

Investigation: During an investigation concerning the "tampering" and theft ofdangerous drugs (controlled substances) at Cuyahoga Falls

Country Place, Mandi reviewed numerous CDARs (Controlled Drug

Adrninistratfon Records). The review Indicated several unusual

activities by RN Naugle in documenting the removal and

adminIstration of controlled substances.

Niandi requested Asst. Director of Nursing Jennifer Frazier, RN

monitor RN Naugle's activity and acquire patients' urine samples

for testing of the presence of purported controlled substance

administrations. RN Frazier notified Mandi of the collection of 3

different patient's samples on 5/4/04 thru 5(5(04. Mandi

directed RN Frazier to continuing monitoring RN Naugle's activity

while awaiting test results.

On 5/10/04, Summa Heaith System toxicologist Nick O'Donneil,

Ph.D. reported no detection of drug (V€codinT'") in 2 of the patients'

urine samples. Mandi notified the facility's administrator (Sara)

and RN Frazier of the results and was informed RN Naugle would

return to work on 5(13(04. Mandl contacted Ohio Board of

Nursing investigator Dennis Corrigan, RN for assistance in

interviewing RN Naugle upon her return to woric.

TLis mpon may not 6 distriLUled svilhnul pcnnission or Iiic BousA orPbmmncys Compllace Adniioistmmr.

Page: 4Case #: 04-1249Date: 05-17-04

On 5/1 3/04 at approximately i 1:00, Mandi and RN Corrigan met

with RN Naugie at Cuyahoga Falls Country Place. Mandi asked and

received RN Naugle's voluntary assistance in reviewing CDARs.

After examining and admitting to the purported removal and

subsequent administration ofVicodinT"'to patients PR, PD, and DV,

RN Naugle was informed scientific evidence indicated no

administration of VicodinTM to patient PD and DV. Until shown

Summa Health System toxicology reports af patient PD and DV'surine, RN Naugle denled any involvement.

With further questioning, RN Naugle admitted to removing 2 to 3

VicodinT'" and/or Percocet'M tablets/day (8 to 10 tablets/week) for

personal consumption due to back/shoulder pain. Naugle

confessed to her recent theft of dangerous drugs Sunday, 5/9/04.

Naugle stated she would record the removal and administration of

2 VicodinTM tablets from patient prescription containers and give

the patient 1 VicodinT" and 1 TylenoiT" Extra-strength tablet.

A Sony, digitalized, CD minidisc, audio recording of RN Naugle'sinterviesni is available.

Respectfully submitted;

Specialist L. R. Mandi, R.Ph.

Ohio State Board of Pharmacy

AT-fACHMENTS:

NCS of Eastlake CDAR Rx #9546975 (patient PB) dispensed 5/03/04

NCS of Eastlake CDAR Rx #9541269 (patientJD) dispensed 4/26/04

NCS of Eastlake CDAR Rx #9539990 (patient PD) dispensed 4/24/04

Summa Health System Toxicology report - patient PD's urine sample collected 5/5/04, 11:30

NCS of Eastlake CDAR Rx #9503077 (patient DV) dispensed 4/26/04

Summa Heaith System Toxicology report - patient DV's urine sample collected 5/4104, 16:30

NCS of Eastlake CDAR Rx #9546975 (patient PB) dispensed 5/03/04

Summa Health System Toxicology report - patfent PB's urine sample collected S/4/04, 19:00

NCS of Eastlake CDAR Rx #9549113 (patient LB) dispensed 4/30/04

NCS of Eastlake CDAR Rx #955i 538 (patient EH) dlspensed 5/01 /04

NCS of Eastlake CDAR Rx #9448417 (patient DL) dispensed 4124/04

7Lis tcpoM1 my nm be d'eslribWed ivithont pennissiomt af dm Havd olPImmmcy'a Canplinnce Adminietromr.

uvr I

I.}(r'.N/A j !,I l-i,lrI,. ^

;:ui<SJJ;! -8 I'hi 2: 57

CLERK OF COURTSvs.

IN THE COURT OF COMMON PLEASOOd1NT`p OF Si3MMIT

CATHLEEN ANN NAUGLE

MAY TERM 2005

Case No. CR 05 01 0283

7O[!RldAL ENTRY

THIS DAY, to-wit: The 611i day of June, A.D., 2005, now comes the Prosecuting Attorney on

behalf of the State of Ohio, the Defendant, CATHLEEN ANN NAUGLE, being in Court with counsel,

JOY CHICATELLI, for trial herein. Heretofore on June 6, 2005 a Jury was duly empaneled and

sworn, and the trial commenced and thereafter the Defendant expressed a desire to change her plea.

Thereupon, said Defendant retracts her plea of Not Guilty heretofore entered and for plea to said

Indictment, says she is GUILTY of ILLEGAL PROCESSING OF DRUG DOCUMENTS, Ohio Revised Code

section 2925.23(A), as contained in Count 1 of the Indictment, which offense occurred on or about

May 2, 2004, a felony of the fourth (4th) degree; THEFT OF DRUGS, Ohio Revised Code Section

2913.02(A)(3), as contained in Count 5 of the Indictment, which offense occurred on or about May 2,

2004, a felony of the fourth (4th) degree; and TAMPERING WITH DRUGS, Ohio Revised Code Section

2925.24, as contained in Count 9 of the Indictment, which offense occurred on or about January 1,

2004 through on or about May 9, 2004, a felony of the third (3*d) degree, which pleas, voluntarily made

and with a full understanding of the consequences, are accepted by the Court. IT IS FURTHER

ORDERED that the charges of ILLEGAL PROCESSING OF DRUG DOCUMENTS, as contained in

Counts 2, 3 and 4 of the Indictrnent and THEFT OF DRUGS, as contained in Counts 6, 7, and 8 of the

Indictment, are herein DISMISSED.

Thereupon, the Court inquired of the said Defendant if she had anything to say why judgment

should not be pronounced against her; and having nothing but what she had already said, and

showing no good and sufficient cause why judgment should not be pronounced:

IT IS HEREBY ORDERED that the Defendant be sentenced to 1 Year of incarceration on each of

three (3) counts, cvhich are to run CONCURRENTLY and not consecutively with each other,

suspended, upon the condition that the Defendant complete 2 Years of community control, with the

following sanctions being imposed:

1. That she report to the Adult Probation Departnient as directed and abide by the rules andregulations of said Department and/or the Adult Parole Authority.

2. That she refrain from offensive conduct of every nature and obey all laws.

3. That she pay a $20.00 per month fee for services rendered by the Adult Probation Department;said monies to be paid to the Sumniit County Clerk of Courts, County Safety Building, 53University Avenue., Akron, OH 44308-1662. IT IS FURTHER ORDERED that the Defendantshall satisfy in full their cots and restitution accour ts before any nionies can be paid toward tesupetvision fees. The Clerk of Courts shall collect such fees and deposit the monies into theSurnn it County Probation Services Fund established in the County Treasury.

U

4. That she is required to provide a DNA sample pursuant to Sectiotas 2901.07 and 2152.74 of theOhio Revised Code.

5. That she submit to any evaluation and counseling, to include treatment for substance abuse,as directed by the Adult Probation Department.

6. That she submit to ranclom ttrinalysis as directed by the Adult Probation Department.

7. That she pay the costs of this prosecution as directed by the Adult Probation Department; saidmonies to be paid to the Summit Couttty Clerk of Court, County Safety Bttilding, 53 UniversityAvenue, Akron, OH 44308-1662.

IT IS FURTHER ORDERED that the Summit County Clerk of Courts shall collect monies from

the Defendant in the following order of priority: (1) costs; (2) restitution, if applicable; (3) Adult

Probation Department fees; (4) fines, if applicable.

Violation of this sentence shall lead to more restrictive sanctions for the Defendant, up to and

including a prison term of 12 inonths, as well as post release control of up to 3 years.

IT IS FURTHER ORDERED that the Defendant's driver's license and all driving privileges be

SUSPENDED for a definite period of Six (6) Months.

Said Defendant is ordered to report to the Adult Probation Department, FORTHWITH.

SAID COMMUNITY CONTROL TO COMMENCE THIS 6TH DAY OF JUNE, A.D., 20D5.

APPROVED:June 7, 2005clh

ELINORE MARSH STORMER, JudgeCourt of Common PleasSummit County, Ohio

cc: Prosecutor CoIleen Sims/ Kevin MayerCriminal AssignmentAttorney Joy ChicatelliAdult Probation Department(OBMV)

Burldiarl v. CFCP PropertiesDeposition of Lance Youles '

STATE OF OHIOIN THE COURT OF COMMOM PLEAS OF STJMMIT COUNTY

DOLLY Bi7RKHAR.T, Executrix of the

Estate of Michael S. Haddad,deceased,

Plaintiff,

-vs- No.: CV-2004-4954

LTudge Sch-Tieiderma_nCFCP PROPERTIES, LLC, et a1.,

Defendants .

LOCATION:

DATE:.

APPEARANCES:

FOR PLAINTIFF:

March 27, 2007

LAWRENCE LALVDSK?ZO.NER AND ASSOCIATES55 Public ScTuare, Suite 1040Cleveland, Ohio 44113

BY: MS. BETH A. JUDGE

FOR DEFENDANT: MA.Z.ATIEC, RASKIN, RYDER & KELLERCO., LPA100 Franklin's Row "

343G5 Solon Road

Cleveland, Ohio 44139

BY: I. TODD R. RASICIN

Reporter: Ka.ren Klerekoper, CSR-4250, P.PR

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Burlchart v. CFCP Properties March 27, 2007Deposition of Lance Youles

149 G

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MR. PASKIN: Don't engage in speaking

objections.

MS. JIIDGE: Ask your next question,

Mr. Raskin.

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BY MR. RASKIN:

Q. Is there a federal regulation which stands for the

proposition that you just articulated, and if so, tell

me the number, please?

A. The federal regulation has to do with an acute change

in medical condition of -- the principle violation

would be P309, which is part of my opinions. And

with.in the aaatext of..that regulation, and the

guida_naa to surveyors which.is within that

regulation, and the training to surveyors, that is the

premise that drives whether you cite somebody or you

don't.

Q. Is the premise articulated in this federal regulation?

A. You know, I would have to-check.

Q. As you sit here today, can you tell me?

A. I can, t tell you, no.

0. Thanks. Did Cathleen Naugle talte any medication on

September 7, 2003?

MS. OCTDGE: obj ection.

THE WI'T-NESS: In my opinion, it was more

likely than not.2S

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tsurlwart v. CFCP Properti esDeposition of Lance Youles

IYlarcfi 27, 2007

5a

BY MR. RASICIN:

Q. What facts can you share with me which support that

opinion?

A. Well, we all know what happened to her at the end.

4.

on September 7, 2063, do you understand that?

She took Vicodin in 2604..

You understand that Ms. Naugle last treated Mr. Haddad

A. I'm trying to answer your question, sir.

Q. Sir, do you, understand that?

A. I do --

MS. OUDGEc Objection, please let him

finish_his answer. if you ask him a question, he is

entitled to f7_nish his answer before you ask the next-

quesEion.

BY MR. RASILIN:

Q. I want you to confine your answer to my questio.n

. please.

A. I'm trying to answer your question but you are trying

to limit what my response is..

you to conclude that on September 7, 2003; Cathleen

Naugle was under the influence of any medication when

she rendered care to Mr. Haddad.

A. I'm trying to answer your question. I think the basis

of that would be the history of her use of drugs, or

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Burkhart v. CFCP PropertiesDeposition of Lance Youles

March 27, 2007

51 ri.

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the suspicion of such use in the facility, beginning

on 9-7-01, when there was disciplinary action for

finding OxyContin charted but not given on the chart.

Then approximately 10 days, or thereabouts,

before Mr. Haddad left the facility on 8-26-03 there

was another reference where she was r.ot bagging meds,

which is removing meds from the facility, whieh is

within the industry, is widely recognized as a leading

method to steal drugs from residents. So we have an

incident right before and we have a history prior to

that where they did, i.n fact, find her firith a schedule

II drug, OxyContin.

if you go after that, obviously, you know

that that's confirmed. But those are the two

incidents that happened before.

Q. On September 7, 2003, what drugs did Ms. Naugle

consume?

A. I don't know that answer.

MS. JCIDGE: Objection.

BY MR. RASKIN:

Q. Now, you made reference to a disciplinaty action on

SepEember 7th, of 2001; is that correct?

A. Yes, sir.

Q- Let me show you --

(Deposition Exhibit 7 was marked.)

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Bnrkhart v. CFCP Properties March 27, 2007Deposition of Lance Youles

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BY MR. PMSICIN:

O. Let me show you what I have marlted for identification

as Exhibit 7'. Is this the disciplinary action to

which you were referring?

A. Yes, sir.

0. is there any reference on this disciplinary action to

.Ms. Natigle having consumed the OxyContin?

A. No.

Q• As a.matter of fact, it was found on the med cart,

waSni'L it?

A. That's what the statement says, yes.

Q. Which cvould mean that she obviously. couldn' t have

consumed it, if it was there to be found, correct?

A. Not that one, no.

Q. I'm sorry, I didn't u-nderstand your answer:

A. No, not that particular pill, no.

Q. Okay. All right. Now, you do some nursing home

administration, do you?

A. Most of my career, sir.

Q. I see. Is it your testimony that whenever there is a

medicatio?i, be it Ox,yContin or any medication, tll-at's

found on a nursing med cart that is not given, it

means that the nurse is taking that medication?

A. There is a strong presumption there. Based on this

kind of drug, and the high frequency of abuse with

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Burkhart v. CFCP Properties &1'arch 27, 2007Deposition of Lance Youles

53

1

Q.

OxyContin, yes.

I see. So -- but of course, this particular OxyContin

pill wasn't taken byMs. Naugle, was. it? That's why

it was found, right?

MS. JIIDGE: Objection.

THE WITNESS: Not that particular one., no.

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BY M. P.ASKIN:

Q. .An.d are you aware of any facts that Ms. Naugle was

taking OxyContin in 2001 from any source, either by

prescription or otherwise?

A. X don't recall that, no.

Q. And is there any other explanation as a nursing home

adninistrator which would explain why a medication was

found on a med cart but not given to a resident?

A: I believe she charted it as being ga'ven.

Q. Can you answer my question, sir? -

A. Would you.ask it again,, sir?

Q. Is there any other explanation that you have become

aware of as a nursing home administrator which would

explain why.a medication was on a med cart and not

given to the resident?

A. -Are we talking about OxyContin now? ThatIs not just

any medication.

Q. Any.medication.

P-. I think we need to stay on the OxyContin.

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nurimarc v. Ukl;l.' Yroperties March 27, 2007Deposition of Lance Youles

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I think you need to answer my question; please.

I can't answer it the way you've asked it then.

So you have no other explanation other than

medications being stolen for consumption by whoever

the riurse is passing it out?

You don't give,me a chance to answer.

OxyContin is,a schedule 12 drug. it.is

p3lfered. It°s highly desirable on the street. When

you find that in a med cart, it raises suspicions,

just like Vicodin would. it should automatioally

raise su'spicion_

My question is, is there any other explanation other

than th= suspicion that you say it aiitomatically

should raise?

In other ;words, is there a legitimate.

explanation that you aware of that which could explair_

why a medication; wbether it's OxyContin or Vicodin,

or whatever the case may be, might be on a med cart

and not given to the.resident for whom it was

intended?

riiot without suspicion, no.

I dictn't ask.you about without suspicion. You have

told me about the suspicion part.

I want to Irn.ow if there is a-ny legitimate

explanation that you are aware of.

,a

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Burlcbart Y. CFCP PropertiesDeposition of Lance Youles

March 27, 2007

55

MS. JUDGE: Objection, asked and answered.

`rHE WITNESS: I would say no.

BY hLR. . RASKIN :

Q. So when the med cart is being used to pass out -

medication to residents and a resident is in physical

therapy, for instance, and therefore not there.to

receive the medication, would that be a legitimate

reason why that medication wouldn't be given at the

time that it was intended?

A. No, because it shau'ldn't have been removed from the

cart to begin with. it only should be removed when

it's being administered.

Q. 1 see. How would one know that the resident was or

wasn't iii the room until they walked in with the

medication in hand?

A. I'in. assuming this OxyContin is dispensed in a bubble

pack so the moment you break that bubble pack, you

better be in .the=presence of the resident to give it.

.If you don't and it's found lying around, that's a

breach of protocol. There's no other explanation for

it.

Q. Do you have the regulatory cite for that opinion?

A. That's a longstanding industry practice, you don't let

those medications sit around.

Q. Sir, my question is, do you have a regulatory cite for

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Burkhart v. CPCP PropertiesDeposition of Lance Youles

March 27, 2007

56

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the opinion you just gave?

A. it probably is in there, but I didn't use it in my

opinions so

Q. I didn't ask you if you. used it in your opinions. Can

you cite me to a regulation that supports.the answer

that you just gave?

A. I can. It's called medication errors.

O. Okay.

A. F332, which is 42 CFR 483.25 ( m) (1)..

Q. I'm sorry, I can't write as fast as you. 42 CFR

A. 483, 25 (m) M as in Mary.

Q. Do you have that before you?

A. I do.

Q. May I see it, please?

A. Sure. Under 3.

Q. Point me where you are looking.

A. Here and there.

Q_ You.have handed_me a.manual that says the Long-Term

Care Survey, October 2005 edition; is that correct?

A. Yes.

Q. This is published by the United States government?

A. No, that particula?- document is published by the

American Healthcare Associati.on.

Q. And, actually, according to the forward of this

document, this manual says, the American Healthcare

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Burkhart v. CPCP Properties March 27, 2007Deposition of Lance YouIes

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Association continually strives to provide its members

with information on.surveys, certification and

enforcement regulatory policy.

That's the purpose of this book, isn't it?

A. No.

Q. it isn't?

A. Those are direct quotations. Those. are ttse

regulations in there.

Q. My question is, tliat's the purpose of the book,

though, isn't it? To provide members of the

association with information on surveys, certification

and enforcement regulatory policy?

MS. JDDGE : Ohj ection.

THE WIÌ'NpSSs I don't know what the intent

of book is. I just know wI-iat I use it for.

BY MR. RASKIN:

Q. I See, tha_n.k you. The section of-this book is

captioned Guidance to Sui-sreyors; is that right? I'm

sorry, I'm asltiing you to read it upside dovrn, forgive

me.. Is that what it says?

A. Yes.

Q. Thank you. Now, you have cited me to a page, 321.

There is medication errors. Now, let me see if I can

understand =- you don't mind if I read over your

shoulder so you can look at this?

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Burkhart v. CFCP Properties March 27, 2007Deposition of Lance Youies

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Q•

Sure. -

Okay. Let me make sure I understand what I'm looking

at. This is section 5, Guidance to Surveyors; is that

correct?

What happened, sir, this is the actual regulation.

But --

This is an interpretation of the regulation for...

surveyors.

Q. If you wouldn't mind, let me just ask my questions,

would you?

A.Sure.

Q. Okay. Thanks. The eection of book is captioned

Guida_nce to S'urveyors, is it not?

A. That's what it says.

Q. Now, the page that you have cited me to numbered

PP 321; is that correct?

A. Right.

Q. And the page is divided_into sections, isn't it?

A. Yes.

Q.. Loaking at the sections from left to right, there is

the first column heading that says F-tag number, what

does that mean?

A. F denoting federal violation for nursing homes. The

tag number describing the category.

Q. Olcay. Now, you're citing me to section 483.25 (m)

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Burkhart v. CFCP PropertiesDeposition of Lance Youles

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that is captioned Medication Errors; is that right?

A. That's what T came to. I didn't look at all of the

Is that what you are citing me to?

MS. UUDGE: Is that the Code of Federal

Regulatioins, reprinted --

TFII WIT.U7ESS: Right.

MS. JUDGE: -- what is it, 483?

TEiE WITNESS: It's Code of Federal

Regulations 493, and it's subpart B.

MS. J'UAGE: It's just reprinted.

THE WITr3ESS: It's just reprinted.

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So the actual" regulation is that the facility must

ensure that it is free of medication error rates of 5

percent or greater, and residents are free of any.

significant medication errors; is that correct?

Q.

^. That's a category that this circumstance would fit

un.der that we described, yes.

Q> Did I accurately read the actual federal regulation,

sir?

A. Yes.

Q. Thank you: There isn't any reference to OxyContin on

a medical cart in a federal regulation, is there?

MS. JC7DGE: Objection.

THE WITN-ÊSS: No, sir.

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Uurkhart t,. CPCP PropertiesDeposition of Lance Youles

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BY MR. RA.SKIN:

Q•

March 37, 2007

Or any other medication, is there? There is no

specific medication referenced in this federal

regulation, is there?

A. There are medications referenced in there in terms of

unnecessary drugs. I would have to look to see if

there is an exa_.nple of that. They do give a lot of

examples in there. I don't know that offhand, sir,

Q.

A.

Q.

no.

This is the section ef this manual that you cited me

to as being authoritative for your testimony, isn't

it?

Right, right.

There is no reference at all to medications being left

on a medical cart, is there?

MS. SUDGF: Objection.

THE WITNESS: No, I don't think that:

particular example would be in here, sir.

BY MR. RASKIN:

Q. Thanks.

A. Sure.

Q.' Now, you relied on this ma_nual, did you, to form sotne

of your opinions in this case?

A. Hartially, not completely.

Q. Did you refer to any authoritative source that was in

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Burlchart Y. CFCP Propert-iesDeposition of Larice Youles

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effect in 2001 when this disciAlinary notice occurred?

A. That regulation is exactly the same in 2001. 1 would

have to look to the internal standards because it

seems to me their own policies and procedures indicate

not to do that and, I believe, that was probably the

Q.

A.

Q-

source of this disciplinary action being violated,

their own internal standards; but I would have to

check.

My question is, did you refer to any authoritative

source that was in effect, Code of Federal Regulation

that was in effect, in 2001 at the time this

discipline occurred?

Yes.

What was it?

A. The regulations that I have looked at in 2001, or

2003, that relate have not changed since that time.

Q. So what I will find in this 2005 edition, you are

telling me, have not changed since 2001; is.that

correct? '

A. No. Some sections have, but pressure sores and the

issues not related to this case, a lot -- but not the

Q

ones that relate to this case.

Fair enough. You also told me that you looked at the

procedure manual of the Cuyahoga Falls Country Place

as part of all the compendium of the documcnts that

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you reviewed; is that correct?

Yes, sir.

Was there a progressive discipline in effect at

Cuyahoga Falls Country Place in 2001?

Who are we speaking of, sir?

I just asked you a question. Did you not understand

the question?

Are you talking about enployees in general or an

individual? 2 didn't understand gour questioa.

I'm talking about the policies and procedures that

were in effect at Cuyahoga Falls Country Place in

2001. Niy question to you is: Did Cu.yahoga Falls

Country Place utiliza progressive discipline for its

employees, in 2001?

A. I believe they had that process, yes.

Q. Ps?d Exhibit 7 is a reflection on that.progressive

discipline, is it not?

A. Yes.

Q. And this disciplinary notice indicates that it is a

first offense, correct?

A. That is right.

Q. And are you aware of any facts from which to conclude

that that is not correct, in other words, there were

earlier offenses that Ms. Naugle engaged in?

A. I have no record or knowledge of that, sir.

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Burl.hart v. CFCP PropertiesDeposition of Lance Youles

March 27, 2007

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Q. Okay. Do you take issue with the discipline that

Ms. Naugle received as reflected in Exhibit 7?

A. I don't take exception to the fact that she was

disciplined but I can't say I agree with it because I

would have to k_*iow the investigation, and I don't know

that.

O. Based on what is described in Exhibit 7, do you have

an opinion with regard to the discipline that

Ms. Naugle received?

A. No, other than she needed some discipline.

Q. And she got some discipline?

A. Yes, sir.

Q. Thank you. Now, I thirilt you also told me in respbnse

to my earlier question that there was ain event of

August 26th, 2003 in which Ms. Naugle was disciplined;

is that right?

A. I think there was recommendation made or -= I'm not

sure that it rose to a level of discipline. i think

it was part of an evaluation where u.uder areas of

improvement, thP_re was some concern that she is not

bagging medication for return, which means medication

that is disposed of, no longer in use.

¢. Show me your source of that, please.

You have handed me Ms. Naugle's performance

evaluation; is that right?

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Burlchart v. CFCP PropertiesDeposition of Lance Youles

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2S

March 27, 2007

64

A. Yes, sir.

Q. I'm going to hand that back to you. I'm going to marlc

it so why don't you take that back.

A. okay.

(Deposition Exhibit 8 was marked.)

BY MR. RASKIN:

Q. I.show you what I have marked for identification

purposes.as Exh.ibit 8. Let.me first ask you, is that

the document to which you were referring when you made

a comment about Ms. Naugle.not bagging medications on

8-26-03 just prior to ML. Haddad's admission to

Cuyahoga Falls Countiy Place?

A. Yes, sir.

Q. Let's first see if we can establish some of the .

basics. When-exactly was this performance evaluation

completed?

A. Ms. Naugle signed it on 8-26-03.

Q. I didn't ask you when she signed it. I can see the

date opposite.her signature. My c-uestio.n.is, when was

it done?

It. doesn't say.

Q• Now, would you agree with me that the overall

evaluation of Ms. Naugle's job performance was good?

A. No, I wouldn't say. I would say average.

Q. Well, let's look at the last page. What does the

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Burhhart Y. CFCP PropertiesDeposition of Lance Youles

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IYL-trclt 27, 2007

65

reviewer characterise the overall performance score to

be?

A. Good.

Q. Now, you, of course, have never met Cathleen Naugle?

P-.

Q.

That's correct. .

And you have never -- you certainly didn.'t participate

A.

in this review?

Of course not.

Q. So you are not in a position to take issue with any of

the grades that the reviewer gave Ms. Naugle for the

period in August of '03, are you?

143. . TC7DGE: Obj ection.

TbIE WItT7ESSa I'm not -- I don't.have any

opinion on that.

BY MR. RASKIN:

Q. Of course not, because you didn't have the opportunity

to observe Ms. Naugle's work, did.you?

A. Well, I'm jii.st saying I don't have.''any opinion on

Q.

this.

Under Major Accomplishsnent, the reviewer said,

"Provides excellent care to a variety of skilled

residents."

Did I read that accurately?

A. Yes, siz.

25 1 O. "Extremely accurate and.detailed reports to nursing

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Surlcbart v. CFCP PropertiesDeposition of Lance Youles

NLarch 27, 2007

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staff." Did I read that accurately?

A. Yes, sir.

0. "Very much a team player, always willing to pitch in."


A. Yes, sir.

Q. Those are all positive reviews, aren't they?

A. It would seem so.

Q. Aren't those positive comments?

A. I don't disagree with that.

Q. Pardon me?

A. I don't disagree with your statement.

Q.. Thank you, Zn. an area of improvement it

"Doesn't always bag meds for return."


says,

A. You did. .

Q. Any other area ,of improvement?.

A. No, but that bothered me the way they wrote that.

Q. During the_course of your interaction with the

plaintiff and her lawyers did you ask whether or not

you could interview the reviewer or the supervisor so

that could you have a better understanding of what

that comment, or any of the comments in this exhibit,

meant?

THE WITNESS: I didn't.

MS. JUDGE: Objection.

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Burkhart v. CFCP Properties March 27, 3067Deposition of Lance Youles

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T'_.iE WITNESB: I don't need to.

BY MR. RASKIN:

Q. You don't need to?

It stands ott its own. When you look at the word

"always", whi.ch means many times.

Is always synonymous with many times?

Q.

It's synonymous

It is?

with more than once.

A.

Q.

Oh, yes.

Can you cite me to an authoritative source for that?

A. If she said -- if she didn't bag her meds on a date,

they would have saia, didn't bag'med.s on a date. It

doesn't -- alway5 bag meds is repetitive failure, sir.

That's your assumption, isn't it?

I think that would be anybody's assumption reading

that.

MS. LTi1DGE: Objection.

BY MR. RASKIN:

Q- I don't want anybody's assumption. I want to

understand the assumptions that you are making in this

case.

MS. Li-UDGE: Objection.

BY MR. Rz1SKIN:

Q. Is that your assumption, sir?

Yes, sir, it is.

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Burlchart Y. CFCP PropertiesDeposition af Lance Youles

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MS. tTTDGEc Objection.

March 27, 2007

BY MR. RASKIN:

Q. Thank you. Then under ?lssociate Comments it says,

"Wonderful tea.LLq member, always willing to help others,.

caring, considerate to residents and staff."


A. I think so, I can hard3y read it.

Q. It's a little difficult.

A. it looks like it's dorrect.

0. This is signed 8-20-03; is that right? Or there is a

date 8-20-03 opposite

A. I interpret.that as a

Q. There is no criticism

the signatures; is that right?

6. but it coulc::be a zero, yes.

of Ms. Naugle's consumption of

residents' medications in this.FSrY!ibit 8, is there?

A. No, sir.

Q. And there is.no criticism that the medications that

Ms. Naugle -- that Ms. Naugle took anyone's

medications, .is there?

A. No, sir.

Q• Okay. Thank you, You said you had reviewed --

amangst the depositions that you reviewed, you

reviewed Dr. McCormick's deposition; is that right?

A. Yes, I did, sir.

Q. And do you recall Dr. McCormick saying when he

revietn*ed Ms. Naugle's notes from September 7th, 2003,

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Burichart v. CFCP PropertiesDeposition of Lance Youles

March 27, 2067

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he saw anything to indicate that she was under the

influence of any medication; do you recall that?

A. Cou3.cl you repeat that statement, sir?

Q. I will, but I think I might have left my pop top open.

We are going to go off the record for a minute, if you

don't mind.

(Discussion off the record.)

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BY MR. RASKIN:

Q. You told me that one of the deposition-.s you read was

Dr. P7cCormick's, correct?

A. Right.

Q. Do you.recall that Dr. McCormick was asked

specifically at. page 39, line 3:' "A.n.d you would have

no opinion in this case whether she was using drugs a

any time during when she was attending to Mr. Haddad,

do you, Doctor?"

Answer at lirke 7: "Well, I think that

would be speculative. I don't think ar-ybody would

have such information."

Question at line 9: "You certainly

wouldn't have such information?"

71nd answer at line 10: I mean, if one was

to ask me was there anything about her behavior,

performance or charting that made me believe that, I

would say no. But'if you are asking me, do I have

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March 27, 2007

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specific information, no."

Do you recall reading that testimony from

Dr.'McCormick?

A. No, but I did read his entire deposition.

Q. Did you see anything in the behavior -- strilce that.

You didn't observe Ms. Naugle's behavior on

Septenmber 7th, 20b3 so you can't have any opinion

concern ing it, correct?

MS..JUDGE: Objection.

BY M.. RASIiIN:

Q. Correct?

A. I didn't obsexve her, nc.

O. Now, with regard to her performance, you also.didn't

observe that, did you

Ni8. . JUDGE : Obj ection.

BY MR. RASICIN:

Q. -- September 7, 2003?

A. Her written performance, but not -- I coulcjl't

Q-

possibly have done it in person, no.

So,. with regard to her charting, that.you were able to

read, is that correct, with regard to the events of

September 7, 2003?

A. Right, that's right.

Q. And from the charting that you saw for the events of

September 7, 2003, is there anything contained in that

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March 27, 2007

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charting which causes you to conclude that Ms. DTaugle

was under the influence of inedication?

A. Either that oz she is grossly incompetent, I guess, is

the only choices that I have.

Q. Sir; are you aware of any facts that lead you to

conclude that Cathleen Naugle on September 7, 2003 by

virtue of your review of her charting was under the

influence of medication?

MS. ,TRDGE: Objection, asked and answered.

THE WITI3ESS: I d.on't know that I recall

any facts.

BY MR. RASKIN:

Q-

La.nce & Associates; presently?

rc,

Thank you: Now, do you have any employ-ment other tha.n.

A. Not presently, no.

Q- And I think we have established this but Exhibit 3

represents your CV and what you perceive to be your

qualifications?

MS. JIIDGE: Objection.

TFL WITNESS: They are my qualifications

but, yes,:sir.

BY b1R. ?ZASICIN:

Q• Well, the first page of Exhibit 3 you wrote yourself,

no one wrote it on your behalf, did they?

25 1 A. No.

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BuYkhart v. CFCP PropertiesDeposition of Lance Youles .

March 27, 2007

250

Q. I see. You don't know that Ms. Naugle was impaired on

9-7-03 -

MS. JDDGE: Objection.

BY MR. RASKIN:

0. do you?

A. I feel it's more reasonable than not to believe that

she was. .

BY IKIt. R-UILIN: .

Q. You don't know that she was impaired, do you?

MS. JUDGE: Objection, asked and answered.

THE WITNESS: As I said, looking at the

circumstances., her 3oc-umentation and her actions, the

alternative, she is grossly incompetent so...

BY M. RASKIN:

Q.

^..._^.':

physicians that.are not conducive to regulatoi.y theosy

and not conducive to how a surveyor would look at

this, because you can go to a!zy manner of conjecture

and directions if you start that. There is no basis

of foundation for that.

And you have rejected out of hand the alternative that

Ms. Haddad experienced an emesis and ultimately an

aspiratidn because of his mental status, hav,en't.you?

MS. JUDGE: Objection.

THE WITNESS: I can't endorse these

hypothetical theories.that you often hear from

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uurt:nart v. LrC;l' .l'roperties Marcb. 27, 2007Deposition of Lance Youles. -

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252

CERTIFICATE OF NOTARY

STATE OF MICIT-IGA-N

) SS

COUN1^Y OF OAICLAM)

T, Karen Klerekoper, a Certified

Shorthand reporter, a Notaiy Public, hereby certified

that I.recorded in.shorthand the examination of

LANCE YOIII,ES, the deponent in the foregoing

deposition; and that prior to the taking of said

deposition the deponent was first duly sworn, and that

the'foregatn--gis a rue,correct and complete

transcript of the testimony of said deponent.

I further certify that request was made for

submission of the transcript to the deponent for

reading and signature and that svbmission was made.

I also certify that I am not a. relative or

employee of a party or an attorney for.a party; or

financially .interested in the action.'.

Karen Klerekoper, CSR-4250, R.pR

Notary Public, Oakland Countv, Michigan

My Commission expires: 10/7/12

bated: This 9th day of April, 2007

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5ed5a3ac•a143-0237-063-e6a341a36783

^Tc.-"otlaVJ:

Not Reported in N.E.2d

Not Reported in N.E.2d, 2004 WL 1753169 (Ohio App. 8 Dist.), 2004 -Ohio- 4098(Cite as: Not Reported in N.E.2d)

HPerry v. Univ. Hosp. of ClevelandOhio App. 8 Dist.,2004.

CHECIC OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OFLEGAL AUTHORITY.Coutt of Appeals of Ohio,Eighth Disttrict, Cuyahoga

Cotmty.Trentina PERRY, etc., Plaintiff-Appellant

V.UNIVERSITY HOSPITALS OF CLEVELAND, et

al., Defendants-Appellees.No. 83034.

Decided Aug. 5, 2004.

Baclcground: Patient brought niedical naalpracticeaction against doctor aud hospital. After jury trial,the Court of Conunon Pleas entered jiidginent fordoctor and hospital, atid patient appealed.

Holdings: The Court of Appeals Sean C. Gallagirer,J., held tbat:

(1) electronically manipulated ultrasound imagewluch was not disclosed to patient prior to trialshould not have been admitted; and

(2) trial court's enror in admitting tlvs iniage was nothatmless.

Reversed and remanded.

Dyke, J., concmred in judgment only.

Corrigan, A.J., conctured in part and dissented in

part and filed opniion.West Headnotes[1] Pretrial Procedure 307A C=434

Page 1

307A Pretrial Procedure307AII Depositions and Discovely

307AII(E) Production of Documents andThings and Entry on Land

307AII(E)6 Failure to Comply; Sanctions307A1c434 k. In General. Most Cited

CasesElech•onically manipulated ultrasound 'unage whichwas not disclosed to patient prior to trial should nothave been admitted in patient's nTesr,al malpracticeaction against doctor, stemming froni complicationsduring her pregnancy which resulted in her childdying in utero; doctor used image to perfonnrerneasuremeut of amniotic fluid pocket by insertingperpendicnlar calipers onto image, and this madehnage a critical piece of evidence that went to heartof patient's claim, and patient should have beenafforded opportnnity to review iniage prior to thialand provided chance to conduct her own analysis,but she did not do so because she never saw in ageprior to trial. (Per Gallagher, J., with one judgeconcurring in judgnient only).

[2] Appeal and Error 30 C^1048(6)

30 Appeal and Error30XVI Review

30XVI(J) Harxnless Error30XVI(J)9 Witnesses

30k1048 Rulings on Questions toWitnesses

30k1048(6) k. Cross-Examinationand Re-Exaniination. Most Cited Cases

Appeal and Error 30 C=1050.1(11)

30 Appeal and Ei-tor30XVI Review

30XVI(J) Hamiless Error30X'VI(J)10 Admission of Evidence

Go' 2007 Thomson/West. No Claitn to Orig. U.S. Govt. Works.

k44,+//.,roh') .non4ô.v rn,.^^m-int/.vin4otrc^p.r. acnv7f.= in.^.Q.rtoo4inn4inn-.+t..D.,...I-TS1.-..tt...-.0_...._TFTT TTT'T nA 0_.- Al, /Innn^


Not Reported in N.E.2d, 2004 WL 1753169 (Ohio App. 8 Dist.), 2004 70hio- 4098(Cite as: Not Reported in N.E.2d)

30k1050 Prejudicial Effect in General30k1050.1 Evidence in General

30k1050.1(8) Particular Typesof Evidence

301c1050.1(11) k.Documentaty Evidence; Photographs. Most CitedCasesTrial court's errors in admitting electronicallymanipulated ultrasound image which was notdisclosed to patient prior to trial and in permittingdoctor's attorney to cross-examine patient's expertin medical ntalpractice action regarding allegationsmade agaiust expert in connection with hisdeparttue from a previous eniployer 18 years earlierwere not hamiless; jurors might have reacheddifferent conclusion had the court's ennts notoccurred, measurernent or misnieasurement ofpatient's anmiotic fluid levels was at center of case,and ultrasound image was used as evidence that aproper measurement was made by doctor. (PerGallagl er, J., with one judge concurring injudgment only).

[31 Evidence 157 C^560

157 Evidence157XII Ophrion Evidence

157XII(D) Examination of Experts157k560 k. Contradiction and

hnpeaclunent. Most Cited CasesDoctor's attomey should not have been permitted tocross-examine patient's expert in medicalmalpractice action with a series of questionsimplying that expett's hue reason for leaving hisfomier eniployei .18 years ago was to avoidconfionting allegations of dtug abuse and mentalinconrpetence; expert's admitting that theseunsnbstantiated accusations "were made" was notequivalent to admitthig they were tme or that theyrepresented real niotivation for expert's decision toleave his fonner employer, and this line ofquestiottnig produced evidence of meager, if any,probative value that was substantially outweighedby its unfair prejudice. (Per Gallagher, J., with onejudge concurring in judgment only). Rules of Evid.,Rule 403(A).

[4] Evidence 157 ^558(1)

Page 2

157 Evidence157XII Opinion Evidence

157XII(D) Examination of Experts157k558 Cross-Examination

157k558(1) k. In.General. Most CitedCasesDoctor's attomey should not have been pennitted tocross-exarnine patient's expert in medicalmalpractice action regarding letters written bypatiertt's prior counsel to doctor's attorney when theletters were not written by expert, were not sent toexpert, and were not sent by expert or on bis behalfand when the letters theniselves consfitutedinadmissible hearsay; none ofthe exceptions to thehearsay rule applied to doctor's use of these lettershi cross-exaniaring patient's expert, and expert hadno personal knowledge of contents of letters. (PerGallagher, J., with one judge concutring injudgment oi>ly). Rules of Evid., Rules 602, 801(A),803.

[5] Evidence 157 ^558(11)

157 Evidence157k7I Opinion Evidence

157XII(D) Examination of Experts157k558 Cross-Examination

157k558(11) lc. Reference toAuthorities on Subject. Most Cited CasesIn medical malpractice action, patient properly wasprecluded from cross-exanritring a Icey defenseexpert witness with a leamed treatise after witnessrefetred to chart which was printed in the treatise onmaternal-fetal medicine; rule stated that statementsfi-om leatned treatises could only be adniitted forimpeachment putposes, and patient's use of treatisewas not to inipeach adhiess' testiniony concerninghis reading of chart or his fmding that 75 nuu fellwithin nomial litnits on the chart, but, rather, assubstantive evidence to establish that 75 mm ofatnniotic fluid was indicative of oligohydranmios.Rules of Evid., Rule 706.

Civil appeal from Conunon Pleas Comt, Case No.CV-444886.

Dennis P. Mulvihill, Esq., Lowe, Elaund,Wakefield Co., Cleveland, OH, for

© 2007 'fhomson/West. No Clainr to Orig. U.S. Govt. Works.

Not Reported 'ni N.E.2d

Not Reported in N.E.2d, 2004 WL 1753169 (Ohio App. 8 Dist.), 2004 -Olrio- 4098(Cite as: Not Reported in N.E.2d)

plaintiff-appellant.Jan L. Roller, Esq., University Hospitals of Davis &Young, Cleveland, OH, for defendant-appellee.Stephen E. Walters, Esq., Erin Stottlemyer Gold,Esq., Reminger & Reminger Co., LPA, Cleveland,OH, for defendant-appellee.SEAN C. GALLAGHER, J.*1 {¶ 1} Trentina Petry ("Perry") appeals variousdecisions of the trial coutt regarding the admissionof testimony and evidence in her medicalmalpractice trial against Dr. D'uiesh Manilal Shah ("Dr.Shah") and University Hospitals of Cleveland ("UH"). For the reasons adduced below, we reverseand remand for a new trial. The following facts giverise to this appeal.

{¶ 2} Petry's pregnancy was managed by Dr.Clrarles R. Cowap ("Dr.Cowap"), a faniily practlceresident at UH. Peiry's expected delivery date wason or abont May 5, 2000. Peny did not progress inher pregnancy in tetms of her cervix ripening for avaginal birth. After her due date, Perry went to UHevery few days to be evaluated. On May 12, 2000,Dr. Cowap sent Peny to Dr. Shah to. conductvariotts measurements usute an uitrasound airachnie.Dr. Slrah, an obstetician gynecologist and matemalfetal medicine specialist, was not an employee ofUH.

{¶ 3} One of the tests Dr. Shah petfonned onPeny was a biophysical profile ("BPP") test. TheBPP is a four-component ultrasound test whichexarnines the following: (1) fetal breathhrg, (2) fetalmoveinent, (3) fetal tone, and (4) amniotic fluid.The test is scored by assigning a value of zero totwo for each component, and then adding the valuesfor a maxununr possible score of eight. If one of thefactors is not good and results in a low score, thereis a possibility the baby could suffer adverseconsequences.

{¶ 4) In deterniining tlie anlount of anmiotic fluidfor the BPP, two methods are used: (1) scamring theutems for a two centuneter by two centimeterpocket of fluid ("two-by-two pocket test"), or (2)dividing the utents into four quadrants, sca mhrgeacb quadrant for the deepest pocket of fluid,adding the four meastrrements and obtaining theatunio6c fluid index ("AFI test"). Both of these

Page 3

tests for nieasuring anmiotic fluid were performedby Dr. Shah on Perry.

{¶ 5} Under the AFI test, a finding of less than 50tuillimeters (mnr) of amniotic fluid indicates acondition of low atnniotic fluid known asofigohydranniios. Peny's expett, Dr. MichaelCardwell ("Dr.Cardwell"), tesdfied that if there isdecreased amniotic fluid there is an increasedchance of au umbilical cord accident. The AFI testperfonned on Perry indicated 44 nun of amnioticfluid. As a result, the BPP report printed from theultrasound machine hrdicated the presence ofoligohydramnios.

{¶ 6} Under the two-by-two pocket test, a poclcetthat is two centinieters deep and two centimeterswide is within nonnal linuts. Dr. Shah determinedhe had identified and measured a two-by-twopocket. As a result, Peny was given a score of twoon this cotnponent and her final BPP score was 8out of 8 points. However, Dr. Cardwell testified Dr.Shah did not do the two-by-two pocketmeasurement appropriately because he did not do aperpendicular measurement at a right angle. Dr.Cardwell's opinion was that Perry's baby shonldhave been delivered on May 12.

*2 {¶ 7} Dr. Cowap testified that on May 12 heleamed the result of the BPP was within normallimits. Dr. Cowap, however, never saw the writtenreport and was not aware of anything concemingthe BPP.

{¶ 8} Further, although Dr. Cowap was aware thatPerry had ogligohydranmios duiing a priorpregnancy, which resulted in a C-secflon, he did notrecall being aware of the condition with thispregnancy. Dr. Cowap had never managed anypatients with oligobydran-inios. However, he wasaware that in certain situations the condition couldindicate pron pt delivery. Dr. Cowap testified thathad he read oligohydratnnios on the report, hewould have brought it to the attention of hisattending" to see if there was any concem.

(191 Dr. Cardwell testified that Peny was not anadequate candidate for a natural birth and that slreshould have been scheduled for a C-section at 38 to

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Not Reported in N.E.2d Page 4

Not Reported in N.E.2d, 2004 WL 1753169 (Olrio App. 8 Dist.), 2004 -Ohio- 4098(Cite as: Not Reported in N.E 2d)

39 weeks. However, Dr. Cowap neverrecommended to Perry that she have a C-section.

{¶ 10} Dr. Cowap next saw Peny on May 15,2000. Dr. Cowap ordered a non-stress test and anamniatic fluid cheok. This time, Dr. Richard HassanBeigi ("Dr.Beigi"), a resident in the matenial-fetalmedicine department at UH, perfomied anultrasound that measured Perry's amniotic fluidlevel ni each quadrant of the utenis. Dr. Beigi, didnot docurnent the amniotic fluid level on Peny'smedical chart. Despite the fact that the AFI testperfonned by Dr. Shah had indicated 44 mm ofamnioflc fluid, Dr. Beigi testified at trial that herecalled the t(ital fluid level measurement of theamniotic fluid was 75 nnn. Dr. Cardwell testifiedthat the trend is for anmiotic fluid to decrease, notincrease, post-temi. Further, there were norecordings in the protocol to confu-ni thismeasurement. However, U.H.'s expert, Dr. HarlandGiles, att ibuted the increase in the amniotic fluidlevel between May 12, 2000 and May 15, 2000 tothe fact that the baby had not "voided" at the timeof the May 12, 2000 reading,F^ I

FN1. The testin-iony indicated amnioticfluid is primarily coniposed of fetal urineand fluid secreting from the membranes.Fluid volunre niay change if a baby hasvoided" just prior to the n-ieasnrenients.

{¶ 11) Dr. Beigi also testified that afterperfomiing this test he referred to a chart affixed tothe ultrasoand machine to detennure if themeasurement was within nonnal limits andconcluded that it was. The non-stress test perfomiedon Peny was "reactive" which was good. Dr.Cowap leamed the results of both tests were nomialon the same day they were performed.

{¶ 12} Dr. Cowap told Peiry to come back on May18, tlv-ee days later. On that date, Perry's mibmnchild died in utero from a cord accident and wasdelivered stillborn.

11 13} Dr. Cardwell testified that the care given toPerry did not nieet the standard of care and that thenianagement of her pregnancy and decision to

attempt a vaginal birth, despite her prior C-section,was the cause of her baby's death. He testified thatthis tragedy was predictable:

{¶ 14 "It was predictable because, first off,Trentiria should have been delivered by repeatC-section because of her risk factors. Second off,barring that, we have on May 12th, ultrasoundflndings of oligohydramnios, which is a bad sign,which is predictable of certain complicationsincluding cord accidents; and had the doctorsacted within the standard of care on that day,the baby would have been delivered in a healthycondition."

*3 {¶ 15} Perry filed a medical malpractice actionagainst Dr. Shah and UH. 'NZ The claims againstUH were brought under the doctrine of respondeatsupeiior for the alleged negligence of Dr. Cowap,Dr. Shah, and Dr. Beigi. The parties later stipulatedthat Dr. Cowap and Dr. Beigi were einployees ofUH working within the scope of theix employmentwhile treating Perry and that UH could be heldvicariously liable for their actions. The case againstUH proceeded under a theory of vicarious liabilityonly as to these two doctors. The case proceeded asto Dr. Shah, who was not an employee of UH,individually for his alleged negligence.

FN2. In the complaint, Perry also narnedthe following defendants who were latervoluntarily dismissed: Charles R. Cowap,M.D.; University Hospitals Health SystemMacDonald Imaging; University Hospitalsof Cleveland University MacDonaldWomen's Hospital; and Richard HassanBeigi, M.D.

{¶ 16} On the second day of trial, PeLry presentedthe testimony of Dr. Cardwell, who testified tonustakes made in obtaining measurements of Perry'sanmiotic fluid. Dr. Cardwell was cross-examniedconcerning a reproduced ultrasound image that Dr.Shah had created with his attomey and anotherperson. Dr. Shah later testified that the "image" wascreated by downloading an analog still image fromthe VHS videotape of the ultrasotmd to a computerhard drive, recalling the iniage, now in digital

© 2007 Thomson/West. No Clainz to Orig. U.S. Govt. Works.



fonnat, to the screen, performhrg a calibration ofthe iniage, and superimposing calipers (cursors)over the re-created iniage to perfonn themeastirement. Peny referred to this as anelectrorrically marripulated ultrasound iniage."

{¶ 17} Dr. Shah used an enlarged version of theintage at trial; however, neither counsel nor thecourt identified the erilarged image with a letter ornumber for the record. The record indicates this wasan enlarged image of exhibit 2. Dr. Shah's exlribit 2was a small, index-card-size priut of the coniputergenerated 'nnage.

{¶ 181 Peny objected to the use of the enlargedimage during Dr. Cardwell's cross-examination and,later, she objected to the admission of exhibit 2.Both objections were ovenuled.

{¶ 191 Later in Dr. Cardwell's cross-examination,Dr. Shalr questioned Dr. Cardwell regard'urg18-year-old allegations of nuscorrduct aris'urg froma dispute with a foriner etnployer. Perry's objectionsto this l'nie of questioning were overruled.

{¶ 201. Following that line of qnestioning; Dr.Shah questioned Dr. Cardwell about two exhibits,which were letters written by Perry's previousattomey to Dr. Sltah's culrent attorney. Perryobjected to this line of qnestionhig, arguing that Dr.Cardwell Irad no personal lmowledge of theseletters. Perry's objection was overruled.

{¶ 21} During the defense case, Dr. Shah testifiedhe had made his anmiotic fluid measurementscorrectly. He supported his testimony with theenlarged image that he created, which was the sanieexhibit first used against Dr. Cardwell.

{¶ 22} UH presented the testimony of Dr. Beigi,who tesGfied he meastued Perry's anniiotic fluid andit was within nonnal limits. Peny attenipted tocross-exarnine Dr. Beigi using a textbook by Creasyand Resnik. The chart Dr. Beigi relied upon whilemeasuring Petry's anmiotic fluid was published inthe Creasy and Resnik textbook, as well as in otherplaces. Dr. Shah's objection to tltis line ofquestionhig was sustahicd.

Page 5

*4 [1][2] (123) At tlre conclusion of trial, the juryretnrned a verdict hr favor of Dr. Shah and UH.Peny fded this appeal, advancing four assignmentsof error. Perry's first assigament of enor reads asfollows:

(124) "The trial court abused its discretion whenit admitted into evidence an electrotucallymanipulated ultrasound image, when that irnage wasunaccompanied by an expert report or experttestimony, was created duting tdal and was neveridentified as an exhibit prior to trial."

{¶ 25) It is well established that a trial court hasbroad discretion in the adnrission or exclusion ofevidence, and so long as such discretion isexercised in line with the mles of procedure andevidence, its judgment will not be reversed absent aclear showatg of an abuse of discretion withattendant tnaterial prejudice. Rigby Y. Lake Cty.(1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056.The term "abuse of discretion" connotes rnore thanan etror of law or judgment; it impfies that thecourt's attitude is unreasonable, arbitrary orunconscionable. Blakemore v. Blake nore (1983), 5Obio St.3d 217, 219, 450 N.E.2d 1140. Moreover,enor predicated on an evidentiary mling does notwanant reversal of the trial court's judgnient unlessthe court's actions were nrconsistent with substantialjustice and affected the substantial rights of theparties. Evid.R. 103 (A); Civ.R. 61.

{¶ 26} The central factor nr our analysis is that theexhibit was not disclosed to Perry prior to hia1.TT 3

FN3. While the appellant captions the firstassigmnent of error under a view thatexpert testimony is required to authenticateand admit the exhibit in question, we neednot decide this case in that context. We arecognizant that there are few cases in Ohio,or in other jurisdictions, that havedefinitively addressed the adrtussion ofevidence created by a computer, and arefurther cautioned by the reality that thetechnology involved in creating suchevidence is ever changing.

© 2007 Thomson/i3Jest. No Claim to Orig. U.S. Govt. Works.


Not Reported 'nt N.E.2d, 2004 WL 1753169 (Ohio App, 8 Dist.), 2004 -Ohio- 4098(Cite as: Not Reported in N.E.2d)

{¶ 27} Peny asserts the thial court erred inadniitting the exhibit since it was not disclosed priorto hial during the discovery process. Civ.R. 26(A)reads:

{¶ 28} "It is the policy.of these rules (1) topreserve the right of attorneys to prepare casesfor trial with that degree of privacy necessary toencourage them to prepare their casesthoroughly and to investigate not only thefavorable but the unfavorable aspects of suchcases and (2) to prevent an attorney from takingundue advantage of his adversary's industry orefforts."

{¶ 29) The civil rules were designed to providefor full discovety of all pettinent nonpriviledgedevidence and to allow both parties to accuratelyassess the nielits of their case prior to trial. Lin v.lCl2an (May 3, 1994), Franklin App. No.93APE09-1252. Furthermoro, the civil rules areintended to elinunate surptise and prevent a"tiialby anibush." Id.; Jones v. AAmphy (1984), 12 OhioSt.3d 84, 86, 465 N.E.2d 444. The exhibit in this

. case was an electronicaDy manafacitlred image thatDr. Shah did not present tmtii the time of hial.FN4

FN4. Under the eircumstances of this case,the trial court could evaluate a challenge tothe authenticity, reliability andadlnissibility of the exhibit utilizingEvid.R. 901(A), 901(B)(9), 104(A) and104(B), after a determinafion thatnondisclosure of the exhibit to Peny didnot l.mfairly prejudice her substantial rights.

{¶ 301 Otir analysis n7ust consider the impact ofthe eslribit on the overall trial and whetheradmitting the exhibit, without ptior disclosure, washannless or unfairly prejudiced Perry's substantialrights. "Generally, in order to fmd that substaufialjustice has been done to an appellant so as toprevent reversal of a judgment for errors occturingat the trial, the reviewing court must not only weighthe prejudicial effect of those errors but alsodeteimine tlrat, if those errors had not occurred, thejury or other trier of the facts would probably haveniade the same decision." Cappara v. Schibley, 85

Page 6

Ohio St.3d 403, 408, 709 N.E.2d 117,1999-Ohio-278, quoting Halbmorth v. RepublicSteel Corp. (1950), 153 Ohio St. 349, 91 N.E.2d690, paragraph three of the syllabus.

*5 {¶ 311 In this case Dr. Shah used the exlribit toperforrn a remeasm•ement of the amniotic fluidpocket depicted in ffie exhibit by bisertingpeipendicular calipers onto the image. This madethe exhibit a critical piece of evidence that went tothe heart of Peiry's claini. The use of the exhibit toremeasure the, amniotic fluid level was significantbecause Dr. Shah adnutted that the calipers presentin the original ultizsound iniage were notperpendicular and it was disputed whether a validtwo-by-two pocket nieasm•ement could be madewithout petpendicular calipers. Dr. Shah testifiedthat his remeasurement, using the previouslyundisclosed inzage, now with the nuposedpelpendicular calipers, established that thetwo-by-two poclcet he found contained a normalamoutit of anlniotic fluid.

{¶ 32} Because the accuracy of this measurementis calculated in centhneters, the perpendicularcalipers inscrted onto the image to conduct theremeasurement produced critical evidence in thecase. Perry shortld have been afforded theopportunity to review the exhibit prior to trial andprovided the chance to conduct her own analysis, orto prepare a defense to the remeasurelnent claims ofDr. Shah. However, Peny never saw the exhibitptior to trial and could not have anticipated its useor prepared to refute its conclusions with her ownexpert n edical testimony. The jmy was left tonierely accept Dr. Shah's assertion that therenieasurement performed with the aid of theinsetted calipers produced an acctirate result,without an effective challenge from Perry. Petrywas denied an opportunit), to examine the imageand effectively question its autheuticity andreliability.

{¶ 33} As Peny was clearly prejudiced and hersubstantial rights were impacted by the adniission ofthis exhibit, we fntd the thial court abused itsdiscretion in permitting Dr. Shah to utilize theexhibit and in adlnitting the exhibit htto evidence.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. `rJorlcs.

.u.... //,..,.1,1 ,.,,,,.t1..,.. ...,.._.1,,..:.,N....... 1.,,....,`)A,- a,... A_A,.,.F;..,,a:...._..^.. o-T-l irn____izrr rcv, 1 1 0 .

Not Reported 'nr N.E.2d Page 7


[134) Peny's first assignment of error is sustained.

[3] {j[ 35} Peny's second assigmnent of error is asfollows:

{¶ 36} "The trial court abused its discretion whenit pemritted defense counsel to cross-exanrineappellant's expert wihress regarding extremelyprejudicial false allegations of misconduct with noevidence to suppott such accusations."

{¶ 37} The trial court pennitted Dr. Shah, overPetry's objection, to cross-examine Perry's expertwitness, Dr. Cardwell, regarding allegations niadeagainst Dr. Cardwell in comiection with hisdeparture from a previous enrployer 18 years priorto the trial.

"All relevant evidence is adnrissible * * *. Evidencewhich is not relevant is not adnussible." Evid.R. 402

{¶ 38} To counter whe! lie called Dr. Cardwell'smischaracterization, Dr. Sliali asked Dr. Cardwell aseries of questions implying that Dr. Ca-dwell's huereason for leaving his ffiirster employer was to avoidconfronting allegations of drug abuse and mentalinconipetence. Dr. Cardwell denied the allegationswere his reason for leavhtg his fotmer employer.These allegations were contained solely in thewording of qnestions put to Dr. Cardwell by Dr.Shah. No eviderice was adtnitted or even offered tosubstantiate these allegations. Irr fact, following Dr.Cardwell's detrial of truth of these allegations, Dr.Shah failed to provide any cotmection between theallegations and Dr. Cardwell's expert opinion or hismethods used to arrive at his expert opinion.Unproven, unsubstantiated allegations made closein thne to Dr. Cardwell's departure from his fomiereniployer do not impeach Ius response that the solereason he left that employer was his wife's desire tomove soutlr.

*6 {¶ 39} Dr. Shah argues the fact that "Cardwelladmitted the accusations were made confnmscounsel's good faith belief that the questioning wasproper." Admitting these unsubstantiatedaccusations "were made" is not equivalent toadmitting they are ttue or that tliey represent the

real motivation for Dr. Cardwell's decision to leavethat enrployer.

11401 Even probative evidence must be excluded"if its probative value is snbstantially outweighedby the danger of unfair prejudice." Evid.R. 403(A).We find that the trial court abused its discretion inpennitting this line of questioning as the recordreveals that it produced evidence of meager, if any,probative value that was substantially outweighedby its unfair prejudice. Perry's second assigmnent oferror is sustained.

[4] {¶ 41} Peny's third assignnient of error is asfollows:

{¶ 42} "The trial court erred when it permitteddefense counsel to cross-examine appellant's expertwitness regarding a letter written by appellant'sprior counsel to the defense counsel when thewitness was not a party to the correspondence andhad no knowledge of what was in the rnind ofappellant's prior counsel when the letter was written.11

{¶ 431 Dr. Shah was pemnitted to cross-exaaznineDr. Cardwell regarding the text of two letters thatwere not written by Dr. Cardwell, that were not sentto Dr. Cardwell, and that were not sent by Dr.Cardwell or on his behalf. Evid.R. 602 precludes awitness from testifying "to a matter unless evidenceis introduced sufficient to support a frnding that hehas personal knowledge of tlte matter." Dr.Cardwell had no personal icnowledge about thecontents of these exhibits or tlre motivation ofPerry's prior counsel in choosing the words shechose. In addition, the letters constituted hearsay.

(144) Evid.R. 801(A) reads in pertinent part:

{¶ 45) "(A) Statement. A`statenrent' is (1) anoral or rvritten assertiou *' *

{¶46}"+°

(¶ 47) "(C) Hearsay. `Hearsay' is a statement,other than one made by the declarant whiletestifying at the trial or lrearing, offered inevidence to prove the truth of the matter

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Not Reported 'ur N.E.2d ^ Page 8


asserted."

{¶ 48} Dr. Shah defends the use of the letters asfollows:

{¶ 49} "Irnplicit in Appellant's former counsel'sletter is the possibility that she had spoken to Dr.Cardwell regard'uig bis opinions concertring Dr.Shah and that she had no reason to believe she hada basis to continue the case against him. * * * Thns,the suggestions presented by the attorney's letterswere an appropriate starting point for Dr. Shah tochallenge the genuineness of Dr. Cardwell'sopinions * * *:"

(1551 After performing an ulh-asomrd on May 15,2000, Dr. Beigi refeired to a chart affixed to theultrasound machine to detemune if the amnioticfluid measurement he had just made was withinnonnal limits. Dr. Beigi testified the measurementhe made was 75 mm. Dr. Beigi then used the chartto detennine 75 mm was within normal limits. Penyestablished this chatt was printed in a textbook onmateinal-fetal medicine authored by Creasy andResnik. Peny attempted to cross-examine Dr. Beigiabout infotmafion on a page hi Creasy and Resnik,adjacent to the chart, which she claimed discussedthe meaning of the chart. Dr. Shah's objection to theuse of this textbook was stistained.

{¶ 50} (Etnphasis added.)

{¶ 51} Evid.R. 803 contains various exceptions tothe hearsay rule, none of which apply to Dr. Shah'suse of these letteis in crossexaniining Dr. Cardwell.In addition, Dr. Sliah's argmnent that he is entitledto question Dr. Cardwell about "implications"regarding a°possibility" . that Peiry's fornierattomey had spoken to Dr. Cardzwell rega-ding hisopinions and tha; she had no reasoir to believe shecould continue the case agafi st Dr. Shah is beyondtenuous.

*7 {¶ 52} We fh d the trial court abused itsdiscretion in petniitting the cross-exanunation ofDr. Cardwell using these inadnussible hearsayexhibits of which Dr. Cardwell had no personalknowledge. It was, therefore, error to permit Dr.Shah to question Dr. Card vell about these exhibits.See Bianchi v. Paliga (Dec. 11, 1984), MahoningApp. No. 84 C.A. 37. Perry's tt-rird assignment oferror is sustaiued.

[5] {¶ 53} Perry's fourth assigrmient of etror is asfollows:

{¶ 54} "The trial court etred when it failed toallow appellant to cross-examine a key defensewitness with a leamed treatise wheu the fouudationfor the h-eatise had already been laid pursuattt toevidence rule 706 and when the defense witnessrelied on a chart froni the same treatise containnig

{¶ 56} Peny argues the trial coutt should havepermitted her to cross-examine Dr. Beigi with textfrom the Creasy and Resnik book that allegedlysupported the conclusion that, even at the atnnioficfluid level of 75 mrn, oligohydramnios was stillpresent and required pronipt intervention anddelivery. Perry relies upon Evid.R. 106 and Fvid.R.706 in malcing her argument.

{¶ 57} Evid.R. 106 provides that, when a partyintroduces a writing or patt tbereof, the other party "may require him at that time to introduce any otlrerpart " * * which is otherwise admissible and whichought in fairness to be consideredcontemporaneously with it." Evid.R. 106 is knownas the rule of conipleteness. The rule permits a partyagainst whom the writing is offered to require thatthe adverse patty inttoduce any otherwiseadmissible part of the writing which ought infairness to be considered by the jury at the sametime. State v. Barna (Nov. 3, 1993), Lorain App.No. 93CA005564. The overriding purpose of thetule is to prevent adverse parties from talcingstatements or writings out of context and distortaigthem. Id.; State v. Byrd, Lorzin App. No.03CA008230, 2003-Ohio-7168. Furthermore,Evid.R. 106 is considered a tule of fiming becauseit allows the adverse party to immediately put theadmitted statenients into context by pem itting himto simultaneously achnit the retnainder of thewriting. State v. Byrd, supra.

an explanation ctircial to appellant's clahn." {¶ 58} In this case, the chart was not used out ofcontext. Tlre cliart was used by Dr. Beigi to

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Not Reported in N.E.2d, 2004 WL 1753169 (Olrio App. 8 Dist.), 2004 -Ohio- 4098(Cite as: Not Reported in N.E.2d)

detennine whether Perry's arnniotic fluid level fellwithin nonnal limits. The entire chart wasinhroduced. The text found in the Creasy and Resnikbook that Peny sought to introduce was notrequired to establish what noimal lunits were on thechart. Therefore, the additional part was notsomethhrg which, in fairness, was required to beconsidered contemporaneously with the chart.

*8 {¶ 59} Evid.R. 706 reads, in pertinent part:

{Q 60} "Statements contained in publishedtreatises * * * on the subject of * * * medicine ** * are admissible for impeachment if thepublication is eittrer of the foPlowing: 1. Reliedupon by an expert witness in reaching anopinion; 2. Established as reliable authot-ity (1)by the testinrony or admission of the witness, (2)by other expert testimony, * * *: "

{¶ 61} The chart in question concerned a subjectof inedicine, and Dr. Beigi relied upon the chart inreaclilng his opinion that Perry's amniotic fluid waswithin normai lnnits. However, contrary to Perry'sconteutiorr, the transcript does not clearly reflectthat Dr. Cardwell ider:tified the Creasy and Resnikbook as reliable authority. The only text in theportion of the transcript to which Peny refers isWilliam's Obstetrics. Furtlier, despite Peny'sso-called proffer to the court, Dr. Cardwell'stestiniony speaks for itself on this niatter,

{¶ 62} Nevertheless, even if the Creasy andResnil: book had been properly established asreliable authority, it nonetheless was not adniissiblefor the purpose of whiclr Periy sought to hitrodncethe text. Evid.R. 706 clearly states that anystatements from learned treatises can only beadmitted for impeachment purposes, arid thereforeniay not be used substantively in a case. Maclc v.Krebs, Lorain App. No. 02CA008203,2003-Ohio-5359.

1163) Dr. Beigi's testiunony in this case was that75 nnn fell within normal limits for the gestationalage of the fetus. He testified that the number fellwithin the 5tlr to 50th percentile at 41 weelcspregnancy pursuant to the chart affixed to theulh'asound machnie. Dr. Beigi stated that this

Page 9

indicated to hini that Perry had adequate fluidvolume. Dr. Beigi also confumed that he wasunaware of what the cutoff for oligohydramnios wasat 41 weeks.

11641 Peny's use of the Creasy and Resnik bookwas not to impeach Dr. Beigi's testimonyconcerning his reading of the chart or his fmdingthat 75 nnn fell within normal limits on the chart.Rather, Perry sougbt to introduce the text assubstantive evidence to establish that 75 nun ofannuotic fluid was indicative of oligohydramnios.

{¶ 65} We fmd the trial court did not abuse itsdiscretion in probibiting use of the Creasy andResnik text to cross-examine Dr. Beigi. Peiry'sfourth assignment of error is overnuled.

(¶ 66) As a final matter, we must address theissues of hannless error raised by the parties as theypertain to the first three assignments of error, whichwe have sustained.

{$ 67) A court's eiror niay be considered harnulessonly if its connnission did not prevent substantialjnsflce or does not affect the substantial rights of theparties. Civ.R. 61; Cappara v. Schibley, 85 OhioSt.3d 403, 408, 709 N.E.2d 117, 1999-Ohio-278. '.'Generally, in order to find that substantial justicehas been done to an appellant so as to preventreversal of a judgment for eirors occuning at thetrial, the reviewing court n ust not only weigh theprejudicial effect of those errors but also detenninethat, if those errors had not occurred, the jury orotlrer hier of the facts would probably have madethe sanie decision." Cappara, 85 Ohio St.3d at 408,709 N.E.2d 117, quoting Halhvorth v. RepublicSteel Corp. (1950), 153 Ohio St. 349, 91 N.E.2d690, paragraph three of the syllabus.

*9 {¶ 68) In this case, Dr. Shah claims that Penywas not prejudiced by the introducfion of theelectronically manipulated image of the ultrasoundaad any error in its introduction was hari iless. Dr.Shah also claims that Perry was not prejudiced bythe introduction of the other disputed evidence. UHargues that the disputed image was not mentionedor relied upon by UH and Dr. Shah's use of theexlribit did not affect the outcome of the case

@ 2007 Thonvsoii/West. No Claim to Orig. U.S. Govt. Works.



against UH at trial. UI3 rnalces the same argumentwith respect to Dr. Shah's use of the letters writtenby Perry's prior counsel to cross-exarnine Dr.Cardwell.

1169) Peny responds that Dr. Sbah arrd UH usedthe sanie expert aad presented a united front againsther. She argues that the credibility of her expert, Dr.Cardwell, was placed in question by the hnproperquestioning regarding drug abuse allegationsagainst him and by the use of prior counsel's lettersreflecting an intent to dismiss Dr. Shah. Perry alsoclaims that the use of the image, which was notdisclosed or provided prior to trial, was prejudicial.Peny states the hnage was a ciitical piece ofevidence in the case and the use of the huageaffected the jurors' view of Dr. Shah and how UHshould have proceeded witli the pregnancy. AsPeny states in her reply brief, "[t]he image was atthe heart of Dr. Shah's defense. As such, it alsoaffected how the jury perceived UH's role in Ms.Peny's pre-natal care given that such care wasbased on Dr. Shah's ultrasound reading."

{¶ 70} We agree ivi`1i Petry. Had the court's enorsnot occurred, the jurors may have reached adifferent decision with respect to the negligenceclaim against Dr. Shah and the claims against UHunder the doctrine of respondeat superior for theactions of Dr. Cowap and Dr. Beigi. While UH didnot directly rely upon the nnproper evidence, theevidence nonetheless prejudiced Peny's caseagainst UH. The evidence used to discredit Dr.Cardwell may have affected the jurors' view of Dr.Cardwell's testintony as it related to both Dr. Shahand UH.

{¶ 71} Furttrer, the use of the image withoutdisclosing it to Peny was higl-ily prejudicial toPerry's case against both defendants. Themeasurement or misnieasurement of Perry'sarruriotic fluid levels was at the center of this case.The hnage was used as evidence that a propermeasurement was niade by Dr. Shah. Not onlycould this have affected the jurors' views of Peny'sclaim of negligence agaiust Dr. Slrah, but also itn ay well have affected the jurors' views concerningthe negligence of Dr. Cowap and Dr. Beigi in theirmanagenient and treatnient of Peny's pregnancy as

it related to the claims brought against UH. Indeed,if the jurors relied on this evidence to establish anaccurate measurement was taken and the amnioticfluid levels were normal, the jurors may have foundin favor of UH as a result. If the evidentiary errorhad not occuned, the jurors nray have reached otherconclusions regard'nrg Dr. Cowap's management ofPerry's pregnancy and inquiries into her test results.Therefore, substantial justice was not done and wedo not fmd the errors were harmless.

*10 11 721 We recognize that Dr. Cowap and Dr.Beigi were voluntarily dismissed from this action;however, tlreir dismissal does not impact the claimsagainst UH. The claims against UH were based onthe doctrine of respondeat superior, under which thehospital could be held liable for injuries caused bythe negligence of its employees. Although Perrywas required to prove the negligence of the doctorsto prevail on her claims against UH, she could do sowithout the doctors being present hr the acfion.Indeed, we have previously held that there is norequirement that an employee be named as a partyin a suit in order to prove his negligent acts. Krausev. Case YFestern Reserve Unive sig, (Dec. 19,1996); Cuyahoga App. No. 70712.

{¶ 73} We recognize that a third person niust beable to maintain a negligence action against anemployee in order to brhrg an action against theemployer. Where no claini can be niahrtained, anaction against the employer• is extinguished. Tlius,in sihTations where an employee has beenvoluntarily disnussed with prejudice, where therehas been atr adjudicatiou on the nierits, or where anemployee's negligence is nonexistent or notestablished, a claim against an employer underrespoudeat superior mnst fail. See Id.; Cidly v. St.Augustine Manor (Apr. 20, 1995), Cuyahoga App.No. 67601; Docenio v. National RailroadPassenger Corp. (May 9, 1996), N.D. IIl. Case No.9564062.

{¶ 74} hi this case, since Dr. Cowap and Dr. Beigiwere voluntarily dismissed without prejudice andwere not necessary parties to the action, Perry wasentitled to proceed on her'claims against UH. Asoutlined in the facts herein, evidence was presentedupon which the jurors could find that Dr. Cowap

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Not Reported in N.E.2d, 2004 WL 1753169 (Ohio App, 8 Dist.), 2004 -Ohio- 4095(Cite as: Not Reported in N.E.2d)

and Dr. Beigi failed to meet the standard of careand UH could be held liable, Since the jurors mayhave reached a different conclusion as to alldefendants had the cout-Ys eirors not occurred, theentire case must be remanded for a new trial.

{¶ 75} Judgment reversed and case remanded for anew trial.{¶ 76} MICHAEL J. CC7RRIGAN, A.J.,Concmring in Part and Dissenting In Patt:{¶ 77} While I concur with the lead opiniion in itsanalysis of appellant's fourth assignment of error, Irespectfully dissent from the lead opinion andwould affiim the jury verdicts in favor.of UH andDr. Shah. It should be noted that the lead opinionhas not commanded a majority of this court;therefore, any statemeuts made in the lead opinion'sanalysis of the case are purely dicta and not the lawof this court.

{¶ 78} Had the lead opinion received a majority ofthis coutt, its analysis of Perry's assignnieiits oferror one tlu-ough three is misplaced. First, tlrere canbe no vicarious liability imputed to UI-I because Dr.Shah was not a UH enrployee: In addition, while Iagree with the lead opnrion that an employer maynot beheld vicariously liable under respondeatsuperior where an employee's negligence isnonexistent or not established, I fail to see how theparties' stipulation in voluntar-ily dismissnig Dr.Cowap and Dr. Beigi, both UH employees, from thecase without prejudice cbanges this time-honoredtenet of law. Eittier Dr. Cowap or Dr. Beigi had tohave been found negligent by the jury to iniputesuch liability to its enrployer, UH. Neither werefound negligent in their care of Perry and, as aresult, UH caruiot be vicariously liable for its

einployees' "non-negligence." FN5

FN5. The lead opinion states that "evidence was presented upon which thejurors could fmd that Dr. Cowap and Dr.Beigi failed to nieet the standard of careand UH cottld be liable." This statement,coupled witlr the judgment to reverse andretnand for a new trial, suggests that thelead opinion believes that the nianifestweight of the evidence does not support

the jury's verdict that Dr. Shah and UHwere not negligent in their care of Perry. Ifthe lead opinion's judgment is. truly anattempt to reverse the jnry verdict on theweight of the evidence, such judgmenttnust have the concurrence of "all threejudges heating the cause." See Section3(B)(3), Article IV, Olrio Constitution.Because the lead opinion does not have theconcunence of all three judges, its reversalon the weight of the evidence isunconstitutional.

*11 {¶ 79} Second, although the lead opinionstates that Dr. Shah's use of an "enlarged version"of Perry's May 12, 2000 ultrasound unfairlyprejudiced Perry because it was not disclosed priorto trial, it is not unusual nor a novelty to have anexhibit e,ilarged or blown-up for the putposes ofpresenthig it to the jury as a visual aid. As the leadopinion concedes, the enlarged version of thesubject ultrasound was sinrply an enlargenient ofExhibit 2, which was admitted into evidence and isthe size of an index card of the computer generatedultrasound intage, The enlarged version was notadmitted into evidence and was not made part of therecord for our review. Because the enlarged versionof Exhibit 2 is not part of our record, this court isunable to review its contents and °[t]his fact, in andof itself, precludes [Peny] from demonstra6ngprejudice on this record" sinrply because theenlarged version was not disclosed to Perry prior tohial. Industrial Recycling Servs., Inc. v. Rudner,Stark App. No.2001CA00329, 2002-Olrio-4068, ¶30.

{¶ 80} Moreover, it is turfathomable to believethat the nondisclosure prior to trial of the enlargedversion of Exhibit 2 unfairly prejudiced Perry whenPeny's own nredical expert presutnably reviewedthe results of the May 12, 2000 "ultrasound inpreparing his expert report and in opining that theultrasound fmdings of oligohydranuuos ... ispredictable of certain complications including cordaccidents; and had the doctors acted witlrin thestandard of care on that day the baby would havebeen delivered in a healthy condition." Behtgforever nvndfiil of the trial court's broad discretionin admitting evidence, the trial cotut did not abuse

02007 Thomson/West. No Claim to Orig. U.S. Govt. Works.



its discretion in allowing Dr. Shali to use tlie its discretion in the evidentiary dispntes, I wouldenlarged version-essentially a visual aid-of Exhibit affum the jury verdicts in favor of UH and Dr. Shah.2.

{¶ 81} Thhd, there is nothing in the record tosuggest that the cross-examination of Dr. Cardwellwas improper, as raised in Peny's secondassignment of error. In fact, tlre questioning of apreviously-frled lawsuit, a matter of public record, recover of said appellees costs herein.was opened by Dr. Cardwell himself when heclahned that the only reason he left RockfordMemorial Hospital was because his wife wanted tomove south. This equivocation strategically leavesout the subsequent litigation filed by Dr. Cardwelland the implication that, in fact, his resignationfiom Rockford Memorial Hospital was anything butvoluntary. Since Dr. Cardwell was testifying onbehalf of Perry, opining that Dr. Sbah and UH actednegligently and caused the wrongfitl death of Perry'sstillborn son, his credibility is an issue with whichdefense counsel may question in accordance withthe Rules of Evidence. Because it cannot be saidtbat the trial court abused its discretion in allowiugthe linnted cross-exaniir,aticn of Dr. Cardwell, Iwould oveirule. etus assigmr,ein of ennr.

{¶ 82} Fhrally, with respect to Peiry's thirdassigtmient of error, Dr. Cardwell was notquestioned on the letter written by Peiry's fonnercounsel to defense counsel to prove the tmth of thematter asserted, which is that Peny was anticipatingdismissing Dr. Slrah from the case. Instead, Dr.Canlwell was aslced about the letter to leanr wlretherhe made representations about his opinion of Dr.Shah that would have led Perry's fomier comisel tobelieve she had no viable claim against Dr. Shah. Itis immaterial that Dr. Cardwell had no persorralknowledge of the letter as he was not asked toanthenticate it, but ratlier to address whether hegave any impressions in his opinion which may

This cause is reversed and remanded to the lowercourt for fiuther proceedings consistent with thisopinion.

It is, therefore, considered that said appellant

It is ordered that a special mandate issue ottt of thiscourt directing the Cuyahoga County ConunonPleas Court to cany this judgment into execution.

A certified.copy of this entry shall constitute thetnandate pursuant to Rule 27 of the Rules ofAppellate Procedure.

ANN DYKE, J., concurs in judgment only;MICHAEL J. CORRIGAN, A.J., concurs in pattand dissents in part.N.B. This entry is an announcenrent of the court'sdecision. See App.R. 22(B), 22(D) and 26(A);Loc,App.R. 22. This decision will be journalizedaud will become the judgment and order of thecourt pursuant to App.R. 22(E) unless a inotion forreconsideration with supporting brief, per App.R.26(A), is filed within ten (10) days of theamiotmcenient of the court's decision. The tuneperiod for review by the Supreme Court of Ohioshall begin to run upon the journalization of thiscourt's announcen-ient of decision by the clerlc perApp.R. 22(E). See, also S.Ct.Prac.R. E, Section2(A)(1).

Oltio App. 8 Dist.,2004.Peny Y. Univ. Hosp. of ClevelandNot Reported in N.E.2d, 2004 WL 1753169 (OhioApp. 8 Dist.), 2004 -Ohio- 4098

have accouuted for Peny's fonuer counsel to END OF DOCUMENTsetiously consider disrnissing Dr. Shah. There isnothing to suggest that the trial coutt abused itsdiscretion in. allowing Dr. Cardwell to becross-exalnined on the letter, nor is there anythingto suggest that such questioning prejudiced Perry'scase.

*12 {¶ 831 Because the trial court did not abuse

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Not Reported 'n N.E.2d, 2004 WL 102860 (Ohio App. 2 Dist.), 2004 -Ohio- 264(Cite as: Not Reported in N.E.2d)

cLumpkin v. Wayne Hosp.Ohio App. 2 Dist.,2004.

CHECK 01110 SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OFLEGAL AUTHORITY.

Court of Appeals of Ohio,Second District, DarkeCounty,

Kimberly LUMPKIN, et al., Plaintiffs-AppellantsV.

WAYNE HOSPITAL, et al., Defendants-Appellees.No. 1615.

Decided Jan. 23, 2004.

Baclcground: Patient brought medical malpracticeaction agauist doctor. The Court of Comnton Pleas,Darke County, No. 00-CV-=8721, renderedjudgmerit in favor of doctor and patieiit appealed.

Holdings: The Court of Appeals, Fain, P.J., heldthat:

(1) probative value of evidence that error doctorrnade during surgery on paflent was identical toerror doctor l ad made on different patient one yearearlier was outweighed by prejudicial effect;

(2) trial court's refiisal to allow patient to inipeachdoctor tluough use of doctor's deposition tcstinionywas not abuse of discretion; and

(3) probative valne of evidence suggesting thatbasis for doctors proctoiship was result ofcomplications in prior surgeries was outweighed byprejudicial effect of evidence.

Affnmed.West Headnotes[1] Evidence 157 ^' -141

Page 1

157 Evidence1571V Adinissibility in General

1571V(C) Similar Facts and Transactions157k141 k. Other Injuties or Accideuts

from Same or Siniilar Causes. Most Cited Cases

Evidence157 C^146

157 Evidence157IV Admissibility in General

1571V(D) Materiality157k146 lc. Tendency

Confuse. Most Cited Casesto Mislead or

Probative value of evidence that error doctor madeduring surgery on pafient was identical to erordoctor had made on different patient one yearearlier was outweighed by prejudicial effect inmedical malpractice action; there was no priorfind'nrg of inedical tnalpractice, transection ofconnnon bile duct, instead of cystic duct, wasknown risk of gall bladder procedure, and proof ofone bad result in previous, similar surgery, withoutmore, pronioted improper inference that, becausedoctor had one bad result on previous occasion,doctor was iucompetent. Rules of Evid., Rule403(A).

[2] R'itnesses 410 C^406

410 Witnesses4101V Credibility and Inipeaclunent

410IV(E) Contradicfion410k406 k. Competency of Contradictory

Evidence. Most Cited CasesTrial court's refusal to allow patient to hnpeachdoctor through nse of doctor's deposition testimony,in which doctor denied that he bad been required toundergo proctorship as result of etror in priorsurgical procedure, was not abuse of discretion inniedical malpracfice action where probative valueof evidence could be seen as being outweighed byprejudicial effect; doctor's denial in deposition onlyweakly nnplicated his credibility, his denial n ighthave been thue if proctorship started before prior

© 2007 Thomsoiil4T'est. No Claim to Orig. U.S. Govt. Works.

'rt„•//,,,a1,'/.,,oc11^n, rnm/n,4nt/,,,-A,+^r,•.-,n,+. nnv.v74.- 4....P.A-..44«.d:....-.d..D-...4-^lT,...41.,...0_....-\irr7 1 T7 nn a__ eil <i"nns

Not Reported 'nt N.E.2d

Not Repotted in N.E.2d, 2004 WL 102860 (Ohio App. 2 Dist.), 2004 -Ohio- 264(Cite as: Not Reported in N.E.2d)

surgical er-ror occurred, and evidence raisedinference that bad result in prior surgety was resultof doctor's incompetence. Rules of Evid., Rule403(A).

[3] Evidence 157 C=146

157 Evidence1571V Adnrissibility in General

157R/(D) Materiality157k146 k. Tendency to Mislead or

Confuse. Most Cited CasesProbative value of evidence suggesting that basisfor doctor's proctorship was result of surgicalcotnplications in laparoscopic cholecystectonriesand conunon bile duct injuries itt ptior incidents,was outweighed by prejudicial effect of evidence inniedical malpractice action brought by patientwhose c.ommon bile dnct was transected during gallbladder surgery; there was no evidence, or profferof evidence, to establish that doctor's frequency ofbad outcomes in sinrilar gall bladder, surgeriesexceeded statistical nonn that could be expected inabsence of medical malpractice. Rules of Evid.,Rule 403(A).

Civil Appeal from Common Pleas Court.

David P. Kanip, Atty. Reg. # 0020665, Cincinnati,OH, for plaintiffs-appellants.John B. Welch, Atty. Reg. # 0055337, Dayton, OH,for defendants-appellees.FAIN, P.J.*1 {¶ 1} Plaintifl'-appellant Kimberly Lutnplcinappeals froni a judgment rendered in favor ofdefendant-appellee Johu C. Mobley, M.D ., in hermedical malpractice action against Dr. Mobley.Lumpkin contends that the hial coutt erred byexcluding evidence that the niistalce Dr. Mobleymade dtirhig Lumpkin's surgery-the transection ofher conmion bile duct instead of her cystic duct-wasidentical to a niistake he had recently niade in asurgery he perfonned upon another patient, becausetltis evideuce denionstrates that Dr. Mobley was onnotice that his surgical tec.hnique was flawed. Weconclude that the trial comt did not abuse itsdiscretion in excltiding evidence of the priorincident, because the record does not reflect any

Page 2

proffer to show how the cin;unistances of the otherpatient's surgery were substantially siniilar to thecircumstances of Lunipkin's surgery. We alsoconclude that the trial court did not abuse itsdiscretion in excluding evidence of the priorincident upon the ground tirat the prejudicial effectof the inference arising from this evidence-that thedoctor had a similar bad result once before, so hemust be a bad sttrgeon-outweighs any legithnateprobative value it nright have.

{¶ 2} Lunrplcin also contends that the trial courterred by excluding evidence regarding Dr. Mobley'sproctorship, because it was relevant to hiscredibility as a wituess and his ability to meetaccepted standards of care. We conclude that thetrial court did not abuse its discretion in denyingLnmplan tite opportunit,y to impeach Dr. Mobleywith his deposition testimony regarding lrisproctorship, because that testimony only weaklyimplicates Dr. Mobley's credibility, and is uudulyprejudicial. to the extent that it suggests theforbidden inference that one previous, similar badresult hnplies that Dr. Mobley is an hrcon-ipetentsurgeon.

{¶ 3} Because we reject both of Luniplcin'sassignments of error, the judgment of the trial courtis affim-ied.

{¶ 4} Iu December, 1999, Ktrnberly Lumpkinwent to the Entergency Deparhnent at WayneHospital complaining of abdontinal pani. Luinpkinwas admitted tmder the care of Dr. John C. Mobley,and underwent an ultrasound, which revealed tltatshe had several gallstones. Dr. Mobleyrecommended that Luuipkin undergo a laparoscopiccholecystectomy to remove the gall bladder. Dntingthe surgery, Dr. Mobley realized that he hadtransected the common bile duct instead of thecystic duct. Dr. Mobley proceeded to remove thegallbladder, and then performed a staticcbolangiogram and confumed the injury to thecomnton bile duct. Dr. Mobley then referredLumpkin to Dr. Richard Wetliug, a surgeon at GoodSanialitan Hospital in Cinchntati, Ohio, for surgical

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Not Reported nr N.E.2d, 2004 WL 102860 (Ohio App. 2 Dist.), 2004 -Ohio- 264(Cite as: Not Reported in N.E.2d)

treatment of the injury to the cormnon bile duct.Lumpkin was transferred to Good SamaritanHospital, and Dr. Welling petfonned a roux-en-Yliepaticojejunostocmy to repair the hijury to thecommon bile duct. Lutnplcin was hospitalized fornine days.

{¶ 5} A year later, Lumpldn and her husband,Travis Lutnplchi, filed a complaint against WayneHospital and Dr. Mobley, alleging that Dr. Mobley'streatment of Lunpkin fell below the acceptedstandards of care, and that lus negligenceproxiniately caused her to undego a staticcholangiogram, a roux-en-Y hepaticojejunostocniy,and nine days in the hospital. Lumpkin lateramended her complaint to hrclude a claim fornegligent credentialing against Wayne Hospital,alleging that Wayne Hospital was negligent in itshiring, supervishig, training and retaining of Dr.Mobley, because it had knowledge of a previousidentical act of negligence by Dr. Mobley and failedto prevent future acts of negligence by Dr. Mobley.

*2 1161 Wayne Hospital and Dr. Mobley movedto bifurcate Lurnpkin's negligeiit credenfialing clahriagainst Wayne Hospital from the negligence claimagainst Dr. Mobley. The trial court bifurcated theclaims finding that "[t]he proof necessary toestablish the clahn against Wayne Hospital,includ'urg any prior medical negligence by Dr.Mobley, would possibly be tnore prejudicial thanprobative in determining whether there was anymedical negligence by Dr. Mobley in his treatinentof Kimberly Lutnplcin." In February, 2003,Lttnipkin voluntarily distnissed Wayne Hospital,without prejudice.

{¶ 7}. Dr. Mobley filed a motion in limine toprevent Lumpkin from °introducuig any evidence ofany prior malpractice clain s against Dr. Mobley,"and "from introducing any evidence or asking anyquestions conceming whether Dr. Mobley wasinvestigated or 'proctored' by any executivecommittee members, for quality assurance purposesat Wayne Hospital, relative to any complicationsfrom laparoscopic procedures." The trial courtgranted this motion nr part, prohibiting Lumpkinfroni "introducing any testimony about a specificprior incident of a bad ontcome with this procedure

either by name or by general reference." The trialcourt denied the motion in part, allowing evidenceregarding the proctoring process and tbeobsetvations, sugges6ons and reconnnendations ofthe two proctoring physicians, Dr. LeroySteinbrecher and Dr. Samuel Brnbalcer, whoobserved Dr. Mobley's surgical perfoimance.

{¶ 8} This case proceeded to a jury trial. The juryrendered a verdict in favor of Dr. Mobley. From thejudgment rendered against her, Lumpkin appeals.

II

{¶ 9} Lumpkin's First Assignment of Error is asfollows:

{¶ 101 "TI-IE TRIAL COURT COIvRVlITTEDREVERSIBLE ERROR BY EXCLUDINGEVIDENCE THAT THE MISTAICE DR.MOBLEY MADE DURING TIIE SURGERY OFKIIvIBERLY LUMPKIN WAS IDENTICAL TOTHE MISTAKE HE HAD RECENTLY MADE INTHE SURGERY OF DEBORAH THOMASBECAUSE THE EVIDENCE DEMONSTRATEDTHAT DR. MOBLEY WAS ON NOTICE THATHIS SURGICAL TECI4IVIQUE WAS FLAWED."

[I] {¶ 11) Lutnpkin contends that evidenceshowing Dr. Mobley rnade the same surgical "nristake" on another patient, Deborah Thomas, ayear pior to Lumpkin's surgery, using the satnesm•gical technique used on ber, is probative of thefact that Dr. Mobley had khowledge tlrat hissurgical tecluuque was flawed. Lumpkin arguestbat, pursuant to Renfro v. Black ( 1990), 52 OhioSt.3d 27, 31, 556 N.E.2d 150, evidence of the prioru cident is admissible, because the c'ucumstances ofThomas's surgery were substantially similar to thecircumstances of her surgery.

{¶ 12} "A trial court has broad discretion indetermining whether to admit or exclude evidence.Absent an abuse of discrefion that niate.iallyprejudices a pat-ty, the trial court's decision willstand." Krischbauna v. Dillon (1991), 58 Ohio St.3d58, 66, 567 N.E.2d 1291 (citations omitted). A trialcourt abuses its discretion when it rnakes a decision

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nincinnn^r

Not Repotted 'nt N.E.2d

Not Reported in N.E.2d, 2004 WL. 102860 (Ohio App. 2 Dist.), 2004 -Ohio- 264(Cite as: Not Reported in N.E.2d)

that is uiweasonable, arbitrary, or unconscionable.Blalcemore v. Blakemore (1983), 5 Ohio St.3d 217,219, 450 N.E.2d 1140 (citations omitted). Inapplyiug the abuse of discretion standard, anappellate court is not fiee to substitute its ownjudgment for that of the trial comt. Berk v. Maithetvs(1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301(citations omitted).

*3 {¶ 13} "Prior occurrences are sometunesrelevant 'to show that a party knew or had no6ce ofa dangerotts condition.' '[I]n order for suchoccuirences to have been admissible to show priorknowledge on the part of [the defendant], theseincidents must have occurred under cucutnstancessubstantially shnilar to those in [the plaintiffs] case.' The trial court has the discretion to deteuninewhether the prior occunences were stibstantiallysimilar to the accident in question. Furtlietmore, theproponent of prior occutrence evidence has theburden of showing the substantial similarity of thecircnmstances." Ealces v. K-mart Intern.Headquarters, Inc.; Montgomery App. No: 17334,1999 WL 252481, at "'3 (internal citations oniitted).

(¶ 14) In Renfro, 52 Ohio St.3d at 32, 556 N.E.2d150, the Ohio Sttpretne Court held that the trialcourt did not abuse its discretion in excluding prioroccutrence evidence where there had been noproffer to show how the circumstances of the prioroccuiTences were substantially similar to thecircutnstances at issue. We reached the samedecision in. Ealces, 1999 WL 252481, at *4,conclud'uig that the trial court did not abuse itsdiscretion in excluding prior occmrence evidencewbere the plaintiff failed to discuss the prioroccurrence with sufficient specificity to meet hisburden of showhig that the circutnstances of theprior occurrence were substantially sitnilar to thecircurnstances at issue.

{Q 15} Lumpldn contends that slie was never giventhe opportunity to establish that the circunrstancesof Thomas's surgery were substantially similar tothe circumstauces of her surgery, because the trialcourt refused to admit the evidence that would havedemonstrated the substantial sirnilarity. But therecord reflects that Lttmpkin made no proffer toshow how the circumstances of Thonias's surgery

Page 4

were substantially shnilar to the circumstances ofher surgery. Lumpldn failed to address the priorincident with any specificity, so as to satisfy herburden of showing that the circumstances ofThomas's surgery were substantially similar to thecircunistances of her surgery. We conclude that thetrial court did not abuse its discretion in excludingthe prior incident of Thomas's surgeLy.

{¶ 16} We reacfi the same result by concludingthat the trial court did not abuse its discretion inexcluding the prior incident of Thomas's surgery asunfairly prejudicial. Evid. R. 403(A) provides that "[a]lthough relevant, evidence is not admi.ssible if itsprobative value is substantially outweighed by thedanger of tmfair prejudice "*":' In MeGarry v.Horlacher, Montgoniery App. No. 18901,2002-Ohio-3161, at ¶ 43, 149 Ohio App.3d 33,775 N.E.2d 865, we concluded that the trial courtproperly excluded, as uhfairly prejudicial, evidenceof the existeuce of a prior medical malpractice caseagainst the defendant physician, the facts of thatcase, and its result.

{¶ 17} In this case, the trial court ruled as follows:

{¶ 18} "THE COURT: Tlte potential for damagecomes in the jury somehow making an extrapolationor an intetpretation that a ptior bad outcome issomehow evidence of negligence, okay. The Court'stroubled with specific references to any other priorcase. So whether or not you bring up specificallyDeborah Thomas or a prior procedure with a siniilarbad outconre, tltat's where the most likely daniageoccurs.

*4 {¶ 191 "Other aspects that the Plaintiff wouldlike to hear, specifically the proctoring process andrecomtnendations frotn other surgeous seems to beprobative as to whether or not there was a deviationand whether there's a standard of care for oneprocess or not, olcay. This is somewhat dividing thebaby.

{¶ 20} "The Court fmds that the Motion will begranted in patt and would prohibit the Plaintiff fromintroduchig any testimony about a specific priorincident of a bad outcome with this procedure eitlterby name or by general reference.

© 2007 Tlromson/West. No Claim to Orig. U.S. Govt. Works.

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Not Reported in N.E.2d, 2004 WL 102860 (Ohio App. 2 Dist,), 2004 -Ohio- 264(Cite as: Not Reported in N.E 2d)

{¶21}"a:* c

{¶ 22} "So we would at least elhninate thepossible prejudicial affect of a prior case, and Idon't have any idea whether there's a breaclr ofstandard of care in that case or not, okay. I don'thave any idea if the facts apply or are similarenough in the Deborah Thomas case or whetherthere was jnst the Deborah Thomas case as a part ofthe proctoring process or other surgical procedures.I don't want to get into what Wayne Hospital washyutg to acconiplish and allow an irrference thatthere was a bad outcome of the same procedure.That's outside the scope of anything we cancomfortably say is related to this surgery."

{¶ 23} Consistent with our conclusion ht McGarry,stipra, we cotrclttde that the trial court did not abuseits discrerion in exclud'nig, as unfairly prejudicial,the existence of a prior niedical rualpractice caseinvolving Thonias's surgery, the facts of that casearrd its result. The circumstances of the case beforeus are even stronger than those in McGarly, supra,because there was, at the tin7e of trial, no find'nrg ofprior medical malpractic.e. The evidence Lurvpkinsought to present tnere'.y established that in aprevious gall bladder surgery, Dr. Mobley hadtransected the common bile duct instead of thecystic duct. This is a known risk of the procedure.Proof of one bad result in a previous, sinrilarsurgery, without more, promotes an improperinference that because a doctor has had one badresult on a previous occasion, the doctor isincompetent. In the circunistances of this case, weagree witli the ttial court that this unfair inferenceoutweighs atty probative value this evidence niighthave.

{¶ 24} Lumpkin's First Assigmnent of Error isover-ruled.

III

{¶ 251 Lumpkin's Second Assignnient of Error isas follows:

{¶ 26) "THE TRIAL COURT COMMITTEDREVERSIBLE ERROR BY EXCLUDING

Page 5

EVIDENCE ABOUT DR. MOBLEY'SPROCTORSHIP AS IT WAS DIRECTLYRELEVANT TO HIS CREDIBILITY AS AWITNESS AND HIS ABILITY TO MEETACCEPTED STANDARDS OF CARE."

[2] {¶ 27} Lumpkin contends that the trial courtabused its discretion in exclading Dr. Mobley'sdeposition testhnony regarding his proctorship,because it was relevant to lus credibility. Dr.Mobley testified, under oath, as follows:

{¶ 28} "Q. As a consequence did [sic] theDeborah Thonias case, were your surgicalplivileges at Wayne County Hospital restricted inany way?

*5 (129) "A. No, sir.

{¶ 30} "Q. You weren't asked to proctor underanybody witlr respect to laparoscopic procedures asa consequence of that?

31} "A. No, sir.

{¶ 32} "Q. So you continaed to perform yourroutine surgical services tlrere and rotate every threeniglrts as you had traditionally?

{¶ 33} "A. Yes, sn:"

{¶ 341 Lumpkin conteinds that the trial couit erredin denying her the opportunity to nnpeach Dr.Mobley with his deposition testhnony, because Dr.Mobley falsely denied that he was asked to undergoa proctorship as a consequence of the complicationsin Thomas's surgery. Lumpkin argues that Dr.Mobley's false denial is evident, based on a letterfrom Douglas A. Riffell, the Presideht of theExecutive Conimittee, dated July 7, 1998, in wirichRiffell wrote, in perturent part, the following:

{¶ 351 "T'he surgical complication rates forgallbladder surgeries over the last year and a halfwere recently reviewed by the ExecutiveCommittee. This review was perfonned to evaluatea seties of repotted surgical complicafions byphysician # 475 [Dr. Mobley]. Physician # 475 hadone case of laparoscopic common bile duct injury,

C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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Not Reported inN.E.2d Page 6


one case of cystic duct lealcage after laparoscopiccliolecystectomy, and one laparoscopic iliac veininjmy. Also i-eported during open cholecystectoniywas a comnion duct injury and injury to the hepaticflexure of the colon.

{¶ 36) "The committee had at hand, literaturefronr the textbook, Current Surgical Therapy, whichindicated major bile duct injury rate in laparoscopiccholecystectomies is between .3 and .6%. The onemajor bile duct injury occurring in one of thelaparoscopic cholecystectoniies perfonned byphysician # 475 since 1995, falls statistically withinthis range of occurrence. None the less, theconmuttee concluded that this small but realaccmnnlation of complications merited a responsedesigned to enhance professional growth and toensure the medical staff and the Hospital that biliarysurgety is being performed in [sic] proper and safemanner. The connnittee was unanimous in itssentiment that the data does not provide justificatioufor reduction of privileges."

{1 37) The record shows that Thomas's surgeryoccutred approximately one year piior to Luntpkin'ssurgery. Lurnpkin's surgery was on December 19,1999. Therefore, Tlromas's surgery wasapproximately in Deceniber, 1998. Luinpkin'scontention that the trial court abused its discretionin denying her the opportunity to impeach Dr.Mobley with his deposition testimony, where hedenied that he was asked to undergo a proctorshipas a consequence of the surgical conrplicationinvolving Thomas, is based on a letter from Riffell,which was. dated 7uly 7, 1998, approximately fivemonths prior to Thomas's surgery.

{¶ 381 We conclude that the trial court did notabuse its discretion, because Dr. Mobley'sdeposition testimony, denying that he was asked tormdergo a proctorship as a consequence of hissurgical complication involving Thonias, is onlyweakly probative, at best, of Dr. Mobley'scredibility. Obviously, if the Riffell letterrecomn ending the proctorship preceded the surgery

surgery preceded the Riffell letter, and is one of thetnatters refetred to in that letter, Dr. Mobley'sdeposition answer would not clearly be erroneous.As phrased, Dr. Mobley could reasonably haveconshued the question as asking whether theproctorship was caused solely by the bad result inthe Thomas surgery. At most, the Riffell lettermight establish that the bad resrdt in the Thomassurgery was one of a"srnall but real accumulationof complications [following surgeries]" that led tothe proctorship recomniendation,

k6 {¶ 39} Because Dr. Mobley's depositionanswer only weakly implicated his credibility, if atall, the trial court conld reasonably have concludedthat the unfair prejudice resulting fi•om that line ofquestioning-that the bad result in the Thomassurgery iniplies that Dr. Mobley is'nrcompetent-outweighed its probative value.

[3] {¶ 40} Lumpkin also contends that the trialcouri abused its discretion when it excludedevidence explaining the basis for Dr. Mobley'spri;ctorslup, because it was relevant to demonstratethat Dr. Mobley's surgical tecluuque was below theacceptcd standards of care, Specifically, Lumpldncontends that the trial court etTed in refusing toadinit the full depositions of Dr. Leroy Steinbrecherand Dr. Samuel Brubaker and letters written by thetwo physicians showing that Dr. Mobley'sproctorship was a result of his surgicalcomplications in laparoscopic cholecystectomiesand common bile duct injuries ht prior incidents.

(141) The trial court allowed evidence regardingthe proctoring process and the observations,suggestions and recommendations of the twoproctoring physicians, Dr. Steinbrecher and Dr.Bmbaket, who observed Dr. Mobley's surgicalperformance. I-Iowever, the trial court prohibitedevidence, as unfairly prejudicial, of "any testimonyabout a specific prior incident of a bad outcomewith this procedure either by name or by generalreference."

Dr. Mobley performed upon Deborah Thomas, then {¶ 42} At trial, Dr.the proctorship was not a consequence of the bad follows:restdt in that surgery, and Dr. Mobley's depositionanswer was entirely tmthful. Even if the Thomas (¶ 43) "Q. I have a

Steinbrecher testified as

letter here which will be

© 2007 Thomson/West. No Claini to Orig. U.S. Govt. Worlcs.

Not Reported ut N.E.2d

NotReported in N.E.2d, 2004 WL 102860 (Ohio App. 2 Dist.), 2004 -Ohio- 264(Cite as: Not Reported in N.E.2d)

Exhibit C. Did you author this letter?

{¶ 44} "A. I authored this letter, yes.

{¶ 45} "Q. This letter contains your thoughts andconunents about your mentorship of Dr. Mobley.

1146) "A. Yes.

{¶ 47} "Q. Let's see, in the fourth paragraph of theletter it states, 'I fmd his work at the present timesatisfactory. There are some concems I have abouthis teclnriques. We have discussed some of these. Ihave tried.to impress upon him the need for carefuldissection around the common duct and a bitperhaps more care with placement of the trocarsystem.' Is that a con'ect read'uig of that paragraph?

{1148} "A. That's conect.

f¶ 49} "Q. Can you explain to me the concernsyou have about Dr.-or had about Dr. Mobley'stechniques at the tinre you nientored him?

{¶ 50} "A. The concenis were two-fold. As Idiscussed lrere, nuinber one, that the concern abouthis placement of the trocar systems. Two, about hisdissecflon around the connnon duct."

{¶ 51) Dr. Brubaker also testified as follows:

{¶ 52} "Q. The next exhibit has been marked asExhibit B which is a letter dated November 28th,1998. It states Sanmel M. Brubaker, M.D., is theauthor. Is that your sigrzature?

{¶ 53) "A. It is.

{¶ 54} "Q. In this letter you state, 'Since surgeryis an art as well as a science, there are a niyriad ofminor technical points froni variation fronr surgeonto surgeon. I lrave shared with Dr. Mobley severaldetails of technique which I have found useful inmy work and which I feel could increase furtlrer thefinesse and margin of safety of his performance ofthose procedures.' Is that a colTect reading?

*7 {¶ 55} "A. Yes.

Page 7

11561 "Q. Could you describe for me what detailsof technique that you shared with Dr. Mobley toimprove his technique in laparoscopiccholecystectomy?

{¶ 57} "A. I recall ntentioning two such details.One was that the skin incisioi s at the trocarplacement be nrade of adequate length so that thetrocar is not inipeded unnecessarily in its enhythrough the abdominal wall. And the other waseucouragement to be diligent in exposure of thecomnion bile duct for positive identification."

{1158} Wbile the trial court did allow evidence ofthe observations, suggesfions and reconmiendationsmade by Dr. Steinbrecher and Dr. Brubaker in theirletters, the trial court excluded evidence that Dr.Mobley's proctorship was a result of his surgicalcomphcations in laparoscopic cholecystectonriesand comnion bile duct injuries in prior incidents, asuufaa9y prejudicial. Consistent with our dispositionof Lumpkiu's First Assignment of Error, weconclude that the trial court did not abuse itsdiscretion in excluding evidence of pior incidentsof bad outcomes with laparoscopiccholecystectonries, as unfairly prejudicial.

{¶ 59} A fair inference of medical rnalpracticefrom prior, similar bad outcomes in siniilar medicalprocednres would seem to require, at a minhnum,some expert testiniony that the frequency of badoutconies exceeds the statistical norm that would beexpected in the absence of malpractice. Evidence oftlris kind, while not necessarily sufficient, by itself,to prove malpractice, would appear to suppoit afair, reasonable inference of malpractice that wouldniake it probative and adnrissible. In the case beforeus, there was no evidence, or proffer of evidence, toestablish that Dr. Mobley's frequency of badoutcoines in sinillar surgeries exceeded thestatistical nonn that could be expected in theabsence of malpractice. Indeed, the letter of Dr.Riffell, cited by Lumpkin, suggests the contrary.

{¶ 60} Lunpkflr's Second Assigmnent of Error isovernded.

III

(D 2007 Thomson/1Uest. No Claim to Orig. U.S. Govt. Works.



{¶ 611 Both of Luinpkin's Assigninents of Esorhav'vig been oven-uled, the judgment of the trialcourt is affu-med.

WOLFF and YOUNG, JJ., concur.Ohio App. 2 Dist.,2004.Lumpkin v. Wayne Hosp.Not Reported in N.E.2d, 2004 WL 102860 (OhioApp. 2 Dist.), 2004 -Ohio- 264

END OF DOCUMENT

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Page 8

tdT7 nAR.,, AY7r l'lnrY7

IN THE COURT OF COMMON PLEASSUMMIT COUNTY, OHIO

Dolly Burkhart, Executrix of the Estate of ) CASE NO.: CV-2004-09-4954Michel S. Haddad, Deceased, )

) JUDGE SCHNEIDERMANPlaintiff, )

) MOTION TO WITHDRAW ASvs. ) COUNSEL, TO CONTINUE TRIAL, AND

) TO STAY DISCOVERYCFCP Properties LLC, et al., )

)Defendants. )

Now come counsel for the Defendants in this action, Todd M. Raskin and Timothy R.

Obringer, and hereby move this Court for an Order permitting them to withdraw as counsel for

Defendants Cathleen Naugle and/or Cuyahoga Falls Cotmtry Place, to continue the trial in this

matter and to stay discovery, to permit Defendants to obtain new counsel and thereafter prepare

for and participate in discovery and trial, and to provide the Defendants an opportunity to

provide "infonned consent, confitmed in writing, to permit undersigned cotuisel to represent one

or the other of the Defendants.

Counsel states that, as a result of the Court's ntling during the hearing on Apri127, 2007,

a conflict of interest has arisen under Rule 1.7 of the Ohio Rules of Professional Conduct. By

virtue of the Court's niling denying the Defendant's Motion in Limine, and permitting the

introduction of the criminal court Journal Entry, that details the nature of Ms. Naugle's conduct,

the atton-iey for the facility is in a position where it needs to elicit testimony that is favorable to

the facility and detrimental to Ms. Naugle. Furthermore, pursuant to Rule 1.9 of the Ohio Rules

of Professional Conduct, undersigned counsel would be prohibited from representing either

Defendant unless the other client gives "informed consent, confirmed in writing" permitting

undersigned counsel to represent one party or the other.

MOTION TO WITHDRAW BASED UPON CONFLICT OF INTEREST

Pursuant to Rule 1.7 of the Ohio Rules of Professional Conduct "a lawyer's acceptance or

continuation of representation of a client creates a conflict of interest if either of the following

apply:

*

(2) There is a substantial risk that the lawyer's ability to consider,recornmend, or carry out an appropriate course of action for that client will bematerially limited by the lawyer's responsibilities to another client, a fonnerclient, or a third person or by the lawyer's own personal 'niterest.

Ohio Rules of Professional Condnct, Rule 1.7 (emphasis supplied). (A copy of Rule 1.7 is

attached hereto as Exhibit A.)

Rule 1.7 of the Ohio Rules of Professional Conduct continues, "(b) a lawyer shall not

accept or continue the representation of a client if a conflict of interest would be created pursuant

to division (a) of this rule, unless all of the following apply:

(1)

(2)(3)

the lawyer will be able to provide competent and diligent representation toeach affected client;each affected client gives informed consent, confirmed in writing;the representation is not precluded by division (c) of this rule.

(c) Even if each affected client consents, the lawyer shall not accept orcontinue the representation if either of the following applies:

(1) the representation is prohibited by law;(2) the representation would involve the assertion of a claim by one client

against another client represented by the lawyer in the same proceeding.

2

Based upon the conflict of interest that has arisen, both clients (Cuyahoga Falls Country

Place and Cathleen Naugle) have been advised to seek new counsel.

Further, Rule 1.8 of the Ohio Rules of Professional Conduct provides, "(b) except as

permitted or required by these rules, a lawyer shall not use iniformation relating to representation

of a client to the disadvantage of the client unless the client gives informed consent." (A copy of

Rule 1. S of the Ohio Code of Professional Conduct is attached hereto as Exhibit B.)

While the rules appear to permit the continued representation of one of the clients, such

cannot occur until after the Defendants have provided "informed consent, confirmed in writing,"

as required by Rtile 1.7(b)(2) of the Ohio Rules of Professional Conduct.

Rule 1.0 of the Ohio Rules of Professional Conduct, subparagraph (f) provides:

"Ìnfonned consent' denotes the agreement by a person to a proposed course of conduct after the

lawyer has communicated adequate information and explanation about the material risks of and

reasonably available altetnatives to the proposed course of conduct." (A copy of Rule 1.0 of the

Ohio Rules of Professional Conduct is attached hereto as Exhibit C.) Further, the comment to

Rule 1.0, as to informed consent, states at paragraph 6 of the comment, "In some circtnnstances

it may be appropriate for a lawyer to advise a client or other person to seek the advice of other

counsel." (A copy of the comments to Rule 1.0 are attached hereto as part of Exhibit C.) In this

particular circumstance, it is appropriate for undersigned to advise the client to seek advice of

other counsel in order to obtain informed consent, which has been done.

Finally, Rule 1.16 of the Ohio Rules of Professional Conduct provides as follows:

(a) Subject to divisions (c), (d) and (e) of this rule, a lawyer shall notrepresent a client or, where representation has commenced, shall withdraw fromthe representation of a client if any of the following applies:

(1) the representation will result in violation of the Ohio Rules ofProfessional Conduct or other law.

3

Based upon the Ohio Rules of Professional Conduct, Rules 1.7, 1.8, and 1.9, undersigned

counsels' continued representation of either Defendant prior to obtaining the "informed consent,

confirmed in writing" by each Defendant, would be in violation of the Ohio Rules of

Professional Conduct. For this reason, it is necessary for the undersigned counsel to seek to

withdraw as counsel for both parties in the absence of that consent.

MOTION TO CONTINUE

As detailed above, the continued representation of either party in the absence of infornied

consent, confir-med in writing, by the other party, is prohibited by the Ohio Rules of Professional

Conduct. For this reason, in addition to advising each defendant to seek new counsel, and in

additional to moving to withdraw as counsel, undersigned counsel also moves this Court for a

continuance of the trial, and for a stay of any further discovery. As expressed above and until

such time as one or the other of the parties has provided the necessary infonned consent,

confinned in writing, that undersigned counsel may continue in the representation of the other

party, said counsel is prohibited by the Ohio Rules of Professional Conduct in attending to the

discovery depositions, in the representation of either party. Thus, in order to prevent a violation

of the rules, it is necessary for the Court to grant the Motion to Continue. This will permit the

infonned consents and/or the new attomey representatives to appear on behalf of the Defendants.

It is also necessary for the Court to stay discovery until such tinie as either the consent is given

or new counsel has appeared, so that the clients/defendants interests can be protected.

Finally, since Rule 1.16 of the Code of Professional Responsibility provides that a

Motion to Withdraw must be made if required by the tribunal, the lawyer shall not withdraw

from employment without this Court's permission. Based upon the reasons set for-th above,

4

undersigned counsel respectfully requests that the Court continue the trial, stay the discovery, for

the purpose of permitting each Defendant to obtain independent cotmsel and/or to permit one of

the Defendants to provide the informed consent to permit the continued representation of the

other Defendant. In the event that neither Defendant provides the necessary infonned consent,

confinned in writing, then it will be necessary for the undersigned counsel to withdi-aw on behalf

of both Defendants, in order to comply with the Ohio Rules of Professional Conduct.

WHEREFORE, for all the reasons set forth above, undersigned counsel respectfully

requests that the Court, (1) issue an order staying discovery in this matter, (2) issue au order

continuing the trial, to permit new counsel to be involved in the representation of one or both

parties, and (3) if no "informed consent, confirnied in writing" is provided, grant the Motion of

undersigned counsel to withdraw as counsel on behalf of both defendants.


MAZANEC, RASKIN, RYDER & KELLER CO., L.P.A.

TODD M. RASKIN (0003625)TIMOTHY R. OBRINGER (0055999)100 Franklin's Row34305 Solon RoadCleveland, OH 44139(440) 248-7906(440) 248-8861 - FaxEmail: traskincc,innklaw.com

tobrin er , ru21r1aw.com.


5


A copy of the foregoing Motion to Withdraw as Counsel, Continue Trial and to Stay

Discovery was served April 30, 2007 via facsimile and regular U.S. Mail upon the following:

Beth A. Judge, Esq.Lawrence Landslcroner and Associates55 Public SquareSuite 1040Cleveland, Ohio 44113-1901

Michael M. Djordjevic, Esq.Djordjevic Casey & Marmaros17 S. Main Street, Suite 201Akron, OH 44308

Attomeys for Dolly Burkhart, Executrix of theEstate of Michel S. Haddad, Deceased

TODD M. RASKIN (0003625)TIMOTHY R. OBRINGER (0055999)


PCMNH-040341\[Notion to Withdraw as Counsel, To Continue Trial and [o Stay Discovery

6

r:

i MAY 0 a 20072001APR 27 PFi 3:03 !

^^•,

SUimI iÛÎ` IN THE COURT OF COMMON PLEASCLERK GF COlJRTS

COUNTY OF SUIVINIIT

DOLLY BURKHART ) CASE NO. CV-2004-09-4954.)

Plaintiff ) JUDGE SPICER-vs- ) JUUGE SCHNBIDERMAN

) .- (BY Assignment)CFCP PROPERTIES, et al. )

) ORIDERDefendants )

ri127, 2007, a voir dire examination of this Defendant, Cathleen Naugle, was

held. At the conclusion of the hearing the Court considered Defendants' Motion to Exclude

Evidence of the felony record of the Defendant, Cathleen Naugle.

as it is admissible pursuant to Evid.R. 609(A)(1) and/or (3).

The Court denied that motion

During the Apri127, 2007 hearing the Court considered discovery motions from both

sides and denied Plaintiff''s Request for Sanctions. The Court considered those issues resolved.

The Court considered the PlaintifPs Motion to Quash Subpoena of Dr. Rufus A. Reuben and his

deposition and tesfimony, but gave.leave to the Plaiintiff to file a brief today and the Defendant.

an oppoitunity to respond by IvIortday morning, Apri130, 2007:

The parties confirmed that on Monday, May 14, 2007, at 9:00 a.ni., the jury trial

shall eonunence. Iri preparation for that trial, the Court provides as follows:

(1) Any and all motions, includ'uZg Motions iii Limine, shall be filed no later than

May 7, 2007: A copy of such filing shall be deliveredto JudgeSchiieiderman in care.of Cheryl

Goldstein on that sarne day.

(2) Any proposed jury instructions and jury interrogatoiies shall be filed o later than

May 9, 2007. A copy shall be delivered to Judge Schneiderman in care of Cheryl Goldstein on

that saine day.

IT IS SO ORDERED.

JUDGE TED SCHNEIDERMANSitting on AssignmentPursuant to Art. IV, Sec. 6Ohio Constitution

CC: ATTORNEY BETH A. JUDGEATTORNEY MICHAEL M. DJORDJEVICATTORNEY STACY A. RAGONATTORNEY TODD IvI. RASKIN

CTB04-4954

CMSN7000

From: 330 376 7344 Page: 2/3 Date: 5/212007 12:50:54 PM

DJaRDJEVICCASEY &MA.RMAR05M

^ Wecnr^help," ^May 2, 2007

Todd Raskin,lusq.Timothy C7bringcr,. Esq.Mazancc, Raskin, ltyder & ICictlcr10D Franldin't; Row34305 Solon RoadCIcveland, C7hio 44139Cert. Mail # 7006 2150 0005 3884 1190

Via Fax and Ccrtificd Mail

Cli•arles L. Richards, >~sq.The First Place, Suite 300159'.F.ast Mtuket StraetWarren, Ohio 44481-1122Cert. Mail 9 7006 2150 0005 3884 1206

RL: Dolly 13ur.khardt, Exe•cutrLY of the I:/0 Micliael S. Fdaddad, deocascd v.CrCP Propertias, LLC, et ml. Case No.: CV 2004 09 4954

Gentlcmcn:

Please allow this letter to conCrm two 5cparatc tcleplione conversations with Mr.Ra.Kkin and Mr. Richards. Tl1e conversation with Mr. Ruskin took place the avcning ofMay 1, 2007. 'fhe conversation with Mr. Richards took place this morning. During theseconversations I was informed that counsel for the Defi.mdants had madc the dccision notto attcnd any oC the discovery depositions of Flain.tift's experts already scheduled in thismatter. In reliance on the eonversations I shall cancel the discovcry depositions orPlttintiff's rcmauting cxperts. Should I have misinterpreterl your statemenu; in any wayplease contact nte immcdiatel_y.

T'laintifl'ltas also mada arrangements for ccrtain experts to liavo their testimonypresorvcd on vidcotapc for presentation at trial. Ms. Judge and I shall attempt to makearriutgernents for some of tltese expcrts to come to Akron and testify live at trial. I havcno idea at prescnt, if we shall be succcssful. in tllatregard.

In any event Yiaintiffs intend to comply with t11e court's order and be prepared fortrial seheduled to begin on Monday, May 14, 2007. Should we not be able to makearranl;ements to hring these cxpcrts in live at trial we shall be forced to preserve theirtestimony an videotape for prescntation to the jury.

'Thc sehedule 1'or thesc prescrvat7on dcpositions is as follows:

I. Dr. Nyak, via videoconi'erenco taken at Rcnnillo Court Roportcrs inCleveland, Ohio; commencinp, at 8:00 p.m., on "I'hursday, May 3, 2007;

2. lar. Sherman at Deninstock Cottrt Raportcrs, 13in8ham i arms, Michigan,commcncing at 1:00 p.m., on Monday, May 7, 2007;

17 Suuih Mafn Strcet, Suite 201, Aloun, 0Id 44368Pbouu; 330376,6766 Fnx: 33f1376.7344

www.dcmluw.urg

From: 330 376 7344 Page: 3/3 Date: 5/2/2007 12:50:54 PM

Page 2.13urkhardt, et al. v, CFCP Propcrtics, LLCMay 2, 2007

Dr. Conamy, at his office in Bcechwood, Oltio commencing at 9:00 a.m., onTuesday, May $, 2007.

Obviously, it is up to each of you to dacidc whetlter or not to attend.

Plaintiff again, rcnews lter requcst that good faith settlement negotiations begin,

post liastc.

1vTNU]/pjr

cc: Heth JudOe, Esq.

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