Cook v. EMH Regional Healthcare Sys.

[Cite as Cook v. EMH Regional Healthcare Sys., 2016-Ohio-528.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

M.C., A MINOR, et al. C.A. No. 14CA010654

Appellants

v. APPEAL FROM JUDGMENT ENTERED IN THE EMH REGIONAL HEALTHCARE COURT OF COMMON PLEAS SYSTEM, et al. COUNTY OF LORAIN, OHIO CASE No. 12CV175644 Appellees

DECISION AND JOURNAL ENTRY

Dated: February 16, 2016

HENSAL, Presiding Judge.

{1} Jennifer Cook, Mark Cook, and their daughter M.C. appeal a judgment entry of

the Lorain County Court of Common Pleas that allows EMH Regional Healthcare System

(EMH), Corie Kovach, M.D., and Erie Shore Women’s Health, Inc. to seek discovery of the facts

surrounding plaintiff’s expert witness’s resignation from the American College of Obstetricians

and Gynecologists (ACOG). For the following reasons, this Court affirms.

I.

{2} In 2009, Mrs. Cook gave birth to M.C. at EMH. During the delivery, M.C.

sustained significant injury to her right brachial plexus. In 2012, the Cooks sued the doctor who

delivered the baby, her practice, and EMH. The Cooks attached to their complaint an affidavit of

merit from Dr. Lawrence Borow.

{3} After the defendants answered, discovery commenced, and the trial court set the

trial for June 9, 2014. On May 21, 2014, the Cooks filed a motion in limine, seeking to exclude  2

at trial any testimony or other evidence about Dr. Borow’s resignation from ACOG. According

to the Cooks, any evidence about the resignation is confidential and privileged peer review

material under Revised Code Section 2305.252 and is also inadmissible under Evidence Rules

402, 403(A), and 608(B).

{4} After the defendants opposed the Cooks’ motion, the trial court set the motion for

hearing. Following the hearing, the court entered a judgment entry allowing defendants to

“discover” “[w]hether a complaint was filed against Dr. Borow with ACOG * * *,” “[t]he nature

of the complaint made * * *,” and “[t]he identification of the specific case out of which the

complaint * * * arose.” The Cooks have appealed, assigning as error that the court’s order

violates the peer review privilege under Section 2305.252.

II.

ASSIGNMENT OF ERROR

THE TRIAL JUDGE’S FINAL ORDER VIOLATES THE PEER REVIEW PRIVILEGE ESTABLISHED IN R.C. 2305.252.

{5} The Cooks argue that the trial court’s entry violates Civil Rule 26 and Section

2305.252 because it requires them to disclose privileged information. Upon review of the

record, however, we are unable to confirm that the Cooks ever argued to the trial court that the

records or testimony was privileged or that those same records or testimony were even ever

requested in discovery. On May 21, 2014, the Cooks filed a “Motion in Limine to Exclude

Testimony, Evidence, or Any Reference to Dr. Borow’s Resignation from ACOG.” In their

motion, the Cooks made several arguments asserting reasons why the defendants should be

precluded “from introducing evidence of, cross-examining as to, or otherwise referring to, the

circumstances that gave rise” to Dr. Borow’s resignation from ACOG at trial. They did not

make any arguments about whether information about the resignation is discoverable,  3

acknowledging that Dr. Borow had not been asked about his relationship with ACOG at his

deposition.

{6} On June 4, 2014, Dr. Kovach and Erie Shore opposed the motion in limine,

arguing that Dr. Borow’s reasons for resigning from ACOG are not privileged under Section

2305.252 and are admissible under the rules of evidence. In their opposition brief, Defendants

did not discuss whether evidence about Dr. Borow’s resignation from ACOG is discoverable or

move to compel such information. On June 30, 2014, the trial court set the “Pending Motion in

Limine” for hearing.

{7} The judgment entry that the Cooks have appealed from allows the defendants to

discover certain information about Dr. Borow’s resignation from ACOG. It does not address the

issue that the Cooks raised in their motion in limine, which was whether such information can be

admitted at trial. Accordingly, to the extent that the Cooks’ argument on appeal concerns what is

admissible at trial, their argument is not ripe. See Baker v. Nationwide Mut. Ins. Co., 9th Dist.

Lorain No. 12CA010236, 2013-Ohio-1856, 19 (concluding that issue was not ripe for appeal

when trial court had not yet addressed it). To the extent that the judgment entry permits the

discovery of such issues, it does not appear from the record that the Cooks made this argument to

the trial court. See JPMorgan Chase Bank, N.A. v. Burden, 9th Dist. Summit No. 27104, 2014-

Ohio-2746, 12 (“Arguments that were not raised in the trial court cannot be raised for the first

time on appeal.”). The arguments that the Cooks made in their motion in limine were restricted

to what information is admissible at trial, not what information is subject to discovery. To the

extent that they may have opposed any request for discovery of the alleged peer review materials

or made an oral motion for a protective order at the hearing on the motion in limine, we note that

the record does not contain a transcript of what transpired at the hearing.  4

{8} Additionally, the record in this case does not compel a conclusion that the trial

court erred because it issued a discovery order when the only issue before it was admissibility.

Not only is it possible that Dr. Kovach or Erie Shore made an oral motion to compel discovery at

the hearing on the motion in limine, the Cooks have not argued that the trial court lacked

authority to issue a discovery ruling. Compare Miller v. State Farm Mut. Auto Ins. Co., 9th Dist.

Summit No. 27236, 2015-Ohio-280, 15-16. We decline to raise the issue sua sponte, especially

in light of the lack of transcript. See State v. Barry, 9th Dist. Medina No. 05CA0072-M, 2006-

Ohio-2275, 5 (declining to remand on grounds not argued). The Cooks’ assignment of error is

overruled.

III.

{9} The Cooks’ assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is  5

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

JENNIFER HENSAL FOR THE COURT

WHITMORE, J. CONCURS.

CARR, J. DISSENTING.

{10} I respectfully dissent. Although the Cooks couched the issue in terms of a motion

in limine, the trial court treated it as a motion for a protective order. It, thereafter, denied the

motion for a protective order and allowed the defendants to discover the information the Cooks

sought to shield. All parties agree that the issue is whether the materials the trial court ordered to

be disclosed are privileged. No party raised the issue that the discovery order pertains only to

trial and is premature. Accordingly, I would address the appeal on its merits.

APPEARANCES:

MICHAEL F. BECKER and PAMELA PANTAGES, Attorneys at Law, for Appellants.

JEANNE M. MULLIN, Attorney at Law, for Appellees.

MICHAEL P. MURPHY and JUSTIN D. HARRIS, Attorneys at Law, for Appellees.