Aceste v. Stryker Corp.

• Decision Date: 16 October 2020
• Docket Number: Court of Appeals No. L-19-1166
• Citation: 2020 Ohio 4938
• Parties: Frank Aceste, et al. Appellants v. Stryker Corporation, et al. Appellees
• Court: Ohio Court of Appeals

2020 Ohio 4938

Frank Aceste, et al. Appellants v. Stryker Corporation, et al. Appellees

Court of Appeals No. L-19-1166

COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

October 16, 2020

Trial Court No. CI0201504798

DECISION AND JUDGMENT

Karin L. Coble, for appellants.

Susan M. Audey and Tariq M. Naeem, for appellees, Stryker Corporation and Howmedica Osteonics Corp.

Paul C. Cosgrove and Joshua A. Klarfeld, and Georgia Hatzis, for appellee, Hammill Manufacturing Company.

PIETRYKOWSKI, J.

{¶ 1} Appellants, Frank and Rhonda Aceste, appeal the judgment of the Lucas County Court of Common Pleas, dismissing with prejudice appellants' claims against appellees, Stryker Corporation, Howmedica Osteonics Corporation, and Hammill Manufacturing Company. For the reasons that follow, we reverse.

I. Facts and Procedural Background

{¶ 2} The present matter was initiated on December 11, 2015, when appellants filed a complaint against appellees for compensatory damages related to medical problems and loss of consortium. The case was subsequently consolidated with another pending case involving a separate plaintiff. Relevant here, the claims were mediated over numerous sessions beginning in June 2016.

A. Trial Court Grants Appellees' Motion to Enforce Settlement Agreement

{¶ 3} On April 10, 2017, appellees moved to enforce a settlement agreement that was purportedly reached during the mediation sessions. In their motion, appellees asserted that on September 30, 2016, counsel for appellants, Zoll & Kranz, LLC, sent correspondence to appellees confirming that appellants, among others, agreed to the settlement terms, including appellees' payment of a sum of money to appellants, dismissal of the lawsuit with prejudice, release of all present and future claims against appellees, appellants' responsibility for Medicare liens, and strict confidentiality and non-disparagement. Appellees also asserted that Zoll & Kranz indicated, in the September 30, 2016 correspondence, that as part of the informed consent process, appellants were provided with an explanatory form to review the terms of the settlement.

{¶ 4} The September 30, 2016 correspondence was not so specific regarding the settlement terms, however. The correspondence stated, in its entirety,

We have reached at least some conclusion with all remaining [redacted] clients.

As you know, we allocated the offer with the assistance of Special Master Judge Richard B. McQuade. Their responses can be broken into 3 categories:

Group A

[Redacted] people have accepted the allocated offer. [Redacted] of those have returned a signed form and we are still waiting on the remaining [redacted]. The total amount allocated to these [redacted] was [redacted].

Group B

[Redacted] people, [redacted] and [redacted] have accepted the allocated offer contingent on resolution of their liens such that they do not have to pay any subrogation. Both live in "made-whole" states where subrogation is not due until the client has been made whole and we have sent letters to both subrogation carriers demanding that they waive their liens. The total amount allocated to these [redacted] is [redacted].

Group C

[Redacted] people, [redacted] and [redacted], have rejected the allocated offer. The total amount allocated to these [redacted] was [redacted].

If you feel it would be helpful, we could provide Judge Welsh a copy of the Special Master's letter to the clients with the spreadsheet showing each allocation and the bases for it. While the material is confidential and privileged, we hope that she will determine that Judge McQuade's allocation was done fairly.

While we are still working to secure final signed acceptance as well as aggressively pursuing the lien resolution issue on behalf of [redacted] clients, we have essentially reached what we feel is fairly (sic) optimistic point. We recognize there are a few contingent issues on behalf of our clients and we are mindful that is not precisely what Stryker was seeking. I welcome input on direction or next steps from this point.

{¶ 5} The next email, chronologically, that appellees attached to their motion to enforce the settlement agreement was a November 23, 2016 email wherein Zoll & Kranz sent to appellees their proposed Qualified Settlement Fund agreement ("QSF") and proposed Medicare and Non-Medicare releases. On November 28, 2016, appellees replied with their proposed changes to the QSF and to the releases, and stated that if the documents were acceptable, then appellees would need a list of the individuals categorized into Medicare and Non-Medicare. On November 29, 2016, Zoll & Kranz approved the documents and sent to appellees a list of the Medicare status for all settled individuals for purposes of determining the correct release language. Appellants were included on this list. Appellees then requested a list of the actual settlement proceedsallocated to each person. In response, a second list identifying the settled individuals with their settlement allocations was sent to appellees on November 30, 2016. Again, appellants were included on the list.

{¶ 6} Based on the representations of Zoll & Kranz, appellees prepared the individualized "Confidential Settlement Agreement and Full Release," which appellees claim memorialized the basic settlement terms to which the parties had already agreed. This release was sent to Zoll & Kranz on December 5, 2016, and was attached to appellees' motion to enforce the settlement agreement as Exhibit D. The December 5, 2016 "Confidential Settlement Agreement and Full Release" is the first document that details any of the terms of the settlement agreement. Appellants did not sign the December 5, 2016 "Confidential Settlement Agreement and Full Release."

{¶ 7} Also attached to appellees' motion to enforce the settlement agreement were several email chains discussing appellants' unwillingness to sign the "Confidential Settlement Agreement and Full Release." On January 12, 2017, Zoll & Kranz advised appellees that appellants had raised an issue with the portion of the "Confidential Settlement Agreement and Full Release" language pertaining to Medicare. On January 27, 2017, Zoll & Kranz provided appellees with proposed edits to the release which removed the Medicare provisions, but specifically noted "We do not have client consent but we at least wanted to give you a draft to consider." A further email from Zoll & Kranz on that date reiterated "But please bear in mind I have not yet been able to get the client on board. Very difficult situation, even though he previously had agreed inwriting." On January 30, 2017, Zoll & Kranz contacted appellees to inquire on their response to the proposed changes to the Medicare provisions, but again noted, "We do not yet have client consent yet * * * * We hope that if the client accepts, we can quickly get the final agreement to him for signature." Appellees responded that they agreed to the proposed edits, but to "keep [them] posted." On February 3, 2017, Zoll and Kranz advised appellees that they were sending the finalized release to appellants. The February 3, 2017 "Confidential Settlement Agreement and Full Release" was attached to appellees' motion to enforce the settlement agreement as Exhibit H. Appellants have at all times refused to sign either the December 5, 2016, or the February 3, 2017 "Confidential Settlement Agreement and Full Release." On March 2, 2017, Zoll & Kranz moved to withdraw as counsel.

{¶ 8} In their motion to enforce the settlement agreement, appellees argued that appellants' "words, deeds, and acts establish that the parties had a meeting of the minds as to the essential terms of a settlement agreement," which were acceptance of a settlement in an agreed-upon amount in exchange for a dismissal of appellants' lawsuit with prejudice and a release of their claims. Appellees further argued that appellants' agreement to the terms of the settlement was corroborated by the fact that appellants only contested the Medicare release language in the December 5, 2016 "Confidential Settlement Agreement and Full Release." Thus, appellees concluded that a valid settlement agreement existed that should be enforced by the trial court.

{¶ 9} Appellants responded by filing a pro se motion to vacate the motion to enforce the settlement agreement. In their motion, appellants first argued that Rhonda Aceste never agreed to the settlement, was not aware of any explanatory form regarding the terms of the settlement agreement, never spoke with anyone from Zoll & Kranz's office, and never signed an informed consent letter.

{¶ 10} Additionally, appellants argued that while Frank Aceste signed an "Informed Consent Acknowledgment and Consent to Settle" form on November 2, 2016, he only did so after much pressure from counsel, and while he was mentally incapacitated by pain. Furthermore, appellants contended that Frank was told by counsel that signing the informed consent form was the only way that he could learn the terms of the settlement, and that he would still have a right to decline the settlement once the full terms were disclosed.

{¶ 11} The informed consent form, which was attached as an exhibit to appellants' motion to vacate, stated, in pertinent part:

I have read and understand the terms of the foregoing letter regarding the aggregate settlement offer being made to 22 clients of Zoll & Kranz, LLC, including myself as well as the allocation of the funds among the clients. I have also spoken to my attorneys and their staff on numerous occasions leading up to this settlement and have been well-informed during these communications.

I accept the terms outlined in the letter, the Gross Individual Settlement Amount, and my settlement allocation of * * *.¹ I understand that this is an estimate and my Net Individual Settlement Amount will be the final settlement amount that will be distributed to me after confirmation of the Settlement Criteria listed below, deductions for contingency attorney's fees,

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