Culp v. Olukoga

• Decision Date: 18 November 2013
• Docket Number: No. 12CA3470.,12CA3470.
• Citation: 3 N.E.3d 724
• Parties: Rebecca CULP, Executrix of the Estate of Frank Merrill; and an Administratrix of the Estate of Bonnie Merrill, Plaintiff–Appellant, v. Christopher OLUKOGA, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

3 N.E.3d 724

Rebecca CULP, Executrix of the Estate of Frank Merrill; and an Administratrix of the Estate of Bonnie Merrill, Plaintiff–Appellant,

v.Christopher OLUKOGA, et al., Defendants–Appellees.

No. 12CA3470.

Court of Appeals of Ohio,

Fourth District, Scioto County.

Nov. 18, 2013.

Raymond deLevie, Bexley, OH, for Appellant.

Kevin W. Popham and Gerald J. Todaro, Columbus, OH, for Appellees Christopher Olukoga, M.D., and Southern Ohio Surgical Associates, Inc.

Steven M. Willard and Robert E. Dever, Portsmouth, OH, for Appellee, Southern Ohio Medical Center.

Michael Romanello and Zachary Pyers, Columbus, OH, for Appellees Pulmonary Critical Care, Inc., Dr. Sadiq Al–Nakeeb, Dr. Ammar Ghanem, Dr. Murthy Gollamudi, Dr. Samer Kseibi, Dr. E.M. Saab, and Dr. Travis Hodgdon.

ABELE, J.

{¶ 1} This is an appeal from a Scioto County Common Pleas Court summary judgment in favor of Dr. Christopher Olukoga, Southern Ohio Surgical Associates, Southern Ohio Medical Center, Pulmonary Critical Care, Inc., Dr. Sadiq Al–Nakeeb, Dr. Ammar Ghanem, Dr. Murthy Gollamudi, Dr. Samer Kseibi, and Dr. E.M. Saab, defendants below and appellees herein.

{¶ 2} Rebecca Culp, administrator of the estate of Bonnie Merrill, plaintiff below and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“BY ITS ENTRIES DATED DECEMBER 29, 2010 AND DECEMBER 30, 2010, THE TRIAL COURT ABUSED ITS DISCRETION BY (1) NOT EVEN CONSIDERING A CONTINUANCE OF THE TRIAL DATE BASED ON THE COURT'S STATED DESIRE TO KEEP A PERFECT RECORD IN NEVER HAVING CONTINUED A TRIAL DATE PAST THE SUPREME COURT'S 2–YEAR REPORTING PERIOD, AND (2) THE COURT'S PROVIDING INFORMATION ABOUT THE PRETRIAL ORDER, EX PARTE, TO COUNSEL FOR DEFENDANT.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT'S ENTRIES, BARRING PLAINTIFFS FROM OFFERING ANY EXPERT'S [SIC] AT

TRIAL, WERE AN ABUSE OF DISCRETION BECAUSE (1) DEFENDANTS WERE NOT UNFAIRLY SURPRISED AS THEY HAD BEEN TOO BUSY FOR DEPOSITIONS UNTIL ONE DAY BEFORE THE DEPOSITION CUTOFF DATE; (2) DEFENDANTS RAISED THE ISSUE OF DISCLOSURE ONLY AFTER THEY WERE UNABLE TO SANDBAG PLAINTIFFS BASED ON EX PARTE ADVICE GIVEN BY THE COURT TO THE LOCAL HOSPITAL; (3) WHILE PLAINTIFFS WERE NOT AWARE OF THIS EX PARTE ADVICE, THEY STILL PROPOSED THAT THE PARTIES EXCHANGE EXPERT REPORTS; AND (4) THE COURT'S ATTITUDE WAS HOSTILE AND BIASED AGAINST PLAINTIFFS RIGHT AFTER THIS EX PARTE ADVICE WAS REVEALED IN OPEN COURT.”

THIRD ASSIGNMENT OF ERROR:

“AFTER THE FIRST JUDGE STEPPED DOWN FROM THE CASE, THE COURT ERRED, BY ENTRIES DATED SEPTEMBER 7, 2011 AND NOVEMBER 23, 2011, IN NOT RECONSIDERING THE PRIOR ENTRIES, BASED ON AN INCORRECT APPLICATION OF THE LAW OF THE CASE DOCTRINE.”

FOURTH ASSIGNMENT OF ERROR:

“THE COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS BECAUSE IT FAILED TO RECOGNIZE THAT THERE ARE INSTANCES, AS IN THE CASE AT BAR, WHERE A PLAINTIFF IS NOT REQUIRED TO OFFER EXPERT TESTIMONY IN A MEDICAL NEGLIGENCE CASE.”

{¶ 3} On December 30, 2005, Dr. Olukoga performed a three-part surgery on seventy year-old Bonnie Merrill at Southern Ohio Medical Center (SOMC). Dr. Olukoga repaired a hiatal hernia, performed an anti-reflux procedure called a Nissen fundoplication, and removed Mrs. Merrill's gallbladder. Merrill encountered complications from the surgery, and sadly, on August 6, 2006, died.

{¶ 4} On February 6, 2007, appellant filed a complaint against Dr. Olukoga and Southern Ohio Surgical Associates. On August 6, 2007, appellant filed a separate complaint against the remaining appellees. Appellee later voluntarily dismissed both complaints and re-filed them as one complaint on January 7, 2009.

{¶ 5} On March 9, 2010, the trial court issued a pre-trial order that set the matter for trial on January 18, 2011. The court further ordered: “All discovery proceedings must * * * be completed 60 days prior to the jury trial date” and “[c]ounsel are to exchange the names of their respective expert witnesses for trial, not less than 30 days prior to the trial date.”

{¶ 6} On March 10, 2010, Attorney Popham sent an email to the other attorneys involved in the case. Popham's email questioned the trial court's pre-trial order that discovery be completed 60 days before trial, but experts need not be disclosed until 30 days before trial. Popham stated:

“There is no way we can get experts deposed between Dec 18 and Jan 18—even if we weren't precluded by a discovery deadline.!!

I guess that we should come up with a mutually agreeable schedule of our own[.]”

{¶ 7} On March 24, 2010, Popham sent to the other attorneys a proposed “Agreed Entry” modifying the discovery deadlines. The proposed entry required (1) appellant to disclose expert witnesses by June 30, 2010, (2) appellees to disclose expert witnesses by September 13, 2010, (3) all fact witnesses to be disclosed by November 5, 2010, and (4) all discovery to be completed by December 17, 2010. Counsel for the other defendants approved of Popham's proposed agreed entry, but appellant's counsel, Attorney deLevie, did not approve. DeLevie stated that he had

“concerns about the proposed entry. Judge Marshall ordered simultaneous disclosure of experts. Also, your proposal gives defendants two months to depose perhaps three experts. Plaintiff then gets two months to depose experts of three defendants. How many experts do you expect to name?”

{¶ 8} DeLevie suggested that the parties discuss modifying the schedule after they completed Rebecca Culp's deposition, scheduled for the end of May.

{¶ 9} On April 12, 2010, SOMC's counsel, Attorney Willard, sent a letter to deLevie that stated:

“We have all been cooperative and allowed you to take numerous depositions and complete voluminous discovery. I believe we are at the point in which the discovery deposition of your experts * * * needs to be undertaken. Please provide available dates at your earliest convenience for each of these experts.” ¹

On April 16, 2010, PCC's counsel, Attorney Romanello, sent a letter to deLevie. In it, Romanello requested to schedule depositions of appellant's experts in May, June, and July. Romanello stated:

“On a related noted, we still need to reach an agreement about the completion of all discovery before trial. I recall that you did not like [Popham]'s proposal. In light of that, I would like to know what you propose.

Obviously, we cannot be taking discovery depositions of either lay or expert witnesses up to 30 days before trial.”

On April 19, 2010, deLevie sent an email to opposing counsel and stated:

“I do not recall having disclosed anyone as an expert. * * *

I agree we need to talk about the schedule. I would suggest we do this after Becky Culp's deposition.

My concern * * * with [the] proposed schedule is that [Popham] seemed to suggest that the defendants have two months to depose my relatively few experts, and then I have the same amount of time to depose the many, many more experts who will be named by the three defendants. To solve this problem, I hope that shortly after I tell you who my experts will be, hopefully by mid-June—and, there should be no surprises—that the defendants will tell me how many experts they expect to call. At that point we can best set a schedule for all of the depositions[.]”

On May 6, 2010, Popham sent an email to the parties that stated:

“I believe that we still need to resolve the issue of a modified case management schedule.

Ray—since you were the only one to object to my proposal—why don't you come up with a schedule, circulate it via email and we can either respond or discuss at our next gathering.”

DeLevie responded: “Let's talk on May 26. Ok?”

{¶ 10} On November 19, 2010, Attorney Willard, sent a letter to deLevie that requested him to disclose expert witnesses “now so that we will not get caught short.”

{¶ 11} On December 2, 2010, the parties exchanged a series of emails, beginning with deLevie. DeLevie suggested that he send opposing counsel expert reports instead of deposing experts. Romanello declined deLevie's offer to exchange expert reports and stated:

“You have been asked several time to name your experts so that we could take their depos before trial, but you have not responded to those requests. Please name them and give us depo dates without further delay. Why are you waiting to do so with a Jan. 18 trial date? ? We are entitled to know who they are and are likewise entitled to their depos before trial. When we have completed the depos of your experts, you may, if you wish, take your discovery depos on the defense experts. My experts have not and will not prepare reports.”

{¶ 12} On December 2, 2010, Popham also sent deLevie an email regarding expert witness disclosure:

“You are relying on the March 8, 2010 trial order for the proposition that you will not make your expert witnesses available for discovery deposition prior to trial on January 18, 2011 because the trial order states that ‘all discovery proceedings must also be completed 60 days prior to the jury trial date’ despite the fact that the very same order provides that ‘counsel are to exchange the names of their respective expert witnesses for trial, not less than 30 days prior to the trial date;’ and that you have yet to provide defense counsel with the names of your experts—let alone deposition dates?

If I am correct in my understanding, your position is untenable. By copy of separate emails, I will remind you that I made a proposal for an amended case management schedule to which you objected. You also previously stated that the experts who gave affidavits were not necessarily the ones who would testify. You also previously agreed to make you[r] expert available.”

DeLevie corresponded with Popham and wrote:

“If I understand your email, I too am also open to trying to work out the logistics of discovery. However, I am not sure if anyone else is. I'll call you Sunday [sic] in the afternoon if that's OK. Email me a number where you can be reached. By the way, how many experts do you...