Kennedy v. W. Reserve Senior Care

• Decision Date: 30 January 2023
• Docket Number: 2021-P-0055
• Citation: 2023 Ohio 264
• Parties: CLAUDIA L. KENNEDY, EXECUTRIX OF THE ESTATE OF DONALD R. GERRES, DECEASED, Plaintiff-Appellant, v. WESTERN RESERVE SENIOR CARE, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

2023-Ohio-264

CLAUDIA L. KENNEDY, EXECUTRIX OF THE ESTATE OF DONALD R. GERRES, DECEASED, Plaintiff-Appellant, v. WESTERN RESERVE SENIOR CARE, et al., Defendants-Appellees.

No. 2021-P-0055

Court of Appeals of Ohio, Eleventh District, Portage

January 30, 2023

Civil Appeal from the Court of Common Pleas Trial Court No. 2019 CV 00385

Michael D. Shroge, Plevin & Gallucci Co., LPA,; Paul W Flowers and Louis E. Grube, Flowers & Grube, Terminal Tower, (For Plaintiff-Appellant).

Dirk E. Riemenschneider, Buckingham Doolittle & Burroughs LLC, One Cleveland Center,; and Justin S. Greenfelder Buckingham Doolittle & Burroughs, LLC, (For Defendants-Appellees).

OPINION

THOMAS R. WRIGHT, J.

{¶1} Appellant, Claudia L. Kennedy, executrix of the estate of Donald R. Gerres, deceased, appeals the judgment granting a directed verdict to appellees, Western Reserve Senior Care ("Western Reserve"), Sataya Acharya, M.D., and Kindred at Home d.b.a. Western Reserve Senior Care ("Kindred").

{¶2} Kennedy originally brought wrongful death and survivorship claims against Western Reserve, Dr. Acharya, Daniel Kendis, M.D, and several other defendants in 2014, alleging they provided substandard medical care that resulted in the decedent's death on October 17, 2013. That case was voluntarily dismissed in January 2019.

{¶3} In May 2019, Kennedy refiled this case, asserting wrongful death and survivorship claims against Western Reserve, Kindred, Dr. Acharya, and Dr. Kendis. Kindred never answered or filed any responsive pleadings, and Kennedy voluntarily dismissed her claims against Dr. Kendis pursuant to Civ.R. 41 before trial. Although Kindred is an "appellee" in this matter, the remainder of this opinion shall refer only to Western Reserve and Dr. Acharya collectively as "appellees" for ease of discussion due to Kindred's lack of appearance.

{¶4} Appellees filed a motion for judgment on the pleadings, raising arguments based on the medical malpractice statute of repose, R.C. 2305.113(C). The trial court denied the motions based on a First District case, Wilson v. Durrani, 2019-Ohio-3880, 145 N.E.3d 1071 (1st Dist.) ("Wilson I"), which held that the savings statute, R.C. 2305.19, if properly invoked, allows an action to survive beyond the expiration of the statute of repose.

{¶5} Three months before trial, the Supreme Court of Ohio decided Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448 ("Wilson II") and reversed Wilson I, holding that the savings statute did not allow the appellants to refile their medical malpractice claims after the expiration of the statute of repose. Wilson II at ¶ 32.

{¶6} The Supreme Court of Ohio granted the Wilson appellants' motion for reconsideration in part, to consider whether the period of repose was tolled pursuant to R.C. 2305.15(A), "if the person is out of the state, has absconded, or conceals self." Wilson v. Durrani, 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 580. The court also denied the request to prospectively apply Wilson II. Id.

{¶7} Accordingly, here, appellees filed a motion for leave to file a motion for summary judgment instanter, again contending that Kennedy was barred from asserting any claims against appellees because the four-year period under the statute of repose had long expired. Kennedy filed a memorandum in opposition. The trial court denied appellees' motion determining that the case had been pending for three years and the jury trial was less than a month away.

{¶8} Appellees filed a motion for directed verdict, again arguing that Kennedy's claims were barred by the statute of repose and not saved by the savings statute pursuant to the Supreme Court of Ohio's decision in Wilson II.

{¶9} After Kennedy's opening statements, the court considered the motion. The court found that Wilson II" * * * specifically holds that there is a four-year statute of repose for a medical claim and this wrongful death is based on a medical claim, and clearly that statute of repose has been exceeded by more than four years based on the opening statement. Based on that, it's a matter of law, the Court has to dismiss the case. And construing it most favorably [to Kennedy], there's just no question that the Supreme Court changed the law." Thus, the trial court granted appellees' motion for a directed verdict and dismissed the case.

{¶10} Kennedy assigns two errors on appeal:

[1.] By granting a directed verdict in favor of all the defendants, including one in default who had not filed such a request, the common pleas court judge erred as a matter of law.

[2.] The trial court erred, as a matter of law, by directing a verdict at the start of the jury trial in favor of defendant-appellees, Western Reserve Senior Care and Sataya Acharya, M.D.

{¶11} Because a motion for a directed verdict presents a question of law, we review the trial court's judgment de novo. Bliss v. Chandler, 11th Dist. Geauga No. 2006-G-2742, 2007-Ohio-6161, ¶ 48.

{¶12} Pursuant to Civ.R. 50(A)(4):

When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

{¶13} "Under this rule, a trial court may not grant a directed verdict unless the evidence, when construed in the light most favorable to the nonmoving party, leads reasonable minds to only one conclusion, and that conclusion is adverse to the nonmovant." (Citations omitted.) Bliss at ¶ 47.

{¶14} "A motion for a directed verdict does not present a question of fact or raise factual issues, but instead presents a question of law, even though in deciding such a motion it is necessary to review and consider the evidence." Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 430 N.E.2d 935 (1982), paragraph one of the syllabus. A motion for a directed verdict tests the legal sufficiency of the evidence, not the weight of the evidence or the credibility of witnesses. Id. at 68.

{¶15} Kennedy's two assignments of error challenge the directed verdict ruling. We address her assigned errors out of order to facilitate our discussion. In Kennedy's second assigned error, she raises numerous arguments in an attempt to circumvent the effect of the Supreme Court of Ohio's holding in Wilson II. She contends appellees waived their statute of repose affirmative defense by failing to raise it in their first motion for a judgment on the pleadings; the statute of repose is inapplicable to wrongful death actions; the statute of repose was tolled pursuant to the out-of-state tolling provisions set forth in R.C. 2305.15 because Dr. Acharya moved to Pittsburgh; and the statute of repose is unconstitutional as applied.

{¶16} The statute of repose for medical claims is contained in R.C. 2305.113(C), which states:

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

(1) No action upon a medical * * * claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the medical * * claim.

(2) If an action upon a medical * * * claim is not commenced within four years after the occurrence of the act or omission constituting the alleged basis of the medical * * * claim, then, any action upon that claim is barred.

{¶17} As noted, in Wilson II, the Supreme Court of Ohio held that a plaintiff may not take advantage of Ohio's savings statute, R.C. 2305.19(A), to refile a medical claim after the applicable one-year statute of limitations has expired if the four-year statute of repose for medical claims has also expired. Wilson II, 2020-Ohio-6827, at ¶ 1. The court determined that R.C. 2305.19(A) neither operates as a statute of limitations nor operates to toll the statute of limitations. Id. at ¶ 18. Rather, it provides a plaintiff with a limited period of time in which to refile a dismissed claim by commencing a new action that would otherwise be barred by the statute of limitations. Id.

{¶18} Further, R.C. 2305.19(A) does not create an exception to the statute of repose. If the General Assembly had intended the savings statute to provide an extension of the medical claims statute of repose, it would have expressly provided one in R.C. 2305.113(C), as it did in R.C. 2305.10(C), the statute of repose that governs product-liability claims. Wilson II at ¶ 38. The general character of statutes of repose is that they provide an absolute temporal limit on a defendant's potential liability. Id. at ¶ 37.

{¶19} Thus,

R.C. 2305.113(C) is a true statute of repose that, except as expressly stated in R.C. 2305.113(C) and (D), clearly and unambiguously precludes the commencement of a medical claim more than four years after the occurrence of the alleged act or omission that forms the basis of the claim. Expiration of the statute of repose precludes the commencement, pursuant to the savings statute, of a claim that has previously failed otherwise than on the merits in a prior action.

Id. at ¶ 38.

{¶20} Kennedy first contends appellees waived the statute of repose affirmative defense pursuant to Civ.R. 12(G) and (H) by failing to raise it in their first motion for judgment on the pleadings.

{¶21} After appellees filed an answer, they filed a "motion for judgment on the pleadings related to plaintiffs claim for punitive damages," arguing that Kennedy cannot pursue punitive damages because punitive damages...