Lytle v. Mathew
| Decision Date | 20 April 2017 |
| Docket Number | No. 104622,104622 |
| Citation | 2017 Ohio 1447,89 N.E.3d 199 |
| Parties | Carol LYTLE, et al., Plaintiffs–Appellants v. Shila MATHEW, M.D., et al., Defendants–Appellees |
| Court | Ohio Court of Appeals |
Mark E. Owens, Natalie F. Grubb, Grubb & Associates, L.P.A., 437 W. Lafayette Road, Suite 260–A, Medina, Ohio 44256, ATTORNEYS FOR APPELLANT
Jeffrey W. Van Wagner, Jennifer R. Becker, Bonezzi, Switzer, Polito & Hupp Co., 1300 East 9th Street, Suite 1950, Cleveland, Ohio 44114, for Kaiser Foundation Health Plan of Ohio, Ohio Permanente Medical Group, and Shila Mathew, M.D.
Thomas B. Kilbane, Michelle J. Sheehan, Reminger Co., L.P.A., 101 West Prospect Avenue, Suite 1400, Cleveland, Ohio 44115, for Konstantin Kuschnir, M.D. and Brunswick Orthopedics, Inc.
Patrick S. Corrigan, 55 Public Square, Suite 930, Cleveland, Ohio 44113, for Discount Drug Mart, Inc.
BEFORE: Kilbane, P.J., Stewart, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Plaintiffs-appellants, Carol Lytle ("Carol") and the estate of Tracy Lytle ("Tracy") (collectively referred to as "plaintiffs"), appeal from the trial court's decision granting defendants-appellees, Dr. Shila Mathew, M.D., Kaiser Foundation Health Plan of Ohio, Ohio Permanente Medical Group, Inc., Dr. Konstantin Kuschnir, M.D., Brunswick Orthopedics, Inc., and Discount Drug Mart, Inc.'s (collectively referred to as "defendants"), motion to disqualify plaintiffs' attorney, Natalie Grubb ("Grubb") and her law firm. For the reasons set forth below, we affirm.
{¶ 2} The instant case was previously filed by the plaintiffs in Summit County Common Pleas Court, Lytle v. Matthew , Summit C.P. No. CV–12–02–0809. Carol, as Tracy's mother and as administrator of Tracy's estate, brought a wrongful death complaint against defendants, alleging that Tracy's death was the proximate result of the defendants' negligent failure to ensure that the medications prescribed to her did not pose a high risk of a negative drug interaction. Additionally, Carol asserted that Discount Drug Mart, Inc. ("Discount Drug Mart") was negligent in failing to follow proper protocols in dispensing Tracy's medication. Lytle v. Mathew , 9th Dist. Summit No. 26932, 2014-Ohio-1606, 2014 WL 1510178, ¶ 3.
{¶ 3} In 2004, Tracy was injured in an automobile accident while in the course and scope of her employment. The injuries required her to receive medical and psychological treatment from various medical professionals. Tracy received temporary total disability benefits from the Bureau of Workers' Compensation ("BWC") related to her injuries. Grubb represented Tracy in her claim for BWC benefits. In February 2010, Tracy passed away from a heart attack. She was 37 years old. Prior to her death, Tracy and Grubb were under investigation for Workers' Compensation fraud. It was contended that Tracy was working for Grubb and receiving payments from Grubb while contemporaneously receiving BWC benefits. Id. at ¶ 2. In her January 2010 interview with the BWC Special Investigations Department, Tracy admitted that she worked for and was paid by Grubb and Grubb's law firm from December 2005–December 2007. Tracy stated that Grubb contacted her in regard to working at the law office and that she was reluctant to do so. Grubb informed Tracy that the BWC could not question why she was at her office because Grubb represents her on the claim. Tracy further stated that Grubb coached her on what to say if she was ever approached by the BWC.
{¶ 4} Defendants sought to depose Grubb and obtain certain documents from her related to Tracy's employment at her law firm. Defendants wanted to explore the possibility that stress from Tracy's involvement in the BWC fraud investigation caused or contributed to her death. Defendants' issued a subpoena directing that Grubb bring with her to the deposition " ‘[a]ny and [a]ll records of employment of [Tracy] and any and all cancelled checks, bank ledgers, bank statements, or any other documents that relate to compensation to [Tracy] from Natalie F. Grubb or Grubb & Associates, LPA.’ " Id. at ¶ 4.
{¶ 5} Grubb filed a motion to quash the subpoena and a motion for a protective order. The motion asserted both that the materials sought to be obtained were irrelevant and that Grubb's conversations were protected by attorney-client privilege. Defendants opposed the motion maintaining that the subpoena was reasonably calculated to lead to the discovery of admissible evidence and that the crime-fraud exception to the attorney-client privilege applied. After a hearing and reviewing supplemental exhibits by Discount Drug Mart, the trial court found the material was relevant and that the crime-fraud exception to the attorney-client privilege applied. As a result, the court found that the conversations between Grubb and Tracy in furtherance of the crime or fraud were not privileged. Id. at ¶ 5. Grubb appealed from this order to the Ninth District Court of Appeals in Lytle , 9th Dist. Summit No. 26932, 2014-Ohio-1606, 2014 WL 1510178.
{¶ 6} On appeal, the court found that the trial court erred in issuing its ruling prior to giving Grubb the opportunity to respond to Discount Drug Mart's submission of supplemental exhibits. Id. at ¶ 16. Following the remand of the Ninth District Court of Appeals, defendants deposed Grubb and filed a joint motion to disqualify Grubb as counsel. The trial court held its ruling on the motion in abeyance pending its hearing with the plaintiffs. The plaintiffs appealed from this order in Lytle v. Mathew , 9th Dist. Summit No. 27587. The appeal was dismissed by the Ninth District Court of Appeals for lack of a final appealable order. Id. On remand, plaintiffs voluntarily dismissed the case, without prejudice.
{¶ 7} In January 2016, plaintiffs filed the instant case against defendants in Cuyahoga County Common Pleas Court, Lytle v. Mathew , Cuyahoga C.P. No. CV–16–857637. Plaintiffs brought forth the same wrongful death cause of action against defendants, a negligence action against Discount Drug Mart, and an intentional tortious conduct action against all defendants. Plaintiffs allege defendants are responsible for Tracy's death because Tracy's treating physicians over-prescribed medication or failed to prevent potential deadly drug interactions. Plaintiffs further allege that Discount Drug Mart negligently filled the prescriptions.
{¶ 9} It is from this order that the plaintiffs appeal, raising the following single assignment of error for review.
Assignment of Error
The trial court erred and abused its discretion in disqualifying [Grubb] and her entire law firm without making any express determination that the purported testimony to be elicited is material to resolution of an issue actually being litigated , is unobtainable elsewhere and is prejudicial to the appellants ; the court made no express determination that [Grubb's] proposed testimony is "necessary."
(Emphasis sic.)
{¶ 10} Plaintiffs contend that the trial court erred when it granted defendants' motion to disqualify because Grubb is not a necessary witness and her testimony regarding the BWC fraud investigation and Tracy's employment with Grubb is not material to the issues being litigated in the matter before us. She further argues that her testimony is protected by the attorney-client privilege, her disqualification will cause a substantial hardship on plaintiffs, and there is no personal interest conflict under Prof.Cond.R. 1.7.
{¶ 11} In reviewing a trial court's decision to disqualify a party's counsel, we apply an abuse of discretion standard. 155 N. High, Ltd. v. Cincinnati Ins. Co. , 72 Ohio St.3d 423, 426, 650 N.E.2d 869 (1995), citing Royal Indemn. Co. v. J.C. Penney Co. , 27 Ohio St.3d 31, 501 N.E.2d 617 (1986) ; Mentor Lagoons, Inc. v. Rubin , 31 Ohio St.3d 256, 510 N.E.2d 379 (1987). " ‘The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.’ " (Citations omitted.) Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams , 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶ 12} We are mindful that "[d]isqualification of an attorney is a drastic measure, which should not be imposed unless absolutely necessary." Quiros v. Morales , 8th Dist. Cuyahoga No. 894274, 2007-Ohio-5442, 2007 WL 2949472, ¶ 15; Roth v. Roth , 8th Dist. Cuyahoga No. 89141, 2008-Ohio-927, 2008 WL 599324, ¶ 70. Disqualification interferes with a client's right to choose counsel. Kala v. Aluminum Smelting & Ref. Co. , 81 Ohio St.3d 1, 5–6, 688 N.E.2d 258 (1998), citing Manning v. Waring, Cox, James, Sklar & Allen , 849 F.2d 222 (6th Cir.1988) ; A.B.B. Sanitec W., Inc. v. Weinsten , 8th Dist. Cuyahoga No. 88258, 2007-Ohio-2116, 2007 WL 1290076.
{¶ 13} Moreove...
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