Mercer v. Keane

• Decision Date: 04 May 2021
• Docket Number: No. 20CA0013,20CA0013
• Citation: 172 N.E.3d 1101
• Court: Ohio Court of Appeals
• Parties: Nicole D. MERCER Executor of the Estate of Bradley James Mercer, Plaintiff-Appellant v. Thomas KEANE M.D., et al., Defendants-Appellees

172 N.E.3d 1101

Nicole D. MERCER Executor of the Estate of Bradley James Mercer, Plaintiff-Appellant

v.Thomas KEANE M.D., et al., Defendants-Appellees

No. 20CA0013

Court of Appeals of Ohio, Fifth District, Coshocton County.

DATE OF JUDGMENT ENTRY: May 4, 2021

GORDON D. EVANS, II, 495 South High St., Suite 300, Columbus, OH 43215, For Plaintiff-Appellant.

THOMAS A. PRISLIPSKY, 11 Federal Plaza Central, Suite 1200, Youngstown, OH 44503, MARC W. GROEDEL, 101 W. Prospect Ave. West, Cleveland, OH 44115, For Defendants-Appellees.

JUDGES: Hon. Craig R. Baldwin, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.

OPINION

Delaney, J.

{¶1} Plaintiff-Appellant Nicole D. Mercer, Executor of the Estate of Bradley James Mercer ("the Estate") appeals the August 24, 2020 judgment entries of the Coshocton County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

Original Complaint

{¶2} On August 19, 2016, Plaintiffs Bradley and Nicole Mercer and their minor children filed a medical malpractice and loss of consortium action against Defendants-Appellees Thomas Keane, M.D., Radiology Associates of Southeastern Ohio, Inc., and Coshocton County Memorial Hospital. The complaint alleged as follows:

6. On or about December 15, 2012, Plaintiff, Bradley James Mercer, presented for an MRI of the lumbar spine

due to low-back pain. The MRI was read by Defendant, Thomas Keane, M.D. On that MRI, a clearly visible mass originating from the sacrum/coccyx region was evident on multiple images. Dr. Keane failed to diagnose this clearly visible mass.

7. Plaintiff, Bradley James Mercer, continued to suffer from low-back pain. On or about May 09, 2015, a subsequent

MRI was ordered and the previously undiagnosed sacral mass was found, but had increased dramatically in size in the 2-1/2 year interval. On or about May 12, 2015, an ultrasound-guided biopsy

of the mass was performed and the findings were consistent with sacral chordoma. Unfortunately at that point, Plaintiff, Bradley James Mercer, was no longer a surgical candidate.

(Original Complaint, Aug. 19, 2016). In support of the original complaint, the Mercers filed Affidavits of Merit.

{¶3} The matter proceeded through the pretrial process, with a brief stay due to the bankruptcy of Defendant-Appellee Coshocton County Memorial Hospital. The case was placed back on the active docket on December 19, 2017. The jury trial was scheduled for May 21, 2019, but the parties were granted a continuance until January 20, 2021.

Amended Complaint

{¶4} On February 29, 2020, Bradley James Mercer passed away. Counsel filed a Suggestion of Death with the death certificate, which listed the cause of death as "metastatic chordoma

to pelvis and sacrum."

{¶5} On May 1, 2020, Nicole Mercer, as Executor of the Estate of Bradley James Mercer filed a "Motion to Order Substitution of Proper Parties and Amend Complaint." The trial court granted the motion. The amended complaint, filed on May 1, 2020, reflected the death of Bradley James Mercer by converting the medical malpractice claim to a survivorship claim with Nicole Mercer as the Executor of the Estate. The amended complaint also removed the loss of consortium claim and replaced it with a wrongful death claim pursuant to R.C. 2125.01 and 2125.02. The amended complaint was filed seven years and four months after the alleged act or omission constituting the basis of the Estate's medical claim.

{¶6} On June 17, 2020, Defendant-Appellee Radiology Associates of Southeastern Ohio, Inc. filed a motion for partial summary judgment. In its motion, it argued it was entitled to judgment as a matter of law on the wrongful death action because the action was filed beyond the four-year statute of repose under R.C. 2305.113(C). On June 18, 2020, Defendant-Appellee Thomas Keane, M.D. filed a motion for judgment on the pleadings as to the wrongful death action arguing the action was time-barred by R.C. 2305.113(C). Mercer filed a combined response to the motions.

{¶7} On July 22, 2020 and August 13, 2020, the trial court granted the Appellees’ motions. It first found the wrongful death action was based on a medical claim. It next found the wrongful death action based on the medical claim was barred by R.C. 2305.113(C) because the wrongful death action was commenced more than four years after the occurrence of the act or omission constituting the basis for the claim.

{¶8} The trial court issued nunc pro tunc judgment entries on August 24, 2020, adding Civ.R. 54(B) language. It is from these judgments the Estate now appeals.

ASSIGNMENT OF ERROR

{¶9} The Estate raises one Assignment of Error:

{¶10} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY DISMISSING THE ESTATE'S PROPERLY ASSERTED WRONGFUL DEATH CLAIM."

ANALYSIS

{¶11} In its appeal, the Estate succinctly states the question before this Court:

whether the Estate's wrongful death action, filed during the pendency of the original action but more than four years after the alleged negligent act, is barred by Ohio's statute of repose? The issue raised by the Estate is a matter of first impression for this Court. We apply the plain and unambiguous language of the R.C. 2305.113(C) and the Ohio Supreme Court's holding in Wilson v. Durrani , ––– Ohio St.3d ––––, 2020-Ohio-6827, ––– N.E.3d ––––, to answer that the Estate's wrongful death action is time barred as a matter of law.

Standards of Review

{¶12} This appeal comes to this Court after the trial court granted the Appellees’ motion for partial summary judgment and motion for judgment on the pleadings, stating the Estate's action for wrongful death was time barred by the statute of repose.

{¶13} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

{¶14} The moving party bears the initial responsibility of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court, which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest on the allegations or denials in the pleadings but must set forth "specific facts" by the means listed in Civ.R. 56(C) showing that a "triable issue of fact" exists. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶15} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. Vahila v. Hall , 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

{¶16} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).

{¶17} A party may bring a motion for judgment on the pleadings pursuant to Civ.R. 12(C). Civil Rule 12(C) provides, "after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." The standard of review of the grant of a motion for judgment on the pleadings is the same as the standard of review for a Civ.R. 12(B)(6) motion, which requires the appellate court to independently review the complaint to determine if the dismissal was appropriate.

Ferreri v. The Plain Dealer Publishing Co. , 142 Ohio App.3d 629, 639, 756 N.E.2d 712 (8th Dist.2001). A motion for judgment on the pleadings pursuant to Civil Rule 12(C) presents only questions of law. Peterson v. Teodosio , 34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973). The determination of a motion under Civil Rule 12(C) is restricted solely to the allegations in the pleadings and the nonmoving party is entitled to have all material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in its favor. Id. Evidence in any form cannot be considered. Conant v. Johnson , 1 Ohio App.2d 133, 204 N.E.2d 100 (4th Dist.1964). In considering such a motion, one must look only to the face of the complaint. State ex rel. Osborne v. City of North Canton , 5th Dist., 2019-Ohio-1744, 135 N.E.3d 1155, ¶ 10.

Ohio's Statute of Repose

{¶18} Among the procedural, common law, and statutory gatekeepers of civil actions, statutes of limitations and statutes of repose exist to limit the "time for which a putative wrongdoer must be prepared to defend a claim." Antoon v. Cleveland Clinic Found. , 148 Ohio St.3d 483, 2016-Ohio-7432, 71 N.E.3d 974, ¶ 11. Statutes of repose and statutes of limitation have distinct applications. Id. A statute of limitations establishes "a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered)." Id. , quoting Black's Law Dictionary 1636 (10th Ed. 2014). The statute of limitations targets the plaintiff, emphasizing the plaintiff's duty to diligently prosecute known claims. Wilson v. Durrani , ––– Ohio St.3d ––––, 2020-Ohio-6827, ––– N.E.3d ––––, ¶ 10 citing CTS Corp v. Waldburger , 573 U.S. 1, 8, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014). R.C....