Penniman v. Univ. Hosps. Health Sys., Inc.

• Decision Date: 02 May 2019
• Docket Number: No. 107406,107406
• Citation: 2019 Ohio 1673,130 N.E.3d 333
• Parties: Wendy PENNIMAN, et al., Plaintiffs-Appellants, v. UNIVERSITY HOSPITALS HEALTH SYSTEM, INC., et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

130 N.E.3d 333

2019 Ohio 1673

Wendy PENNIMAN, et al., Plaintiffs-Appellants,

v.UNIVERSITY HOSPITALS HEALTH SYSTEM, INC., et al., Defendants-Appellees.

No. 107406

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: May 2, 2019

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR., J.:

{¶ 1} Plaintiffs-appellants Wendy and Rick Penniman (the "Pennimans") appeal the trial court's dismissal of their declaratory judgment action. For the reasons that follow, we affirm.

{¶ 2} This case stems from an incident in March 2018 in which a freezer malfunction at one of defendants-appellees University Hospitals Health System, Inc.'s ("UHHS") facilities caused the destruction of a number of human eggs and/or embryos being stored at the facility. The Pennimans allege that one or more of their cryogenically preserved embryos were destroyed as a result of the malfunction.

{¶ 3} The Pennimans filed two separate actions in the Cuyahoga County Common Pleas Court against UHHS and related entities. Cuyahoga C.P. No. CV-18-894396 is an action for money damages. Cuyahoga C.P. No. CV-18-895503 is an action in declaratory judgment, in which the Pennimans seek "a declaratory judgment * * * that the life of a person begins at the moment of conception, declaring that the legal status of an embryo is that of a person; and for costs incurred herein." UHHS subsequently moved to consolidate the two cases. The Pennimans objected to consolidation. The trial court granted UHHS's motion.

{¶ 4} UHHS filed a motion to dismiss the declaratory judgment action pursuant to Civ.R. 12(B)(6). The Pennimans objected to the motion. The trial court granted UHHS's motion to dismiss finding that the Pennimans' complaint did not state a claim under Ohio law. This appeal followed.

{¶ 5} The Pennimans raise one assignment of error for our review:

I. The trial court erred by finding the Complaint failed to state a claim for relief under Ohio law.

{¶ 6} In their sole assignment of error, the Pennimans claim that the trial court erred in granting UHHS's motion to dismiss.

{¶ 7} This court reviews a trial court's ruling on a Civ.R. 12(B)(6) motion de novo. Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp. , 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. In applying the de novo standard of review, this court independently reviews the record without affording deference to the trial court's judgment.

Bandy v. Cuyahoga Cty. , 8th Dist. Cuyahoga No. 106635, 2018-Ohio-3679, 2018 WL 4377970, ¶ 10, citing Herakovic v. Catholic Diocese of Cleveland , 8th Dist. Cuyahoga No. 85467, 2005-Ohio-5985, 2005 WL 3007145, ¶ 13.

In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625 [849 N.E.2d 268], ¶ 11, citing O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 327 N.E.2d 753 (1975).

In resolving a Civ.R. 12(B)(6) motion, a court's factual review is confined to the four corners of the complaint. McKee v. Univ. Circle, Inc. , 8th Dist. Cuyahoga No. 102068, 2015-Ohio-2953 [2015 WL 4507206], ¶ 12. Within those confines, a court must accept as true all material allegations of the complaint and make reasonable inferences in favor of the nonmoving party. Id. " ‘[A]s long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss.’ " Id. , quoting York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

Bandy at ¶¶ 11-12.

{¶ 8} The Pennimans sought a declaratory judgment that human life begins at conception and thus their embryos constitute persons under Ohio law in order to pursue a wrongful death claim against UHHS. In order to maintain an action for declaratory relief, the plaintiff must show that (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties. Wymsylo v. Bartec, Inc. , 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 31, citing Burger Brewing Co. v. Liquor Control Comm. , 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973), citing Am. Life & Acc. Ins. Co. v. Jones , 152 Ohio St. 287, 89 N.E.2d 301 (1949).

{¶ 9} This case appears to be one of first impression in this state. The Pennimans claim that a real controversy exists as to the legal status of embryos that is justiciable in character. The trial court disagreed, finding that "an embryo that has not been implanted into the uterus does not constitute a ‘distinct human entity’ and thus is not entitled under the law of Ohio to the rights and protections of a person."

{¶ 10} The term embryo is not well-defined under Ohio law. The embryos at issue in this case were cryogenically preserved, or frozen, embryos. Some states refer to embryos that have not yet been implanted in the uterus as pre-embryos. See In re Marriage of Rooks , 2018 CO 85, 429 P.3d 579 (2018). There is no contention that an embryo that has not yet been implanted into the uterus cannot, on its own, become a child. In other words, medical intervention is necessary in order for a pre-implanted embryo to form into a child. In Walker v. Firelands Community Hosp. , 170 Ohio App.3d 785, 2007-Ohio-871, 869 N.E.2d 66, ¶ 6 (6th Dist.), fn. 3, the Sixth Appellate District defined an "embryo" as a developing human before two months gestation. Id. , citing Merriam-Webster Online Dictionary , http://www.merriam-webster.com (Jan. 2, 2004). For ease of discussion, because the contract between the Pennimans and UHHS referred to "embryos," and because the parties have chosen to use the term "embryo," we refer to the word "embryo" throughout this opinion to refer to pre-implanted embryos in general and the Pennimans' pre-implanted cryogenically preserved embryos specifically.

{¶ 11} R.C. 2901.01(B) defines a "person" as "i. An individual, corporation, business trust, estate, trust, partnership, and association; ii. An unborn human who is viable." R.C. 2901.01(B)(1)(a). R.C. 2919.19(J) defines an "unborn human individual" as "an individual organism of the species homo sapiens from fertilization until live birth." R.C. 2919.19(B) defines a "fetus" as "human offspring developing during pregnancy from the moment of conception and includes the embryonic stage of development."

{¶ 12} The Pennimans argue that the trial court incorrectly relied on criminal code sections to determine whether an embryo is a person, but themselves rely on R.C. 2919.19 to support their claim that an embryo is a person. The Pennimans contend that because R.C. 2919.19(J) defines an "unborn human individual" as "an individual organism of the species homo sapiens from fertilization until live birth," the life of a person begins at the moment of conception. What the Pennimans miss is that while an "unborn human individual" under Ohio law begins at the moment of conception, in order for an unborn human to constitute a "person" under the statute, the unborn human must be viable. Ohio law defines "viable" as "the stage of development of a human fetus at which there is realistic possibility of maintaining and nourishing of life outside the womb with or without temporary artificial life-sustaining support." R.C. 2901.01(B)(1)(c)(ii). An embryo does not fit within this definition. As the trial court in this case concluded: "If a nonviable fetus is not a distinct human entity, then certainly an embryo which has not been implanted into the uterus, and which accordingly is not even as yet a fetus, cannot be found to be more than that."

{¶ 13} Two other statutes, which the parties referenced but the trial court did not rely on, R.C. 2307.11 and R.C. 1.59, define a "person," in part, as an "individual." The Pennimans argue that because the term "individual" is not further defined, "it is reasonable to believe that embryos are included within this definition of a person." Appellant's brief, p. 13. The Pennimans cite no authority for their argument and we find it unpersuasive.

{¶ 14} The state legislature has not extended the rights of the fetus to an embryo. Where there is a fixed and clear preexisting legal meaning for language the courts must give effect to it. State v. Dickinson , 23 Ohio App.2d 259, 260, 263 N.E.2d 253 (5th Dist.1970). As we analyze this case, we find the word "person" to have a clear and fixed meaning within the context of Ohio law.

{¶ 15} In the context of civil personal injury cases, the term "person" historically has included viable unborn fetuses. See Williams v. Marion Rapid Transit, Inc. , 152 Ohio St. 114, 87 N.E.2d 334 (1949) (holding that an unborn viable child injured by another's negligence may, after birth, maintain an action for such injury because an unborn viable child is a "person," within the meaning of Section 16, Article I of the Ohio Constitution, and if injured before birth may after birth maintain an action for such injury) and Jasinsky v. Potts , 153 Ohio St. 529, 92 N.E.2d 809 (1950) (holding that a viable infant who survives birth is a "person" within the meaning of Ohio's wrongful death statute). In Werling v. Sandy , 17 Ohio St.3d 45, 46, 476 N.E.2d 1053 (1985), the Ohio Supreme Court held that an unborn fetus may be considered a "person" in the context of a wrongful death claim "as long as it is established that the fetus was viable at the time of its injury." The court extended the cause of action to a viable fetus delivered stillborn, determining that "a cause of action may arise under the wrongful death statute when a viable fetus is stillborn since a life capable of independent existence has expired." Id. at 47, 476 N.E.2d...