Simeone v. Girard City Bd. of Edn.

• Decision Date: 13 April 2007
• Docket Number: No. 2006-T-0056.,2006-T-0056.
• Citation: 872 N.E.2d 344,171 Ohio App.3d 633,2007 Ohio 1775
• Parties: SIMEONE et al., Appellants, v. GIRARD CITY BOARD OF EDUCATION et al., Appellees.
• Court: Ohio Court of Appeals

872 N.E.2d 344

171 Ohio App.3d 633

2007-Ohio-1775

SIMEONE et al., Appellants, v. GIRARD CITY BOARD OF EDUCATION et al., Appellees.

No. 2006-T-0056.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Decided April 13, 2007.

Heben & Associates and Edward J. Heben Jr., Cleveland, for appellants.

Armstrong, Mitchell, Damiani & Zaccagnini, Bruce A. Zaccagnini, and Louis C. Damiani, Cleveland; and Pfau, Pfau & Marando, John C. Pfau, and John A. Ams, Youngstown, for appellees Girard City Board of Education and Dr. Anthony D'Ambrosio.

Gallagher Sharp, Alton L. Stephens, and Timothy J. Fitzgerald, Cleveland, for appellee Prout Boiler, Heating & Welding, Inc.

Davis & Young, L.P.A., and William J. Meola, Warren, for appellee Hively Construction Co., Inc.

Thompson Hine L.L.P., Michael L. Hardy, Heidi B. Goldstein, and William J. Hubbard, Cleveland, for appellee Steel Valley Engineering.

Ulmer & Berne, L.L.P., and Charles R. Olsavsky, Cleveland, for appellee Balog, Ricciuti & Partners.

Paul L. Millet and Associates and Paul L. Millet, Cleveland, for appellee Roth Brothers.

MARY JANE TRAPP, Judge.

{¶ 1} This case presents the overarching issue of whether the trial court abused its discretion during case management when it issued a "Lone Pine" order and whether dismissal with prejudice in accordance with Civ.R. 41(B)(1) for failure to comply with the Lone Pine order was proper under these circumstances.

{¶ 2} Appellants in this action are 13 students who attended school in the Girard Intermediate School building for the 2000-2001 school year, their parents, and four teachers who worked in that building during the same school year. Appellees are eight individuals and corporations who were involved in the building of the Girard Intermediate School.

Procedural History

{¶ 3} Following the closure of the school due to reported health problems,¹ on October 31, 2002, appellants filed a complaint in the Trumbull County Court of Common Pleas, alleging claims of negligence, negligence per se, negligent infliction of emotional distress, intentional tort, intentional infliction of emotional distress, ADA violation, fraudulent nondisclosure, breach of contract, and products liability against defendants-appellees.

{¶ 4} On or about September 24, 2003, appellants served discovery requests upon appellees.

{¶ 5} On December 19, 2003, before appellees responded to the discovery request of appellants, appellees filed a motion for a Lone Pine order² to "conserve judicial resources and expedite discovery in this case."

{¶ 6} In turn, on January 29, 2004, appellants filed a motion to compel discovery. Six months later, on June 16, 2004, appellees' Lone Pine motion was granted, and appellants' motion to compel was denied.

{¶ 7} On October 26, 2004, appellants filed a motion for reconsideration to compel discovery and to overturn the Lone Pine order, after submitting affidavits from their medical experts that stated that the experts could not meet the requirements of the Lone Pine order without first receiving discovery from appellees. The court denied these motions on February 24, 2005, and on March 1, 2005, the Lone Pine order was reinstated for case-management purposes.

{¶ 8} On June 13, 2005, appellees filed a motion to dismiss, and on October 20, 2005, appellants filed a combined motion for reconsideration and for sanctions due to spoliation of evidence. On April 6, 2006, appellants' combined motion was denied, and appellees' motion to dismiss under Civ.R. 41(B)(1) for failure to comply with the Lone Pine order was granted. Appellants' claims were dismissed in their entirety, with prejudice.

{¶ 9} Appellants filed this timely appeal and raise the following seven assignments of error:

{¶ 10} "(1) The trial court erred in denying [appellants'] Motion to Compel;

{¶ 11} "(2) The trial court erred in granting [appellees'] Motion for Lone Pine Case Management Order {¶ 12} "(3) The trial court erred in dismissing [appellants'] claims in their entirety;

{¶ 13} "(4) The trial erred in dismissing [appellants'] fraud claims;

{¶ 14} "(5) The trial court erred in dismissing [appellants'] negligent infliction of emotional distress claims;

{¶ 15} "(6) The trial court erred in dismissing [appellants'] intentional infliction of emotional distress claims and;

{¶ 16} "(7) The trial court erred in denying [appellants'] motion for sanctions."

{¶ 17} Since appellants' first three assignments of error deal with the overarching issue of whether the trial court abused its discretion in managing discovery by issuing the Lone Pine order and by subsequently dismissing their case with prejudice for failure to comply with this court order under Civ.R.41(B)(1), we will address these issues together.

{¶ 18} For the reasons that follow, we find that the trial court abused its discretion in issuing the Lone Pine order at the stage in the proceedings when there had yet to be any meaningful discovery proceedings and in dismissing the case with prejudice for failure to comply with the order.

{¶ 19} We also reverse the judgment and remand the cause on appellants' seventh assignment of error, which deals with the denial of appellants' motion for sanctions for spoliation. Since we find that the motion to dismiss was premature in this case, reconsideration of the motion for sanctions is necessary. We find that appellants' argument has merit and remand the cause to the trial court to hold a hearing on this motion.

{¶ 20} Since we reinstate appellants' claims, the remaining assignments of error, which deal with the dismissal of the substantive claims of fraud, negligent infliction of emotional distress, and intentional infliction of emotional distress, need not be addressed.

Standard of Review

{¶ 21} A trial court's decision in a discovery matter is reviewed under an abuse-of-discretion standard. Masek v. Gehring, 11th Dist. No. 2001-G-2373, 2002-Ohio-5151, 2002 WL 31160076, at ¶ 8. Abuse of discretion "`connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the court.'" Quonset Hut, Inc. v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 47, 684 N.E.2d 319, quoting Pembaur v. Leis (1982), 1 Ohio St.3d 89, 91, 1 OBR 125, 437 N.E.2d 1199, quoting Klever v. Reid Bros. Express, Inc. (1951), 154 Ohio St. 491, 43 O.O. 429, 96 N.E.2d 781, paragraph two of the syllabus.

{¶ 22} Whether a trial court has properly dismissed a case with prejudice under Civ.R. 41(B)(1) is also reviewed under an abuse-of-discretion standard. Since dismissal with prejudice is a particularly harsh sanction, we use a "heightened abuse of discretion standard." This is so because we are "reviewing decisions that forever deny a plaintiff a review of a claim's merits." Jones v. Hartranft (1997), 78 Ohio St.3d 368, 372, 678 N.E.2d 530. Thus, we review this case under a heightened abuse-of-discretion standard.

{¶ 23} Although the trial court has broad discretion in managing pretrial practice and issuing case-management orders, this discretion is not without its limits. In fact, appellate courts will reverse a discovery order "when the trial court has erroneously denied or limited discovery." Mauzy v. Kelly Servs., Inc. (1996), 75 Ohio St.3d 578, 592, 664 N.E.2d 1272, citing 8 Wright, Miller & Marcus, Federal Practice & Procedure (2d Ed.1994), Section 2006. Thus, the appellate court will reverse a decision if a trial court has extinguished a party's right to discovery, if the trial court's decision is improvident, and if it affects the discovering party's substantial rights. Rossman v. Rossman (1975), 47 Ohio App.2d 103, 110, 1 O.O.3d 206, 352 N.E.2d 149.

{¶ 24} The goal of modern discovery procedures should be to make civil trials "`less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'" Id. at 107, 1 O.O.3d 206, 352 N.E.2d 149, quoting United States v. Procter & Gamble Co. (1958), 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077; Hickman v. Taylor (1947), 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451. Consistent with this policy<sup>3</sup> is the underlying principle inherent in the Ohio Rules of Civil Procedure, which contain provisions for broad discovery of any matter, not privileged, that is relevant to the subject matter of the pending action. "`In doing so the rules exemplify a policy of affording attorneys every opportunity and advantage in preparing their case before trial.'" (Emphasis omitted.) Rossman, 47 Ohio App.2d at 107, 1 O.O.3d 206, 352 N.E.2d 149, quoting Hlavin v. Plechaty (1971), 28 Ohio App.2d 43, 45, 57 O.O.2d 69, 274 N.E.2d 570.

A Lone Pine Order

{¶ 25} A Lone Pine order is a type of case-management order that has been used in other jurisdictions⁴ to expedite claims and increase judicial efficiency in mass toxic-tort litigation. Under such an order, plaintiffs are required to submit reports or affidavits that identify the chemical or substance causing the injury, the specific disease, illness, or injury caused by the substance, and the causal link between the exposure and injury in order to substantiate their health and property-value claims to a reasonable degree of probability or certainty.

{¶ 26} The genesis of such a case-management order was in a case from the New Jersey Superior Court entitled Lore v. Lone Pine Corp. (N.J.Super.L.1986), 1986 WL 637507, in which homeowners filed suit against 464 defendant landfill operators for personal injury and property damage alleged to have been caused by the polluted waters arising from the operation of the landfill.

{¶ 27} At a case-management conference, the Lone Pine court determined that the plaintiffs had failed to allege a prima facie case in their complaint, and in light of an EPA report presented by the defense that contradicted the plaintiffs' claims, the court issued a case-management order now known as the "Lone Pine" order.

{¶ 28} The Lone Pine order...