State of Ohio,. ex rel. Robert C. Corn, M.D. and Highland Musculo-Skeletal Associates, Inc. v. Honorable Nancy M. Russo, Case
| Decision Date | 24 November 1999 |
| Docket Number | 99-LW-5477,76730 |
| Parties | STATE OF OHIO,. EX REL. ROBERT C. CORN, M.D. and HIGHLAND MUSCULO-SKELETAL ASSOCIATES, INC., Relators v. HONORABLE NANCY M. RUSSO, Respondent CASE |
| Court | Ohio Court of Appeals |
PROHIBITION/MANDAMUS
For Relators: PATRICK M. McLAUGHLIN, ESQ., W. JOSEPH MELNIK ESQ. COLIN R. JENNINGS, ESQ., McLaughlin & McCaffrey, L.L.P., 1601 East Ninth Street, Suite 700, Cleveland, Ohio 44114-3103.
For Respondent: LARRY W. ZUKERMAN, ESQ., S. MICHAEL LEAR, ESQ. Zukerman & Daiker Co., L.P.A., 2000 East 9th Street, Suite 700, Cleveland, Ohio 44115.
JAMES M. PORTER, A.J.
On July 23, 1999, relators, Robert Corn, M.D. and Highland Musculo-Skeletal Associates, Inc. ("HMSA"), Dr Corn's employer, filed a verified complaint seeking writs of prohibition and mandamus against respondent, Judge Nancy Russo. Relators claim (1) that respondent is without jurisdiction to conduct further proceedings in the case entitled Crow v. Dotson, C.P. Case No. CV-345899 including a contempt hearing, following the filing of a Stipulation for Dismissal and (2) that respondent has violated previous orders of this court issued in State ex rel. Corn v. Russo (June 4, 1999), Cuyahoga App. No. 75349, unreported (hereinafter "Corn v. Russo I"). On July 23, 1999, this court granted relators' application for alternative writs of prohibition and mandamus and ordered respondent to show cause why permanent writs should not be issued. In reply, respondent moved to dismiss or, in the alternative, moved for summary judgment. For the reasons that follow, we grant respondent's motion in part and deny it in part and issue a permanent writ of prohibition.
Dr. Corn was an expert medical witness for the defense in the Crow litigation, which was pending before respondent. On July 27, 1998, a Civ.R. 45 subpoena was issued to Dr. Corn and others commanding Dr. Corn, et al. to produce the following records and documents:
Dr. Corn filed a Motion to Quash the Subpoena. On September 4, 1998, respondent denied the motion to quash and ordered Dr. Corn
On September 16, 1998, plaintiffs' counsel i n Crow, dissatisfied with Dr. Corn's response to the subpoena, filed a Motion in Limine seeking to bar the testimony of Dr. Corn. Attached as Exhibit 1 to the Motion in Limine was a letter dated September 14, 1998, sent via facsimile and mail, in which Dr. Corn, through counsel, responded to the subpoena, made available the material he possessed, and indicated what documents did not exist and why.
On September 22, 1998, respondent ordered Dr. Corn "to appear before this court on 9/28/98 at 9:30 A.M. to show cause why he should not be held in contempt for failure to abide by this court's orders regarding production of documents, pursuant to subpoena in this case." On September 23, Dr. Corn's counsel moved to cancel the show cause hearing based upon Dr. Corn's compliance with respondent's order, which motion respondent denied.
On September 28, 1998, respondent ordered "Special Master Bob Housel," who was appointed by a different judge in unrelated litigation to investigate Dr. Corn's compensation relating to defense medical exams and whose appointment was later nullified in State ex rel. Allstate v. Gaul (May 13, 1999), Cuyahoga App No. 75048, unreported, to give testimony and produce documents at Dr. Corn's show cause hearing. Respondent began the contempt hearing on September 28 and heard testimony from Dr. Corn, "Special Master" Housel, and an accountant for Dr. Corn and HMSA. Respondent continued the show cause hearing to October 13, and on September 29, 1998, issued subpoenas to Dr. Corn, his counsel and Dr. Corn's office personnel. Respondent also issued the following orders:
On October 8, 1998, relators filed a complaint in prohibition and mandamus in this court against respondent (Corn v. Russo I) to prevent respondent from conducting the contempt proceeding and to compel respondent to return federal tax documents to Dr. Corn. The court issued an alternative writ of prohibition and, in compliance, respondent issued an order sealing any and all documents related to the September 28, 1998, show cause hearing and ordered the court reporter to seal the original transcript and to refuse requests for the transcript without her prior order. On December 10, respondent voluntarily stayed the Crow matter pending resolution of the writ action against her in this court.
Unbeknownst to this court, on April 2, 1999, the parties and their attorneys in the Crow litigation executed a Settlement Agreement and Full and Final Release.
On June 4, 1999, in Corn v. Russo I, the court held that respondent had jurisdiction to proceed with the contempt hearing, but lacked jurisdiction to elicit testimony or other evidence from "Special Master" Housel and lacked jurisdiction to conduct an independent discovery investigation on a party's behalf. The court issued, in relevant part, the following permanent writ of prohibition:
Respondent Russo is prohibited from compelling, ordering, or receiving any additional testimony, information, or documents from respondent Housel in Crow v. Dotson, Cuyahoga Common Pleas Case No. CV-345899. In addition, respondent Russo is prohibited from using, releasing, publishing, disseminating, or distributing in any fashion any information, documents, or the contents of any such documents obtained from respondent Housel, in his capacity as a Special Master. The transcript of the testimony of respondent Housel, as taken at the contempt hearing of September 28, 1998, is ordered sealed. Further, respondent Russo is ordered to deliver to relator Corn any and all information, documents and transcripts which were obtained from respondent Housel and ordered sealed in the alternative writ of prohibition issued by this Court on October 9, 1998.
On June 11, 1999, respondent lifted the stay in Crow, reactivated all pending motions and reinstated all previous court orders, except that the parties were notified that a brief on the issue concerning a review of documents during a pending writ action was no longer required. Respondent required all remaining issues in her September 28, 1998, order to be briefed and continued the contempt hearing to July 6, 1999. Respondent also vacated her order of October 13, 1998, which sealed documents pursuant to the alternative writ issued in Corn v. Russo I.
On July 2, 1999, the plaintiffs in Crow filed a Stipulation for Dismissal and Judgment Entry with respondent.[1] Respondent sua sponte rescheduled the contempt hearing for July 27.
On July 7, 1999, respondent issued the following order: "Court clarifies its order to state that the Court vacates its prior ruling sealing the transcripts of the hearing held 9/28/98, except that the transcript of testimony offered by Robert Housel is to remain sealed."
For a writ of prohibition to be issued, the relator (s) must establish that (1) the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) the exercise of such power is unauthorized by law, and (3) the refusal of the writ would result in injury for which there exists no adequate remedy in the ordinary course of law. State ex rel. McKee v. Cooper (1974), 40 Ohio St.2d 65, 320 N.E.2d 286, paragraph one of the syllabus. The existence of an adequate remedy, however, is immaterial to the issuance of a writ of prohibition if a court is completely without jurisdiction to proceed. State ex rel. Rice v. McGrath (1991), 62 Ohio St.3d 70, 577 N.E.2d 1100; State ex rel. Sanquily v. Lucas County Court of Common Pleas (1991), 60 Ohio St.3d 78, 573 N.E.2d 606; State ex rel. Tollis v. Cuyahoga County Court of Appeals (1988), 40 Ohio St.3d 145, 532 N.E.2d 727. Relators are seeking a permanent writ of prohibition in three counts of their complaint.
To continue reading
Request your trial