Oral Argument Previews

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Tuesday, Oct. 7, 2008

Bertha Louden, Executor, etc., et al. v. A.W. Chesterton Company et al., Case nos. 2007-1819 and 2007-1821
8th District Court of Appeals (Cuyahoga County)

Cheap Escape Company, Inc. v. Haddox, LLC and Jeffrey L. Tessman, Case no. 2007-1870
10th District Cout of Appeals (Franklin County)

Loretta Schelling v. Stephen Humphrey, M.D. [Community Hospitals of Williams County], Case no. 2007-2202
6th District Court of Appeals (Williams County)

John and June Roe, Individually and as parents and next friends of Jane Roe, a minor v. Planned Parenthood Southwest Ohio Region, Roslyn Kade, M.D., and John Does 1-6, Case no. 2007-1832
1st District Court of Appeals (Hamilton County)


Did Electronic Filing of Appeal Notice Within Statutory Deadline Meet Timely Filing Requirement?

Bertha Louden, Executor, etc., et al. v. A.W. Chesterton Company et al., Case nos. 2007-1819 and 2007-1821
8th District Court of Appeals (Cuyahoga County)

ISSUE: In a special asbestos docket case in which local trial court rules required all case documents to be filed with the clerk electronically rather than in paper form, did a party’s electronic filing of a notice of appeal with the clerk of the trial court within 30 days after that court entered summary judgment in the case meet the statutory requirement for timely filing of an appeal?

BACKGROUND: Because of the great volume of asbestos-related civil cases that have been filed in Cuyahoga County, the local common pleas court established a special docket for such cases that is overseen by two fulltime judges who hear nothing but asbestos litigation. Under local rules established to expedite the resolution of these cases, all parties and the attorneys representing them are required to file all documents in electronic rather than in paper form. Since July 2003, those electronic filings are specifically required to be made using an online service provided by LexisNexis called File and Serve, which the clerk of the common pleas court has formally appointed as the clerk’s agent for the intake and filing of electronic documents in “asbestos court” cases.

In this case, the widows of two electric utility maintenance workers who died from asbestos-related lung disease, Bertha Louden and Mary Border, filed wrongful death lawsuits against manufacturers and suppliers of asbestos-bearing materials their husbands handled in the workplace, including Gould’s Pumps Inc. In accordance with the asbestos court’s local rules, all documents filed in the case by attorneys for the plaintiffs and defendants were filed electronically using the online File and Serve system.. On April 5, 2007, the trial court granted summary judgment in favor of the defendants and dismissed Louden and Border’s claims against Gould’s Pumps Inc.

On May 4, 2007, within the 30-day time limit for appealing the trial court’s April 5 order, attorneys for Louden and Border filed a notice of appeal with the trial court electronically, using the File and Serve system. After several weeks passed and the clerk of courts had not served notice of the appeal on the defendants, Louden and Border’s attorneys manually filed a written notice of appeal in the clerk’s office on July 24. The defendants subsequently filed a motion in the 8th District Court of Appeals asking that court to dismiss the plaintiffs’ appeal on the ground that it had not been filed within the 30-day time limit.  The court of appeals granted the motion to dismiss, declining to recognize the May 4 electronic filing and holding that Louden and Border’s written notice of appeal had not been filed with the clerk until July 24, well beyond the 30-day deadline.

Attorneys for Louden and Border now ask the Supreme Court to overrule the 8th District and order the court of appeals to recognize their May 4 electronic filing as a timely notice of appeal. They argue that because an initial notice of appeal must be filed with the clerk of the trial court whose ruling is being appealed, and the rules of the special asbestos court required all filings with that court to be made electronically through File and Serve, the plaintiffs acted correctly and in good faith by using the electronic process to file their notice of appeal. They also contend that there is no language in Ohio’s rules of appellate procedure or the 8th District’s local rules specifying that notices of appeal must be filed in person or in writing, and point to provisions in the Supreme Court’s rules of superintendence that affirmatively authorize courts of appeals to accept and recognize electronic filings.

The defendants urge the Court to affirm the 8th District’s ruling that a notice of appeal is not filed until the appellant has manually delivered a written copy of the notice to the clerk of the trial court, and a court employee had date-stamped the document. They argue that the asbestos court’s local rule requiring electronic filing of documents in cases on its own docket does not apply to a notice of appeal, which transfers the case to another court. They contend that the plaintiffs’ filing was required to comply with state rules of appellate procedure and with the local rules of the 8th District. Because the 8th District’s published rules make no provision for the electronic filing of appeals, they say, the plaintiffs should have known that their appeal would not be officially filed until a written notice was physically delivered to and date stamped by the clerk of courts.

Contacts
Paul W. Flowers, 216.344.9393, for Bertha Louder and Mary Border.

John A. Valenti, 216.241.5310, for Gould Pumps.

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Case Questions Municipal Court’s Jurisdiction Over Civil Suit Based On Events Outside Geographic Area

Cheap Escape Company, Inc. v. Haddox, LLC and Jeffrey L. Tessman, Case no. 2007-1870
10th District Cout of Appeals (Franklin County)

ISSUE: Does an Ohio municipal court have subject matter jurisdiction over a contract dispute in which the amount in dispute is less than $15,000, regardless of whether the events giving rise to the lawsuit took place within the municipal court’s geographic territory?

BACKGROUND: This case involves a breach of contract lawsuit filed in the Franklin County Municipal Court by Cheap Escape Co., the publisher of “JB Dollar Stretcher” advertising flyers that are distributed in several Ohio cities. The suit sought recovery from an Akron-based advertiser, Haddox LLC, for that company’s alleged failure to pay its bill for advertising that was purchased through Cheap Escape’s Akron sales office and that appeared in the publisher’s Akron-Canton area flyers. The contract signed by the parties included an agreement that any litigation arising from an alleged breach of the contract by either party would be conducted in Franklin County.

Cheap Escape filed suit in the Franklin County Municipal Court seeking to recover $1,984 plus interest from Haddox LLC and Jeffrey L. Tessman, a representative of the company who signed the advertising contract as guarantor of Haddox’s obligations. The municipal court entered a default judgment in favor of Cheap Escape. Tessman filed a motion to vacate the default judgment, arguing that the Franklin County Municipal Court did not have subject matter jurisdiction to hear the case. The trial court rejected Tessman’s motion.

He appealed that ruling to the 10th District Court of Appeals. The appellate panel voted 2-1 to reverse the trial court, ruling that because neither the negotiation of the contract between the parties nor the events that resulted in the lawsuit took place in Franklin County, the Franklin County Municipal Court acted without subject matter jurisdiction when it accepted and issued a judgment in the case. 

Attorneys for Cheap Escape now ask the Supreme Court to overrule the 10th District and reinstate the trial court’s judgment in their favor. They argue that the 10th District’s decision relied on a former section of state law that is no longer in effect. They point out that the legislature amended the state law defining the subject matter jurisdiction of municipal courts in 1997 to eliminate former language that placed a  territorial limitation on cases that may be heard by a municipal court. Under the amended version of the law, they contend, the only criteria for a municipal court to have subject matter jurisdiction over a case are that it (1) involves a type of lawsuit listed in the statute and (2) seeks recovery of less than $15,000. 

They argue that under Ohio’s current statutory scheme, a claim that events leading to a legal dispute took place outside the geographic territory of a given municipal court raises an issue of  the trial court’s venue, as opposed to its subject matter jurisdiction. The difference, they contend, is that a judgment issued by a court without subject matter jurisdiction over a case is void from the moment it is issued, while a judgment rendered by a court that has subject matter jurisdiction but lacks venue is valid and enforceable despite that error if no party challenged the court’s venue prior to the issuance of a final judgment. In this case, they say, Haddox and Tessman did not raise the issue of the trial court’s geographic venue prior to entry of  judgment against them, and therefore waived that issue on appeal.

Attorneys for Haddox and Tessman urge the Court to affirm the 10th District’s ruling that the Franklin County Municipal Court acted without subject matter jurisdiction because none of the contract negotiations or other events from which Cheap Escape’s claims against them took place within the boundaries of Franklin County. They argue that the appellants have misinterpreted the 1997 changes in Ohio law governing municipal courts, and cite unchanged language in that statute specifically limiting the jurisdiction of municipal courts to cases arising from events that take place within their geographic territories as established by the legislature.  They contend that Cheap Escape’s insistence on prosecuting debt-collection actions arising in northeast Ohio in a Franklin County court are an abuse of process designed to make defending against those suits prohibitively expensive and inconvenient for its customers.

Contacts
Colleen A. Mountcastle, 216.241.5310, for Cheap Escape Co. Inc. d.b.a. JB Dollar Stretcher.

James R. Douglass, 216.991.7640, for Haddox LLC & Jeffrey L. Tessman.

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May Patient Sue Hospital For Negligent Credentialing Without First Establishing Doctor’s Negligence?

Loretta Schelling v. Stephen Humphrey, M.D. [Community Hospitals of Williams County], Case no. 2007-2202
6th District Court of Appeals (Williams County)

ISSUE: Can a patient assert a justiciable claim against a hospital for negligent credentialing of a physician without first obtaining a direct finding, either by adjudication, admission or stipulation, that the physician acted negligently in providing medical care to the patient?

BACKGROUND: Loretta Schelling of Bryan filed a civil suit in 2005 asserting claims against Dr. Stephen Humphrey for alleged negligence in performing two surgeries on her feet and against Community Hospitals of Williams County for alleged negligence in credentialing Dr. Humphrey to perform surgeries as a non-employee staff physician.

The claims against Dr. Humphreys and Community Hospitals were subsequently severed by the trial court for separate adjudication. While both cases remained pending, Humphreys declared bankruptcy. Schelling entered into an agreement with the bankruptcy trustee in which she accepted a reduced financial settlement in exchange for dismissing her claims against Humphreys. The settlement agreement did not include a judicial finding of negligence or an admission by Humphreys that he had acted negligently in treating Schelling.

Schelling then attempted to proceed with her claims against Community Hospitals. The hospital’s attorneys moved to dismiss her negligent credentialing claim under Civil Rule 12(b)(6), arguing that since Dr. Humphreys had been released from liability for Schelling’s claimed injuries without any finding or admission that he acted negligently, Schelling could not prove her credentialing claim against the hospital. The trial court agreed that prior proof or admission of a physician’s negligence was a necessary element of a negligent credentialing claim against a hospital, and granted the motion to dismiss. On review, however, the 5th District Court of Appeals reversed the trial court and reinstated Schelling’s case for further proceedings.

Attorneys for the hospital now urge the Supreme Court to reverse the ruling of the 5th District.  They argue that the court of appeals misread and misapplied a 1993 decision of this Court, Browning v. Burt, which held that the statute of limitations applicable to medical malpractice claims was not applicable to claims against hospitals for the separate tort of negligent credentialing of a physician. They cite the Court’s 1990 holding in Albain v. Flower Hospital, which they say established a clear requirement that a patient’s claim against a hospital for negligent credentialing of a non-employee staff physician may be maintained only if and when there has been a prior court finding or admission that the doctor acted negligently.

Attorneys for Schelling respond by asserting that this Court’s decisions in Albain and Browning did not recognize a requirement that there must be a prior finding of negligence by a doctor before a patient may seek damages from a hospital for negligent credentialing. They argue instead that those decisions established that negligent credentialing is a separate and independent cause of action that may be brought by a patient directly against a hospital, and is not a derivative claim that depends on a prior showing of actual malpractice by a physician.

They point out that the factual basis for Schelling’s claim against the hospital in this case Does not arise from the actual conduct of her surgeries, but rather from the fact that hospital officials had been made aware of non-medical criminal conduct and suspected psychological instability on the part of Dr. Humphreys as early as 2001, yet allowed him to continue practicing at the hospital up to and beyond the date of Schelling’s two surgeries in 2003. They argue that Schelling is entitled to damages from the hospital, regardless of the outcome of her negligence claim against Humphreys, if she can prove that  the doctor would not have been in a position to perform her surgeries if the hospital had not negligently failed to withdraw his privileges after learning of his unfitness.

Contacts
Jeanne M. Mullin, 419.609.1311, for Community Hospitals of Williams County.

Chad M. Tuschman, 419.241.7700, for Loretta Schelling.

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Court Asked To Order Disclosure of Medical Records of Minors Who Obtained Abortions

John and June Roe, Individually and as parents and next friends of Jane Roe, a minor v. Planned Parenthood Southwest Ohio Region, Roslyn Kade, M.D., and John Does 1-6, Case no. 2007-1832
1st District Court of Appeals (Hamilton County)

ISSUE: In pursuing a civil lawsuit against a clinic for allegedly failing to obtain parental consent before performing an abortion on a 14-year-old girl and allegedly failing to report known or suspected sexual abuse of a minor to police or a children’s services agency, are the parents of the girl entitled to compel the clinic to provide them with the medical records of all minors who obtained abortions through the clinic during the previous 10 years, with information identifying the patients redacted?

BACKGROUND: This case involves Jane Roe of Cincinnati, a 14 year old who obtained an abortion from Planned Parenthood of Southwest Ohio in March 2004. In subsequent legal filings, Planned Parenthood has stated that Jane told its medical staff she had been impregnated by a school classmate and that her parents knew and approved of her plan to obtain an abortion. The clinic also stated that when its representative called the phone number provided by Jane, an adult male who identified himself as Jane’s father answered and confirmed that he knew about and consented to the procedure.

Within weeks after the procedure was performed, a police investigation revealed that Jane had been sexually abused and impregnated by her 21-year-old soccer coach, John Haller; that the phone number provided to Planned Parenthood by Jane had been Haller’s number rather than that of her parents; and that the man the clinic had notified and from whom it had obtained consent for the abortion was Haller, not Jane’s father. Haller was later convicted on seven counts of sexual battery. 

Jane’s parents subsequently filed a civil suit on their own behalf and on behalf of Jane seeking compensatory and punitive damages from Planned Parenthood and the physician who performed the abortion. The suit alleged that Planned Parenthood and the doctor intentionally breached their legal duties to: (1) notify Jane’s parents and obtain their consent before performing the abortion; (2) provide Jane with all the information required by law before obtaining her consent to the procedure; and (3) notify police or a child services agency of a known or suspected case of sexual abuse of a minor. In seeking punitive damages from the clinic and doctor, the Roes alleged that the intentional breaches of legal duties in the clinic’s handling of Jane’s case were part of a “pattern or practice” of similar breaches in other cases.

During pretrial proceedings, the Roes filed a discovery motion demanding that Planned Parenthood provide them with copies of all medical records and sexual abuse reports in its files for every minor who had sought an abortion from the clinic in the preceding 10 years.  When the clinic refused to comply, the Roes sought and were granted an order of the Hamilton County Court of Common Pleas ordering the clinic to produce the requested records, with all information disclosing the identity of the other patients redacted (blacked out) from the records. Planned Parenthood appealed the trial court’s discovery order to the 1st District Court of Appeals, which reversed the trial court and invalidated the discovery order for the other patients’ records. 

The Roes now ask the Supreme Court to reinstate the trial court’s discovery order. They argue that:

Attorneys for Planned Parenthood respond that:

NOTE: Numerous amicus curiae (friend of the court) briefs have been filed on behalf of both parties in this case.  The full text of those briefs and other filings can be accessed online by searching the Court’s online docket at www.supremecourt.ohio.gov/Clerk/ecms/default.asp.  Click “Go,” and on the search screen enter Case No. 2007-1832.

Contacts
Brian E. Hurley, 513.784.1525, for John & June Roe and Jane Roe.

Daniel J. Buckley, 513.723.4000, for Planned Parenthood of Southwest Ohio.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.