NAILAH K. BYRD CUYAHOGA COUNTY CUERK OF COURTS 1200 Ontario Street Cleveland, Ohio Court of Common Pleas. MOTION FOR... March 6, :11

Transcription

1 Motion No NAILAH K. BYRD CUYAHOGA COUNTY CUERK OF COURTS 1200 Ontario Street Cleveland, Ohio Court of Common Pleas MOTION FOR... March 6, :11 By: WILLIAM A. MEADOWS Confirmation Nbr CATHERINE DUELLEY, ETC. CV vs. SEAMUS J. WALSH, D.O., ETAL Judge: NANCY R. MCDONNELL Pages Filed: 9

2 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CATHERINE DUELLEY, Executor of the Estate of John Macecevic aka Zvonimir Macecevic, Deceased, et al, -vs- Plaintiffs, SEAMUS J. WALSH, D.O., et al. Defendants. CASE NO. CV JUDGE NANCY R. MCDONNELL DEFENDANTS SEAMUS l. WALSH. D.O. AND MY FAMILY PRACTICE'S MOTION FOR LEAVE TO FILE REPLY IN SUPPORT TO THEIR MOTION IN LIM1NETO PRECLUDE MEDICAL LITERATURE NOT PRODUCED PRIOR TO TRIAL Defendants, Seamus J. Walsh, D.O. and My Family Practice, by and through counsel, hereby respectfully submit this Motion for Leave to File a Reply in Support to their Motion in Limine to Preclude Medical Literature Not Produced Prior to Trial. A Reply in Support is necessary to address and counter the arguments contained in Plaintiffs' Brief in Opposition. A copy of the Reply in Support of Defendants Motion in Limine to Preclude Medical Literature Not Produced Prior to Trial is attached hereto as Exhibit "A.

3 Respectfully submitted, /s/ William A. Meadows _ William A. Meadows ( ] REMINGERCO., L.P.A. 101 West Prospect Avenue, Suite 1400 Cleveland, Ohio (216] (216] facsimile wmeadows@reminger.com Attorney for Defendants CERTIFICATE OF SERVICE A copy of the foregoing was filed electronically with this Court on this 6th day of March, Notice of this filing will be sent to all parties/counsel of record by operation of the Court's electronic filing system. /s/ William A. Meadows William A. Meadows ( ]

4 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CATHERINE DUELLEY, Executor of the Estate of John Macecevic aka Zvonimir Macecevic, Deceased, et al. Plaintiffs, -vs- SEAMUS J. WALSH, D.O., et al. Defendants. CASE NO. CV JUDGE NANCY R. MCDONNELL DEFENDANTS SEAMUS I. WALSH. D.O. AND MY FAMILY PRACTICE'S REPLY IN SUPPORT TO THEIR MOTION IN LIMINE TO PRECLUDE MEDICAL LITERATURE NOT PRODUCED PRIOR TO TRIAL Defendants, Seamus J. Walsh, D.O. and My Family Practice, by and through counsel, hereby respectfully submit this Reply in Support to their Motion in Limine to Preclude Medical Literature Not Produced Prior to Trial. This issue is straightforward: Plaintiffs should not be permitted to introduce, reference, and/or comment on medical literature that was not produced prior to trial. Oddly, Plaintiffs state that they agree with Defendants on this issue, but then ask the Court to deny Defendants' Motion. For the following reasons, and for those reasons previously set forth, this Court should grant Defendants Motion in Limine. In support of their Brief, Plaintiffs rely on Evid.R. 803(18, which establishes a hearsay exception for learned treatises. Specifically, Plaintiffs argue that they should be allowed to cross-examine Defendants experts with previously undisclosed literature, in the event Defendants experts identify such medical literature as reliable. Indeed, "In Ohio,

5 medical literature may be used for impeachment purposes if the expert witnesses to be impeached relied upon the literature. Nakoffv. Fairview Gen. Hosp., 75 Ohio St.3d 254, 258 (1996. If an appropriate situation arises for Plaintiffs to cross-examine Defendants' experts on medical literature brought up by Defendants' experts, then Plaintiffs should be afforded the opportunity to use such literature in cross-examination pursuant to Evid.R. 803(18. That simply does not change the fact that Plaintiffs should be precluded from introducing or utilizing medical literature not previously disclosed in their expert reports, depositions, or discovery responses. Finally, Plaintiffs claim that both Dr. Nock and Dr. Fanney "disclosed learned treatises that they have relied upon and considered to be reliable during the course of their depositions." (Plaintiffs' Brief in Opposition, p. 1. Indeed, Dr. Nock did identify certain medical literature in his deposition and the parties should be permitted to use such literature at trial. Dr. Fanney, however, did not identify or discuss in his deposition any medical literature that he relied upon in forming his opinions. (See Deposition of Dr. Fanney, relevant portions attached hereto as Exhibit "A. Specifically, Dr. Fanney testified as follows: Q: Did you review any literature in preparation for your opinions that you are setting forth in this case? A: No. I just looked at the ACR guidelines. (Emphasis added. (Ex. A, 23: Further/when asked whether he was familiar with any literature identifying how common nodules are in males in their seventies, Dr. Fanney provided a response, but did not identify any medical literature and actually stated that he "can t quote the literature right now." (See Ex. A, at p. 27: As such, Dr. Fanny should 2

6 not be permitted to testify on any medical literature as he admitted that he did not rely on any medical literature in forming his opinions in this case. For all the foregoing reasons, Defendants, Seamus J. Walsh, D.O. and My Family Practice, respectfully request that the Court grant their Motion and preclude Plaintiffs from introducing evidence, eliciting testimony, and/or making any argument regarding medical literature that was not produced prior to trial. Respectfully submitted, /s/ William A. Meadows _ William A. Meadows ( REMINGERCO., L.P.A. 101 West Prospect Avenue, Suite 1400 Cleveland, Ohio ( ( facsimile wmeadows@reminger.com Attorney for Defendants

7 CERTIFICATE OF SERVICE A copy of the foregoing was filed electronically with this Court on this 6th day of March, Notice of this filing will be sent to all parties/counsel of record by operation of the Court s electronic filing system. /s / William A. Meadows William A. Meadows ( ]

8 1 1 2 OHIO: IN THE COURT OF COMMON PLEAS, CUYAHOGA COUNTY r ~ - * JOHN MACECEVIC, et al., Plaintiffs, CASE NO. v. CV SEAMUS J. WALSH, D.O., et al., Defendants. CEHiniFUED COPY DEPOSITION UPON ORAL EXAMINATION ' OF DARYL FANNEY, M.D. TAKEN ON BEHALF OF THE DEFENDANTS Norfolk, Virginia- May 8, TAYLOE ASSOCIATES, INC. Registered Professional Reporters Telephone: ( Norfolk, Virginia Filed 03/06/2017 "lb:ri / MOTION /. CV / Cuiirii.iiidtian Nbr / DATCI ', TAYLOE ASSOCIATES, INC.

9 preparation for your services in this case, fair? A. I believe so. Q. You don't specifically recall reviewing Dr. Ahmed's deposition as you sit here today? A. No. Q. Given that Dr. Walsh's deposition you mentioned having reviewed and it's in your file, is there anything that you picked up from Dr. Walsh's testimony that causes you to change any of your opinions in this case? A. No. Q. And as you sit here today, this is your report; there are no supplemental reports? You stand behind the content of the report? A. Yes.. Q. Given your review of other expert reports, including Dr. Smith, our defense radiology expert, does any of that information cause you to change any of your opinions? A. No. Q. Did you review any literature in preparation for your opinions that you are setting forth in this case? A. No. I just looked at the ACR guidelines. Q. I don't believe -- strike that. Before 03/06/201/ 16:11 / MUIIO'N / CV / Confiliiialiun Nbi / BATCH TAYLOE ASSOCIATES, INC.

10 only the clinical history provided to the interpreting radiologist. Q. What is your understanding of the clinical history from the interpreting radiologist? A. Provided clinical history was chest pain, past medical history of hyperlipidemia. Q. Would he have known anything else, like, for example, the patient's age? A. It's usually provided, yes. Q. Are you familiar with any literature identifying how common nodules are in gentlemen or individuals in their seventies? A, Well, again, now we are talking in generalities and not specific about this case. If we're going to talk about pulmonary nodules, that's completely different than this spiculated cavitary lesion that we are talking about. But, yeah, nodules such as small inflammatory nodules such as granulomas are quite common. Q. What percent of the adult population would be found having a soft tissue density nodule? A. I can't give you -- I can't quote the literature right now. Q. In individuals that are in their seventies, would you agree that it would be frequent /06/ :11 / MOIION / CV b! / Confirmation Nbr / BATCH TAYLOE ASSOCIATES, INC.