Court of Common Pleas

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1 NAILAH K. BYRD CUYAHOGA COUNTY CUERK OF COURTS 1200 Ontario Street Cleveland, Ohio Court of Common Pleas REPUY BRIEF March 9, :22 By: KAREN L. BURKE Confirmation Nbr ROBERT A. KLEINES, ET AL CV vs. JOSEPH T. GADUS, ET AL Judge: DICK AMBROSE Pages Filed: 5

2 KLB/klb February 27, IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ROBERT A. KLEINES, et al. Plaintiffs, CASE NO. CV JUDGE DICK AMBROSE vs. DEFENDANT S BRIEF IN OPPOSITION INSTANTER TO PLAINTIFF S MOTION IN JAMES EDER, ADMINISTRATOR O F THE LIMINE ESTATE OF JOSEPH T. GADUS, JR. Defendants. Now comes the Defendant, James Eder, Administrator of the Estate of Joseph Gadus (hereinafter, Defendant ), by and through his attorney, Karen L. Burke, and hereby submits his Brief in Opposition Instanter to Plaintiff s Motion in Limine to Exclude Evidence of Worker s Compensation. Plaintiff argues that evidence of the Worker s Compensation claim filed by the Plaintiff is irrelevant and must be excluded, but cites no evidence in support of such a broad exclusion, or its potential for prejudicial effect. As admitted in Plaintiffs motion, this case is rife with evidence of worker s compensation benefits received by the Plaintiff for treatment within the first 18 months following the subject motor vehicle accident. There is simply no practicable way to hide this evidence, particularly when Defendant will rely upon the testimony of Douglas Gula, D.O., as to causation and damages. And contrary to Plaintiff s argument, Dr. Gula was NOT hired by the BWC, but rather was retained by Plaintiff s employer, Hertz Rental, to conduct an independent

3 medical examination pursuant to Plaintiff s motion to add allowances (medical conditions) into his BWC claim for herniated lumbar disc and a degenerative spinal condition. The Ohio Industrial Commission, not the Ohio Bureau of Worker s Compensation, relied upon Dr. Gula s opinion in denying the Plaintiff s administrative motion for additional allowances, an issue which then ended up in Lake County Common Pleas Court on a judicial appeal pursuant to R.C That claim settled for $18, Plaintiff was treated by orthopedic specialist Douglas Ehrler, M.D. at the Crystal Clinic in December 2011, from a referral through his primary care physician Dr. Spoljaric, for complaints of low back pain following a motor vehicle accident on June 3, Since Plaintiff was in the course and scope of his employment when the accident occurred, he received worker s compensation benefits. All treatment providers seen by Plaintiff within the first 18 month after the accident were paid through Plaintiffs BWC medical benefits, including Summa Fairlawn Urgent Care, Aeris Teleradiology, Dr. Spoljaric, Wadsworth Rittman Hospital, Wadsworth Imaging and Crystal Clinic Center. On July 20, 2015, Plaintiff re-filed the instant personal injury case against now-deceased Joseph Gadus. Plaintiff, in his deposition, admitted to filing the BWC claim and seeking benefits through the BWC. Dr. Erhler s deposition testimony contains multiple references to the Plaintiffs BWC claim. Dr. Gula s trial testimony will make references to the Plaintiff s Worker s Compensation claim. And Plaintiff s medical treatment, and records, are permeated with evidence of the BWC involvement. Therefore, the Court is faced with a vexing logistical problem in eliminating any reference to the Ohio BWC, given that the medical records and Trial Exhibits will have indicia of Ohio BWC. Attempting to eradicate all evidence of the BWC claim is not only unsupported by law, it invites error, due to the magnitude of the claim activity. 2

4 As for Plaintiff s collateral source argument for excluding any reference to the Ohio BWC statutory lien, Robinson v. Bates1 clearly permits the introduction of evidence of any amount payable as a benefit to the plaintiff. Plaintiff is thus free to introduce the billed medical specials, and Robinson allows for introduction of evidence of write-offs. In Jacques v. Manton, 125 Ohio St.3d 342, 2010-Ohio-1838, 928 N.E.2d 434, the Ohio Supreme Court held that statutory collateral benefits rule which precluded evidence of third party payments to plaintiff if the payor had the right of subrogation did not apply to evidence of the amount that motorist s medical provider wrote off from the bill. Id. In so ruling, the Ohio Supreme Court reasoned that R.C does not indicate a legislative intent to bar evidence of write-offs, or what the insurer agreed to accept which was less than the amount originally billed for the service. Id. The balance between the effect of R.C and Robinson v. Bates is that neither the plaintiff nor the defendant in a personal injury case can enjoy a one-sided windfall, or escape the burden of tortious conduct. Moreover, Plaintiff is mistaken in stating that Jacques v. Manton does not allow evidence of the source of the write-offs. Nowhere in that decision is there a stated prohibition on the evidence of write-offs. The Court instead points to requirement to apply the language of the statute, noting that the admissibility of the evidence of write-offs is determined under the Rules of Evidence. Id. Ultimately it is a jury question as to what the reasonable value of Plaintiff s medical bills. Id. Plaintiff is correct in assuming that Defendant will seek to introduce, inter alia, evidence of the Ohio BWC subrogation lien; however, Defendant also intends to introduce Plaintiff s statutory obligation to repay that lien, thus removing any potential prejudice that Plaintiff will not be made whole by the jury. See, Ross v. Napier, 185 Ohio App.3d 548 (Geauga County Ct.App 2009). The Court of Appeals in Napier pointed to the repayment obligation as an offset to any prejudicial effect of the collateral source evidence Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d

5 It is Defendant s position that Plaintiff seeks to exclude evidence of the Worker s compensation claim for reasons outside of the subrogation lien or the reasonable value of the medical bills at issue. However, based upon Ohio law and the combined effect of the Robinson v. Bates decision and R.C , the exclusion of evidence of Worker s Compensation would broadly violate Defendant s right to present evidence of reasonable value of Plaintiff s medical treatment, as well as impair the introduction of medical evidence not concerned with the subrogation lien, which is inextricably linked to the documentary and testimonial evidence in this case. For the foregoing reasons, Defendant respectfully submits that Plaintiffs motion is unfounded, over-reaching, and should be denied. Attorney for Defendant By: /s/ Karen L. Burke _ Karen L. Burke ( ) 6060 Rockside Woods Blvd., Suite 131 Independence, Ohio Phone: (216) Fax: (216) karen.burke@libertymutual.com 4

6 CERTIFICATE OF SERVICE A copy of the foregoing was served this 9th day of March, 2017, through the Court s Electronic Filing Service as applicable and/or by ordinary U.S. mail, upon: MICHAEL W. CZACK The Czack Law Firm, LLC The Gray's Block 1360 West 9th Street, Suite 300 Cleveland, OH Attorney for Plaintiffs EDWARD T. SAADI Edward T. Saadi, LLC 970 Windham Court, Suite 7 Boardman, OH A ttom ey for New Party Plain tiff Ohio Bureau of Workers' Compensation /s/ Karen L. Burke Karen L. Burke ( ) Attorney for Defendant 5