CASE NO IN THE SUPREME COURT OF OHIO ON APPEAL FROM THE PREBLE COUNTY COURT OF APPEALS TWELFTH APPELLATE DISTRICT, CASE NO.

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1 CASE NO IN THE SUPREME COURT OF OHIO ON APPEAL FROM THE PREBLE COUNTY COURT OF APPEALS TWELFTH APPELLATE DISTRICT, CASE NO. CA SALLY CORRINGTON, Administratrix of the Estate of POLLY BAIR, deceased Appellee, Vs. HEALTHCARE AND RETIREMENT CORP. OF AMERICA Appellant. MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLEE, SALLY CORRINGTON, ADMINISTRATRIX OF THE ESTATE OF POLLY BAIR, DECEASED David M. Deutsch ( ) Green & Green 800 Performance Place 109 North Main Street Dayton, Ohio Tel: (937) Fax: (937) Counsel of Record for Appellee, Sally Corrington, Administratrix of the Estate of Polly Bair, deceased Christopher S. Humphrey ( ) G. Brenda Coey ( ) Buckingham, Doolittle & Burroughs, LLP 4518 Fulton Drive NW P.O. Box Canton, Ohio Tel: (330) Fax: (330) Attorney for Appellant, Healthcare and Retirement Corp. of America William P. Allen ( ) Casper & Casper I North Main Street, Fifth Floor P.O. Box 510 Middletown, Ohio Tel: (513) Fax: (513) Attorney for Appellee, Sally Corrington, Administratix of the Estate of Polly Bair, deceased

2 TABLE OF CONTENTS Page Statement of why this case is not of public or great general interest...3 Appellee's response to Appellant's sole proposition of law...4 Conclusion...5 Proof of Service...6 2

3 STATEMENT OF WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST Appellant's brief is misleading in its characterization of the nature of the document in question, and the actual orders of the Courts below. The document itself is a letter from the nursing facilities administrator, sent after the Ohio Department of Health (ODH) had concluded its investigation and afier ODH had issued its statement of deficiencies. The administrator was apparently appealing to the ODH for a different result. The Trial Court did not order "that Healthcare and Retirement Corp. of America (HRC), a nursing home, turu over the ODH surveys" as Appellant asserts. As noted by the Twelfth District Court of Appeals, the ODH surveys are public records. The Trial Court instead ordered that witnesses may be questioned regarding the administrator's letter, not the ODH survey documents. Accordingly, the orders of the Courts below will neither have any negative affect on ODH investigations, nor impact nursing home participation in the investigations themselves. 3

4 APPELLEE'S RESPONSE TO APPELLANT'S SOLE PROPOSITION OF LAW Appellant's Proposition of Law: When a party appeals a discovery order on grounds that it compels discovery of information expressly made privileged by statute, the order constitutes the grant or denial of a`provisional remedy' involving `the discovery of privileged matter' under R.C Said proposition is without basis in fact and in law. As noted infra, the Ti-ial Court's order did not involve any ODH survey documents. Indeed, it was a document bates stamped by the Appellant's counsel and provided during discovery. By the time the HCR administrator wrote the letter in question, the ODH had concluded the survey and issued its results. Since the document in question, was a public record, it enjoyed no privilege. Consequently, the Trial Court, as the Court of Appeals noted, did not render a decision that met the requirements of R.C It does not affect a substantial right that, in effect, determines the action and prevents ajudgment R.C (b)(1) and, it is not a "provisional remedy," since the document is not privileged. The cases cited by Appellant Jaclcson v. Gregor, 110 Ohio St.3d 488, 2006-Ohio and State vs. Smorgala, 50 Ohio St.3d 222, deal with testimonial privilege, namely physician/patient and attorney/client privileges, and are totally irrelevant to the case at bar. As admitted by Appellant the two statutes relied upon, RC (e)( l) and RC , do not address privilege, testimonial or otherwise. The statutes instead govern the admissibilitv of the documents. The Trial Court has not yet ruled what portions, if 4

5 any, of the administrator's letter will be admitted at trial. Thus HCR's appeal is not yet ripe. Indeed, the letter itself references evidence gathered by the administrator independent of the ODH survey. Said evidence, falling outside the scope of the ODH survey would be admissible. Simply stated HCR's appeal is premature. CONCLUSION The order appealed from is not a final appealable order. The document itself does not fall within the purview of the admissibility statute. And, the issue presented is not of public or great general interest. Accordingly, HCR's appeal should be dismissed. DAVID M. D CH^ 6i#39-7j GRBEN & GREEN, Lawyers 800 Performance Place 109 North Main Street Dayton, Ohio Tel. (937) Fax (937) drndeutsch((.';f;reen-law.com Counsel of Record for Appellee, Sally Corrington, Adniinistratix oftbe Epta^of ly Bair, deceased William P. Allen ( ) Casper & Casper One N. Main St., Fifth Floor P.O. Box 510 Middletown, Ohio Tel. (513) Fax (513) Attotney for Appellee, Sally Corrington, Administratix of the Estate of Polly Bair, deceased 5

6 CERTIFICATE OF SERVICE This is to certify that a true copy of the foregoing was served by regular U.S. mail this,^,^ day of^ 20=' }'upon the following: G. Brenda Coey, Esq. Buckingham, Doolittle & Burroughs, LLP 4518 Fulton Drive NW P.O. Box Canton, Ohio