tn THE SUPREME COURT OF OHIO SANDRA BANFIELD CASE NO.: 06-2069 vs. Appellees, ON APPEAL FROM THE SEVENTH DISTRICT COURT OF APPEALS CASE JAMES DAVID BRODELL, MD, et al. Appellants COURT OF APPEALS CASE NO.: 05 MA 008 APPELLEES MEMORANDUM IN OPPOSITION TO APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION Patrick C. Fire (0040431) 721 Boardman-Poland Road Boardman, Ohio 44512 Phone: (330) 726-5518 Fax: (330) 726-7538 Attorney for Plaintiff-Appellee, Sandra Banfield Stacy A. Ragon (0066923) Michael J. Fuchs (0076451) 222 S. Main Street Akron, Ohio 44308 Phone: (330) 376-2700 Fax: (330) 376-4577 Attorney for Defendant-Appellant, James Brodell, MD Joseph W. Gardner (0033400) 4280 Boardman-Canfield Road Canfield, Ohio 44406 Phone: (330) 533-1118 Fax: (330) 533-1025 Attorney for Plaintiff-Appellee, Sandra Banfield [ J I I_'_, ^'m'c!i.; ; [vit=wgel, CLERK :au1-i:,k i`;lte 6tIURT OF OHIO
TABLE OF CONTENTS Paee EXPLANATION OF WHY THIS CASE IS NOT A MATTER OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 ARGUMENT IN SUPPORT OF APPELLEE'S POSITION REGARDING EACH PROPOSITION OF LAW RAISED BY APPELLANT... 5 Proposition of Law No. 1: A diligent search of the law, orally verifying that a case is meritorious before commencing it, and not being willfully, ignorant of the law consfitutes excusable neglect... 5 CONCLUSION............................................................................ 7 CERTIFICATE OF SERVICE... 8
I. Explanation of why this case is not a matter of public or great general interest and does not involve a substantial Constitutional question. This case is important to individual litigants, because the Appellee, Sandra Banfield, has a meritorious medical malpractice claim against the Appellant, James Brodell, MD. However, this case is not one of public or great general interest for two reasons. One, the Supreme Court is not needed to reaffirm the language of Civ. R. 10(D)(2) because it would be an exercise in futility. Currently, Civ. R. 10 (D)(2) is being completely rewritten and the revisions cover the issue at bar. Moreover, even if the current version of Rule 10 was to remain in effect without changes, Appellee is still able to get her day in court through ORC 2305.19. In essence, this case in terms of Rule 10 has no precendential value and is a complete waste of judicial resources. Secondly, the Supreme Court is simply not needed to clarify the limits of Civ. R. 60(B) because it has been consistently described as a liberal remedial tool best left to the trial court to use depending on the facts presented. The current or 2006 version of Civ. R. l0(d) states that an Affidavit of Merit is needed for filing a medical malpractice claim. The purpose of the "Affidavit of Merit" is contained in the body of Rule 10(D) and in the body of the staff notes to the rule. Noticeable absent from 1liese sections is language about limiting the trial court's discretion either under Rule 10(D)(2) or through 60(B). Rather, the purpose of the "Affidavit of Merit" is "solely" to establish the sufficiency of the Complaint: "An Affidavit of Merit" is required solely to establish the adequacy of the Complaint..." Ohio R. Civ. Pro., R l0(d)(2)(c). "An Affidavit of Merit in intended to establish the sufficiency of the coniplaint filed in a medical liability action..." Ohio R. Civ. Pro. R. 10 staff notes; 7-1-05 Amendment. 1
The case at bar is a meritorious case. Appellant Brodell injured the Appellee by negligently performing a total knee replacement which took three other surgeries to correct. Apellee's Counsel engaged the engaged the services of a board certified orthopedic surgeon who verbally advised approximately three weeks before the running of the statute of limitations that Appellee had a meritorious claim against Appellants. Appellee filed her claim will within the statute of limitations, but failed to attach an "Affidavit of Merit." Within approximately two weeks of receiving the answers and motions to dismiss from the Appellant, Appellee's lawyer again met with the board certified orthopedic surgeon and the surgeon executed an Affidavit of Merit. Simply stated, Appellee complied with the underlying puipose of the civil rule. The irial court gave each side time to brief the matter and submit arguments. The court dismissed the claim for failure to timely file an Affidavit of Merit. The dismissal was not with prejudice_ Appellee filed a timely 60(B) motion. Again the trial court gave the parties time to submit evidence and briefs and held an oral hearing. After the hearing the trial court held that there is a preference in the law to decide cases on their merits rather than procedural defects. The error is attaching the Affidavit of Merit to the original complaint was due to excusable neglect under all the circumstances of this case. The trial court granted relief from the dismissal, reinstated the claim and permitted the filing of the Affidavit of Merit. Defendant-Appellant Brodell appealed the reinstatement of the case; Defendant Forum Health did not. Appellant Brodell desires that this case be decided on a procedural defect and not on the merits. This position is diametrically opposed to the stated purpose of the current Civ. R. 10. In addition, even if Rule 10 was intended to quash meritorious suits with correctable procedural defects rather than frivolous medical malpractice claims, the Courthouse doors are not closed to the Appellee. The Ohio Revised Code provides another remedial measure to cure 2
procedural defects in meritorious claims. ORC 2305.19 states that "[I]n any action that is commenced or attempted to be commenced...or if Plaintiff fails otherwise than on the merits, the Plaintiff...may commence a new action within one year." Simply stated, litigation over this aspect of Rule 10 is unnecessary because there is another avenue for Appellee. Litigation redefining the terxns of Civil Rule 10(D)(2) is not a matter of great public or statewide importance because this court is in the process of amending the rule. This case is important between the litigants, but not for the judiciary or state bar. There would be precedential value only for the litigants. The proposed Rule 10 which would go into effect July 2007 contains extensive revisions from the current version. For example, Rule 10(D)(2)(b) allows a Plaintiff to file for a time extension in order to file the Affidavit of Merit later than the complaint. Most importantly, 10(D)(2)(d) specifically states that the Affidavit of Merit "is required solely to establish the adequacy of the complaint and shall not otherwise be admissible as evidence or used for purpose of impeachment. Any dismissal for failure to comply shall operate as a failure otherwise than on the merits." The sheer fact that these revisions have been announced within one year of the rule's initial enactment proves that the language of the current Rule 10 is not as plain as Appellants contend. More importantly, these revisions deal with the issue at bar directly and make tlil.s case moot. Finally, the Supreme Court is not needed to further define the limits of Civ. R. 60(B). The appropriate guidelines are in place for the trial and appellate courts to properly invoke and review this remedial measure. Excusable neglect has been defined broadly so that trial courts may make rulings based on the facts presented. Excusable neglect has consistently been described as:
[A]n elusive concept which has difficult to define and apply. Nevertheless, we have previously defined excusable neglect in the negative and have stated that the inaction of a defendant is not excusable neglect if it can be labeled as a complete disregard for the judicial system. Kay v. Marc Glassman, Inc. (1996), 76 Ohio St. 3d 18, 20 However, this broad definition is not carte blanche for trial courts. Excusable neglect is bound by the strong underlying purpose of Civ. R. 60(B). After all, "the concept of excusable neglect must be construed in keeping with the proposition that Civ. R. 60(B)(1) is a remedial rule to be liberally construed, while bearing in mind that Civ. Rule 60(B) constitutes an attempt to strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done." Colley v. Bassell, (1980) 64 Ohio St. 2d 243, 248. In other words, Rule 60(B) should be used to keep the Courthouse doors open when justice warrants it and the best place to make these decisions is in the trial court. These rulings must only be reviewed and overruled when a clear abuse of discretion has occurred. Appellants list cases in which they claim that our trial and appellate courts have "stretched" Rule 60(B) and the concept of excusable neglect "beyond reasonable bounds." See Appellant Brief p. 1. Perliaps the Appellants are wrong in their analysis and our trial and appellate courts have struck a fair balance between ending litigation and justice. A handfnl of cases where on the surface justice may not have outweighed ending litigation to outside eyes is not a reason to redefine Civ. R. 60(B). After all, 60(B) gives discretion to a trial judge to decide the case on the facts presented, and the purpose of Rule 10 has never been to eliminate this discretion.
ri. Answer to Proposition of Law No. 1 The trial court's ruling that a diligent search of the law and orally verifying that a case is meritorious before commencing constitutes excusable neglect must be affirmed because there was no abuse of discretion. The situation at bar is the type of procedural error that Ohio Civil Rule 60(B) is designed to correct. Appellee's counsel missed a change law after conscientiously consulting the accepted legal resources. The trial court carefully reviewed the situation using the long-standing three-part GTE standard and found in favor of Appellees. At this point, the ruling must stand because the trial court did not abuse its discretion. Ohio R. Civ. P. 60(B) allows a court to grant relief from judgment for mistake, surprise, inadvertence, or excusable neglect. Moreover, 60(B) is a "remedial rule to be liberally construed so that the ends of justice may be served." Kay v. Marc Glassman Inc., 76 Ohio St. 3d 18, 20 (1996). Appellants were quick to point out that Civ. R. 60(B) is an attempt to strike the proper balance between conflicting principles that litigation must be brought to an end and justice should be done. See Appellant Brief p. 12. However, in stating this description of 60(B), Appellants failed to enclose the first part of the quote which is just as important to the true meaning of Rule 60(B) as the second. The full quote is "the concept of excusable neglect must be construed in keeping with the proposition that Civ. R. 60(B)(1) is a remedial rule to be liberally construed, while bearing in mind that Civ. Rule 60(B) constitutes an attempt to strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done." Colley v. Bassell, 64 Ohio St. 2d 243, 248 (1980). Appellant states that excusable neglect is an illusive concept. See Appellant Brief p. 12. Appellant lists examples of what excusable neglect is not. Defendant Appellant's list is a list of negatives. In Defendant Appellant's list of negatives there exists a theme of "inaction that 5
evidences a complete disregard for the legal system." (Id; Emphasis added.) Inaction shows disrespect for the system. Appellee's counsel diligently researched the law by researching the Ohio Revised Code, Ohio Jurisprudence, and the Ohio Rules. After the most recent volumes of the books were researched, a Lexis search was done checking for links for the old Affidavit of Merit. A certified research assistant was hired to perform a Lexis search for any new versions of the old Affidavit of Merit. The new Affidavit of merit was not found. Appellee's counsel did not demonstrate inaction. Diligent research shows respect for the legal system, not a disregard for it. Noticeably absent from Appellant's list is a list of what constitutes excusable neglect. Appellant does categorize "unusual or special circumstances" as excusable neglect. (Id.) A new change in law, not listed in the latest books customarily used by practicing attorneys and not reflected in a nationally recognized electronic library coupled with diligent research constitutes surprise under Rule 60(B). Appellee's counsel verified with an expert witness that that there was a valid claim before the complaint was filed. After being notified of the requirement, Appellee's counsel produced the Affidavit of Merit within a very short period of time and presented it to the court and counsel. Appellant suffered no prejudice. These are "unusual and special circumstances" that constitute excusable neglect under Rule 60(B). In the case at bar, the trial court painstakingly and methodically applied Civ. R. 60(B) in its entirety. The trial court listened to Appellee's diligent efforts to research the changing law. At no time during these proceedings were Appellee's efforts questioned or challenged. Then, the trial court struggled with balancing the end of litigation and serving justice in reaching its decision. This was evidenced by the statement "I'm not the kind of guy who likes to have my name on something that says the rule doesn't matter but I'm also somebody that doesn't want my 6
name on something that says this lady gets cut out." (T. p. 12). Therefore, the trial court ruled that "this person should not be foreclosed her day in court." (T., p. 13-14). In reaching this decision, the trial court pointed out that the legislature changes the law every day and rnistakes are made in the revision process. The trial court further stated that the mistake of the Appellee was due to the change in law and "I'm sure that's sornething that could happen to all of us." (Id.) In essence, the trial court thoughtfully determined that Plaintiff-Appellee's diligent actions to research the law constituted mistake, inadvertence, surprise, or excusable neglect and granted Appellee relief. This conscientious decision of the trial court is a far cry from unreasonable, arbitrary, or unconscionable that is required for abuse of discretion. Steiner v. Custer, 137 Ohio St. 448 (1940); Chester Township v. Geauga Co. Budget Comm. 48 Ohio St. 2d. 372 (1976); Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). Therefore, the Ohio Supreme Court should not substitute its judgment for that of the trial court save for exceptional circumstances. The case at bar is simply not one of those ciremnstances. CONCLUSION This Court should decline jurisdiction and the decision of the Seventh District Court of Appeals should stand. ^^ ^ e.- 4f,,, PATRICK C. FIRE, #0040431 721 Boardman-Poland Road Boardman, OH 44512 Phone: (330) 726-5518 Fax: (330) 726-7538 Attomey for Plaintiff-Appellee SEP^I W. GAR.DNE^, # 0033400 280 Boardman-Canfield Road Canfield, OH 44406 Phone: (330) 533-1118 Fax: (330) 533-1025 Attorney for Plaintiff-Appellee 7
CERTIFICATION A copy of the following has been sent via ordinary mail to the following: Stacy A. Ragon and Michael J. Fuchs, Attorneys for James Brodell, MD, 222 South Main Street, Akron, Ohio 44308 on this S+-1 day of December 2006. ttomey for Plaintiff-Appellee 8