IN THE SUPREME COURT OF OHIO NANCY KOVACIC ) Supreme Court Case No. 07-0295 vs. Appellant, On Appeal from the Lake County Court of Appeals, Eleventh Appellate District CITY OF EASTLAKE, et al. Court of Appeals Case No. 2005-L-205 Appellees. APPELLEES' BRIEF IN OPPOSITION TO MOTION FOR JURISDICTION Richard K. Jacob (0008991) (COUNSEL OF RECORD) 29518 Euclid Avenue Wickliffe, Ohio 44092 Phone: 216-280-5994 Fax: 440-833-0807 COUNSEL FOR APPELLANT Vincent A. Feudo (0019733) (COUNSEL OF RECORD) John D. Sayre (0015191) Nicola, Gudbranson & Cooper, LLC 1400 Republic Building 25 Prospect Avenue West Cleveland, Ohio 44115 Phone: 216-621-7227 Fax: 216-621-3999 COUNSEL FOR APPELLEES MAR 12 zoor MARCIA J ME(yCE^, C^ SUPRE iz RK ME GOUNT qf qil.i f 0 68873v1
TABLE OF CONTENTS STATEMENT OF APPELLEES' POSITION... 1 STATEMENT OF THE CASE AND FACTS... 1 1. Statement of the Case.... 1 2. Statement of Facts... 2 LAW AND ARGUMENT... 5 The Appellate Court properly applied rules of analysis in upholding the trial court's judgment in favor of defendants... 5 CONCLUSION... 6 CERTIFICATE OF SERVICE... 7 i
TABLE OF AUTHORITIES Cases Donlin v. Rural Metro Ambulance, Inc. (Apri15, 2004) Trambull Cty. App. No. 2002-T- 0148 (2004 WL 720373)... 5 Harless v. Willis Day Warehousing Company, Inc. (1978), 54 Ohio St. 2d 64... 5 Murphy v. Carrollton Mfg. Co. (1991) 61 Ohio St.3d 585... 6 Riley v. Cincinnati (1976), 46 Ohio St.2d 287... 6 Whitfield V Dayton (2006), 167 Ohio App.3d 172,184... 6 Statutes O.R.C. 4765.49... 1 ii
STATEMENT OF APPELLEES' POSITION THIS CASE DOES NOT PRESENT A MATTER OF GREAT PUBLIC INTEREST The Eleventh District Court of Appeals upheld the Trial Court's determination that Plaintiff/Appellant Nancy Kovacic did not present sufficient evidence to create a genuine issue of material fact that Defendants/Appellees acted willfully and wantonly under O.R.C. 4765.49, or that Defendants/Appellees intentionally caused her severe emotional distress. The Appellate Court adhered to well-established principles of analysis in reaching its decision. Its decision is specific to the facts and circumstances presented, and does not involve an issue of general public importance. STATEMENT OF THE CASE AND FACTS 1. Statement of the Case. The motion for summary judgment filed on January 3, 2005 by the City of Eastlake, Mayor Dan DiLiberto, Police Chief John Ruth, Fire Chief Richard Sabo, Dispatcher Patricia Holdcomb, Officer William Lewis, and emergency medical technicians ("EMTs") Mark Walker, Michael Kaczur, and Todd Harvey (collectively "Defendants"), asserted that Nancy Kovacic ("Plaintiff') could not present evidence of Defendants' willful and wanton misconduct under 4765.49, or extreme and outrageous conduct causing emotional distress. In support of its motion, Defendants submitted Plaintiff's deposition testimony, the deposition testimony of Plaintiffs experts, the depositions of Lake West Hospital emergency room nurses, the affidavit testimony of the Lake West Hospital physician who wrote the protocols for Eastlake's emergency medical technicians, and the affidavits of Defendants. Plaintiff opposed Defendants' motion with
affidavits from Plaintiff and Plaintiffs experts. After Defendants had replied to Plaintiffs brief in opposition, Plaintiff filed additional affidavits from two of her friends, whom she proffered as fact witnesses regarding her emotional distress, plus a videotape deposition of one of her experts taken in anticipation of trial. The Trial Court considered all of the evidence presented and granted Defendants' Motion on November 21, 2005. Plaintiff timely appealed. Oral argument having been waived, the Court of Appeals decided the case on the parties' briefs on December 29, 2006. The Appellate Court unanimously upheld the Trial Court's dismissal of Plaintiffs claim of willful and wanton misconduct under R.C. 4765.49. In a two to one ruling on Plaintiff s emotional distress claim, the Court held that Plaintiff had failed to present evidence of a causal connection between Defendant's actions and Plaintiffs claimed emotional distress. Plaintiff filed a motion for reconsideration, which the Court of Appeals denied on February 20, 2007. 2. Statement of Facts The undisputed facts in this case are as follows: On Octoberl2, 2002, Plaintiff suffered a severe asthma attack and called Eastlake 9-1-1 at 10:44 p.m. Eastlake EMTs were dispatched at 10:46 p.m., and arrived at Plaintiff s home at 10:48 p.m. Plaintiff was severely oxygen deprived (hypoxic) and could barely breathe. The EMTs placed an oxygen mask over her nose and mouth containing a nebulizer spraying albuterol (a broncho-dilator), but she pushed it away, refusing to allow anything over her face. The EMTs kept the mask as close as possible towards her face to provide as much benefit from the oxygen and medication as possible, but when it became clear Plaintiff was not responding, the EMTs assisted her to a stretcher to take her to Lake West Hospital. As 2
they did so, Plaintiff became extremely combative, kicking, punching, scratching, and refasing to lie down. Officer Lewis, who had arrived with the EMTs, applied his handcuffs to hold Plaintiff's arms to the sides of the stretcher as the quickest means of restraining Plaintif The EMTs left Plaintiff's home at 10:57 and arrived at Lake West emergency room at 11:00 p.m. They used 12 liters of oxygen trying to keep the oxygen with albuterol mist close to her face the whole time. Plaintiff remained combative at the Lake West emergency room, and was placed in restraints by the Lake West nurses. The albuterol mask was forcibly held over her face, but she eventually lost consciousness. Her oxygen levels were restored to normal by 11:25 p.m. Plaintiff does not contest these facts. However, her deposition testimony was that Officer Lewis arrived before the EMTs, ran to her front door where she was waiting; pushed her back into a chair, and then proceeded to handcuff her hands behind her back and release her, repeating this process several times, even after the EMTs arrived. She testified the oxygen mask was not working, which is why she pushed it away. She testified one of the EMTs - she could not specify who - laughed at her condition and said they would watch her die. She said the EMTs ignored her pleas to be taken to the hospital, and it was not until she went outside on her own and found one of the EMTs lounging about that she was able to get on the stretcher to go to the hospital. She has no recollection of being combative. Plaintiffs experts both testified at deposition that they interpreted Lake West's protocols in this situation as initially requiring a non-rebreather mask, where a mouthpiece is placed in the patient's mouth and pure oxygen is forced into the lungs, 3
before albuterol is administered. Their opinion was that using an aerosol mask containing an albuterol nebulizer did not conform to protocol. However, they both admitted it was impossible to identify any adverse physical effect on Plaintiff from the use of the mask. And while the use of handcuffs as restraints was a breach of protocol, Plaintiff's experts admitted that Defendants' use of handcuffs did not manifest a complete disregard for Plaintiff's care or well-being. Plaintiff's experts acknowledged that extreme hypoxia such as Plaintiff experienced on October 12, has a profound effect on the brain, producing irrational, combative behavior, and inducing hallucinations. Plaintiffs proffered witnesses with regard to her emotional distress were not present during the events of October 12 and had no knowledge of Defendants' actions. Moreover, Plaintiff had received psychological counseling both before and after October 12, 2002, but refused to provide her psychological records in discovery. Evidence of Plaintiffs emotional distress was limited to her conclusory testimony and the conclusory testimony of her two friends that she experienced emotional distress because of "the incident," As the Court of Appeals noted, Plaintiff failed to present any evidence that the actions of the EMTs or Officer Lewis specifically were the cause of her alleged emotional distress, as opposed to the trauma of suffering a near-fatal asthma attack. 4
LAW AND ARGUMENT The Appellate Court properly applied rules of analysis in upholding the trial court's judgment in favor of defendants. Plaintiffl s argument at the Trial and Appellate levels regarding willful and wanton misconduct under R.C. 4765.49 was as follows: the dispatcher failed to stay on the line; the EMTs failed to use the proper oxygen treatment; the EMTs failed to hold the oxygen mask to Plaintiffs face while she was combative; and Defendants restrained her with handcuffs, rather than soft restraints. The Court of Appeals unanimously agreed that these factors did not constitute willful and wanton misconduct by the EMTs and Officer Lewis. The Court of Appeals distinguished negligent conduct from willful and wanton misconduct, relying on its own analysis in Donlin v. Rural Metro Ambulance, Inc. (April 5, 2004) Trumbull Cty. App. No. 2002-T-0148 (2004 WL 720373), and confirmed the Trial Court's determination that Plaintiff failed to present evidence of willful and wanton misconduct necessary to support a claim under 4765.49. The Appellate Court went beyond the standard of making all reasonable inferences in Plaintiff's favor in determining whether Plaintiffs deposition testimony presented a genuine issue of material fact, as required by Rule 56 (Harless v. Willis Day Warehousing Company, Inc. (1978), 54 Ohio St. 2d 64). Rather, the Court simply accepted as true Plaintiff's deposition testimony that Officer Lewis repeatedly handcuffed her and that the EMTs sat around joking about her condition before taking her to the hospital, and found such actions did constitute willful and wanton misconduct. However, in considering Plaintiff's evidence as a whole, the Court adhered to the fundamental tort law principle that evidence of proximate causation between conduct and injury must be 5
presented (Whftfield v. Dayton (2006), 167 Ohio App.3d 172, 184; Murphy v. Carrollton Mfg. Co. (1991) 61 Ohio St.3d 585). The Court held that Plaintiff's and Plaintiffls witnesses' reference to "the incident," without more, did not constitute evidence of a causal connection between Defendants' actions and her injuries under 4765.49. The Appellate Court noted the same lack of evidence of causation regarding Plaintiff's claim of intentional infliction of emotional distress. The only cause identified in Plaintiff's evidence for her emotional distress is "the incident," generally. Further, Plaintiff could not identify the particular individual who allegedly made light of her situation. In effect, Plaintiff presented no evidence for a jury to consider that the Defendants' conduct, even if it was extreme and outrageous, caused her emotional distress. Riley v. Cincinnati ( 1976), 46 Ohio St.2d 287. The Court of Appeals decision is confirmation of the fundamental principle that, without evidence to prove the acts complained of caused the injury, the claim must fail. The Court of Appeals' decision stands for the proposition that while Rule 56 permits drawing all reasonable inferences in favor of the non-moving party from the evidence, it does not permit the court to infer evidence that is not, in fact, presented. CONCLUSION The Court of Appeals carefully examined all of the evidence Plaintiff presented to the Trial Court to support her claims. The Appellate Court determined from the evidence that reasonable minds could come to but one conclusion, which was adverse to the Plaintiff. It's method of analysis was grounded in and conformed to established case law. The Court of Appeals' opinion presents no issue of great public interest or importance. 6
For the foregoing reasons, this Honorable Court should deny jurisdiction to review the Court of Appeals' decision in this case. Respectfully submitted, Vincent A. Feudo (0019733) John D. Sayre (0015191) 1400 Republic Building 25 West Prospect Avenue Cleveland, Ohio 44115 Attorneys for Appellees CERTIFICATE OF SERVICE A copy of the foregoing Response to Memorandum in Support of Jurisdiction of Plaintiff Nancy Kovacic was served upon Counsel for Plaintiff Nancy Kovacic by ordinary PC, U.S. Mail this ^^y of March, 2007, addressed to Richard K. Jacob, 29518 Euclid Avenue, Wickliffe, Ohio 44092, ncent A. Feudo (00197 John D. Sayre (0015191) 7