^8 ^,3 ^:,:::^; h.^,,,^^ u,^ti: ^,,, a, ^ ^^^^ ^^^^^ IN THE SUPREME COURT OF OHIO TODD LEOPOLD, et al. v Plaintiffs/Appellants, ACE DORAN HAULING & RIGGING CO., et al. Supreme Court Case No. 2012-0438 On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals Case No. CA-11-097277 Defendants/Appellees. MOTION OF APPELLEES STEVEN H. STILLWAGON, ACE DORAN BROKERAGE COMPANY AND ACE DORAN HAULING & RIGGING CO. TO STRIKE MERIT BRIEF OF APPELLEES, TODD AND LINDA LEOPOLD Shannon J. George (#0068375) Ritter, Robinson, McCready & James, Ltd. 405 Madison Ave., Suite 1850 Toledo, Ohio 43604 Phone: (419) 241-3213 Fax: (419) 241-4825 Counsel for Appellant Danielle Laurence Bruce S. Goldstein, Esq. (#0022279) Bruce S. Goldstein Co., L.P.A. 1009 Ledgewood Trail Lyndhurst, Ohio 44124-1070 Phone: (440) 442-0022 Fax: (440) 442-0088 BRIAN D. SULLIVAN (#0063536) Attorney of Record MARTIN T. GALVIN (#0063624) KENNETH P. ABBARNO (#0059791) REMINGER CO., L.P.A. 101 West Prospect Avenue, Suite 1400 Cleveland, Ohio 44115-1093 Phone: (216) 687-1311 Fax: (216) 687-1841 Counsel for Defendant-Appellees Steven H. Stillwagon, Ace Doran Brokerage Company and Ace Doran Hauling & Rigging Co. Counsel for Appellant O^^ ^ S ^Q^2 C^,^RK. OF COURT 1^^^` ^:,^ C^X`^^^. ^^^_t.k^ uf ^ URT ^EME COURIOF OyIO
Phillip J. Weaver, Jr. (#0025491) SMITH MARSHALL, LLP 1425 Superior Bldg. 815 Superior Avenue Cleveland, Ohio 44114 Phone: (216) 781-4994 Fax: (216) 781-9448 Barbara A. Lum, Esq. (#0085744) Thompson Hine LLP 3900 Key Center, 127 Public Sq. Cleveland, Ohio 44114-1291 Counsel for Ford Motor Company Counsel for Todd Leopold Donald Drinko, Esq. (#0062035) 1501 Euclid Ave. Sixth Floor, Bulkley Bldg. Cleveland, Ohio 44115 Counselfor American Fire & Casualty Co. P.J. Malnar, Esq. (#0058663) 55 Public Sq., Suite 725 Cleveland, Ohio 44113 Counsel for Netherlands Insurance ii
Now come Defendants-Appellees, Ace Doran Hauling & Rigging Company, Ace Doran Brokerage Company and Steven H. Stillwagon (collectively referred to as "Ace Doran") and hereby move this Court to strike the merit brief filed by purported Appellees, Todd and Linda Leopold (hereinafter referred to as "Plaintiffs"). Plaintiffs are not a proper party to this appeal and they do not have standing to argue the issues presented before this Court. Furthermore, Plaintiffs position is adverse to Ace Doran and supportive of the Appellant's arguments. Therefore, if Plaintiffs are allowed to participate in the dispute currently before this Court, they should have filing their brief together with Appellant, or as amicus curiae. A brief further supporting Ace Doran's position is attached and incorporated herein as reference. 1
BRIEF IN SUPPORT I. INTRODUCTION & SUMMARY OF FACTS This appeal concerns a discovery dispute that arose between two co-defendants in the Cuyahoga County Court of Common Pleas. The dispute occurred in the course of litigation whereby Plaintiffs, Todd and Linda Leopold, sued multiple parties for bodily injuries Mr. Leopold allegedly sustained as a result of a multiple car accident that occurred on March 6, 2008. Among the defendants were the parties to this appeal, Ace Doran and Danielle Laurence. Prior to Plaintiffs' filing their action and naming Ace Doran and Danielle Laurence as defendants, Ms. Laurence had filed her own claim for personal injuries arising out of the March 6, 2008 accident. She sued Steven Stillwagon and Ace Doran Hauling, alleging that those defendants were liable for her injuries. See Laurence v. Stillwagon, Cuyahoga C.P. No. CV 08-676218 (Nov. 13, 2008). During the 2008 litigation, Ms. Laurence voluntarily produced her medical records that contained evidence of statements indicating her liability for the accident. After her deposition, during which Ms. Laurence did not deny making the incriminating statements, she voluntarily dismissed her action against Ace Doran and Steven Stillwagon in April of 2009. Plaintiffs were not in any way involved in that litigation. After Plaintiffs filed their action in October of 2009, and included Ms. Laurence as one of the defendants, Ms. Laurence sought a protective order precluding any discovery of her medical records. The trial court denied Ms. Laurence's motion for protective order. (See Aug. 15, 2011 Order Denying Defendant Laurence's Motion for Protective Order, Cuyahoga C.P. CV-09-708330.) Thereafter, Ms. Laurence appealed the trial court's decision. The appellate court considered the merits of Ms. Laurence's appeal, and affrmed the judgment of the trial court. (Feb. 9, 2012 J. Entry, 8th Dist. No. CA-11-097277.) Of note, at no point in the appeal process 2
did Plaintiffs identify themselves as an interested party. Neither did Plaintiffs participate in the briefing of the issues. When Ms. Laurence submitted her appeal to this Court, Plaintiffs did not join in the jurisdictional argument. Plaintiffs did, however, file a merit brief with this Court in support of Appellant's position, urging reversal of the lower courts' decisions and grant of Ms. Laurence's motion for protective order. Erroneously, Plaintiffs labeled themselves as "appellees," which name indicates parties in support of the judgments of the Cuyahoga County Court of Common Pleas and the Eighth District Court of Appeals, but against Appellant's case. This situation is problematic because, in addition to being confusing and contrary to the procedural rules, it burdens Ace Doran with the requirement to share the time allotted for their oral argument with a parry advancing a contrary point of view. The proper course of action for Plaintiffs would be to file an amicus brief supporting Ms. Laurence's argument and advocating that this Court overturn the lower courts' holdings. The time for filing briefs in support of the Appellant's argument has expired, however, and Plaintiffs attempt to circumvent the application of deadlines by improperly labeling themselves as "appellees" in this appeal. Because it is improper to allow Plaintiffs to proceed as appellees and because Plaintiffs lack standing to challenge the decisions of the courts below, Ace Doran moves for an order striking Plaintiffs' merit brief and precluding them from participating in this appeal. 3
9 II. LAW AND ARGUMENT 1. Plaintiffs do not Qualify as Appellees for the Purpose of this Appeal and their Merit Brief Should be Stricken as Untimely Filed. Plaintiffs' attempt to file a brief as the appellees, with arguments supporting Appellant's position, contradicts the established practice of the appeal process. The rules of practice of the Supreme Court of Ohio require that an appellee presents arguments in support of the judgment from which the appeal is taken. S.Ct.Prac.R. 6.3(B). In particular, the rules state that "[t]he appellee's brief shall *** answer the appellant's contentions, and make any other appropriate contentions as reasons for affirmance of the order or judgment from which the appeal is taken." Id. Therefore, if Plaintiffs intend to appear as appellees, it follows that their arguments have to support the judgment of the Eighth District Court of Appeals. Nonetheless, Plaintiffs' brief urges reversal of the appellate court's decision. Accordingly, Plaintiffs cannot be considered appellees in this case. It would be improper to allow Plaintiffs to circumvent the effect of the rules by using a different label and erroneously identifying themselves as "appellees." Furthermore, it would be inequitable to require Ace Doran to share the time allotted to them in the oral argument with a party advancing the opposing side's contentions. See S.Ct.Prac.R. 9.5(A)(2). In their brief, Plaintiffs clearly stand in support of the position taken by Appellant. In other words, they urge this Court to overturn the lower courts and to mandate the grant of Ms. Laurence's motion for protective order. As such, the appropriate procedure for Plaintiffs' participation in this appeal would be to file an amicus brief on behalf of Appellant. See S.Ct.Frac.R. 6.6. In that regard, their brief should have been filed "within the time for filing allowed to the appellant to file a merit brief." Id. The time for filing merit brief of Appellant expired on July 30, 2012. Therefore, even as arnicus, Plaintiffs' brief is untimely. Accordingly, "[t]he Clerk shall refuse to file [it]." S.Ct.Prac.R. 6.6(B). 4
, Plaintiffs' merit brief should be stricken as improperly labeled and untimely filed and they should be precluded from participating in this appeal. 2. Plaintiffs Have no Standing to Participate in this Appeal Because their Interests will not be Adversely Affected by its Outcome Plaintiffs have no standing to participate directly in this appeal because they are not a party to the dispute over Ms. Laurence's medical records. "It is fundamental that appeal lies only on behalf of a party aggrieved. Unless an appellant can show that his rights have been invaded, no error is shown to have been committed by the court or body which entered the final order." Ohio Contract Carriers Ass'n v. Public Utilities Corrc., 140 Ohio St. 160, 161, 42 N.E.2d 758 (1942). This Court has previously held that in order to assert an error to a lower court's holding, a person, "must have a present interest in the subject-matter of the litigation and must be aggrieved or prejudiced by the judgment, order or decree." Id. (quoting 2 American Jurisprudence, 941, Section 149.) The Court further noted that the purpose of the appeal is to "correct errors injuriously affecting the appellant." Id. (quoting Section 152.) (Emphasis added.) Plaintiffs have no interest in the subject matter of this appeal. Their interest will not be adversely affected and that they will not be prejudiced by this Court's ruling. In other words, the finding that Ms. Laurence waived her privilege as to her medical records will not deprive Plaintiffs of their legal rights or claims. They will still be able to argue that one or all of the defendants are liable to them for Mr. Leopold's personal injuries and they will be able to pursue their claim under the same iegai theories of liabiiity. Plaintiffs asserted no rights on their own in their merit brief. Additionally, the alleged error of the trial court does not injuriously affect their rights to litigate. Accordingly, Plaintiffs have no standing to this appeal. 5
a. Plaintiffs Cannot Assert Physician-Patient Privilege on the Patient's Behalf. Because a patient is the exclusive holder of the physician-patient privilege, third parties cannot assert the privilege on behalf of the patient in order to advance their own goals. State Medical Bd. v. Miller, 44 Ohio St. 3d 136, 141, 541 N.E.2d 602 (Ohio 1989); Progressive Preferred Ins. Co. v. Certain Underwriters at Lloyd's London, 11th Dist. No. 2006-L-242, 2008- Ohio-2508, 2008 Ohio App. LEXIS 2114, 2008 WL 2169404 (May 23); Galbraith v. City of Medina, 2006-Ohio-4410, 2006 Ohio App. LEXIS 4358 (Aug. 28, 2006). The above rule has been universally applied by Ohio courts and its application here bars Plaintiffs from participating in this appeal. An Ohio court in Progressive Preferred Ins. Co., 2008-Ohio-2508, faced a very factually similar issue where the defendant, general liability insurer, moved to quash depositions of medical providers asserting the physician-patient privilege. Prior to that case, a patient's executive filed and settled a wrongful death suit against an assisted living facility. Id. 3. Subsequently, the facility's insurer, Progressive, filed its own suit seeking contribution and/or indemnification from defendant Lloyds. Id. In that second action, Lloyds moved to quash depositions of the patient's medical providers, arguing that the physician-patient privilege precluded the disclosure. Id. 6. The trial court denied Lloyds' motion finding that Lloyds "did not have standing to assert any physician-patient privilege subsisting between Drs. Anschuetz and Rothenberg and [the patient.]" Id. 6. On appeal, the court held that Lloyd's had no standing to appeal the trial court's ruling because it was not the holder of the privilege. Id. 7-15. The court found that Lloyd's would do not suffer an"injury in fact" from the disclosure and therefore, could not benefit from the third-party standing. Id. 13. 6
Analogously, in the current case, there was a prior suit, one between Ms. Laurence and Ace Doran. In that case, a patient's medical records (Ms. Laurence's) were at issue. Like Progressive, Ace Doran intends to use the medical records in this subsequent suit. Like Lloyds, Plaintiffs want to appeal the decision of the trial court regarding the issue of physician-patient privilege. Yet, they lack standing to participate in this appeal because the privilege isn't theirs to assert. IV. CONCLUSION WHEREFORE, for the foregoing reasons, Appellees, Ace Doran Hauling & Rigging Company, Ace Doran Brokerage Company and Steven H. Stillwagon move this Court to strike the merit brief filed by Plaintiffs-Appellees, Todd and Linda Leopold. Respe ly mitted, - B. SULLIVAN (#0063536) Attorney of Record MARTIN T. GALVIN (#0063624) KENNETH P. ABBARNO (#0059791) REMINGER CO., L.P.A. 101 West Prospect Avenue, Suite 1400 Cleveland, Ohio 44115-1093 Phone: (216) 687-1311 Fax: (216) 687-1841 Counselfor DefendantAppellees Steven H. Stillwagon, Ace Doran Brokerage Company and Ace Doran Hauling & Rigging Co. 7
CERTIFICATE OF SERVICE A copy of the foregoing Motion to Strike was sent by regular U.S. mail on this ^day of October, 2012 to: Shannon J. George Ritter, Robinson, McCready & James, Ltd. 445 Madison Ave., Suite 1850 Toledo, Ohio 43604 Bruce S. Goldstein, Esq. Bruce S. Goldstein Co., L.P.A. 1009 Ledgewood Trail Lyndhurst, Ohio 44124-1070 Phillip J. Weaver, Jr. SMITH MARSHALL, LLP 1425 Superior Bldg. 815 Superior Avenue Cleveland, Ohio 44114 Barbara A. Lum, Esq. Thompson Hine LLP 3900 Key Center, 127 Public Sq. Cleveland, Ohio 44114-1291 Donald Drinko, Esq. 1501 Euclid Ave. Sixth Floor, Bulkley Bldg. Cleveland, Ohio 44115 P.J. Malnar, Esq. 55 Public Sq., Suite 725 Cleveland, Ohio 44113 Counselfor Appellant Danielle Laurence Counsel for Appellant Danielle Laurence Counsel for Todd L. Leopold Counsel for Ford Motor Co. Counsel for American Fire & Casualty Co. Counsel for The Netherlands Insurance ^ AN (#0063536) 8