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Culp v. Olukoga
Citation: 2013 Ohio 5211Docket: 12CA3470
Court: Ohio Court of Appeals; November 17, 2013; Ohio; State Appellate Court
Original Court Document: View Document
The appeal in Culp v. Olukoga involves Rebecca Culp, administratrix of Bonnie Merrill's estate, contesting a summary judgment in favor of multiple defendants, including Dr. Christopher Olukoga and various medical entities and professionals. Culp's appeal presents four assignments of error: 1. The trial court allegedly abused its discretion by refusing to consider a trial continuance and by providing ex parte information about a pretrial order to the defendants' counsel. 2. The trial court's decisions barring the plaintiffs from presenting expert testimony at trial were deemed an abuse of discretion, with claims that the defendants were not surprised by the plaintiffs' expert disclosures and that the court displayed a biased attitude against the plaintiffs. 3. It is argued that the court erred by not reconsidering prior entries after the original judge stepped down, applying the law of the case doctrine incorrectly. 4. The appeal contends that the court mistakenly granted summary judgment for the defendants, not acknowledging that expert testimony is not always required in medical negligence cases. The case arises from a surgery performed by Dr. Olukoga on Bonnie Merrill, who experienced complications leading to her death in 2006. Culp initiated legal action against Olukoga and others in 2007, subsequently consolidating complaints and facing discovery and trial scheduling orders from the trial court. On March 10, 2010, Attorney Popham emailed colleagues regarding a trial court’s pre-trial order on discovery deadlines, expressing concerns about the feasibility of deposing experts within the given timeframe. Popham proposed a modified discovery schedule, setting deadlines for expert disclosures and completion of discovery. While other defendants' counsel agreed, Attorney deLevie, representing the appellant, raised objections, citing the need for simultaneous expert disclosure and expressing concern over the disparity in deposition timelines for experts. DeLevie suggested discussing the schedule after a specific deposition was completed. Subsequent correspondence from other attorneys emphasized the urgency of scheduling expert depositions, with requests for available dates and a revised discovery completion agreement. DeLevie reiterated the need for clarity on the number of experts involved before finalizing a deposition schedule. On May 6, 2010, Popham urged deLevie to propose an alternative schedule, as Popham's initial proposal faced only deLevie's objection. As of April 12, 2010, the appellant had conducted twenty-one depositions, excluding those from prior cases. On November 19, 2010, Attorney Willard requested prompt disclosure of expert witnesses to avoid last-minute issues. On December 2, 2010, deLevie initiated an email exchange suggesting the exchange of expert reports instead of depositions, which Romanello rejected, emphasizing the need for naming experts and scheduling depositions prior to the January 18 trial date. Romanello highlighted previous requests for expert names and deposition dates, asserting entitlement to both. Popham, in a subsequent email, objected to deLevie's reliance on a March 8, 2010, trial order regarding expert witness availability, pointing out inconsistencies in the order and demanding the disclosure of expert names and deposition scheduling. DeLevie expressed willingness to discuss discovery logistics but requested information on the number and areas of expertise of the opposing party's experts. Popham urged for prompt disclosure and scheduling of depositions, referencing the limited number of experts involved. On December 8, the PCC defendants filed a motion to preclude the appellant from introducing expert testimony, citing failure to identify experts and meet discovery obligations. The appellant countered on December 9, arguing the appellees' inaction on depositions contributed to the situation and asserting her right to identify experts by December 20. On December 10, Olukoga filed a similar motion to preclude the appellant from calling expert witnesses, citing late identification of experts. On December 13, 2010, the appellant filed a memorandum opposing Olukoga's motion, claiming the appellees disregarded a Pretrial Order setting a November 19, 2010 deadline for depositions and only sought expert depositions on November 18, 2010. The appellant asserted that their counsel was cooperative and prepared to discuss the deposition schedule but contended that the appellees had not raised the issue for over six months. On the same day, PCC submitted a reply, arguing that the appellant did not address their claim regarding the plaintiffs’ duty to supplement discovery and identify expert witnesses as per Civ.R. 26(E)(1)(b). Southern Ohio Medical Center (SOMC) joined the motion to bar the appellant from introducing expert testimony or to continue the trial date on December 14, 2010. The appellant, in a subsequent memorandum on December 17, questioned why the appellees had not sought clarification from the court regarding the pre-trial order sooner or communicated about the discovery schedule since May 2010. During a hearing on December 17, the court recognized the appellant was seeking a continuance but noted that it was fundamentally the appellees’ motion. SOMC's counsel indicated the appellant believed expert witness disclosures were not required until 30 days before trial, contrary to the pretrial order that mandated discovery completion 60 days prior to trial. The court acknowledged a typographical error in the order that should have been addressed earlier. Appellant’s counsel expressed confusion regarding the court's recent comments about the order they had relied on. The court challenged the appellant's counsel on their understanding of the order’s correctness, implying the appellant should have recognized the error and possibly refused to amend the order. Mr. Delevie has practiced law since 1991 and asserts he was unaware of a typographical error in a court order relevant to expert depositions. He argues that he relied on the order, which implied cooperation between parties, to schedule depositions. He claims he had been actively trying to arrange depositions for six months but faced scheduling conflicts and was informed there was no availability until the end of September. Despite acknowledging that he disclosed expert information only recently, he contends that he was misled by the order's wording and that no one communicated the alleged typographical error to him. Mr. Delevie expresses frustration that others were aware of the error and did not inform him, which he believes undermined his ability to comply with the order's intent. He insists that he acted in good faith based on his understanding of the order. Mr. Delevie refused to sign a proposed order due to insufficient time for compliance, asserting he was willing to engage with opposing counsel for depositions. The court noted that Delevie’s late disclosure of expert witnesses hindered the opposing party’s ability to conduct necessary depositions. The court emphasized that Delevie had previously been informed of a typographical error affecting deadlines that contributed to the current situation. Ultimately, the court precluded Delevie from introducing expert testimony, which is critical for establishing a medical negligence claim. Appellees argued that without expert testimony, Delevie could not present a prima facie case. Following a series of procedural motions, including a request to disqualify Judge Marshall, the case was reassigned to Judge W. Richard Walton. Walton denied Delevie’s motion to reconsider the preclusion of expert testimony, noting that Delevie had an obligation to disclose expert identities timely and failed to do so. The trial court referenced the "law-of-the-case" doctrine, asserting that prior judicial decisions should be followed unless there is evidence of bias or error, which it found was not present in this case. On September 12, 2011, the appellant filed a motion for the court to reconsider its September 7 decision, claiming reliance on the law-of-the-case doctrine and failure to address arguments from a prior motion. The court denied this second motion on November 23, 2011. Subsequently, on January 6, 2012, the trial court granted summary judgment to the appellees, citing the appellant's inability to present expert testimony as detrimental to her case. This appeal includes two assignments of error, both alleging that the trial court abused its discretion in imposing discovery sanctions. In the first assignment, the appellant argues that the trial court failed to consider a continuance as an appropriate sanction, influenced by a policy to adhere to the Ohio Supreme Court's two-year guideline. She contends that she complied with the pretrial order regarding expert disclosures and was sanctioned before the deadline. In the second assignment, she claims the trial court abused its discretion by preventing her from presenting expert testimony, pointing to various factors including the appellees’ counsel's late notice regarding depositions, the exploitation of ex parte communications, her proposal for exchanging expert reports, and perceived bias from the court. The standard of review indicates that trial courts hold significant discretion in imposing sanctions for discovery abuses, with an abuse of discretion defined as an unreasonable or arbitrary decision. In this case, the appellate court found that the trial court's decision to bar the appellant from introducing expert testimony, rather than granting a continuance, did not constitute an abuse of discretion under Civ.R. 26(E)(1)(b), which mandates timely disclosure of expert witness identities and subjects of testimony to facilitate proper cross-examination. Discovery rules aim to prevent trial surprises and ensure both parties can adequately prepare their claims or defenses. They facilitate an open exchange of information and impose sanctions for failures to respond to reasonable discovery requests. To uphold these purposes, parties must have a reasonable opportunity to prepare against unveiled contentions. A trial court may exclude expert testimony as a sanction for non-compliance with discovery rules, but such exclusion is considered an extreme measure. It should only occur to address willful non-compliance or to prevent unfair surprise. If undisclosed expert testimony risks surprise and indicates deliberate disruption of information flow, a court must either exclude that testimony or provide the opposing party time to present rebuttal evidence. In determining whether to exclude evidence, a court evaluates the conduct of the party offering the expert and the prejudice suffered by the opposing side from the violation. Prejudice from non-compliance is the primary focus, rather than the intent behind the violation. For instance, in Huffman, the Ohio Supreme Court upheld a trial court's exclusion of expert testimony when the defendants revealed their expert only four days before trial, finding no abuse of discretion. Similarly, in Vaught, the court found no abuse of discretion when the defendant failed to disclose expert witness information as requested in interrogatories. The trial court imposed a deadline for the submission of expert reports, which the defendants failed to meet, instead attempting to introduce the defendant-physician as an expert witness one week before trial. The plaintiff successfully filed a motion in limine to exclude the defendant-physician’s testimony, which the court granted. The defendants appealed, claiming the exclusion was an abuse of discretion, but the appellate court upheld the trial court's decision, leading to an appeal to the Ohio Supreme Court. The Supreme Court affirmed that the trial court acted within its discretion, noting that the plaintiff had timely requested identification of expert witnesses, and the defendants did not disclose Dr. Brooks as required. The court criticized the defendants for disregarding court orders and procedural rules. The document references prior cases, including Mynes v. Brooks and Wright v. Structo, which support the principle that courts may exclude expert testimony if a party fails to disclose witnesses within established deadlines, emphasizing the importance of adherence to the discovery process and the potential consequences of non-compliance, including case dismissal. The trial court did not abuse its discretion by preventing the appellant from presenting expert testimony at trial. The appellees had timely requested identification of expert witnesses through interrogatories, to which the appellant initially responded that she did not know but might call experts in various fields, promising to supplement her answer. However, she failed to do so and did not disclose her experts until thirty days before trial, despite repeated requests from the appellees over several months. This lack of cooperation disrupted the discovery process, hindering the appellees' ability to prepare their defense and conduct effective cross-examination. The appellant acknowledged the requirement to complete depositions sixty days before trial, yet did not explain how disclosure just thirty days prior would allow for timely depositions. The appellant's claim that the appellees failed to demand disclosure on June 1, 2010, is misleading, as they had made multiple demands earlier. Efforts to modify the discovery schedule were not agreed upon by the appellant. Thus, the appellant shares significant responsibility for the late disclosure of expert witnesses, which warranted the trial court's sanctions. Appellant was the sole party unwilling to accept the revised discovery schedule, expressing a desire for further discussion. She proposed discussing a deposition schedule either at the end of May or after her expert disclosures in mid-June, but neither discussion occurred. By not agreeing to the modified schedule and delaying expert disclosures, appellant effectively prevented any discussions regarding depositions. Since appellant did not disclose her experts by mid-June, the parties could not engage meaningfully in scheduling. The court found that appellant's failure to disclose experts in a timely manner violated Civ.R. 26(E), hindering appellees' ability to prepare a defense. Appellant's arguments about ex parte communications and adherence to a two-year guideline did not address her failure to comply with discovery obligations. Even if appellees shared some blame for not pressuring appellant, she still did not fulfill her responsibilities under Civ.R. 26(E)(1)(b). Consequently, the trial court was within its discretion to bar her from presenting expert testimony at trial, especially given the lengthy period between the initial complaints in 2007 and the late disclosure of experts in December 2011. The court's decision to preclude expert testimony was justified, as appellant should have disclosed her experts well before the trial date. Additionally, claims of judicial bias or hostility were dismissed, as the standard for bias involves a fixed judgment rather than an impartial evaluation of the case based on law and facts. The Supreme Court established that judicial opinions formed during current or prior proceedings do not constitute bias unless they exhibit extreme favoritism or antagonism that prevents fair judgment. Critical remarks by a judge regarding counsel or parties typically do not support bias claims unless they stem from outside sources or clearly indicate deep-seated bias. A judge is presumed unbiased, and the burden is on the party alleging bias to provide evidence to the contrary. In the case at hand, the trial judge's frustrations with the appellant's counsel did not demonstrate the necessary bias to warrant a challenge. Consequently, the first two errors raised by the appellant were overruled. The appellant also contended that the trial court erred by not allowing motions to reconsider a prior ruling that barred expert testimony, claiming this decision was influenced by an improper ex parte communication. Generally, trial courts have broad authority to reconsider decisions before final judgment, and a reviewing court will not overturn such decisions unless there is an abuse of discretion. An abuse of discretion is defined as a decision that is unreasonable or arbitrary, not merely a different conclusion that could have been reached. The trial court's decision to deny the appellant's motions for reconsideration of a prior order barring her from presenting expert testimony at trial is upheld, as it did not constitute an abuse of discretion. The court reasonably concluded that vacating the prior order was unwarranted given the circumstances. The appellant failed to comply with Civil Rule 26(E)(1)(b) by not identifying expert witnesses in response to appellees’ interrogatories until just thirty days before the trial, despite her obligation to supplement her responses over the 1.5-year period. Therefore, the trial court's judgment was based on sound reasoning. The appellant's claim that the trial court misapplied the law-of-the-case doctrine was deemed irrelevant, as a correct judgment should not be reversed due to incorrect reasoning cited by the trial court. The appellate court is obligated to affirm the judgment if it stands on any legally valid ground, even if different from that of the trial court. The second judge also supported the prior decision made by Judge Marshall. Additionally, the assertion that Judge Marshall's order was influenced by an ex parte conversation was rejected; the order was based solely on the appellant's failure to comply with the relevant civil rule. Consequently, the court overruled the appellant's third assignment of error and noted her fourth assignment of error regarding the summary judgment in favor of the appellees. Appellant contends that expert medical testimony is unnecessary for her medical malpractice and informed consent claims, asserting these matters fall within “common knowledge.” In summary judgment reviews, appellate courts conduct a de novo examination, meaning they independently assess the trial court's decision without deferring to it. The criteria for summary judgment under Civ.R. 56 require that there be no genuine issue of material fact, and that reasonable minds can only reach a conclusion adverse to the nonmoving party when evidence is construed in their favor. For medical malpractice claims, the plaintiff must establish through a preponderance of evidence that the injury was caused by actions or omissions of a physician that fall below the standard of care expected in similar circumstances. Expert testimony is generally required to establish these standards of care, as it provides the necessary specialized knowledge to prove the defendant's alleged negligence, preventing reliance solely on the plaintiff's personal experiences or emotional appeals. In Ohio, expert testimony is generally required to establish the standard of care that a physician owes to a patient in medical malpractice cases. If a plaintiff fails to provide such testimony demonstrating a breach of that standard and a direct causal link to their injury, the court may grant summary judgment in favor of the physician. Additionally, claims of lack of informed consent also necessitate expert testimony to outline the risks associated with medical procedures and to show that an undisclosed risk caused injury. In the current case, the appellant lacks the necessary expert testimony to support her medical malpractice or informed consent claims. She argues that her claims are based on issues that fall within the common knowledge of laypersons, which would eliminate the need for expert testimony. While expert testimony is not required when the physician's lack of skill is evident and understandable to laypeople, such exceptions are limited. Expert testimony is mandatory for questions involving specialized knowledge or technical aspects of medicine due to the increasing complexity of medical practices. Few Ohio courts have recognized the common knowledge exception as sufficient to bypass the requirement for expert witness testimony in malpractice cases. Ohio courts recognize a common knowledge exception in medical negligence cases, particularly relating to gross inattention in patient care or miscommunication between healthcare providers and patients. Instances of gross inattention leading to patient injury have been established, such as cases where patients were left unattended and subsequently fell. Notable cases cited include a sedated patient falling from a bed without side rails and a paralyzed patient who fell while unsupported. The common knowledge exception also applies to situations where negligent miscommunication occurs, as demonstrated in a case involving erroneous information given to a patient regarding sterility after a vasectomy. In Rhoads, the common knowledge exception was deemed inapplicable to a plaintiff's claims after she suffered a collapsed lung following an interscalene block performed by a nurse. The plaintiff alleged that the nurse's negligence caused her lung to collapse and that the medical providers failed to diagnose her condition despite her complaints of severe chest pain. After a prolonged period of pain, she was advised to wait for a scheduled appointment, during which a chest x-ray was ordered but not promptly reviewed. The plaintiff's allegations included negligent actions by the nurse and the medical providers, as well as inadequate supervision by the doctor. Defendants filed for summary judgment, asserting that the plaintiff lacked expert testimony to demonstrate a breach of the standard of care or causation of her injuries. The trial court concurred, resulting in summary judgment favoring the defendants. The plaintiff contended on appeal that expert testimony was unnecessary to demonstrate the negligent supervision and training of nurses and a physician’s assistant at the medical facility, arguing that their lack of skill or care was evident under common knowledge. The court disagreed, stating that assessing a patient’s chest pain after an interscalene block requires specialized knowledge beyond common understanding. Thus, expert testimony was required to establish the nursing staff's alleged negligence. Similarly, the court rejected the claim that the physician assistant's advice to delay consultation with the doctor about chest pain fell within common knowledge, emphasizing that the appropriateness of such advice involves professional judgment. Furthermore, the court found that the doctor's delay in reading a chest x-ray did not constitute obvious negligence that a jury could understand without expert input, as it is not common knowledge that chest pain in this context indicates a critical condition like a collapsed lung. In contrast, the court referenced the Dimora case, where expert testimony was not required because the negligence of a student nurse leaving a patient unattended was within the common knowledge of jurors. The Jones case similarly illustrated that the negligent act of nurses leaving a laboring patient alone was evident to laypersons, as the circumstances were straightforward enough that jurors could easily understand the cause and effect without expert insight. The jury, comprised of women who are often mothers or grandmothers, possessed sufficient life experience to evaluate the case's facts and determine negligence that caused the appellant’s injuries. However, the appellant's claims regarding negligence do not qualify for the common knowledge exception. The appellant asserts that Dr. Olukoga failed to obtain informed consent from Mrs. Merrill and misrepresented her medical clearance, as well as that SOMC nurses neglected to perform a fall assessment. Nevertheless, the appellant does not adequately articulate how these claims fit within the common knowledge exception, which necessitates more than general knowledge to establish the inherent risks and dangers associated with Mrs. Merrill’s surgical procedure. Expert testimony is required to substantiate the informed consent claim, as the issues involved are beyond ordinary knowledge. Moreover, the appellant's argument regarding the nurses' negligence also lacks sufficient explanation. The determination of whether a fall assessment should have been conducted involves medical judgment, not common knowledge. The case cited emphasizes that decisions regarding patient safety measures require expert input. Additionally, the appellant fails to connect any alleged breach of care regarding the fall assessment to Mrs. Merrill’s injuries, as her cause of death was respiratory failure due to encephalopathy—a matter that also necessitates expert testimony to establish causation. Overall, the claims against the medical providers do not fall within the purview of layperson experience and require expert testimony to support the medical malpractice allegations. Appellant's complaint asserts that physicians and medical providers exhibited professional negligence, failing to meet the standard of care expected from competent healthcare professionals. The complaint specifically alleges that the providers did not adequately inform Merrill of the risks associated with her treatment plan and management of her medical conditions. This case, akin to Rhoads, critiques the professional judgment and care provided to the appellant. However, the trial court granted summary judgment in favor of appellees due to appellant's lack of expert testimony to substantiate her claims. As a result, the appellate court overruled the appellant's fourth assignment of error and affirmed the trial court's judgment. The court ordered that judgment be executed by the Scioto County Common Pleas Court and noted that appellees are entitled to recover costs from the appellant. The court also indicated that reasonable grounds existed for the appeal.