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Nash v. The Cleveland Clinic Foundation

Court of Appeals of Ohio, Eighth District

August 22, 2013


Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-588421, CV-602833, CV-603845

ATTORNEYS FOR APPELLANTS William K. Redmond William K. Redmond Co., L.P.A.

ATTORNEYS FOR APPELLEES Timothy J. McGinty Cuyahoga County Prosecutor BY: David Lambert Assistant Prosecuting Attorney

BEFORE: Jones, P.J., Kilbane, J., and E.T. Gallagher, J.



(¶ 1} Plaintiffs-appellants, Amy Nash, administrator of the estate of S.C. ("Nash" or "the estate"), and Mary Jo and Daniel Bajc, et al., appeal three orders issued by the trial court in this case: the granting of summary judgment in favor of defendants-appellees, Cuyahoga County and Cuyahoga County Department of Children and Family Services ("CCDCFS" or "the agency"), et al.; the denial of plaintiffs-appellants' Civil Rule 56(F) motion to continue; and the grant of defendants-appellees' motion for protective order. We affirm in part and reverse in part.

Procedural History

(¶ 2} The procedural history in this case is lengthy and complex, with the docket itself over 30 pages long. We will attempt to condense our review of it, while recognizing that a thorough analysis of the procedural history is pertinent to the disposition of this appeal.

(¶ 3} The underlying consolidated cases were originally filed as three separate actions. The first action, Nash v. Cleveland Clinic Found., Cuyahoga C.P. No. CV-588421, was filed by plaintiff-appellant Nash, as administrator of the estate, and Mary Jo Bajc. The defendants were the Cleveland Clinic Foundation and two of its employees, Drs. Johanna Goldfarb and Rita Steffen, as well as MetroHealth Medical Center and its employee, Dr. Irene Dietz.

(¶ 4} This action alleged that S.C. and his twin brother, "A.B., " were medically fragile infants who were placed in foster care with Bajc and her husband, Daniel Bajc, shortly after their birth in September 2002. The children were removed from their home on July 22, 2004, and placed in other foster homes after CCDCFS received a referral alleging that Mary Jo Bajc suffered from Munchausen Syndrome by Proxy, a psychological condition in which a parent falsifies or exaggerates symptoms in order to convince others that his or her child is sick and/or needs medical attention. S.C. died in another foster home on October 11, 2004.

(¶ 5} Nash later filed an action for wrongful death against Cuyahoga County, CCDCFS, six CCDCFS employees, and Joanne and Bryce Smith, the foster parents who were caring for the twins at the time of S.C.'s death. Nash v. Cuyahoga Cty., et ah, Cuyahoga C.P. No. 06-CV-602833. The Bajcs also filed a separate action in which they claimed that CCDCFS and the six employees created a false suspicion that Mary Jo fit the profile for Munchausen Syndrome by Proxy and thus defamed her, cast her in a false light, and interfered with her guardianship interest in the twins. Bajc v. Cuyahoga Cty., Cuyahoga C.P. No. CV-603845.

(¶ 6} The individually named employee-defendants of CCDCFS and their positions with CCDCFS at the time of the child's death were: James McCafferty, director of CCDCFS; Jim Provost, unit chief; Kathleen Sullivan, adoption unit supervisor; Lashawna Thornton, Special Investigations Unit ("SIU") social worker; Theresa Almusaad, social worker; and Maria Velez, social worker.

(¶ 7} In January 2007, all three actions were consolidated under Cuyahoga C.P. No. CV-588421.

(¶ 8} In May 2007, the trial court dismissed the Bajcs' false light and invasion of privacy claim, finding that it was not a recognized tort under Ohio law. See Ferreri v. Plain Dealer Publishing Co., 142 Ohio App.3d 629, 643, 756 N.E.2d 712 (8th Dist. 2001).

(¶ 9} The consolidated cases moved slowly through a lengthy pretrial process. In 2008, the trial court entered a ruling in which it denied the Cleveland Clinic's motion to quash subpoenas of its witnesses. The Cleveland Clinic appealed, and we reversed the trial court's decision in part. Nash v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 92564, 2010-Ohio-10, ¶ 16. This court held that

[communications between CCDCFS and the doctors, and the exchange of documents between CCDCFS and the [Cleveland Clinic] social workers, were not necessarily reports of abuse. To the extent that they were reports of abuse, or discussed information contained in a report of abuse, or identified the person who made the report, R.C. 2151.421(H)(1) precludes discovery.

Id. at ¶ 14. This court remanded the case with instructions for the trial court to enter a protective order allowing the depositions to go forward subject to restrictions on the scope of inquiry. Id.

(¶10} In March 2011, the trial court entered a protective order to allow the depositions to proceed, but the parties objected to the protective order, and the court modified the protective order in July 2011. From June 2011 through August 2012, numerous discovery disputes arose in the trial court.

(¶ 11} The Cleveland Clinic moved for summary judgment and, on May 31, 2012, the plaintiffs filed two motions requesting a 30-day extension of time to respond to the Cleveland Clinic's motion for summary judgment and an order extending the time for completion of discovery and for the filing of expert reports. In their motions, the plaintiffs argued that they had been unable to take the deposition of key Cleveland Clinic and CCDCFS employees, due in part to "stonewalling, delay, and motion practice" by those entities.

(¶ 12} On July 23, 2012, Cuyahoga County, CCDCFS, and the CCDCFS employees (hereinafter referred to individually or collectively as "County defendants") filed a joint motion for summary judgment.

(¶ 13} On July 31, 2012, the plaintiffs filed their brief in opposition to the Cleveland Clinic's motion for summary judgment. The next day, on August 1, 2012, the trial court granted the plaintiffs' 30-day extension request and issued rulings on at least thirty additional motions, finding most of them moot. Of importance, the trial court gave the plaintiffs an additional 60 days to finish discovery and file expert reports. In its order, the trial court stated, "No more extensions of time will be given. Trial remains set for 11/5/2012."

(¶ 14} On August 22, 2012, the plaintiffs motioned the court for a 30-day continuance to respond to the County defendants' motion for summary judgment, stating that it was their "first request for an extension of time" and the County defendants' attorney "has no objection to the requested extension of time." The plaintiffs asked for a continuance until September 24, 2012. The trial court granted the motion, giving the plaintiffs until September 24, 2012, to respond to the County defendants' motion for summary judgment.

(¶ 15} On August 28, 2012, the parties had a pretrial conference with the trial court and the court's staff attorney. The conference was not recorded.

(¶ 16} On August 30, 2012, the plaintiffs dismissed their claims against MetroHealth and Dr. Dietz without prejudice.

(¶ 17} On September 24, 2012, the day the plaintiffs' briefs in opposition to the County defendants' motion for summary judgment were due, Nash filed notices of voluntary dismissal without prejudice of her claims against the County and CCDCFS, foster parents Joanne and Bryce Smith, the Cleveland Clinic, and Drs. Steffen and Goldfarb. The Bajcs filed notices of voluntary dismissal without prejudice of their claims against the Cleveland Clinic and Drs. Steffen and Goldfarb.

(¶ 18} Therefore, at that juncture, the following parties and claims remained. The Bajcs' claims for defamation and interference with guardianship remained against the County, CCDCFS, and the individually named CCDCFS employees. The estate's claims for wrongful death remained only as to the individually named CCDCFS employees.

(¶ 19} Also on September 24, 2012, the plaintiffs filed a Civ.R. 56(F) motion for continuance and stay of consideration of the County defendants' motion for summary judgment. In their motion, the plaintiffs argued that, because of the "bad faith efforts" of opposing attorneys, they had been unable to take the depositions of defendants McCafferty, Provost, Almusaad, or the twins' treating pediatrician, Dr. Conrad Foley, or complete Velez's deposition.

(¶ 20} On October 4, 2012, the trial court entered an order denying plaintiffs' Civ.R. 56(F) motion, noting that the cases had been pending six years, plaintiffs had been granted numerous continuances, the court had made it clear it would grant no more continuances, plaintiffs' counsel had made defendants' counsel aware that he (plaintiffs' attorney) would unilaterally select deposition dates if the parties could not mutually agree upon dates, but plaintiffs' counsel had failed to do so. The court further found that plaintiffs had ample time for discovery, had failed to timely file a brief in opposition to the motion for summary judgment, and there was sufficient evidence in the record from which the court could consider the summary judgment motion and render a decision.

(¶ 21} Also on October 4, 2012, the trial court issued a separate order granting the County defendants' motions for summary judgment. The court found the following:

Under the three-tiered analysis in Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1988): (1) under R.C. 2744.02(A)(1), defendants the County and [CCDCFS] are political subdivisions and have blanket immunity from liability for any acts and[/]or omissions they or their employees committed[;] (2) none of the exceptions to immunity apply under R.C. 2744.02(B), as defendants the County and DCFS engaged in a governmental function[;] (3) because no exceptions apply under R.C. 2744.02(B), the court does not need to determine whether any defenses to the exceptions apply. The court also finds that under R.C. 2744.03(A)(6), the County employee defendants * * * are entitled to immunity from liability, as: (1) none committed acts or omissions manifestly outside the scope of their employment or official responsibilities; (2) none committed acts or omissions with malicious purpose, in bad faith, or in a wanton or reckless manner; and (3) no other section of the Revised Code imposes civil liability upon them.

Facts Pertinent to the Disposition of this Appeal

(¶ 22} Twins S.C. and A.B. were born prematurely and drug-exposed on September 29, 2002. They were taken into custody by CCDCFS and, within a month, placed into the Bajc foster home. The twins were considered "medically-fragile, " had multiple special needs, eating problems, and were on daily medications.

(¶ 23} On July 21, 2004, CCDCFS social workers met with Bajc to discuss finalizing the adoptions of the twins. Adoption unit supervisor Kathleen Sullivan testified at deposition that she wanted to meet with Bajc to hear from her "what she felt the barriers were to their completing the adoption."

(¶ 24} According to Sullivan, when she returned to her office from her visit with Bajc, there was a referral on her desk that the agency had received concerning allegations that Bajc suffered from Munchausen Syndrome by Proxy. The next day, the agency removed the twins from the Bajcs' home as part of the investigation.

(ΒΆ 25} While the agency investigated the allegations, the twins were placed in multiple foster homes. The twins were eventually placed in the Smith foster home. S.C. died in his crib on October 11, 2004. The coroner opined that his death was caused by asphyxia due to aspiration of gastric contents, i.e. ...

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