Tammy Kinn, Executrix and Surviving Spouse of the Estate of Gregory Kinn, Deceased, and in her Individual Capacity Appellant
HCR ManorCare, et al. Appellees
Trial Court No. CI0200908520
Dennis E. Murray, Sr. and Donna J. Evans, for appellant.
Robert M. Anspach, Cori D. Catignani, Mark D. Meeks, Elizabeth D. Wilfong, Thomas D. Warren and Gretchen L. Lange, for appellees.
DECISION AND JUDGMENT
(¶ 1} Appellant, Tammy Kinn, as executrix and surviving spouse of the estate of her late husband, Gregory Kinn, and in her individual capacity, appeals the judgment of the Lucas County Court of Common Pleas, granting appellees', HCR ManorCare and Heartland Hospice Services, LLC, motion for summary judgment on appellant's claims for breach of contract, negligent hiring, training, and retaining, infliction of emotional distress, breach of duty and trust, and wrongful death. Additionally, appellant appeals the jury's verdict in favor of appellees on her negligence claim.
A. Facts and Procedural Background
(¶ 2} Sometime during the summer of 2007, Gregory was diagnosed with terminal esophageal cancer. He was initially treated for the disease using conventional cancer treatment administered by his oncologist, Dr. Ahmed Ghany, in conjunction with his primary care physician, Dr. Douglas Hoy. During this time, appellant was Gregory's primary caregiver. The treatments Gregory received were effective in prolonging his life for two years, despite the fact that the survival rate for patients with esophageal cancer is only six months. After being treated by Drs. Ghany and Hoy for two years, Gregory's disease progressed to the point where conventional cancer treatment would no longer be effective. Wanting to be comfortable during the last days of his life, Gregory sought the services of Heartland Hospice Services. He began receiving Heartland's home hospice care on August 13, 2009.
(¶ 3} While under Heartland's care, Gregory's primary concern was comfort and symptom control, and, more specifically, pain management. At the time he was admitted, Gregory rated his pain at a level between 8 and 10 on a 10-point scale. Heartland immediately began administering pain medications in order to bring Gregory some level of relief. After making several adjustments to the pain medication regimen, including the addition of morphine, Heartland was able to bring Gregory's pain level down to a 2. However, Gregory's pain levels did not remain under control, ultimately spiking the next day and remaining around 8. At the time of Gregory's admission, Heartland ordered a "comfort pack" that contained a variety of drugs designed to reduce pain and anxiety. The comfort pack did not arrive until after Gregory's death. Further, Heartland ordered a morphine pump to be delivered from out-of-state in order to provide more consistent pain relief to Gregory. Like the comfort pack, the morphine pump did not arrive in time to be useful. Unfortunately, Gregory passed away on August 15, 2009, two days after being admitted into Heartland's care.
(¶ 4} On December 1, 2009, appellant filed a complaint against Heartland and its parent company, HCR ManorCare, alleging multiple claims including breach of contract, negligent hiring, training, and retaining, infliction of emotional distress, breach of duty and trust, and negligence. Appellant proceeded to hire Dr. Lewis Hays, a medical director for All Care Hospice located in Lynn, Massachusetts, to assist with the litigation as an expert witness. After receiving Dr. Hays' report regarding the level of care provided by Heartland, appellant amended her complaint to include a claim for wrongful death. The wrongful death claim was premised on Dr. Hays' opinion that Heartland's failure to provide adequate palliative care shortened Gregory's life.
(¶ 5} Following extensive discovery by both parties, appellees moved for summary judgment as to all of appellant's claims contained in the original complaint. On June 24, 2011, the trial court granted appellees' motion as to all claims except the negligence claim. Nine months later, appellees filed a second motion for summary judgment, seeking to have appellant's wrongful death claim dismissed. The trial court granted appellees' motion based on its finding that Dr. Hays' expert opinion regarding causation lacked reliability under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
(¶ 6} Finally, a six-day jury trial began on appellant's negligence claim on June 25, 2012. The jury concluded that Heartland was not negligent and returned its verdict in favor of appellees. Appellant's timely appeal followed.
B. Assignments of Error
(¶ 7} On appeal, appellant assigns the following errors for our review:
FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN, ON SUMMARY JUDGMENT, IT DISMISSED PLAINTIFF'S CAUSE OF ACTION FOR WRONGFUL DEATH.
SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN, ON SUMMARY JUDGMENT, IT DISMISSED PLAINTIFF'S CAUSE OF ACTION FOR BREACH OF CONTRACT.
THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT DISMISSED HCR MANORCARE.
FOURTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF'S COMPLAINTS DID NOT SUFFICIENTLY PLEAD A BASIS FOR PUNITIVE DAMAGE.
FIFTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT PRECLUDED PLAINTIFF'S EXPERT, DR. LEWIS HAYS, FROM TESTIFYING REGARDING HIS OPINION ON VARIOUS ASPECTS OF THE CARE PROVIDED BY THE DEFENDANT.
SIXTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT PRECLUDED PLAINTIFF'S EXPERT, DR. LEWIS HAYS, FROM MAKING ANY MENTION IN HIS TESTIMONY TO RELEVANT STATE AND FEDERAL STATUTES, REGULATIONS OR STANDARDS APPLICABLE TO HOSPICES.
SEVENTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN SUBMITTING INSTRUCTIONS WHICH CHARACTERIZED THE CASE STRICTLY AS MEDICAL MALPRACTICE.
EIGHTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN PRECLUDING THE PRESENTATION OF ANY EVIDENCE PERTAINING TO THE DISCIPLINARY ACTIONS TAKEN BY HEARTLAND RESULTING FROM THE FAILURE OF CARE PROVIDED TO GREGORY AND TAMMY KINN.
NINTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW PLAINTIFF'S EXPERT, DR. LEWIS HAYS, TO BE PRESENT IN THE COURTROOM TO HEAR THE TESTIMONY OF PLAINTIFF'S WITNESSES THAT WOULD BE OF RELEVANCE TO HIS OPINION.
TENTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S EXHIBIT YYYY.
ELEVENTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN ALLOWING THE USE OF PREVIOUSLY UNIDENTIFIED DOCUMENTS BY DEFENDANT IN CROSS-EXAMINATION OF PLAINTIFF THAT WERE NOT AUTHENTICATED AND WERE NOT DISCLOSED PRIOR TO TRIAL.
A. The trial court properly dismissed appellant's cause of action for wrongful death.
(¶ 8} In her first assignment of error, appellant argues that the trial court erroneously granted appellees' motion for summary judgment with respect to her claim for wrongful death.
(¶ 9} We review summary judgment rulings de novo, applying the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978); Civ.R. 56(C).
(¶ 10} In its judgment entry granting appellees' motion for summary judgment on appellant's wrongful death claim, the trial court concluded that appellant "failed to offer an admissible expert opinion as to causation." The court noted that Dr. Hays' opinion as to causation was unreliable under Evid.R. 702(C) because it was based on a medical study that was not sufficiently related to the case sub judice. Further, the court rejected appellant's efforts to establish the reliability of Dr. Hays' opinion by reference to "additional medical literature, " which was never entered into evidence. Finally, the court rejected appellant's argument that her testimony, based on 27 years of marriage, sufficiently established the causal connection between the palliative care provided by Heartland and the shortening of Gregory's life.
(¶ 11} Evid.R. 702 provides that a witness may testify as an expert if all of the following apply:
(A)The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B)The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C)The witness' testimony is based on reliable scientific, technical, or other specialized information.
(¶ 12} Here, the parties acknowledge that Dr. Hays is a qualified expert with respect to hospice care. Further, there is no dispute that Dr. Hays' testimony relates to matters beyond the knowledge or experience possessed by lay persons. Thus, the issue is whether the testimony is reliable under Evid.R. 702(C).
(¶ 13} "A trial court's role in determining whether an expert's testimony is admissible under Evid.R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert's conclusions are correct or whether the testimony satisfies the proponent's burden of proof at trial." Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998), paragraph one of the syllabus. "In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance." Id. at 611.
(¶ 14} Discretion in determining the admissibility of expert testimony generally lies with the trial court. Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. Absent an abuse of discretion, the trial court's decision will be upheld. Id. An abuse of discretion "implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
(¶ 15} At the hearing on appellees' motion for partial summary judgment, appellant argued that Dr. Hays' opinion that Gregory's life was shortened by Heartland's failure to provide adequate palliative treatment was reliable. Appellant stated that the opinion was based on Dr. Hays' extensive experience in the hospice setting, as a well as "a whole host of studies." On the contrary, appellees noted the lack of scientific literature supporting Dr. Hays' opinion in arguing for its exclusion under Evid.R. 702(C). They stated that "there is no scientific literature to support any connection between prolongation of life with hospice care."
(¶ 16} Indeed, the only scientific study specifically cited by Dr. Hays was a study published in the New England Journal of Medicine entitled "Early Palliative Care for Patients with Metastatic Non-Small-Cell Lung Cancer." This study, which was conducted at ...