Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANTS Bret C. Perry Jason A. Paskan
Bonezzi Switzer Polito & Hupp Co., L.P.A.
ATTORNEY FOR APPELLEE Alexander L. Pal Obral, Silk &
BEFORE: Kilbane, P.J., Boyle, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, PRESIDING JUDGE
This case is before this court on remand from the Ohio
Supreme Court in Burnham v. Cleveland Clinic, Slip
Opinion No. 2016-Ohio-8000 ("Burnham II
"), for review of our decision in Burnham
v. Cleveland Clinic, 8th Dist. Cuyahoga No. 102038,
2015-Ohio-2044 (" Burnham I").
In our decision, we relied on the Ohio Supreme Court's
decision in Smith v. Chen, 142 Ohio St.3d 411,
2015-Ohio-1480, 31 N.E.3d 633, and concluded that the trial
court's grant of plaintiff-appellee Darlene Burnham's
("Burnham") motion to compel was not a final,
appealable order. Burnham I. In Burnham II,
the Ohio Supreme Court reversed our dismissal and remanded
the matter for us to consider the merits of
defendants-appellants Cleveland Clinic and Cleveland Clinic
Health System's ("Clinic") appeal. For the
reasons set forth below, we affirm the trial court's
The facts of this appeal were set forth by this court in
In March 2014, Burnham filed a complaint against the [Clinic]
for injuries she sustained while visiting her sister at the
main campus of the Cleveland Clinic Hospital. Burnham alleges
that a [Clinic] employee negligently poured liquid on the
floor and failed to warn her of this condition, causing her
to slip and fall. Burnham propounded interrogatories and a
request for production of documents with her complaint.
Burnham's discovery requests sought information
pertaining to the identity of witnesses, witness statements,
and the incident report pertaining to her slip and fall. [The
incident report is titled "Safety Event Reporting
System" and is referred to as "SERS."] [The
Clinic] objected to the majority of Burnham's requests,
citing either the attorney-client privilege, work-product
doctrine, or peer review and quality assurance privilege. It
did provide the names of the employees involved in the
incident and the employee who was present at the time of
Burnham's fall. In June 2014, Burnham filed a motion
compelling the [Clinic] to produce discovery responses,
including the SERS report. The trial court then ordered the
parties to submit a brief regarding the privilege issue and
ordered the [Clinic] to file a privilege log. The trial court
also conducted an in camera inspection of the SERS report.
After considering both parties' arguments and the in
camera inspection, the trial court found that the report was
not privileged and granted Burnham's motion to compel.
The court ordered the [Clinic] to respond to Burnham's
discovery requests and produce the SERS report to Burnham.
* * *
The [Clinic then appealed to this court, arguing] that the
SERS report is protected under the attorney-client privilege.
It maintains that the report was prepared to aid its risk
management and law departments, as well as outside counsel,
in the investigation of a potential lawsuit.
Id. at ¶ 2-3, 5.
Relying on Chen, we dismissed the appeal for lack of
a final, appealable order, finding that
the [Clinic] failed to establish that they would not be
afforded a meaningful or effective remedy through an appeal
after a final judgment is entered. Burnham seeks the
production of the incident report (SERS) documenting her slip
and fall. In its supplemental brief, the [Clinic] argues that
the SERS report is subject to the attorney-client privilege,
and once the report is disclosed "the bell will have
rung" if it contains sensitive material, and it would
have no adequate remedy on appeal. While the [Clinic]
contends that "the bell will have rung, " it does
not affirmatively establish that an immediate appeal is
necessary, nor does it demonstrate how it would be ...