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Burnham v. Cleveland Clinic

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 6, 2017

DARLENE BURNHAM PLAINTIFF-APPELLEE
v.
CLEVELAND CLINIC, ET AL. DEFENDANTS-APPELLANTS

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-823973

          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 & Associates

          BEFORE: Kilbane, P.J., Boyle, J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} 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").

         {¶2} 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 judgment.

         {¶3} The facts of this appeal were set forth by this court in Burnham I.

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.

         {¶4} 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 ...

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