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Schadhauser v. Ohio Department of Rehabilitation and Correction

Court of Claims of Ohio

October 11, 2017

WILLIAM SCHADHAUSER Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant ANDWILLIAM SPIKES Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant ANDJARED T. FERGUSON Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

          Sent to S.C. Reporter 11/7/17

          Jeanna V. Jacobus Peter E. DeMarco Assistant Attorneys General.

          Gary Peterson Magistrate Judge.

          ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          PATRICK M. MCGRATH JUDGE.

         {¶1} On August 9, 2017, defendant filed a motion pursuant to Civ.R. 56(B) for summary judgment. On August 29, 2017, with leave of court, plaintiffs filed a memorandum in opposition.

         {¶2} Civ.R. 56(C) states, in part, as follows:

         {¶3} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." See also Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977).

         {¶4} Plaintiffs each filed individual cases against defendant, the Ohio Department of Rehabilitation and Correction (DRC). On September 29, 2016, plaintiffs filed motions pursuant to Civ.R. 42(A)(1) to consolidate the cases for the purposes of trial inasmuch as the matters involve common questions of law and fact. The motions were not opposed and, by an order of a magistrate, the cases were consolidated.

         {¶5} According to the complaints, at all times relevant, plaintiffs were inmates in the custody and control of defendant at the Chillicothe Correctional Institution (CCI). Plaintiffs allege that defendant negligently exposed them to pigeon droppings while they were in defendant's custody at CCI. The complaints provide that the pigeon droppings were throughout CCI. Plaintiffs state that defendant was aware of the danger caused by pigeon droppings but failed to correct the health hazard. Plaintiffs allege that as a result of their exposure to the pigeon droppings, they contracted histoplasmosis and suffered permanent injuries that are progressive in nature.

         {¶6} In its motion for summary judgment, defendant argues that plaintiffs need expert testimony to establish that plaintiffs contracted histoplasmosis from their exposure to pigeon droppings at CCI. Motion page 3. Defendant states that the deadline by which plaintiffs were required to provide it with the names of expert witnesses and copies of their reports has passed and plaintiffs did not provide it with the names of expert witnesses or copies of their reports.

         {¶7} In support of its motion, defendant submitted the affidavit of counsel for defendant, Jeanna Jacobus. Jacobus avers, among other things, that she participated in a case management conference with the court on October 27, 2016, after which the court set deadlines by which the parties were to disclose expert witnesses. Plaintiffs sought and received two extensions of the deadline and the court set July 24, 2017 as plaintiffs' final deadline. Finally, Jacobus avers that as of August 9, 2017, plaintiffs have not provided defendant with any list of experts and copies of their reports.

         {¶8} In response, plaintiffs acknowledge that they did not provide defendant with a list of their expert witnesses and copies of their reports. Nevertheless, plaintiffs argue that they "were advised by medical personnel of Defendant that the cause of Histoplasmosis was pigeon feces." Memorandum in opposition page 1. In support, plaintiffs each submitted their own affidavits in addition to the affidavit of their counsel, Richard Swope. Plaintiffs each generally aver that they were exposed to pigeon droppings throughout CCI and that each plaintiff was subsequently diagnosed with histoplasmosis.

         {¶9} Plaintiff William Spikes avers that "[a]n Ohio State University contract doctor diagnosed me with Histoplasmosis and explained it was caused by pigeon feces." Affidavit ¶ 5. Spikes further avers that "Doctors from the Ohio State University Wexner Medical Center told me that exposure to bird droppings at the Chillicothe Correctional Institution caused my Histoplasmosis. I believe other doctors at the prison would acknowledge the pigeon droppings and my exposure caused my Histoplasmosis." Affidavit ¶ 8.

         {¶10} Plaintiff Jared Ferguson avers, among other things, that "Dr. McGuire, an Ohio State University contract doctor, in a video conference, diagnosed me with Histoplasmosis, asking if there was a large pigeon population. * * * I intend to call as witnesses all DRC medical staff and Dr. McGuire as upon cross-examination * * * My attorney was unable to find a local expert in the field of Histoplasmosis but assert the medical records prove I was diagnosed with Histoplasmosis and I firmly believe it was from the exposure to bird droppings at the Chillicothe ...


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