Court of Appeals of Ohio, Second District, Montgomery
CAROLYN HARVEY, et al. Plaintiffs-Appellees
THE CINCINNATI INSURANCE COMPANY, et al. Defendants-Appellant
Appeal from Common Pleas Court Trial Court Case No.
JEFFREY SNEAD, Attorney for Plaintiff-Appellee Carolyn Harvey
RODERER, Attorney for Plaintiff-Appellee Barbara Petersen
NICHOLAS SUBASHI, ANNE KEETON, Attorney for
Defendant-Appellant Donald Hartman
1} Defendant Donald Hartman appeals a discovery
order requiring him to sign medical authorizations for
release of medical records relating to his eyesight to
counsel for one of the plaintiffs and allowing counsel to
inquire further about his eyesight. We conclude that the
release order is overbroad. And we conclude that there is not
enough information in the record to decide whether allowing
further inquiry about Hartman's eyesight is justified.
Consequently we vacate the discovery order.
2} In June 2014, around 7:40 p.m., Donald Hartman
was driving south on Main Street, in downtown Dayton. He
stopped for a red light at the mid-block crosswalk between
First and Second Streets, near the Schuster Performing Arts
Center. It was raining, and the wind was blowing. When the
light turned green, Hartman entered the crosswalk. Suddenly,
he saw two pedestrians on his left. Hartman hit the brakes,
but it was too late. His car had hit Carolyn Harvey and
Barbara Petersen. Each woman filed a personal-injury suit
against Hartman, claiming negligence. The cases were later
3} Hartman was deposed by counsel for Harvey in
September 2016. A couple of months before the deposition,
Hartman had had eye surgery to remove cataracts. During the
deposition, counsel asked Hartman about his eyesight and
medical history. Hartman's attorney instructed him not to
answer some of the questions. Later, at an in-chambers
conference in February 2017, Harvey's counsel raised the
issue of Hartman's eyesight and orally moved for an order
requiring Hartman to sign authorizations allowing counsel to
obtain his medical records related to his vision. The trial
court sustained the motion and ordered Hartman to sign
medical-release authorizations allowing Harvey's counsel
to acquire his medical records related to the diagnosis and
treatment of his eyesight from July 18, 2013, to the present.
The court also ordered that "if necessary, Plaintiffs
counsel is allowed to inquire further regarding
Defendant's eyesight after receipt of the subject
4} Hartman appealed.
5} The sole assignment of error alleges that the
trial court erred by ordering Hartman to sign the
medical-release authorizations and erred by permitting
further inquiry into his eyesight.
6} While as a general matter discovery orders are
not final and appealable, a proceeding for "discovery of
privileged matter is a "provisional remedy, " R.C.
2505.02(A)(3), the granting or denying of which is final and
appealable if the order "in effect determines the action
with respect to the provisional remedy and prevents a
judgment in the action in favor of the appealing party with
respect to the provisional remedy, " R.C. 2505.02(B)(4),
and "[t]he appealing party would not be afforded a
meaningful or effective remedy by an appeal following final
judgment, " id. An order requiring the release
of privileged information in discovery determines the action
with respect to a provisional remedy and, because the
privileged information has already been released, prevents
the appealing party from obtaining an effective remedy
following final judgment. "In this situation, the
proverbial bell cannot be unrung." Randall v.
Cantwell Mach. Co., 10th Dist. Franklin No. 12AP-786,
2013-Ohio-2744, ¶ 7. So to the extent that the discovery
order here requires Hartman to grant a release of his medical
records that is, or could lead to the production of
privileged information, it is a final and appealable order.
See id. at ¶ 8 (concluding that an order
granting the appellee's motion to compel the appellant to
sign a medical release and denying a protective order
constituted a final and appealable order).
7} "Ordinarily, a discovery dispute is reviewed
under an abuse-of-discretion standard." (Citation
omitted.) Ward v. Summa Health Sys., 128 Ohio St.3d
212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13. But "if
the discovery issue involves an alleged privilege, as in this
case, it is a question of law ...