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Harvey v. The Cincinnati Insurance Co.

Court of Appeals of Ohio, Second District, Montgomery

December 22, 2017

CAROLYN HARVEY, et al. Plaintiffs-Appellees

         Civil Appeal from Common Pleas Court Trial Court Case No. 15-CV-5655 15-CV-5712

          JEFFREY SNEAD, Attorney for Plaintiff-Appellee Carolyn Harvey

          PAUL RODERER, Attorney for Plaintiff-Appellee Barbara Petersen

          NICHOLAS SUBASHI, ANNE KEETON, Attorney for Defendant-Appellant Donald Hartman


          HALL, P.J.

         {¶ 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.

         I. Background

         {¶ 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 consolidated.

         {¶ 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 records."

         {¶ 4} Hartman appealed.

         II. Analysis

         {¶ 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, ΒΆ 13. But "if the discovery issue involves an alleged privilege, as in this case, it is a question of law ...

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