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O'Donnell v. Yezzo

United States District Court, N.D. Ohio, Western Division

December 6, 2019

Debra O'Donnell, et al., Plaintiffs
v.
G. Michele Yezzo, et al., Defendants

          ORDER

          JAMES G. CARR SR. U.S. DISTRICT JUDGE.

         This is a civil rights case under 42 U.S.C. § 1983 and Ohio tort law in which, following my decision granting the state defendants' motion to dismiss and granting in part and denying in part the city defendants' motion to dismiss, O'Donnell v. Yezzo, 2018 WL 6169283 (N.D. Ohio 2018), four claims remain:

1. Defendant Charles Michael White violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding evidence that: (a) he submitted “the wrong” breaker bar to defendant Michele Yezzo for forensic testing; and (b) Yezzo's forensic opinion linking that breaker bar to the Parsons murder was false and the product of an unreliable methodology. Plaintiffs also allege that the City of Norwalk is liable for this violation under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
2. White intentionally inflicted emotional distress on James Parsons by conducting a flawed investigation, which included ignoring exculpatory evidence, submitting “the wrong” breaker bar for forensic testing, allowing Yezzo to produce a false report, and arresting Parsons without probable cause.
3. White caused Parsons's wrongful death. Plaintiffs base this claim on the same acts that underlie their Brady and IIED claims.
4. A loss of consortium claim against White and the City of Norwalk.
Now pending are the parties' competing discovery schedules and case management plans.

(Docs. 49, 51).

         The plaintiffs have proposed taking the depositions of sixteen witnesses. Plaintiffs acknowledge that many of the proposed deponents testified under oath at James Parsons's criminal trial in 1993, but contend that “the goal and scope of that testimony was likely curtailed, ” and that “issues of wrongful death, damages, and facts beyond the criminal defense or prosecution theories would not have been addressed in their testimony.” (Doc. 49, PageID 430).

         Plaintiffs ask that I set February 28, 2020 as the cut-off date for fact discovery; June 5, 2020 as the expert discovery cut-off date; and July 3, 2020 for the filing of dispositive motions.

         For their part, defendants contend that plaintiffs should depose only three of the sixteen witnesses. Defendants argue that plaintiffs' request “is not proportional to the needs of this case[.]” (Doc. 51, PageID 437). Their proposed case schedule proceeds on something like an expedited basis: fact discovery would close on December 31, 2019; expert discovery would close a month later; and dispositive motions would be due on February 28, 2020.

         Having reviewed these submissions in light of plaintiffs' complaint and my order on the defendants' motions to dismiss, I make the following rulings.

         A. Parties' Agreement and Moot Request

         The parties agree that the depositions of White, Yezzo, and Michael Reggles (a former Chief of the Norwalk Police Department) may go forward. Furthermore, defendants have represented that Ron Dye (a former coworker of Yezzo) passed away, so plaintiffs' request to depose him is moot.

         B. Waiver of Qualified Immunity Objections to Discovery

         Defendants claim that “there is insufficient factual evidence to support a Monell claim or to overcome White's entitlement to qualified immunity.” (Doc. 51, PageID 439). Because White did not raise a qualified immunity defense in a Rule 12(b) motion, however, I find that he has “waive[d] the right to avoid discovery” or seek to limit its scope on qualified immunity grounds (though he may ...


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