United States District Court, N.D. Ohio, Western Division
G. CARR SR. U.S. DISTRICT JUDGE.
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
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
Now pending are the parties' competing discovery
schedules and case management plans.
(Docs. 49, 51).
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,
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.
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.
reviewed these submissions in light of plaintiffs'
complaint and my order on the defendants' motions to
dismiss, I make the following rulings.
Parties' Agreement and Moot Request
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.
Waiver of Qualified Immunity Objections to Discovery
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