United States District Court, S.D. Ohio, Western Division, Cincinnati
ORDER DENYING CORRECTED MOTION FOR CLASS
CERTIFICATION AND DIRECTING ENTRY OF FINAL JUDGMENT AS TO
PLAINTIFF'S THIRD CAUSE OF ACTION
Michael R. Barrett, Judge.
matter is before the Court on the pending Corrected Motion
for Class Certification by Proposed Class Representative
Jahmir Frank. (Doc. 47).
background, Plaintiff filed his “Medical Malpractice
Complaint with Class Allegations for Negligent Destruction of
Medical Records” in the Southern District of Ohio on
August 31, 2018. (Doc. 1). Specific to his third cause of
action, he contends that Good Samaritan Hospital “was
subject under the American Medical Association Code of Ethics
to a nondelegable duty to manage medical records
appropriately.” (Id. at PageID 9 (¶ 38)).
He contends further that it is “a violation of Ohio law
for any physician to violate any provision” of said
Code of Ethics, citing Ohio Revised Code §
4731.22(B)(18). (Id. (¶ 39)). The
“provision” violated, according to Plaintiff, is
Ethics Opinion 3.3.1, which states that a physician must
“retain[ ] old records against possible future
need” and “[u]se medical considerations to
determine how long to keep records.” (Doc. 1 at PageID
10 (¶ 40)). In this context, then, Plaintiff alleges
that the Hospital had a duty under Ohio law to retain birth
records “for at least the length of time of the statute
of limitations for medical malpractice claims, 21 years in
the case of a minor.” (Id. at PageID 13
(¶ 46)). And, because its contractor Cintas
“unintentionally” destroyed the records in 2010,
when Plaintiff would have been only 12 years old, the
Hospital “is liable to Plaintiff, and members of the
putative class, in compensatory damages, punitive damages,
interest and attorneys fees.” (Id. at PageID
14 (¶ 52)).
comprehensive motion to dismiss followed on October 3, 2018.
(Doc. 17). In the wake of a variety of procedural twists and
turns that need not be repeated here, the single issue left
for decision with regard to that motion concerned
Plaintiff's third cause of action against the Hospital.
(See Doc. 52 at PageID 923-24). The Hospital argued
that Ohio does not recognize a tort for negligent
destruction of medical records-as opposed to the tort of
spoliation of evidence-and this Court agreed. (Id.
at PageID 928-30). Accordingly, on December 9, 2019, the
undersigned granted the Hospital's motion to dismiss
Plaintiff's third cause of action for failure to state a
claim under which relief can be granted under Ohio law.
(Id. at PageID 930).
a status conference by telephone held the next day, December
10, 2019, the Court discussed with the parties the ongoing
viability of Plaintiff's Corrected Motion for Class
Certification. Plaintiff conceded that his class action
allegations were supported solely by his third cause of
action, now dismissed. In light of this acknowledgement, and
for the reasons set forth in the undersigned's Order
dated December 9, 2019, the Court sua sponte
DENIES Plaintiff's Corrected Motion for
Class Certification (Doc. 47) for failure to state a claim
under which relief can be granted under Ohio law. And, for
the reasons explained below, Plaintiff's oral motion that
the Court direct entry of a final judgment as to his third
cause of action will be GRANTED.
an action presents more than one claim for relief-whether as
a claim, counterclaim, crossclaim, or third-party claim-or
when multiple parties are involved, the court may direct
entry of a final judgment as to one or more, but fewer than
all, claims or parties only if the court expressly determines
that there is no just reason for delay.” Fed.R.Civ.P.
54(b). Thus, “the rule permits immediate appellate
review of a district court's judgment even though the
lawsuit contains unresolved claims.” GenCorp, Inc.
v. Olin Corp., 390 F.3d 433, 442 (6th Cir. 2004)
(citation omitted). Rule 54(b) “is intended ‘to
strike a balance between the undesirability of more than one
appeal in a single action and the need for making review
available in multiple-party or multiple claim situations at a
time that best serves the needs of the litigants.'”
U.S. Citizens Ass'n v. Sebelius, 705 F.3d 588,
596 (6th Cir. 2013) (citations omitted). Rule 54(b) should
not be used routinely, but reserved instead for the
infrequent case where certification serves the interest of
justice and judicial administration. Knafel v. Pepsi Cola
Bottlers of Akron, Inc., 850 F.2d 1155, 1159 (6th Cir.
1988) (citations omitted).
comply with Rule 54(b), the Court must follow a two-step
process. “First, the district court must expressly
direct the entry of final judgment as to one or more but
fewer that all the claims or parties in a case. Second, the
district court must expressly determine that there is no just
reason to delay appellate review.” EJS Properties,
LLC v. City of Toledo, 689 F.3d 535, 537 (6th Cir. 2012)
(quoting Gen. Acquisition, Inc. v. GenCorp, Inc., 23
F.3d 1022, 1026 (6th Cir.1994)).
the first step is easily met. Plaintiff's class action
complaint sets forth three causes of action. The first
two-medical malpractice and respondeat superior-underpin his
allegation that he is the victim of a negligent delivery at
the Hospital and consequently suffers from periventricular
leukomalacia, a permanent and debilitating brain injury that
he attributes to trauma in utero during his delivery at the
Hospital. (Doc. 1 at PageID 2 (¶ 1), PageID 6-9
(¶¶ 20-34)). The first two causes of action were
not the subject of the undersigned's Order dated
December 9, 2019 and are completely distinct from
Plaintiff's third cause of action. Thus, the Court has
directed entry of final judgment expressly as to
Plaintiff's third cause of action- negligent destruction
of medical records-pled on behalf of himself and thousands of
individuals whose records were prematurely destroyed, but not
his first or second causes of action.
second step, a determination by the Court that there is no
just reason for delay, requires consideration of
“judicial administrative interests as well as the
equities involved.” Lowery v. Fed. Express
Corp., 426 F.3d 817, 821 (6th Cir. 2005) (quoting
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,
8 (1980)). In making this determination, the Court must
“consider a nonexhaustive list of factors, such as: (1)
the relationship between the adjudicated and non-adjudicated
claims; (2) the possibility that the need for appellate
review might become moot due to future developments in the
district court; (3) the possibility that the appellate court
might be required to hear the same issue twice; (4) the
presence or absence of a claim or counterclaim that might
result in a set-off against the final judgment; and (5) other
miscellaneous factors, including ‘delay, economic and
solvency considerations, shortening the time of trial,
frivolity of competing claims, expense, and the
like.'” U.S. Citizens Ass'n, 705 F.3d
at 596 (quoting Corrosioneering, Inc. v. Thyssen Envtl.
Sys., Inc., 807 F.2d 1279, 1283 (6th Cir. 1986)). In
this instance, virtually all factors weigh in favor of
granting Rule 54(b) certification. As noted, the adjudicated
claim for negligent destruction of medical records and the
unadjudicated medical malpractice claim are independent of
each other. There is no possibility that the need for
appellate review might be mooted by future developments in
this Court vis-a-vis the pending medical malpractice claim.
There is likewise no possibility that the reviewing court
might be obliged to consider the same issue a second time.
There is no factual dispute regarding the destruction of the
birth records. Plaintiff pleads that the destruction was
negligent, and whether that negligence amounts to a tort
turns on a question of Ohio law. In contrast, many factual
issues attend whether the Hospital- and its physicians,
nurses and other medical providers-committed malpractice
during Plaintiff's delivery. Thus, the issue decided in
any interlocutory appeal will obviously be different from the
issues decided in an appeal after judgment on Plaintiff's
medical malpractice claim. With regard to set-off, while the
Hospital has pled contributory/comparative negligence as an
affirmative defense, (see Doc. 10 at PageID 86
(¶ 2, Second Affirmative Defense)), it has not pled a
counterclaim against Plaintiff. Moreover, any purported
contributory/comparative negligence on Plaintiff's part
would have nothing to do with destroyed medical records.
Finally, the miscellaneous factors appear to be neutral with
regard to the question of certification. There is no
suggestion, for example, that the Hospital is at risk for
insolvency. “But the fact that [the defendant] is
capable of paying either now or later is not a ‘just
reason for delay.'” Curtiss-Wright, 100
S.Ct. at 12. On balance, then, the Court finds no just cause
conclusion, the Corrected Motion for Class Certification by
Proposed Class Representative Jahmir Frank (Doc. 47) is
DENIED and Plaintiff's oral motion that
the Court direct entry of a final judgment as to his third
cause of action, pursuant to Fed.R.Civ.P. 54(b), is
GRANTED. There will be no ...