IN THE SUPREME COURT OF OHIO

09-0903Duncan Oglesby Jr., et al On appeal from the Sixth

APPELLANT District Court of Appeals[Ottawa County Municipal Court]

Court of Appeals Case No.E-08-055

V.

CONSOLIDATED RAIL CORPORATION et alAPPELLEE

MEMORANDUM IN SUPPORT OF JURISDICITON OFAPPELLANT DUNCAN OGLESBY JR. et al

Loretta Riddle No. 0075639158 E. Market StreetSandusky, Ohio 44870419-621-9389Counsel for Duncan Oglesby Jr. et al

David A. Damico, EsquireBums, White & Hickton106 Isabella St.Pittsburgh, PA 15212Counsel for Consolidate Rail

Michael Murphy237 W. Washington RowSecond FloorSandusky, Ohio 44870Counsel for Firelands Hospital

CLERK OF COURTLSUPREME COURT OF OHIO I

TABLE OF CONTENTS

ISSUES PRESENTED ... ..... ... . ...... ....... .. ......... .. ....... ... .. . .. . .. . .... ... .. ... .. .... . ......... ..1

STATEMENT OF CASE AND FACTS .................................................................1-3

PROPOSISTION OF LAW ...............................................................................3-12

PROPOSTION OF LAW NO. 1

CIVIL RULE 10(D) (2) IS UNCONSTITUTIONAL AND A COURT ABUSES ITSDISCRETION BY NOT GRANTING AN EVIDENTIARY HEARING ON THEISSUE OF CIVIL RULE 10(D)(2)'S CONSTITUTIONALITY WHEN CIVILRULE 10(D)(2) ABRIDGES, ENLARGES AND MODIFIES SUBSTANTIVERIGHTS IN VIOLATION OF THE OHIO CONSTITUTION AND THE UNITEDSTATES CONSTITUTION. Art. IV, § 5 of the Ohio Constitution, Fifth and FourteenthAmendments of the United States Constitution and Article 1, Section 16 of the OhioConstitution . ..... ....................................................... ..... ..... ... ... .. ... ..... .. ... .. .....3-10

PROPOSTION OF LAW NO. 2

A TRIAL COURT ERRS ABUSES ITS DISCRETION BY NOT ALLOWING ANAMENDMENT TO THE COMPLAINT TO SUBSTITUTE A PROPERPARTY PURSUANT TO CIV. R. 15(A), FURTHER A TRIAL COURT IS NOTTO TAKE INTO CONSIDERATION AN OBJECTION TO AMENDMENTFILED BY A PARTY OTHER THAN THE PARTY THAT IS TO BE INCLUDEDIN THE COMPLAINT. Turner v. Central Loc. Sch. Dist. (1999), 85 Ohio St.3d95 ..................................................................................................10-12

CONCLUSION .. . . .. . .. ... ... .. ..... .. ... .. . ...... .. .... ..... . . ..... ... .. .... ... . .. . .. ... .. . .. .... . .. ........12

CERTIFICATE OF SERVICE .. ..... .. ..... .. .. ......... .. ..... .. ... .. . .. . .. . ... .... .. ... .. .... ...... .. ...13

APPENDIX: Decision and Judgment Entry of the Sixth District Court of Appeals(March 31, 2009)

i

TABLE OF AUTHORITIES.

CASES:

Barrette v. Lopez (1999), 32 Ohio App.3d 406, 410 (7th Dist.) ..............................11

Birth Control Centers, Inc. v. Reizen 743 F.2d 352 at p. 366 (6th Cir. 1984) ................8

Cecil v. Cottrill (1993), 67 Ohio St.3d 367, 370 ................................................12

Dowling v. United States, 493 U.S. 342, 352-53, 110 S.Ct. 668, 674, 107 L.Ed.2d 708(1990) ...................................................................................................8

Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638 ..................................5

Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66(1982) ..................................................................................................9

Turner v. Central Loc. Sch. Dist. (1999), 85 Ohio St.3d 95 ...............................10-11

CONSITUTIONAL PROVISIONS: STATUTES:

United States Constitution:Art. 1, § 10; Fifth and Fourteenth Amendments ..........................................passim

Ohio Constitution:Art. I, § 2 & 16 ............................. ........................................................ 3-4Art. II, § 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..3Art. IV, § 5 ..........................................................................................3, 7

ii

THIS CASE IS OF GREAT GENERAL INTEREST AND RAISES ASUBSTANTIAL CONSTITUTIONAL OUESTION

This case presents questions of great general interest and raises a substantial

constitutional question for the following reasons. Whether or not Civil Rule 10(D) (2) is

constitutional and whether a Civil Rule 15 amendment can be made when the same

counsel represents both parties.

STATEMENT OF THE CASE AND FACTS

Plaintiffs filed a complaint in the Court of Common Pleas in Erie County, Ohio.

The first cause of action was directed at the doctors and the hospital that treated the

decedent. The first cause of action alleged that "Defendant doctors, hospitals and

laboratories were negligent in the diagnosis, treatment and care of the Decedent Duncan

Oglesby, Sr. in that in the medical community there was an existence of a standard and

duty of due care owed to Duncan, Sr. within the medical community and that they

breached that standard of care and that said breach was a proximate cause of the injury

and the ultimate death" [Plaintiff's complaint, p. 5] The Plaintiffs further indicated that

the "Defendants failed to properly detect, diagnose and treat the type of cancer and

sickness and the whereabouts of the cancer and sickness causing pain and suffering,

emotional distress, loss of enjoyment of life, and the ultimate death of the Decedent

Duncan Oglesby, Sr." [Plaintiff's complaint p. 6].

Plaintiff's further stated in their complaint that "...the death and the proximate

cause of death indicates that there was a failure to communicate, diagnose and treat the

injury and malady which prevented the Decedent from an opportunity to be operated on,

which failure eliminated any chance for the Decedent's survival or furtherance of

survival." and "That the Defendants failed to take an adequate history and failed to

1

properly consider the Decedent's symptoms could be indicative of other problems and

maladies. [Complaint p. 7, 8]

Plaintiff's initial complaint was dismissed. The refiled complaint was filed in a

timely manner; however Civil Rule 10 came into effect after the refiling of the original

complaint. An affidavit of merit was not attached to the refiled complaint. Plaintiff filed

a motion indicating that Civil Rule 10 was unconstitutional. The Court overruled

Plaintiffs request and the case was ultimately dismissed against those defendants in the

medical arena.

The second count of the complaint involved the decedent's employment with

Consolidated Rail Systems and/or Conrail and/or John Doe Unknown Railway Employer

under 45 U.S.C., Sec.5 1, et seq., or their predecessors or assigns or affiliates [individually

and collectively "Conrail"] The complaint alleged that "Defendant Conrail is and was an

employer and is under the Federal Employer's Liability Act ["FELA"] 45 U.S.C., sec., 51

et seq. which requires rail carriers to provide a safe working environment and imposes

liability for negligence when employees are injured" and that "... Conrail was negligent

in "whole" or in "part" in that its work place created a situation where in the Decedent

contracted cancer and, among other things, Mesothelioma. That Conrail had a duty to

have a safe workplace and knew or should have known the effects that the unsafe

workplace would have on the Decedent and others.

During the course of the proceedings it was discovered that the employer was not

Conrail but another railway that was closely affiliated with Conrail. Plaintiff attempted to

amend the complaint to included the other railway and dismiss Conrail. This request was

2

denied by the Court and instead of dismissing the case against Conrail the Court granted

its motion for summary judgment.

PROPOSITION OF LAW NO. 1

CIVIL RULE 10(D) (2) IS UNCONSTITUTIONAL AND A COURT ABUSES ITSDISCRETION BY NOT GRANTING AN EVIDENTIARY HEARING ON THEISSUE OF CIVIL RULE 10(D)(2)'S CONSTITUTIONALITY WHEN CIVILRULE 10(D)(2) ABRIDGES, ENLARGES AND MODIFIES SUBSTANTIVERIGHTS IN VIOLATION OF THE OHIO CONSTITUTION AND THE UNITEDSTATES CONSTITUTION. Art. IV, § 5 of the Ohio Constitution, Fifth and FourteenthAmendments of the United States Constitution and Article 1, Section 16 of the OhioConstitution

The Appellant moved the Court of Common Pleas for an order declaring that

Civil Rule 10(D) (2) is unconstitutional and as such null and void.

The motion was made pursuant to Art. IV, § 5 of the Ohio Constitution and

because it created (1) improper retroactive legislation in violation of Article 2, Section 28

of the Ohio Constitution, (2) a violation of Article 1, Section 10 of the United States

Constitution and Article 2, Section 28 of the Ohio Constitution as an unlawful

impairment of contractual obligations, (3) a violation of procedural and substantive due

process rights under the Fifth and Fourteenth Amendments of the United States

Constitution and Article 1, Section 16 of the Ohio Constitution, and (4) a violation of

right to equal protection under the Fourteenth Amendment of the United States

Constitution and Article 1, Section 2 of the Ohio Constitution. Civil Rule 10(D) (2)

violates the appellants' right to a civil jury trial as guaranteed by the Seventh Amendment

to the United States Constitution and Section 5, Article I of the Ohio Constitution; and it

violates the constitutional guarantees of equal protection by treating medical claims in a

judicially different manner there being no state interest sufficiently compelling to justify

such different treatment.

3

Appellant also argued that Civil Rule 10(D) (2) was also a violation because the

Ohio Supreme Court was legislating and as such the rule violated the separation of

powers between the judiciary and the legislature. Appellant maintained that not only did

the rule violate just about every aspect of the Ohio Constitution and the United States

Constitution; it usurps the power of the judge and the jury and violates ones right to a

jury.

Civil Rule 10(D) (2) makes the doctor the doorkeeper of whether a litigant can

file a medical claim against another doctor. The rule essentially states that a doctor is the

lynchpin of whether a complaint is "adequate". Does Civil Rule 10(D) (2) alleviate Rule

11? Civil Rule I 1 states in part: "The signature of an attorney or pro se party constitutes a

certificate by the attorney or party that the attorney or party has read the document; that

to the best of the attorney's or party's knowledge, information, and belief there is good

ground to support it; and that it is not interposed for delay. It seems that "good ground"

would trump "adequate".

The Plaintiff argued in his motion that under Civ. R. 10 (D) (2) a plaintiff must

first expend money on an expert. While this may seem like it something that is necessary

for later adjudication - it is not. There is no rule of law or set of cases which indicate that

a medical malpractice lawsuit that goes to completion will have to hire an outside expert.

Plaintiff argued that with the medical profession that there is no assumption that

they will not tell the truth. In other words The Ohio Supreme Court has not given a

reason in making the rule why there is a need for an outside expert to say that malpractice

occurred when the defendant (whether it be a doctor, medical facility or other) may very

well admit they violated the standards of his field. Why should a plaintiff has to go out

4

and hire an expert when the Defendant may very well admit those facts, or be forced to

do so through discovery? Why should the plaintiff pay for the expense of hiring a doctor

as an expert prior to filing a lawsuit? It is pretty much common knowledge that a doctor

would charge about $500.00 just to do a medical report for their own patient. Further,

their testimony in a deposition alone costs upwards of 1,000's of dollars. Unless you are a

law firm that can essentially buy the case or has money to advance

What if the doctor or hospital tampered with the records? See: Moskovitz v. Mt.

Sinai Med. Ctr. (1994), 69 Ohio St.3d 638. In Moskovitz a doctor altered and destroyed

medical records. Our Supreme Court stated the doctor's "alteration of records was

inextricably intertwined with the claims advanced by appellant for medical malpractice,

and the award of compensatory damages on the survival claim formed the necessary

predicate for the award of punitive damages based upon the alteration of medical

records." Id. at 651

If a doctor tampers with the records and makes it appear that nothing happened

how is one to know via an affidavit of merit which pursuant to Civ. Rule 10(D)(2) is

solely base on a review of those medical records.

In this case the Plaintiffs stated in paragraph 2 of their complaint that "... the

decedent died at the Defendant Firelands Hospital in Erie County, Ohio. That up to that

time the decedent was a patient and was treated by the Defendant hospitals, doctors and

laboratories." Firelands Hospital's answer to this portion of Plaintiffs complaint is that

they are: "...without information or knowledge sufficient to form a belief as to the truth

of the allegations contained in paragraph 2 of Plaintiffs' complaint and therefore denies

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same for want of knowledge." (Emphasis added) Firelands won't even admit that Duncan

died there - so how much trust can be put in their records?

Counsel for Plaintiffs can say that she has proof beyond a reasonable doubt that

the decedent died at Firelands Hospital. While Firelands Hospital's states that they have

no information or knowledge that the decedent died there or was a patient. As such, how

can Plaintiff get an affidavit of merit?

Defendant Hospital could have filed an affidavit of "noninvolvement" if they

truly believe that the decedent wasn't in their hospital - but didn't. R.C. § 2323.45

Medical liability action - affidavit of noninvolvement by health care provider -

procedure, states:

(A)(1) A health care provider named as a defendant in a civil action basedupon a medical claim is permitted to file a motion with the court fordismissal of the claim accompanied by an affidavit of noninvolvement.The defendant shall notify all parties in writing of the filing of the motion.Prior to ruling on the motion, the court shall allow the parties not less thanthirty days from the date that the parties were served with the notice torespond to the motion.

(2) An affidavit of noninvolvement shall set forth, with particularity, thefacts that demonstrate that the defendant was misidentified or otherwisenot involved individually or through the action of the defendant's agents oremployees in the care and treatment of the plaintiff, was not obligatedindividually or through the defendant's agents or employees to provide forthe care and treatment of the plaintiff, and could not have caused thealleged malpractice individually or through the defendant's agents oremployees in any way.

What if the hospital omits crucial evidence from the records? In the movie The

Verdict the whole case was based on a less than forthright, but highly imminent, doctor

having a"I" changed to a "9". Under the circumstances of that movie no one, based on

the records would have signed an "affidavit of merit". An "affidavit of merit" is a

voluntary act, while the Court gives one the power of compulsory process. Plaintiff

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cannot force a doctor to sign an affidavit of merit but can compel a witness [fellow doctor

or technician] to answer truthfully.

The Constitution of the State of Ohio Article IV, § 5 (B) states:

x++

(B) The Supreme Court shall prescribe rules governing practice andprocedure in all courts of the state, which rules shall not abridge,enlarge, or modify any substantive right. Proposed rules shall be filedby the court, not later than the fifteenth day of January, with the clerk ofeach house of the General Assembly during a regular session thereof, andamendments to any such proposed rules may be so filed not later than thefirst day of May in that session. Such rules shall take effect on thefollowing first day of July, unless prior to such day the General Assemblyadopts a concurrent resolution of disapproval. All laws in conflict withsuch rules shall be of no further force or effect after such rules have takeneffect. [Emphasis supplied]

Civil Rule 10 (D) (2) states:

Civil Rule 10(D) (2) Affidavit of merit; medical liability claim.

(a) Except as provided in division (D)(2)(b) of this rule, a complaint thatcontains a medical claim, dental claim, optometric claim, or chiropracticclaim, as defined in section 2305.113 of the Revised Code, shall includean affidavit of merit relative to each defendant named in the complaint forwhom expert testimony is necessary to establish liability. The affidavit ofmerit shall be provided by an expert witness pursuant to Rules 601(D) and702 of the Ohio Rules of Evidence. The affidavit of merit shall include allof the following:

(i) A statement that the affiant has reviewed all medical recordsreasonably available to the plaintiff concerning the allegations containedin the complaint;

(ii) A statement that the affiant is familiar with the applicable standard

of care;

(iii) The opinion of the affiant that the standard of care was breachedby one or more of the defendants to the action and that the breach causedinjury to the plaintiff.

7

(c) An affidavit of merit is required solely to establish the adequacy of thecomplaint and shall not otherwise be admissible as evidence or used forpurposes of impeachment.

If the hospital is without sufficient knowledge to believe the decedent was at the

hospital then how can their retention of records be trusted? Counsel for Defendant

hospital, Civil Rule 11, notwithstanding is denying that the decedent was at their hospital.

As long as Civil Rule 56 is available there is no need or justification for Rule 10 (D) (2).

In order to prove a due process violation one must show that the rule fails the

"fundamental fairness" test and "violate[s] those fundamental conceptions of justice

which lie at the base of our civil and political institutions." Dowling v. United States, 493

U.S. 342, 352-53, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990) (citations and quotations

omitted).

In Birth Control Centers, Inc. v. Reizen 743 F.2d 352 at p. 366 (6th Cir. 1984) the

Sixth Circuit Court of Appeals remanded a Michigan case for a determination of whether

"fees" associated with a rule of law that required an entity to have a"medical review". In

Birth Control Centers, Inc. the Court made the following observation:

Rule 38: Review of medical records by outside physician

Rule 38 requires that FSOFs arrange for impartial medical surveillanceand a review of the quality of care provided by their facility at regular andperiodic intervals. R. 325.3838 (Rule 38). The medical reviewrequirements of Rule 38 apparently would require that each FSOF engagea physician not a member of its staff to visit the FSOF at least quarterly to"review those charts that have recorded complications and a few otherunspecified number, selected at random, and merely give a written reportto the facility indicating any suggestions or comments that [the reviewingphysician] might have relative to possible ways of improving the qualityof medical care." 508 F.Supp. at 1377. Plaintiffs object that such a medicalreview process is expensive and would lead to higher costs for abortions,and there was evidence that a reviewing physician might charge $200.00

8

per hour to review an FSOF's records (Acosta, 5/29/80, Tr. 167). The trialcourt made no factual findings concerning the cost of medical review butconcluded Rule 38 did not "in any way burden a woman's right to seek anabortion." 508 F.Supp. at 1378. The trial court then sustained the medicalreview regulation as "rationally related to the State's legitimate interest inassuring compliance with health regulations." Id.

Faced with undisputed testimony that Rule 38 would involve someincreased expenditure by the plaintiff clinics, we cannot ignore thepossibility that the medical review regulation might have more than aninsignifrcant impact on a woman's exercise of her fundamental right. Thedistrict court's opinion, however, does not contain facts that would enableus to determine the significance of the impact, if any, of Rule 38 on awoman's right to abortion. When an appellate court discerns thatadditional fact findings are necessary, the usual rule is to remand forfurther proceedings to permit the trial court to make the necessary findings.Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72L.Ed.2d 66 (1982). Therefore, we remand this aspect of the case to thedistrict court for additional fact-finding to allow that court to determinewhether the medical review process required by Rule 38 is a minorregulation having no significant impact on the plaintiffs' patients' access toabortion. If, on remand, the trial court finds this regulation has nosignificant impact on a woman's fundamental right to abortion, then thatcourt must fiirther determine whether the State has established that theregulation is rationally related to an important State interest in health. TheSupreme Court's recent decisions offer new guidance to the district courtin this matter." Id. at 366

Herein, there is a similar problem with the rule that requires a litigant to have to hire an

outside doctor to give an "affidavit of merit". Public policy would dictate that this

expense is unnecessary and would be expensive.

Rule 10(D)(2) is unconstitutional as it is applied to this case.

PROPOSITION OF LAW NO. 2

A TRIAL COURT ERRS ABUSES ITS DISCRETION BY NOT ALLOWING ANAMENDMENT TO THE COMPLAINT TO SUBSTITUTE A PROPER PARTYPURSUANT TO CIV. R. 15(A), FURTHER A TRIAL COURT IS NOT TO TAKEINTO CONSIDERATION AN OBJECTION TO AMENDMENT FILED BY APARTY OTHER THAN THE PARTY THAT IS TO BE INCLUDED IN THECOMPLAINT. Turner v. Central Loc. Sch. Dist. (1999), 85 Ohio St.3d 95

9

Defendant Conrail filed a motion for summary judgment indicating that they were

not a proper party. That motion was denied by the trial court. In that motion and

response filed by plaintiffs it was clear that there was a mutuality of duties by Conrail and

the railroad that hired decedent. It was further clear that the railroads were one in the

same, but the names were merely different. Included in the pleadings filed by plaintiffs

were documents indicating that the same person did the work for Conrail and the other

railroad. Serving one was tantamount to serving the other. Additionally the pleadings

indicated: "Consolidated Rail Systems and/or Conrail and/or John Doe Unknown

Railway Employer". The substitution of Consolidated with "Michigan Interstate Railway

Company, Norfolk and Western Railway Company and Norfolk and Southern

Corporation" would have created no harm to those defendants because service had

already been perfected in Norfolk, Virginia. [See May 9th, 2008 motion to amend]

Thereafter, Conrail submitted another motion with other documents indicating

that the decedent did not work for Conrail but for another railroad. At that point Plaintiff

indicated that he would amend to include the railroads submitted by Conrail.

Civ.R. 15(A), Ohio has a liberal policy regarding amendments of complaints

where the amendment is not sought in bad faith and where it would not cause undue

delay or prejudice to the opposing party. Turner v. Central Loc. Sch. Dist. (1999), 85

Ohio St.3d 95, 99; Barrette v. Lopez (1999), 32 Ohio App.3d 406, 410 (7th Dist.). True,

the decision on amendment is within the trial court's discretion. See Turner, 85 Ohio

St.3d at 99. However, if the trial court abuses its discretion, the appellate court can

reverse. Id. Thus, we must determine whether it was unreasonable, arbitrary or

10

unconscionable for the trial court to refuse to permit amendment of the complaint to

substitute the intended defendant for the sole named defendant.

Herein, it is clear that there would be no prejudice to the railroad company

because the one person that received the summons worked for, or at least gave testimony

supporting both railroad companies.

After the responsive pleading is filed, a party may amend his pleading only by

leave of court or by written consent of the adverse party. Civ.R. 15(A). "Leave of court

shall be freely given when justice so requires." Civ.R. 15(A).

Where the statute of limitations has run, Civ.R. 15(C) provides the test for

determining if the amendment relates back to the date of the original pleading. First, the

rule states that if the claim asserted in the amended pleading arose out of the conduct,

transaction or occurrence set forth or attempted to be set forth in the original pleading,

then the amendment relates back. Civ.R. 15(C). There is no dispute that this initial Civ.R.

15(C) test was met in this case.

Where the amendment changes the party against whom the claim is asserted,

relation back also requires satisfaction of an additional test:

within the period provided by law for commencing the action against him,the party to be brought in by amendment (1) has received such notice ofthe institution of the action that he will not be prejudiced in maintaininghis defense on the merits, and (2) knew or should have known that, but fora mistake concerning the identity of the proper party, the action wouldhave been brought against him. Civ.R. 15(C).

Pursuant to Civ.R. 3(A):

A civil action is commenced by filing a complaint with the court, ifservice is obtained within one year from such filing upon a nameddefendant, or upon an incorrectly named defendant whose name is later

11

corrected pursuant to Civ.R. 15(C), or upon a defendant identified by afictitious name whose name is later corrected pursuant to Civ. R. 15(D).

The Supreme Court has read these rules in pari materia to mean that notice to the

new defendant must occur within one year of the filing of the complaint if the statute of

limitations has run and that such notice does not require service. Cecil v. Cottrill

(1993),67 Ohio St.3d 367, 370. Thus, notice need not be received before the statute of

limitations ran. Id. And, eventual service need not be completed within one year of filing

of the original complaint. Id. (original complaint filed on day statute of limitations ran

and correct defendant not served until seventeen months after complaint was filed).

CONCLUSION

Herein, the Court should have found that Civil Rule 10(D)(2) is unconstitutional

or at least afforded an evidentiary hearing on the motion. The court abused its discretion,

when, in the totality of the circumstances the "railroad" was served with a complaint.

:es

L a Riddle #0075639158 E. Market St. Suite 302Sandusky, OhioPhone: 419-621-9388Attorney for Appellant

12

CERTIFICATE OF SERVICE

I certify that on I sent a copy of the foregoing document, Brief of the Appellant, to thefollowing parties or their attorneys of record by sending the same by ordinary mail,postage prepaid on May 14"', 2009 to the following:

David A. Damico, EsquireBurns, White & Hickton106 Isabella St.Pittsburgh, PA 15212Counsel for Consolidate Rail

Michael Murphy237 W. Washington RowSecond FloorSandusky, Ohio 44870Counsel for Firelands Hospital

Loretta Riddle #0075639

13

APPENDIX

[Cite as Oglesby v. Consol. Rail Corp., 2009-Ohio-1744.]

IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

ERIE COUNTY

Duncan Oglesby, Jr. et al. Court of Appeals No. E-08-055

Appellants Trial Court No. 2005-CV-0745

V.

Consolidated Rail Corporation, et al. DECISION AND JUDGMENT

Appellees Decided: March 31, 2009

**^*^

Loretta Riddle for appellants.

David A. Damico and Ira L. Podheiser for appellee Consolidated RailCorporation.

Justin Harris and Michael Murphy for appellee Firelands Regional Medical Center.

SINGER, J.

{¶ 1} Appellants appeal judgments of the Erie County Court of Common Pleas,

dismissing a medical malpractice claim and granting summary judgment to an employer

on a Federal Employers Liability Act ("FELA") claim. For the reasons that follow, we

affirm.

{¶ 21 Duncan Oglesby, Sr. was hospitalized in a facility operated by appellee

Firelands Regional Medical Center when he died on October 25, 2003, reportedly of

cancer and mesothelioma. During his life he had worked for the railroad.

{¶ 3} On October 25, 2005,1 appellants, Duncan Oglesby, Jr., Dashon Oglesby,

DK [sic] a minor through his next friend G. L. Oglesby and G. L. Oglesby, individually

and as administrator of the estate of Duncan Oglesby, Sr., sued appellee Firelands for

medical negligence and "Consolidated Rail Systems and/or Conrail and/or John Doe

Unknown Railway Employer" for railway workplace negligence under FELA which

appellants alleged resulted in the death of Duncan Oglesby, Sr.2

(141 Appellee Firelands answered the complaint, denying liability. Separately,

Firelands moved to dismiss the complaint on the ground that appellants failed to include

with the complaint a medical malpractice merit affidavit as required by Civ.R. 10(D)(2).

Appellants responded with a motion to extend for 90 days the time within which to file a

merit affidavit. The court granted appellants until March 16, 2007, to file a merit

affidavit.

{¶ 5} Meanwhile, appellee Consolidated Rail Corporation ("Conrail") filed an

answer on behalf of the "improperly named Consolidated Rail System," denying any

'The case was originally filed on October 25, 2004, then voluntarily dismissedpursuant to Civ.R 41.

2 Appellants also named ten unknown physicians, four unknown hospitals and fiveunknown laboratories. Appellants never substituted any real parties for these John Doedefendants.

2.

knowledge of the decedent's injuries and suggesting that the decedent had not been its

employee.

{¶ 6} On March 16, 2007, rather than file a merit affidavit, appellants moved to

have the court declare Civ.R. 10 (D)(2) unconstitutional. Appellee Firelands filed a

memorandum in opposition to appellants' motion and a moved to dismiss the medical

negligence portion of the suit, pursuant to Civ.R. 10 (D)(2). On April 6, 2007, the trial

court denied appellants' motion to declare Civ.R. 10 (D)(2) unconstitutional and granted

appellee Firelands' motion to dismiss.

{¶ 7} On March 21, 2008, appellee Conrail moved for summary judgment,

asserting that appellants could not meet their burden to prove that the decedent was

exposed to asbestos during his employment, a necessary predicate to FELA liability, or,

alternatively, could not prove that the decedent was ever employed by Conrail. Attached

to the motion was the affidavit of the custodian of records of the U.S. Railroad

Retirement Board, averring that records relating to appellants' decedent showed him to

have been employed by the Michigan Interstate Railway Co., Norfolk and Western

Railway Co., and Norfolk Southern Corp. Also attached to the motion was a 1997

"Transaction Agreement" which appellee Conrail argued absolved it of FELA claims for

its predecessors, including Norfolk Southern, occurring prior to 1999. Since appellants'

decedent never worked for Conrail and Conrail was not a successor for FELA liability,

appellee Conrail insisted that it was entitled to judgment as a matter of law.

3.

{¶ 8} On May 9, 2008, appellants sought leave to amend their complaint to

substitute Michigan Interstate Railway Company, Norfolk and Western Railway Co. and

Norfolk Southern Corp. as defendants, noting, that "* * * it appears that Conrail is not a

proper party." On May 15, the trial court denied leave to amend, concluding that,

pursuant to Civ.R. 15 and 3, a claim against these parties was time barred. On June 4, the

court granted appellee Conrail's motion for summary judgment.

11191 Appellants now bring this appeal, setting forth the following two

assignments of error:

{¶ 10) 1. "The trial court erred by finding Civil Rule 10(D)(2) constitutional and

abused its discretion by not granting an evidentiary hearing on the issue of Civil Rule

10(D)(2)'s constitutionality when Civil Rule 10(D)(2) abridges, enlarges and modifies

substantive rights in violation of the Ohio Constitution and the United States Constitution

1111112. "The trial court abused its discretion by not allowing an amendment to

the complaint to substitute a proper for party [sic]"

1. Merit Affidavit

{¶ 12) Civ.R. 10(D)(2) in material part provides:

{¶ 13) "(2) Affidavit of merit; medical liability claim.

{¶ 14} "(a) Except as provided in division (D)(2)(b) of this rule, a complaint that

contains a medical claim * * * shall include one or more affidavits of merit relative to

each defendant named in the complaint for whom expert testimony is necessary to

establish liability. Affidavits of merit shall be provided by an expert witness pursuant to

4.

Rules 601(D) and 702 of the Ohio Rules of Evidence. Affidavits of merit shall include

all of the following:

{¶ 151 "(i) A statement that the affiant has reviewed all medical records

reasonably available to the plaintiff concerning the allegations contained in the

complaint;

{¶ 161 "(ii) A statement that the affiant is familiar with the applicable standard of

care;

{¶ 171 "(iii) The opinion of the affiant that the standard of care was breached by

one or more of the defendants to the action and that the breach caused injury to the

plaintiff."

11118) "'Medical claim' means any claim that is asserted in any civil action against

a*** hospital, * * * and that arises out of the medical diagnosis, care, or treatment of

any person." R.C. 2305.113(E)(3).

{¶ 19) "[T]he proper remedy for failure to attach the required affidavit(s) is for the

defendant to request a more definite statement. If the plaintiff fails to comply with an

order to provide a more definite statement, 'the court may strike the pleading to which the

motion was directed, or make any other orders as it deems just, which would include

involuntary dismissal with prejudice pursuant to Civ. R. 41(B)(1)."' Fletcher v. University

Hosp. of Cleveland, 172 Ohio App.3d. 153, 157, 2007-Ohio-2778, ¶ 9, quoting Point

Rental Co. v. Posani (1976), 52 Ohio App.2d 183, 186; compare Stewart v. Forum

Health, 7th Dist. No. 06-MA-120, 2007-Ohio-6922.

5.

{¶ 201 Appellants' complaint with respect to appellee Firelands Regional Medical

Center alleged injury to their decedent arising from the medical diagnosis, treatment and

care he received. No merit affidavit was attached. Although the motion to dismiss by

appellee Firelands was not a motion for a more definitive statement, it supplied appellants

with the functional equivalent of such a motion, providing notice that the required

supporting document was missing. The trial court permitted appellants ample time to

comply and thus was within the authority of the rule in dismissing that portion of

appellants' complaint alleging medical malpractice.

{¶ 21} Nevertheless, appellants insist that Civ.R. 10(D)(2) should not be applied

because the rule is violative of multiple provisions of the Ohio and United States

Constitutions. Appellants insist that Civ.R. 10(D)(2) is impermissible retroactive

legislation, improperly impairs the right of contract, violates procedural and substantive

due process, violates their right to equal protection under both the state and federal

constitutions and impairs their right to a jury trial in a civil case.

{¶ 22) As both appellee Firelands and the trial court noted, a merit affidavit

requirement was found unconstitutional when statutorily enacted as part a sweeping

legislative tort reform attempt in 1997 Am.Sub.H.B. No. 350. State ex rel. OATL v.

Sheward (1999), 86 Ohio St.3d 451,478-479. The measure was found to be an improper

encroachment on the authority granted to the Supreme Court of Ohio to promulgate rules

of procedure in civil matters. Id. at 478, citing Rockey v. 84 Lumber Co. (1993), 66 Ohio

6.

St.3d 221, paragraph two of the syllabus; Section 5(B), Article IV of the Ohio

Constitution.

{¶ 231 Although the present measure is substantively the same and was adopted

pursuant to a request of the legislature, see, 2006 Am.Sub.H.B. 215, Section 3, it was,

nonetheless, a product of a judicial process that resulted in its adoption by the Ohio

Supreme Court. As such, it does not conflict with Section 5(B), Article IV as did its

predecessor.

111241 With respect to retroactive application of the rule, Section 28, Article II of

the Ohio Constitution and Section 10, Article I of the United States Constitution apply

only to bar retroactive application of legislative enactments. Moreover, even legislative

enactments are not offensive if they are only remedial and procedural. Ackison v. Anchor

Packing Co., 120 Ohio St.3d 228, 2008-Ohio-5243, ¶ 16. In this matter the rule at issue

is not a legislative enactment and is procedural. Consequently, the rule presents no

retroactive application issue.

{¶ 25) With respect to an impairment of contractual obligations or a due process

violation, appellants do not clearly articulate the manner in which they believe the rule is

constitutionally offensive.

{¶ 26) Appellants complain that they are being deprived of equal protection

because the rule treats medical claims differently than other negligence claims. This is

actually a challenge to the legislature's decision to treat medical claims differently. Such

differentiation "* * * must be upheld against equal protection challenge if there is any

7.

reasonably conceivable state of facts that could provide a rational basis for the

classification." Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State

Univ.(1999), 87 Ohio St.3d 55, 58, 1999-Ohio-248, quoting F.C.C. v. Beach

Communications, Inc. (1993), 508 U.S. 307, 313. The classifications of which appellants

complain appear to be intended to expedite the medical claim, bringing an early

resolution if the plaintiff is unable to come forward with evidence supporting issues for

which he or she bears the burden of proof. The statutes at issue seem rationally related to

speeding that process. As a result, we see no equal protection violation.

{¶ 27} With respect to the rule denying a plaintiff a right to a civil jury, it does no

more than require a plaintiff to show a prima facie case early in the proceeding. This no

more deprives a party of a civil jury than would a motion for summary judgment.

{¶ 28} Appellants have not shown that Civ.R. 10(D)(2) fails to comply with the

Constitutions of Ohio or the United States. Accordingly, their first assignment of error is

not well-taken.

II. Substitution of Parties

{¶ 29} In their second assignment of error, appellants assert that the trial court

erred in denying their May 9, 2008 motion for leave to amend their complaint to

substitute Michigan Interstate Railway Co., Norfolk and Western Railway Co. and

Norfolk and Southern Corp. for the John Doe railway defendants. In their motion,

appellants concede that appellee Conrail is not a proper party and promises to dismiss it

as a defendant if leave to amend is granted. The court denied leave to amend.

8.

{¶ 30} "When the plaintiff does not know the name of a defendant, that defendant

may be designated in a pleading or proceeding by any name and description. When the

name is discovered, the pleading or proceeding must be amended accordingly. The

plaintiff, in such case, must aver in the complaint the fact that he could not discover the

name. The summons must contain the words 'name unknown,' and a copy thereof must be

served personally upon the defendant." Civ.R. 15(D).

{¶ 31} "Whenever the claim or defense asserted in the amended pleading arose out

of the conduct, transaction, or occurrence set forth or attempted to be set forth in the

original pleading, the amendment relates back to the date of the original pleading. An

amendment changing the party against whom a claim is asserted relates back if the

foregoing provision is satisfied and, within the period provided by law for commencing

the action against him, the party to be brought in by amendment (1) has received such

notice of the institution of the action that he will not be prejudiced in maintaining his

defense on the merits, and (2) knew or should have known that, but for a mistake

concerning the identity of the proper party, the action would have been brought against

him." Civ.R. 15(C).

{¶ 32} "A civil action is commenced by filing a complaint with the court, if service

is obtained within one year from such filing upon a named defendant, or upon an

incorrectly named defendant whose name is later corrected pursuant to Civ. R. 15(C), or

upon a defendant identified by a fictitious name whose name is later corrected pursuant to

Civ. R. 15(D)." Civ.R. 3(A).

9.

{¶ 331 "[T]he use of a fictitious name with subsequent correction, by amendment,

of the real name of a defendant under Civ.R. 15(D) relates back to the filing of the

original complaint and that service must be obtained within one year of the filing of the

original complaint." Amerine v. Haughton Elevator Co. (1989), 42 Ohio St.3d 57, 59.

{¶ 34} When appellants refiled their complaint, it was at the absolute edge of the

statute of limitations. For the cause of action to remain viable, service must have been

obtained upon the John Doe defendants within one year of the filing of the complaint.

Since appellants' motion to substitute parties occurred well beyond one year after filing

the complaint, it would have been impossible by that time to satisfy Civ.R. 15(C).

Absent the application of the relation back provisions of Civ.R. 3(A) and 15(C) and (D),

the statute of limitations bars further action on this claim.

{¶ 35) Since appellants were barred from further action, we cannot say that the

trial court abused its discretion in denying appellant's motion for leave to amend.

Accordingly, appellants' second assignment of error is not well-taken.

{¶ 36} On consideration whereof, the judgment of the Erie County Court of

Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal

pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the

record, fees allowed by law, and the fee for filing the appeal is awarded to Erie County.

JUDGMENT AFFIRMED.

Oglesby v. Consolidated Rail SystemsE-08-055

10.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.See, also, 6th Dist.Loc.App.R. 4.

Peter M. Handwork, J.JUDGE

Mark L. PietakowskiJ.

Arlene Sin eg r=J.CONCUR.

JUDGE

JUDGE

This decision is subject to further editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court's web site at:http://www.sconet.state.oh.us/rod/newpdf/?source=6.

11.