[Cite as Gray v. Cincinnati Children's Hosp. Med. Ctr., 2024-Ohio-3168.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
CHAEFONE GRAY, Individually, and : APPEAL NO. C-240103 as Administrator for the Estate of TRIAL NO. A-2300352 Dante Craig, Deceased, :
Plaintiff-Appellant, : O P I N I O N.
vs. :
CINCINNATI CHILDREN’S : HOSPITAL MEDICAL CENTER, : DR. BETH A. RYMESKI, : DR. CHRISTINA FENG, : DR. IRENE LIM-BEUTEL, : DR. GRACE MARTIN, : DR. NELSON ROSEN, : DR. TIMOTHY DRIBIN, : DR. ANDREW COX, : DR. MARIA ALONSO, : DR. BRANDON COLVIN, : and : DR. HEATHER NOLAN, : Defendants-Appellees, : and : JOHN DOES and JANE DOES, : Defendants. Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 21, 2024
Statman Harris, LLC and Alan J. Statman, for Plaintiff-Appellant,
Dinsmore & Shohl, LLP, Allison G. Knerr and J. David Brittingham, for Defendant- Appellee Cincinnati Children’s Hospital Medical Center,
Bonezzi Switzer Polito & Hupp Co., LPA, Paul W. McCartney and Thomas F. Glassman, for Defendant-Appellees Dr. Beth A. Rymeski, Dr. Christina Feng, Dr. Irene Lim-Beutel, Dr. Nelson Rosen, Dr. Timothy Dribin, Dr. Andrew Cox, Dr. Maria Alonso, Dr. Brandon Colvin, and Dr. Heather Nolan,
Calderhead, Lockemeyer & Peschke and Bill J. Paliobeis, for Defendant-Appellee Dr. Grace Martin. [Cite as Gray v. Cincinnati Children's Hosp. Med. Ctr., 2024-Ohio-3168.]
KINSLEY, Judge.
{¶1} This is an appeal from an award of summary judgment in favor of a
hospital and members of its team of physicians following the death of a child-patient.
Plaintiff-appellant Chaefone Gray, individually and as an administrator of the child’s
estate, initiated this medical malpractice action in the wake of the child’s passing.
Ohio law, however, strictly circumscribes the requirements for sustaining this type of
lawsuit. Gray’s failure to timely support her claims with expert testimony ultimately
meant she could not prevail on those claims. We therefore affirm the judgment of the
trial court.
Factual and Procedural Background
{¶2} The complaint alleges that, on or about August 27, 2018, the child
underwent an ileostomy closure procedure at Cincinnati Children’s Hospital Medical
Center (“CCHMC”). According to the complaint, the child’s health deteriorated in the
weeks after the procedure due to numerous complications. Following further
examinations and interventions, the child passed away on November 15, 2018.
{¶3} On January 25, 2023, Gray refiled a complaint asserting causes of action
for negligence, wrongful death, loss of consortium, vicarious liability, negligent
credentialing, negligent supervision, and negligent retention. The claims were lodged
against CCHMC, Dr. Beth Rymeski, Dr. Christina Feng, Dr. Irene Lim-Beutel, Dr.
Nelson Rosen, Dr. Timothy Dribin, Dr. Andrew Cox, Dr. Maria Alonso, Dr. Brandon
Colvin, Dr. Heather Nolan, and Dr. Grace Martin (collectively “the defendants”).
{¶4} The defendants filed separate answers to the complaint. On June 29,
2023, the trial court entered an order setting forth various deadlines for party filings.
The order specified that Gray was to disclose the names of all expert witnesses and
provide a summary of their opinions by September 28, 2023. The order expressly OHIO FIRST DISTRICT COURT OF APPEALS
indicated, “[i]f plaintiff fails to comply with [these disclosure directives], plaintiff’s
experts will be prevented from testifying.”
{¶5} September 28, 2023, came and went without Gray submitting any
expert disclosures. Thereafter, on October 12, 2023, the defendants jointly moved for
summary judgment on all claims. On November 14, 2023, Gray filed her response in
opposition to the defendants’ joint motion for summary judgment. Gray
simultaneously filed a purported disclosure document naming Dr. Gabriel Jacob
Hauser as her medical expert.
{¶6} None of the parties requested a hearing on the defendants’ joint motion
for summary judgment. In a written decision entered on December 11, 2023, the trial
court granted the motion. Gray subsequently moved the court to reconsider its
decision, which motion was overruled on January 23, 2024. Gray filed her notice of
appeal on February 20, 2024.
{¶7} The defendants jointly moved to dismiss the appeal as untimely,
arguing that the trial court’s January 23, 2024 judgment entry denying
reconsideration was a nullity and that Gray’s appeal from the December 11, 2023 entry
was late. We declined to dismiss the appeal, however, noting that the trial court
neglected to order service of the December 11, 2023 entry on the parties and that
service had not been docketed by the clerk as required by Civ.R. 58(B). Thus, Gray’s
30-day appeal clock had not yet begun to run. See, e.g., White v. Cent. Ohio Gaming
Ventures, LLC, 2019-Ohio-1078, ¶ 10-12 (10th Dist.); see also App.R. 4(A)(3).
Accordingly, we have jurisdiction to entertain the appeal. See White at ¶ 11-12.
The Trial Court’s Decision
{¶8} The trial court noted that the instant complaint was filed on January 25,
2023. Dr. Hauser’s affidavit of merit was appended to the complaint. See Civ.R.
4 OHIO FIRST DISTRICT COURT OF APPEALS
10(D)(2) (complaint alleging medical claims must be accompanied by expert’s
affidavit of merit in order to establish adequacy of complaint). Thereafter, on June
26, 2023, Gray’s current attorney took over her representation by filing a notice of
substitution of counsel. Three days later, the trial court issued the scheduling order
imposing a deadline of September 28, 2023, for disclosure of Gray’s experts. On
November 14, 2023, well past the deadline and after the defendants had already
moved for summary judgment, Gray filed the noncompliant expert disclosure naming
Hauser.
{¶9} The trial court noted that Civ.R. 1(B) directs that the Civil Rules “shall
be construed and applied to effect just results by eliminating delay, unnecessary
expense and all other impediments to the expeditious administration of justice.” On
the issue of excusable neglect, the court emphasized the fact that Gray had yet to
submit an appropriate expert disclosure. The trial court’s June 29, 2023 scheduling
order specifically required Gray to disclose the names of expert witnesses and provide
a written summary of their opinions by September 28, 2023. The order could not have
been clearer, the court emphasized, and the defendants were simply asking the court
to abide by and uphold its own orders—orders consented to by all the parties.
{¶10} Based upon its review of the provided documentation, the trial court
additionally found that Gray’s newly-substituted counsel was well aware of and had
ample time to comply with the September 28, 2023 expert disclosure deadline. For
whatever reason, the court noted, Gray did not comply with the order. Nor did the
purported disclosure that was eventually filed comply with Civ.R. 26.
{¶11} Finally, regarding the common knowledge exception, the trial court
found that many of the medical terms and conditions in the case were well beyond the
5 OHIO FIRST DISTRICT COURT OF APPEALS
comprehension of laypersons. Accordingly, expert testimony was required to support
Gray’s claims and avoid summary judgment.
Standard of Review
{¶12} In a single assignment of error, Gray insists the trial court wrongly
granted the defendants’ joint motion for summary judgment. We review a trial
court’s summary judgment ruling de novo. Collett v. Sharkey, 2021-Ohio-2823, ¶ 8
(1st Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary
judgment is proper under Civ.R. 56(C) where (1) no genuine issues of material fact
remain to be litigated, (2) the moving party is entitled to judgment as a matter of law,
and (3) construing the evidence most strongly in favor of the nonmoving party,
reasonable minds can come to but one conclusion that is adverse to the nonmoving
party. Al Neyer, LLC v. Westfield Ins. Co., 2020-Ohio-5417, ¶ 14 (1st Dist.).
{¶13} The moving party bears the initial burden of informing the court of the
basis for the motion and identifying the portions of the record that convey specific
facts demonstrating its entitlement to summary judgment. Id. at ¶ 15. If the moving
party meets its burden, summary judgment is appropriate only where the nonmoving
party fails to meet its reciprocal burden to put forth specific facts establishing the
existence of a genuine issue of material fact for trial. Id.
{¶14} To the extent that our review contemplates the trial court’s discovery
rulings, scrutiny thereof involves an abuse of discretion standard. See, e.g., Nuckols
v. CONRAIL, 2024-Ohio-1070 (6th Dist.) (trial court had discretion to disregard
untimely expert reports). An abuse of discretion connotes a decision that was
unreasonable, arbitrary, or unconscionable. Morgan v. Jones, 2022-Ohio-1831, ¶ 27
(1st Dist.), quoting Cornell v. Shain, 2021-Ohio-2094, ¶ 36 (1st Dist.).
6 OHIO FIRST DISTRICT COURT OF APPEALS
The Law on Medical Malpractice Claims
{¶15} Generally speaking, the elements of a medical malpractice claim mirror
a cause of action for simple negligence, including proof of (1) a duty requiring the
physician to conform to the requisite standard of care, (2) a breach of that duty, (3) a
causal connection between the breach and the injury, and (4) damages. Cromer v.
Children’s Hosp. Med. Ctr. of Akron, 2015-Ohio-229, ¶ 48-49 (O’Donnell, J.,
concurring in judgment only), quoting Menifee v. Ohio Welding Prods., Inc., 15 Ohio
St.3d 75, 77 (1984); Bruni v. Tatsumi, 46 Ohio St.2d 127, 129-130 (1976).
{¶16} In order to support a claim of medical negligence, a complainant must
submit evidence establishing the requisite standard of care, show that the physician
negligently diverged from that standard, and demonstrate an injury proximately
resulting from the physician’s actions. White v. Summa Health Sys., 2008-Ohio-
6790, ¶ 11 (9th Dist.), quoting Davis v. Virginian Ry. Co., 361 U.S. 354 (1960). This
foundation must be laid by way of expert testimony. Bruni at 131-132; White v.
Leimbach, 2011-Ohio-6238, ¶ 34, citing Berdyck v. Shinde, 66 Ohio St.3d 573, 579
(1993), and Bruni at 130 (providing, “[i]n general, when a medical claim questions the
professional skill and judgment of a physician, expert testimony is required to prove
the relevant standard of conduct”). The failure to do so supports a grant of summary
judgment in favor of the challenged physician. See, e.g., Brielmaier v. Physicians
Anesthesia Servs., Inc., 1989 Ohio App. LEXIS 1940, *3 (1st Dist. May 31, 1989);
Hoffman v. Davidson, 31 Ohio St.3d 60, 61-62 (1987).
The Propriety of Summary Judgment in Favor of the Defendants
1. Excusable neglect
{¶17} Gray filed a notice of substitution of counsel on June 26, 2023. The new
attorney filed an affidavit avowing that Gray’s previous lawyer asked him to substitute
7 OHIO FIRST DISTRICT COURT OF APPEALS
as counsel on or around June 26, 2023, due to the previous lawyer’s health issues.
Gray’s new attorney further swore he did not receive a copy of the trial court’s June
29, 2023 scheduling order.
{¶18} The defendants insist the record supports that Gray’s substitute counsel
and/or cocounsel indeed had notice of the June 29, 2023 scheduling order. The
defendants further emphasize the fact that Gray has yet to file an expert disclosure
that complies with Civ.R. 26(B)(7). They reason that, even if Gray disclosed an expert
witness, she failed to meet her reciprocal burden under Civ.R. 56. In the face of these
deficiencies, the defendants maintain, summary judgment was proper.
{¶19} Civ.R. 6(B)(2) provides that a court may extend time for any action
“upon motion made after the expiration of the specified period . . . where the failure to
act was the result of excusable neglect[.]” “Excusable neglect” is generally defined as:
A failure . . . to take some proper step at the proper time . . . not because
of the party’s own carelessness, inattention, or willful disregard of the
court’s process, but because of some unexpected or unavoidable
hindrance or accident or because of reliance on the care and vigilance of
the party’s counsel or on a promise made by the adverse party.
Black’s Law Dictionary (11th Ed. 2019).
{¶20} By contrast, “mere neglect” does not warrant relief for the offending
party. Suon v. Mong, 2018-Ohio-4187, ¶ 25 (10th Dist.) (discussing “excusable
neglect” in the context of relief from judgment under Civ.R. 60(B)(1)). Conduct which
“falls substantially below what is reasonable under the circumstances” amounts to
inexcusable neglect. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d
146, 152 (1976), quoting Link v. Wabash RR. Co., 370 U.S. 626, 634, fn. 10
(1962). Moreover, “if the party could have prevented the circumstances from
8 OHIO FIRST DISTRICT COURT OF APPEALS
occurring, neglect will not be considered excusable.” Lester v. Chivington, 2015-Ohio-
5446, ¶ 20 (3d Dist.). In this vein, the Ohio Supreme Court explained that “the inaction
of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for
the judicial system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996),
quoting GTE at 153.
{¶21} Some instances where excusable neglect was found to justify a party’s or
attorney’s inaction include having no knowledge or notice of a pending legal action,
suffering from personal or family illness, and failing to appear after not receiving
notice of a rescheduled trial date. Doddridge v. Fitzpatrick, 53 Ohio St.2d 9, 13 (1978);
The Bluffs of Wildwood Homeowners’ Assn., Inc. v. Dinkel, 96 Ohio App.3d 278, 281
(12th Dist. 1994); Columbia Gas of Ohio v. Riley, 38 Ohio App.3d 151 (10th Dist. 1987),
paragraph two of the syllabus. Other cases have declined to find excusable neglect,
particularly where “the party or his attorney could have controlled or guarded against
the happening of the special or unusual circumstance[.]” Vanest v. Pillsbury Co., 124
Ohio App.3d 525, 536 (4th Dist. 1997); see Internatl. Lottery, Inc. v. Kerouac, 102
Ohio App.3d 660, 667 (1st Dist. 1995) (out-of-state attorney not entitled to preferential
treatment concerning procedural rules and time limits where he failed to appear
despite receiving notice of trial). Ultimately, the court’s determination of “excusable
neglect” must take into account “all the surrounding facts and circumstances, with the
admonition that cases should be decided on their merits, where possible.” Milatz v.
Cincinnati, 2019-Ohio-3938, ¶ 16 (1st Dist.), quoting Fourtounis v. Verginis, 2017-
Ohio-8577, ¶ 12 (8th Dist.).
{¶22} In the case at bar, the affidavit of Dr. Grace Martin was among the
documents appended to the defendants’ joint motion for summary judgment. Martin
was one of the physicians who treated the child during the relevant time period. She
9 OHIO FIRST DISTRICT COURT OF APPEALS
swore that she was “qualified to render expert opinions on the issues of standard of
care and causation as they relate to the claims arising out of [her] care and treatment
of [the child].” Martin submitted expert opinion that “at all times [she] acted in
accordance with accepted standards of care in providing care and treatment to [the
child.]” Martin further opined that “[the child] suffered no injury as a result of any
alleged deviation from the standard of care or alleged negligence on [her] behalf.”
{¶23} Of note, Gray does not dispute on appeal that the defendants satisfied
their initial burden to establish no genuine issues of material fact existed and the
defendants were entitled to judgment as a matter of law. See Al Neyer, LLC, 2020-
Ohio-5417, at ¶ 15 (1st Dist.). Rather, the crux of Gray’s argument is that she was
unable to meet her reciprocal burden to put forth specific facts establishing the
existence of a genuine issue for trial due to the excusable neglect of her counsel. See
id.
{¶24} To this end, Gray’s new attorney swore in his affidavit that “[o]n or
around June 26, 2023, [the attorney’s law firm] was asked by [prior counsel] to
substitute for him in this action due to [prior counsel’s] health issues.” That prompted
Gray’s new attorney to file the notice of substitution of counsel. The new attorney
avowed that “[his law firm] did not receive a copy of the Scheduling Order entered
June 29, 2023.” Finally, the new attorney swore that, “[a]s a result of not having
received the Scheduling Order, Plaintiff, through [her counsel], was unable to timely
disclose Plaintiff’s expert and report.”
{¶25} Contrary to these averments, a thorough review of the record supports
the conclusion that Gray’s attorney and/or his cocounsel had actual knowledge of the
June 29, 2023 scheduling order. In her affidavit, CCHMC’s attorney swore that she
“had knowledge that [substitute counsel] was representing Plaintiff well prior to the
10 OHIO FIRST DISTRICT COURT OF APPEALS
case management conference on June 29, 2023.” CCHMC’s attorney further attested
that “[a] previously scheduled case management conference . . . was delayed
specifically so that [Gray’s new attorney] could attend.” According to CCHMC’s
attorney, either Gray’s new counsel or one of his colleagues attended the June 29, 2023
case management conference.
{¶26} The email communications appended to the defendants’ November 28,
2023 reply in support of their summary judgment motion, which were authenticated
by affidavit, substantiate these assertions. The email chain establishes that the case
management conference was rescheduled to permit Gray’s new lawyer to attend.
Gray’s substitute counsel himself participated in this email chain. In an email dated
June 28, 2023, substitute counsel confirmed the time for the case management
conference set for the following day. The scheduling order in question was issued as a
result of that very case management conference. Gray’s new counsel thus had notice
and ample time to comply with the order.
{¶27} The record lends further support. In his affidavit, Gray’s new attorney
acknowledged filing the notice of substitution of counsel three days before the June
29, 2023 scheduling order was entered. The notice was electronically signed by both
Gray’s former attorney and her new one, and the certificate of service was
electronically signed by new counsel as well. Simultaneously with the notice of
substitution, Gray’s substitute attorney filed a notification form. That form contained
the mailing address of his law firm, phone number, fax number, and email address.
This information was thus of record when the trial court issued the scheduling order
three days later. Presuming regularity in the absence of any indication on the record
to the contrary, it follows that notice of the scheduling order was conveyed to the new
11 OHIO FIRST DISTRICT COURT OF APPEALS
attorney’s law firm. See Rothman v. Lehman, 1995 Ohio App. LEXIS 4174, *4-5 (1st
Dist. Sept. 27, 1995).
{¶28} Despite having notice and time, no such disclosure was timely filed.
Indeed, as stated, no compliant expert disclosure has ever been filed on Gray’s behalf.
Per the express terms of the trial court’s scheduling order, Gray is barred from calling
any experts to testify on her behalf.
{¶29} To reiterate, Ohio law requires that medical malpractice claims be
supported by qualified expert testimony. It was thus incumbent upon Gray to submit
evidence such as an “affidavit, deposition, or other evidentiary material containing an
expert opinion about the applicable standard of care.” Hughes v. Bethesda Hosp., Inc.,
2005-Ohio-2451, ¶ 10 (1st Dist.); Civ.R. 56(E). Where the complainant fails to provide
such expert evidence, courts routinely grant summary judgment in favor of the
hospital or physician. See, e.g., Brielmaier, 1989 Ohio App. LEXIS 1940, at *2-3 (1st
Dist.); Hoffman, 31 Ohio St.3d at 61-62; Burton v. Cotton, 1998 Ohio App. LEXIS
4861, *2-3 (1st Dist. Oct. 16, 1998). That is what happened here. For the “[f]ailure to
establish the recognized standards of the medical community is fatal to the
presentation of a prima facie case of malpractice by the plaintiff.” Bruni, 46 Ohio St.2d
at 133, quoting Finley v. United States, 314 F.Supp. 905, 911 (N.D.Ohio 1970).
Compare Yung v. UC Health, LLC, 2023-Ohio-789, ¶ 19-20 (1st Dist.) (medical
expert’s testimony sufficient to generate a question of fact for the jury concerning
failure to properly protect patient’s hearing during MRI procedure).
{¶30} Nor did Gray move for a continuance under Civ.R. 56(F) to secure the
requisite expert testimony. As the Tenth District Court of Appeals explained:
Civ.R. 56(F) provides the sole remedy for a party who must respond to
a motion for summary judgment before it has completed adequate
12 OHIO FIRST DISTRICT COURT OF APPEALS
discovery. Pursuant to Civ.R. 56(F), a party may request that the trial
court defer ruling on the motion for summary judgment pending the
completion of discovery. When a party fails to move for a Civ.R. 56(F)
continuance, a trial court may grant summary judgment to the moving
party even if discovery remains incomplete. Moreover, the party that
fails to move for a Civ.R. 56(F) continuance does not preserve his right
to challenge the adequacy of discovery on appeal.
(Internal citations omitted.) Hernandez v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-
8646, ¶ 17 (10th Dist.). The record before us does not evince any attempt by Gray to
request more time to obtain the required expert testimony. This further hampers her
prayer for relief from summary judgment on appeal. See, e.g., Sanchez v. Ohio Dept.
of Rehab. & Corr., 2019-Ohio-2534, ¶ 28 (10th Dist.) (“Because expert medical
testimony is required to support a medical malpractice claim, summary judgment in
favor of the defendant is proper where the plaintiff both fails to produce
an expert report and does not move for and receive a continuance under Civ.R.
56(F).”).
{¶31} What is more, the purported expert disclosure ultimately filed by Gray
falls far short of what the law requires. The document indicated Hauser would testify
that:
A. Defendants did not order adequate cardio-respiratory
monitoring and vital signs were ordered at inadequate frequency
(blood pressure daily).
B. Defendants should have obtained blood cultures and started
broad spectrum antibiotics when [the child] was admitted. [The
child] had the classic clinical symptoms of sepsis: fever,
13 OHIO FIRST DISTRICT COURT OF APPEALS
tachycardia (high heart rate), tachypnea (high respiratory rate)
and change in mental status, and later cool extremities, in
addition to low white blood cell count with a left shift and
metabolic acidosis.
C. Defendants failed to closely monitor [the child]. [The child] was
likely hypotensive and hypoxic for about 1/2 hour on November
15th when the nurse found him non-responsive with weak pulse
and shallow breathing at 18:15. She had given him Tylenol at
17:37.
D. Defendants ignored AUTOMATIC WARNING FOR[] SEPSIS.
(Capitalized letters in original.)
{¶32} Civ.R. 26 governs discovery. Regarding disclosure of expert testimony,
subsection (B)(7) provides in pertinent part:
(a) A party must disclose to the other parties the identity of any
witness it may use at trial to present evidence under Ohio Rule of
Evidence 702, 703, or 705.
(b) The reports of expert witnesses expected to be called by each
party shall be exchanged with all other parties. The parties shall submit
expert reports and curricula vitae in accordance with the time schedule
established by the Court. The party with the burden of proof as to a
particular issue shall be required to first submit expert reports as to that
issue. Thereafter, the responding party shall submit opposing expert
reports within the schedule established by the Court.
(c) Other than under subsection (d), a party may not call an
expert witness to testify unless a written report has been procured from
14 OHIO FIRST DISTRICT COURT OF APPEALS
the witness and provided to opposing counsel. The report of an expert
must disclose a complete statement of all opinions and the basis and
reasons for them as to each matter on which the expert will testify. It
must also state the compensation for the expert’s study or testimony.
Unless good cause is shown, all reports and, if applicable, supplemental
reports must be supplied no later than thirty (30) days prior to trial. An
expert will not be permitted to testify or provide opinions on matters
not disclosed in his or her report.
(d) Healthcare Providers. A witness who has provided medical,
dental, optometric, chiropractic, or mental health care may testify as an
expert and offer opinions as to matters addressed in the healthcare
provider’s records. Healthcare providers’ records relevant to the case
shall be provided to opposing counsel in lieu of an expert report in
accordance with the time schedule established by the Court.
{¶33} The plain text of Civ.R. 26(B)(7)(c) requires disclosure of a complete
statement of all expert opinions and their bases. That subsection also requires the
disclosure of compensation paid to the expert for his or her study or testimony. Gray’s
purported disclosure provided only blanket summaries offered by her counsel—not
Hauser—as to Hauser’s expected testimony. See Civ.R. 26(B)(7)(c); see also Civ.R.
56(E) (supporting averments must be based on personal knowledge). Nor was the
filing accompanied by an affidavit sworn to and signed by Hauser himself. See id. The
filing additionally omits Hauser’s compensation for his expert services. In view of
these omissions, the purported expert disclosure filed by Gray clearly did not comply
with the relevant rules. See Riverside Drive Ents., LLC v. Geotechnology, Inc., 2023-
Ohio-583, ¶ 13 (1st Dist.) (noting that Civ.R. 26(B)(7) requires that parties submit
15 OHIO FIRST DISTRICT COURT OF APPEALS
expert reports which disclose a complete statement of all opinions and the bases and
reasons for those opinions).
{¶34} Where a party fails to comply with discovery rules and deadlines, a trial
court is within its discretion to exclude the offending evidence. Id. at ¶ 12, citing State
ex rel. Dewine v. ARCO Recycling, Inc., 2022-Ohio-1758, ¶ 54 (8th Dist.); Myers v.
John A. Hudec Cleveland Dental Ctr. Inc., 2022-Ohio-80, ¶ 33 (8th Dist.) (trial court’s
exclusion of expert affidavit did not constitute an abuse of discretion where affidavit
was filed late); Hanick v. Ferrara, 2020-Ohio-5019, ¶ 38 (7th Dist.) (same). As stated,
Gray has yet to file a compliant expert disclosure, much less a proper disclosure that
was excluded solely because it was late. See Haworth v. Roman, 2023-Ohio-3816, ¶
13-22 (2d Dist.) (holding that, in a medical negligence action, the trial court did not
abuse its discretion in striking plaintiff’s expert disclosure because it was not filed in
accordance with the schedule set by the court and did not comply with Civ.R.
26(B)(7)).
{¶35} Finally, even if Gray’s late expert disclosure were deemed acceptable
under Civ.R. 26, the blanket statements therein fail to flesh out the accepted standards
of care in the relevant medical community, whether and precisely how the physicians’
actions deviated from those standards, and how those deviations caused the child’s
untimely demise. Accordingly, Gray could not meet her reciprocal burden to
withstand summary judgment. See Morris v. Children’s Hosp. Med. Ctr., 73 Ohio
App.3d 437, 439 (1st Dist. 1991) (“If, after adequate time for discovery, the nonmoving
party fails to make a showing sufficient to establish the existence of an element that is
essential to his case and on which he will bear the burden of proof at trial, Civ. R. 56(C)
mandates the entry of summary judgment in favor of the moving party[.]”).
16 OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} To reiterate, excusable neglect contemplates an omission due to some
unexpected or unavoidable hindrance or accident. Inexcusable neglect, on the other
hand, reflects carelessness, inattention, or a willful disregard of court processes.
Gray’s failure to file a timely, compliant expert report implicates the latter. Because
the record reveals no genuine issues of material fact pertaining to excusable neglect, the
trial court did not err in awarding summary judgment to the defendants on this front.
Compare Blair v. Boye-Doe, 2004-Ohio-1876, ¶ 15-16 (9th Dist.).
2. The common knowledge exception
{¶37} Next, Gray argues that summary judgment was improper because there
existed an issue of fact as to the applicability of the “common knowledge” exception.
Where relevant, this exception dispenses with the need for expert testimony to
substantiate a medical malpractice claim. Ramage v. Cent. Ohio Emergency Servs.,
Inc., 64 Ohio St.3d 97, 103 (1992). Under the common knowledge exception, “matters
of common knowledge and experience, subjects which are within the ordinary,
common and general knowledge and experience of mankind, need not be established
by expert opinion testimony.” Id.
{¶38} Gray insists a typical juror could comprehend how the defendants’ gross
inattention, botched interventions, and neglect of the child resulted in his premature
death. She emphasizes the facts that the child was left unattended in his hospital room
following the last intervention, the defendants failed to continuously monitor him, and
the defendants ignored obvious critical signs of imminent danger.
{¶39} The defendants counter that the common knowledge exception is
inapplicable to this case. They contend the highly complicated medical history, facts,
allegations, diagnoses, and treatments implicated by this case cannot be reduced to
the common knowledge of a layperson.
17 OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} The filings allege that the child underwent an ileostomy closure
procedure; subsequently experienced abdominal distension and other symptoms
suggestive of an obstruction; underwent an x-ray that revealed pneumoperitoneum in
the abdomen, which was concerning for an anastomotic leak; underwent an
exploratory laparotomy, anastonimic leak repair, and abdominal wash out; was
diagnosed with an acute perforation of the corner of his ileo-ileal anatomisis; was
readmitted for C-Diff colitis and prescribed a course of Flagyl and rectal irrigations;
was scheduled for an examination under general anesthesia after exhibiting symptoms
possibly indicating a bowel obstruction; was subsequently found unresponsive by
nursing staff with a weak pulse and shallow breathing; was acutely hypotensive and
bradycardic at the time; was transferred to intensive care and placed on life support;
experienced multi-organ failure, septic shock, and cardiac arrest; underwent another
laparotomy, which revealed global hypoperfused ischemic bowel, shock bowel,
enterocolitis, and intra-abdominal edema with intra-abdominal hypertension; and
causes of death included cardiac arrest, septic shock, and Hirshprung associated with
enterocolitis.
{¶41} We agree that these are complex medical terms, conditions, and modes
of treatment that do not fall within the ambit of the average person’s knowledge. Nor
do the issues concerning the professional skill and judgment of the physicians
attending to the child contemplate matters within the common knowledge and
experience of laypersons. See Ramage, 64 Ohio St.3d at 103. This stands in stark
contrast to the cases cited by Gray concerning patient falls, a creature of ordinary
negligence. See Jones v. Hawkes Hosp. of Mt. Carmel, 175 Ohio St. 503 (1964); Burks
v. Christ Hosp., 19 Ohio St.2d 128 (1969); LaCourse v. Flower Hosp., 2002-Ohio-3816
(6th Dist.); Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711 (8th Dist. 1996);
18 OHIO FIRST DISTRICT COURT OF APPEALS
see also Haworth, 2023-Ohio-3816, at ¶ 29-30 (2d Dist.) (noting that “nearly all the
Ohio caselaw in the ‘common knowledge’ exception can be placed in the [ ] category
[of negligent supervision]”). Thus, Gray was required to present expert testimony
describing the prevailing standard of care, the defendants’ breach of that standard,
and causation. Ramage at 103-104.
{¶42} Because the record reveals no genuine issues of material fact regarding
the inapplicability of the common knowledge exception, the trial court did not err in
awarding summary judgment to the defendants on this front. See, e.g., Cunningham v.
Children’s Hosp., 2005-Ohio-4284, ¶ 19-23 (10th Dist.).
Conclusion
{¶43} Following a thorough, independent review, we conclude that it was
proper for the trial court to grant summary judgment in favor of the defendants.
Accordingly, we overrule Gray’s sole assignment of error and affirm the trial court’s
judgment.
Judgment affirmed.
BOCK, P.J., and ZAYAS, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.