[Cite as Mackey v. Altercare of Harvtille Ctr. for Rehab. & Nursing Care, 2023-Ohio-1581.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: TRACEY MACKEY, AS PERSONAL : Hon. W. Scott Gwin, P.J. REPRESENTATIVE OF THE : Hon. John W. Wise, J. ESTATE OF AUGUSTIA MACKEY : Hon. Patricia A. Delaney, J. : Plaintiff-Appellant : : Case No. 2022CA00089 -vs- : : ALTERCARE OF HARTVILLE : OPINION CENTER FOR REHABILITATION AND NURSING CARE, ET AL
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2020CV01254
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 11, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
BLAKE A. DICKSON STEVEN J. HUPP 3401 Enterprise Parkway, Ste. 420 1300 East 9th Street, Suite 1950 Beachwood, OH 44122 Cleveland, Ohio 44114 Stark County, Case No. 2022CA00089 2
Gwin, P.J.
{¶1} Appellant appeals the June 21, 2022 judgment entry of the Stark County
Court of Common Pleas.
Facts & Procedural History
{¶2} Appellant Tracey Mackey, as the personal representative of the Estate of
Augustia Mackey, filed a medical negligence action on June 21, 2019, alleging that
appellees Altercare of Hartville Center for Rehabilitation and Nursing Care, Inc.,
(“Altercare”), TSG Nursing Centers, Inc., (“TSG”) and Altercare of Ohio, Inc., were
negligent in their care and treatment of the decedent Augustia Mackey (“Decedent”).
Appellant alleged that, as a direct and proximate cause of appellees’ negligence,
Decedent suffered injuries which led to his death.
{¶3} Prior to trial, the trial court granted summary judgment to Altercare of Ohio
and TSG. Additionally, the trial court granted summary judgment on the issue of punitive
damages. The trial court denied appellant’s motion for reconsideration of the summary
judgment motions and denied reconsideration as to its rulings on several motions in
limine.
{¶4} A jury trial was held from May 23, 2022 to June 2, 2022. The following facts
are adduced from the record of the jury trial.
{¶5} In 2012, Decedent felt dizzy, and was life-flighted to the Cleveland Clinic
(“Clinic”) for bleeding in the brain. He was diagnosed with arteriovenous malformation
(“AVM”). He was at the Clinic for two weeks, but recovered well after gamma knife
therapy, and eventually returned to his normal activities. Stark County, Case No. 2022CA00089 3
{¶6} On May 18, 2018, Decedent felt dizzy, and was again life-flighted to the
Clinic due to a hemorrhage from the AVM. The doctors sent Decedent to a rehabilitation
facility (Edwin Shaw) while waiting to have surgery. At Edwin Shaw, Decedent fell. After
the fall, Decedent returned to the Clinic, and was diagnosed with hydrocephalus,
commonly known as water on the brain. Doctors first did a surgery called a suboccipital
craniotomy on Decedent to repair the brain bleed from the AVM. Decedent did not wake
up right away, and it was “touch and go.” After the first surgery, Decedent had an ileus,
developed several blood clots that required the use of an inferior vena cava filter,
developed swelling in his legs, developed swelling in his brain, and had a subdural
hematoma that made it difficult to control the pressure in his brain. Several weeks later,
Decedent had a second surgery for the hydrocephalus, during which they placed a shunt
in his brain. Decedent subsequently had a shunt revision surgery. After Decedent was
discharged from the Clinic, he went to Altercare of Hartville.
{¶7} Decedent was initially admitted to Altercare on August 4, 2018. When
Decedent left the Clinic and arrived at Altercare, he had the following diagnoses: AVM,
hydrocephalus, hemorrhage and bleeding into the inner spaces of his brain, high blood
pressure, sleep apnea, a blood clot that required the placement of an inferior vena cava
filter, obesity, and trouble swallowing. In addition, he had a Stage 2 pressure injury,
commonly known as a bedsore, on his coccyx. Upon release from the Clinic, the pressure
injury was being treated with topical cream and a special dressing. Decedent was
deemed at high risk for skin breakdown. While at Altercare, there were various treatments
done for the pressure injury, such as foam dressing, pressure-reducing devices for the
chair and bed, antibiotics, ointment, and debridement. There was conflicting testimony Stark County, Case No. 2022CA00089 4
as to whether Decedent was repositioned frequently enough, what the appropriate
amount of time was between repositioning for the grade of the pressure injury, and
whether the wound was checked frequently enough.
{¶8} When Decedent arrived at Altercare, he could not communicate with staff,
and had significant cognitive impairment. He had continuous tube feeding, and needed
complete assistance with his activities of daily living. Decedent needed two people to
move him and needed a Hoyer lift to move him from the bed to the wheelchair.
{¶9} Tracey Mackey visited Decedent daily. Most days when she visited, he was
sitting in a chair. Tracey did see people come to reposition Decedent, but only
approximately once per week. Tracey stated Decedent appeared to be well-taken care
of, and was bathed and dressed every day. She was never told the pressure injury was
getting worse.
{¶10} On August 27, 2018, Decedent left Altercare for a follow-up neurological
appointment at the Clinic. During the appointment, Decedent had a seizure and was
admitted to the Clinic, where it was noted that the pressure injury was much worse. The
doctors at the Clinic diagnosed Decedent with a Stage 4 pressure injury. While at the
Clinic, Decedent had another debridement procedure on the pressure injury and had a
vacuum-assisted closure dressing placed on the wound. Decedent went to Aultman
Hospital on September 12, 2018. The wound did not heal completely while Decedent
was at Aultman. Decedent then went to The Pines nursing facility. After staying at The
Pines for four months, Decedent passed away on April 17, 2019, at the age of sixty-three.
{¶11} Appellant’s experts testified Altercare breached the standard of care, and
that the lack of appropriate treatment for the pressure injury at Altercare was a proximate Stark County, Case No. 2022CA00089 5
cause in Decedent’s injury or death. Appellees’ experts testified Altercare did not breach
the standard of care, and the treatment Altercare rendered as to the pressure injury was
not a proximate cause of Decedent’s injury or death.
{¶12} The jury found in favor of appellant on the medical negligence claim and in
favor of appellant on the claim that Altercare violated the Nursing Home Resident’s Bill of
Rights relative to Decedent. The jury awarded appellant $130,000 in compensatory
damages, comprised of $30,000 for economic loss and $100,000 for non-economic loss.
The jury did not award any damages on appellant’s wrongful death claim. The trial court
entered a final judgment entry on June 21, 2022.
{¶13} Appellant appeals the June 21, 2022 judgment entry of the Stark County
Court of Common Pleas and assigns the following as error:
{¶14} “I. THE TRIAL COURT ERRED IN ITS DECISION MADE JUNE 1, 2022 TO
ADMIT INTO EVIDENCE AND PERMIT ARGUMENT REGARDING DEFENDANTS’
‘EXHIBIT A’ AND TO ADMIT DEFENDANTS’ ‘EXHIBIT B’.
{¶15} “II. THE TRIAL COURT ERRED WHEN IT STRUCK FROM EVIDENCE
THE MEDICARE ENROLLMENT FORM 855(A) AND THE PRINTOUT FROM THE
MEDICARE ARCHIVES.
{¶16} “III. THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTIONS
FOR SUMMARY JUDGMENT FILED BY DEFENDANT-APPELLEES ALTERCARE OF
OHIO, INC. AND TSG NURSING CENTERS, INC.
{¶17} “IV. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT ON THE ISSUE OF PUNITIVE DAMAGES. Stark County, Case No. 2022CA00089 6
{¶18} “V. THE TRIAL COURT ERRED WHEN IT HELD THAT PLAINTIFF COULD
NOT DISCUSS APPLICABLE SECTIONS OF THE OAC NOR THE CFR AT TRIAL.
{¶19} “VI. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF’S MOTION
FOR RECONSIDERATION.”
Standards of Review
{¶20} In appellant’s first, second, and fifth assignments of error, appellant
contends the trial court committed error in admitting or excluding certain evidence.
{¶21} Decisions regarding the admissibility of evidence are within the broad
discretion of the trial court. Beard v. Meridia Huron Hospital, 106 Ohio St.3d 237, 2005-
Ohio-4787, 834 N.E.2d 323 (2005). A decision to admit or exclude evidence will be
upheld absent an abuse of discretion. Id. Abuse of discretion is more than an error of
law or judgment; rather, it implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶22} Further, “an improper evidentiary ruling constitutes reversible error only
when the error affects the substantial rights of the adverse party or the ruling is
inconsistent with substantial justice.” Beard v. Meridia Huron Hospital, 106 Ohio St.3d
237, 2005-Ohio-4787, 834 N.E.2d 323; Civil Rule 61. To determine if a ruling affects the
substantial rights of the adverse party or is inconsistent with substantial justice, “a
reviewing court must not only weigh the prejudicial effects of those errors but also
determine that, if those errors had not occurred, the jury * * * would probably have made
the same decision.” Id.
{¶23} In appellant’s third and fourth assignments of error, appellant argues the
trial court committed error in granting summary judgment. Stark County, Case No. 2022CA00089 7
{¶24} Civil Rule 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶25} A trial court should not enter summary judgment if it appears a material fact
is genuinely disputed, nor if, construing the allegations most favorably towards the non-
moving party, reasonable minds could draw different conclusions from the undisputed
facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The
court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer
Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A
fact is material if it affects the outcome of the case under the applicable substantive law. Stark County, Case No. 2022CA00089 8
Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.
1999).
{¶26} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243
I.
{¶27} In her first assignment of error, appellant contends the trial court committed
error in admitting appellees’ Exhibits A and B.
{¶28} We first note that while Exhibit B was marked for identification, the trial court
did not admit Exhibit B into evidence. The trial court stated, “[a]nd then what I’d like to do
is mark this packet as Defense Exhibit B. This will stay with the record. It will not go back
to the jurors.” (Tr. V. 6 at p. 98). Further, the court reporter noted in the transcript that
while Exhibit A was marked, received, and admitted, Exhibit B was marked, but not
received or admitted. (Tr. V. 6 at p. 3). Rather, the transcript states Exhibit B is “F/A,”
which was defined as “for appeal”. (Tr. V. 6 at p. 3). Because the trial court did not admit
appellees’ Exhibit B and Exhibit B did not go back to the jury, we find appellant’s
arguments with respect to Exhibit B to be not well-taken.
{¶29} Exhibit A was admitted into evidence and submitted to the jury. Exhibit A is
a document containing a list of records and/or bills that were introduced into evidence by
appellant, numbered from 17 through 61. These bills and/or records start on the date of
Decedent’s admission to Altercare, and end in April of 2019. Next to each of these
numbers are two columns. One column is entitled “Plaintiff Amounts.” These numbers Stark County, Case No. 2022CA00089 9
were provided by appellant, and there is no dispute that these are the same numbers as
appellant provided in her exhibit(s). A second column is entitled “Defense Amount” which
contains a number, lower than appellant’s amount, for each record or bill from number 17
through 61.
{¶30} Appellant first contends the admission of Exhibit A violated the trial court’s
order dated September 15, 2020 requiring the parties to submit their exhibits to the court
and the opposing party prior to trial. However, in their trial brief dated September 13,
2021, under the section entitled “an index of all proposed exhibits containing a brief
description of each exhibit,” appellees stated, “defendant will move to admit any of Mr.
Mackey’s medical records not introduced by plaintiffs.” The list of numbers in the
“Defense Amount” column in Exhibit A came directly from Decedent’s medical records.
Accordingly, we find the trial court did not abuse its discretion in finding appellees
complied with its September 15, 2020 order.
{¶31} Similarly, appellant argues the admission of Exhibit A “unfairly surprised”
appellant at trial. However, it is clear from the exchange between counsel for the parties
and the trial court during the September 6, 2021 hearing and during trial, that the numbers
contained in Exhibit A came directly from the records provided by appellant to appellees
in discovery. Further, appellant’s argument throughout the case was that the numbers
were not admissible because they were evidence of subrogated collateral sources. This
argument concerning the collateral source rule was thoroughly briefed during motion
practice, was the subject of motions in liminie, was argued at a hearing on September 6,
2021, and was again argued and discussed during trial. We find the trial court did not
abuse its discretion in finding no unfair surprise. Stark County, Case No. 2022CA00089 10
{¶32} Appellant argues the admission of Exhibit A violated the trial court’s order
granting her motion in limine relative to the exclusion of all references to collateral
sources. However, in Exhibit A, the trial court did not allow any reference to collateral
sources in violation of its previous order. The trial court’s order stated that reference to
any collateral sources must be redacted from the medical bills, but “the amount accepted
as final payment, write-offs, or adjustments to the bills may not be redacted.” This ruling
follows the Ohio Supreme Court’s holding that, “either the bill itself or the amount actually
paid can be submitted to prove the value of medical services.” Robinson v. Bates, 112
Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.3d 1195. The numbers contained in the
“Defense Amount” column of Exhibit A are the amounts accepted in full payment for the
medical services provided to Decedent. Exhibit A did not provide any information stating
or implying who paid for Decedent’s medical bills. It only lists the location and dates of
the services rendered, and provides the amount charged and the amount paid. The Ohio
Supreme Court stated that the collateral source rule “does not apply to write-offs of
expenses that are never paid” and a written-off portion of a medical bill “differs from
receipt of compensation.” Id. Accordingly, we find the trial court did not violate its
previous order, and the admission of the numbers contained in Exhibit A was in
accordance with the Ohio Supreme Court’s rulings in Robinson and Jacques v. Manton,
125 Ohio St.3d 342, 2010-Ohio-1838, 928 N.E.2d 434.
{¶33} Appellant next contends the trial court abused its discretion in admitting
Exhibit A because the document was not properly authenticated. The numbers from
Exhibit A came directly from Decedent’s medical records, which were provided by
appellant to appellees prior to trial. The medical records were subject to extensive motion Stark County, Case No. 2022CA00089 11
practice, wherein appellant contended she did not have to produce certain medical bills
to appellees due to the collateral source rule. Appellant argued both during the
September 16, 2021 hearing and at trial that such disclosure would violate the collateral
course rule. However, as detailed above, Exhibit A complied with the Ohio Supreme
Court’s rulings on the collateral source rule.
{¶34} Dr. Mirski, appellees’ expert, specifically testified he reviewed Decedent’s
medical records from the Clinic, Altercare, Aultman, the Pines, and the remaining medical
records until the date of Decedent’s death, in forming his opinion. Appellant stated during
motion practice with regard to the parties’ motions in limine that there “is no challenge to
the authenticity of Decedent Augustia Mackey’s medical records and medical bills.”
Further, appellant stated that both appellant and appellees’ experts in the case “relied,
without exception, on [Decedent’s] medical records” in forming their opinions, so it is
“entirely appropriate for these records to be admitted into evidence.” Appellant utilized
these same records to come up with the numbers she claimed were the appropriate
amount of each bill numbered 17 through 61. Accordingly, we find the trial court did not
commit error in allowing appellees to utilize these records to formulate the number
contained on the “Defense Amount” column of Exhibit A.
{¶35} Further, pursuant to Evidence Rule 1006, a party may present a summary
of “[t]he contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court.” Exhibit A is a summary of the billed amounts
provided by appellant. Though appellant contends the records were not voluminous, the
record demonstrates the PrimeTime records were over 300 pages. Counsel for appellees
confirmed the documents used to create the “Defense Amount” portion of Exhibit A were Stark County, Case No. 2022CA00089 12
medical records obtained via discovery from appellant. See State v. Clark, 10th Dist.
Franklin No. 19AP-300, 2021-Ohio-559.
{¶36} Appellant also argues appellees did not properly “explain” the numbers
contained in the exhibit. However, appellees argued in their closing argument that the
amounts set forth by appellant were not reasonable. Any failure on the part of appellees
to adequately explain each of the numbers contained in the exhibit goes to the weight to
be given to the exhibit, rather than its admissibility. Id.
{¶37} Even if the trial court did commit error in admitting Exhibit A, such error is
harmless because appellant has not demonstrated the admission of the exhibit affected
her substantial rights. Even if the error had not occurred, the jury would probably have
made the same decision. While Exhibit A did not contain a total of what each appellant
and appellees listed as the amount of medical bills, a review of the exhibit demonstrates
appellant’s total number was over $600,000 and appellees’ total number was
approximately $130,000. The jury did not select either of these numbers, and instead
awarded appellant $30,000 in economic damages. This determination is within the
province of the jury because the “reasonable value of medical services is a matter for the
jury to determine from all relevant evidence.” Robinson v. Bates, 112 Ohio St.3d 17,
2006-Ohio-6362, 857 N.E.2d 1195. This amount is unrelated to the total amounts
contained in Exhibit A, and does not appear to correspond to any payment or group of
payments in Exhibit A.
{¶38} Appellant lastly contends the trial court committed error in admitting Exhibit
A because the exhibit confused the jury. Appellant cited the fact that the jury awarded
her only $30,000 for economic loss, which was not an amount appellees argued. Stark County, Case No. 2022CA00089 13
However, as noted above, the Ohio Supreme Court has stated that the “reasonable value
of medical services is a matter for the jury to determine from all relevant evidence.” Id.
{¶39} We find the trial court did not abuse its discretion in admitting Exhibit A.
Further, assuming arguendo, that the trial court committed error in admitting Exhibit A,
we find such error was harmless. Appellant’s first assignment of error is overruled.
II.
{¶40} In her second assignment of error, appellant argues the trial court
committed error when it struck from evidence Medicare Enrollment Form 855(A) and a
printout from the Medicare Archives, purporting to show that Altercare of Ohio and TSG
were owners of the nursing home when Decedent was a resident. The trial court granted
appellees’ motion to strike the documents.
{¶41} The decision whether to grant or deny a motion to strike is governed by the
abuse of discretion standard of review. Thiemens v. Grange Mut. Cas. Co., 5th Dist.
Ashland No. 12-COA-027, 2013-Ohio-1643 (grant or denial of motion to strike affidavit
filed in support of motion for summary judgment is reviewed on appeal under the abuse
of discretion standard).
{¶42} Appellant attempted to introduce the documents in her response to
Altercare of Ohio and TSG’s motion for summary judgment. These documents are not a
type of document expressly mentioned in Civil Rule 56(C). However, a trial court may
consider a type of document not expressly mentioned in Civil Rule 56(C) if such document
is “incorporated by reference in a properly framed affidavit pursuant to Civil Rule 56(E).”
Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-
Ohio-3203. Civil Rule 56(E) provides that affidavits “shall be made on personal Stark County, Case No. 2022CA00089 14
knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.” This
Court has defined “personal knowledge” as “knowledge gained through firsthand
observation or experience, as distinguished from a belief based upon what someone else
has said,” and “knowledge of factual truth which does not depend on outside information
or hearsay.” Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-CA-
00291, 2011-Ohio-3203.
{¶43} The documents were attached to the affidavit of appellant’s counsel.
Counsel’s affidavit states, in pertinent part, as follows:
All nursing homes in Ohio and in the entire country file a Medicare
Enrollment Form 855(A) with CMS.
In that form they disclose who owned and operated the nursing home.
Attached hereto as Exhibit “D” is a portion of that Medicare Enrollment
Application Form 855(A) filed by the Defendants in this case referenced
above relative to the Altercare of Hartville Center for Rehabilitation and
Nursing Care nursing home. I obtained this application using a Freedom of
Information Act Request. The entire application is over 100 pages long so
I did not attach it.
Attached hereto as Exhibit “E” is a print out from the Medicare Archives of
the information provided by the owners and the operators of nursing homes
for the entire country. Stark County, Case No. 2022CA00089 15
Exhibit “D” and “E” clearly indicate that Defendant Altercare of Ohio, Inc.
has had operational and managerial control of the subject nursing home
from October 1, 2001 until August 1, 2018.
{¶44} We first note that counsel for appellant does not state in his affidavit that
either of the documents are “true and accurate” copies of what they purport to be.
Additionally, while public records require no extrinsic evidence of authenticity if properly
certified, neither of the documents bore any certification. Emerson Family Ltd.
Partnership v. Emerson Tool, LLC, 9th Dist. Summit No. 26200, 2012-Ohio-5647.
Further, “personal knowledge” must be “gained through firsthand observation or
experience.” Bonacorsi v. Wheeling & Lake Erie Railway Co, 95 Ohio St.3d 314, 2002-
Ohio-2220, 767 N.E.2d 707. While counsel for appellant “would have the requisite
personal knowledge to authenticate documents he actually prepared, he did not prepare
any of the documents.” Emerson Family Ltd. Partnership v. Emerson Tool, LLC, 9th Dist.
Summit No. 26200, 2012-Ohio-5647. Even if an attorney “had personal knowledge about
where he received the documents and received them directly from the keeper of those
records, an attestation to that effect does not serve to authenticate them,” because
documents can be certified correct “only by the custodian of the document or another
individual with personal knowledge that the document is what its proponent purports it to
be.” Id.; State ex rel. Varnau v. Wenninger, 12th Dist. Brown No. CA2009-02-010, 2011-
Ohio-3904, aff’d, 131 Ohio St.3d 169, 2012-Ohio-224, 962 N.E.2d 790. In this case,
counsel’s affidavit fails to establish the affiant’s personal knowledge and fails to
affirmatively show the affiant was competent to testify to those matters. Accordingly, the
trial court did not abuse its discretion in striking Exhibits D and E. Stark County, Case No. 2022CA00089 16
{¶45} Even if the trial court did commit error in striking the documents, we find any
error in the striking of the documents is harmless error. As detailed below, neither of the
documents demonstrate that either TSG or Altercare of Ohio were owners or operators
of the nursing home on August 4, 2018, Decedent’s date of admission. Further, the jury
found Altercare of Hartville Rehabilitation Center negligent and in violation of R.C.
3217.21. There is no evidence either Altercare of Ohio or TSG committed any acts
separate and distinct from Altercare of Hartville that violated the standard of care or R.C.
3217.21. Appellant’s second assignment of error is overruled.
III.
{¶46} In appellant’s third assignment of error, she contends the trial court
committed error in granting summary judgment to appellees Altercare of Ohio and TSG.
Both Altercare of Ohio and TSG filed motions for summary judgment, arguing they are
parent corporations, and neither are involved in the day-to-day operations of Altercare of
Hartville. Appellant filed a memorandum in opposition to the motions for summary
judgment, arguing Altercare of Ohio and TSG were liable because they were “owners” of
the nursing home. Appellant attached to his memorandum in response to the motions for
summary judgment Exhibit D and E, as described in the second assignment of error,
purportedly to show that Altercare of Ohio and TSG were owners of the nursing home.
{¶47} As detailed above in appellant’s second assignment of error, we find the
trial court did not commit error in striking Exhibits D and E. Further, even if this Court
considered the documents, we find they do not create a genuine issue of material fact as
to what entity operated the nursing home during Decedent’s stay. The “report print date”
of the 855(A) form is October 30, 2014, and the October 30, 2014 date is listed on the Stark County, Case No. 2022CA00089 17
bottom right of each page of the exhibit. This was over three years prior to Decedent’s
admission to the nursing home on August 4, 2018. Further, in the purported “print out
from the Medicare archives,” the dates for the entities only run until August 1, 2018, which
is prior to Decedent’s admission to the nursing home. Counsel for appellant states in his
affidavit that “Exhibit D and Exhibit E clearly indicate that Defendant Altercare of Ohio,
Inc. has had operational and managerial control of the subject nursing home from October
1, 2001 until August 1, 2018.” However, August 1, 2018 is prior to Decedent’s admission
to the nursing home. Appellant presented no evidence to rebut appellees’ evidence that
Altercare of Hartville Center for Rehabilitation and Nursing Care, Inc., managed and
operated the home on August 4, 2018 through August 27, 2018 when Decedent was a
resident.
{¶48} Upon our de novo review, we find the trial court did not commit error in
granting Altercare of Ohio and TSG’s motions for summary judgment.
IV.
{¶49} In her fourth assignment of error, appellant argues the trial court committed
error in granting summary judgment on the issue of punitive damages.
{¶50} Punitive damages are available on tort claims under Ohio law only when
“the actions or omissions of that defendant demonstrate malice or aggravated or
egregious fraud * * *.” R.C. 2315.21(C). “Actual malice” for these purposes is: (1) that
state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit
of revenge, or (2) a conscious disregard for the rights and safety of other persons that
has a great probability of causing substantial harm.” Preston v. Murty, 32 Ohio St.3d 334,
512 N.E.2d 1174 (1987). Stark County, Case No. 2022CA00089 18
{¶51} After appellees filed their motion for summary judgment with regard to
punitive damages, appellant filed a memorandum in response, arguing the expert reports
of John Russo, M.D., and nurse Catherine Sinclair are sufficient to create a genuine issue
of material fact as to punitive damages. Counsel for appellant attached an affidavit to the
expert reports. The affidavit states as follows, “[a]ttached hereto as Exhibit A is a true
and correct copy of an expert physician, John Russo, M.D. I plan to call Dr. Russo to
testify at the jury trial of the above referenced case and to express to the jury the opinions
contained in his report,” and “[a]ttached hereto as Exhibit B is an expert report from expert
nurse Catherine Sinclair. I plan to call Nurse Sinclair to testify at the jury trial of the case
referenced above and to express the opinions contained in her report.”
{¶52} An expert report is not a type of document expressly mentioned in Civil Rule
56(C). However, a trial court may consider a type of document not expressly mentioned
in Civil Rule 56(C) if such document is “incorporated by reference in a properly framed
affidavit pursuant to Civil Rule 56(E).” Wachovia Bank of Delaware, N.A. v. Jackson, 5th
Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203. Civil Rule 56(E) provides that affidavits
“shall be made on personal knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.” This Court has defined “personal knowledge” as “knowledge
gained through firsthand observation or experience, as distinguished from a belief based
upon what someone else has said,” and “knowledge of factual truth which does not
depend on outside information or hearsay.” Wachovia Bank of Delaware, N.A. v.
Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203. Stark County, Case No. 2022CA00089 19
{¶53} In this case, counsel’s affidavit does not state Sinclair’s expert report is a
“true and accurate” copy of her report. While counsel does assert Russo’s report is a
“true and correct copy,” counsel did not attest that he prepared, executed, or perceived
preparation of the expert report. The affidavit fails to establish the affiant’s personal
knowledge and fails to affirmatively show the affiant is competent to testify to those
matters. Courts have held that an expert report is not competent evidence sufficient to
oppose summary judgment or create a genuine issue of material fact in the absence of a
properly framed affidavit. Heard v. Aultman Hosp., 5th Dist. Stark No. 2015CA00141,
2016-Ohio-1076; Gabriel v. Ohio State University Medical Center, 10th Dist. Franklin No.
14AP-870, 2015-Ohio-2661; Smith v. Gold-Kaplan, 8th Dist. Cuyahoga No. 100015,
2014-Ohio-1424.
{¶54} This Court has previously addressed this issue in Baxter v. Kendrick, 5th
Dist. Ashland No. 2004-COA-082, 2005-Ohio-1477, in which expert reports were attached
to an affidavit of counsel, who attested the exhibits were true and accurate copies of the
reports. We found these documents did not meet the requirements of the civil rules,
because the reports were not sworn to by the person who wrote them, and the affidavit
by counsel was wholly conclusory because the affidavit did not present evidence from
which the expert drew his or her conclusion or contain the qualifications of the expert. Id.
Similarly, in this case, the expert reports were not sworn to by the person who wrote them.
Additionally, the affidavit by counsel is wholly conclusory, as the affidavit merely
references the opinions of the experts and does not address the issues of fact
determinative of the legal issues involved. Id.; Pantages v. Bondy, 5th Dist. Stark No.
CA-6632, 1985 WL 3699 (Nov. 18, 1985); Lang v. Beachwood Pointe Care Center, 8th Stark County, Case No. 2022CA00089 20
Dist. Cuyahoga No. 104691, 2017-Ohio-1550; Fedizczko v. Mahoning County Children’s
Services, 7th Dist. Mahoning No. 11 MA 186, 2012-Ohio-6090 (an expert affidavit opining
a legal conclusion should not be included in an affidavit to show a genuine issue of
material fact); McDonald v. Lacy, 2nd Dist. Montgomery No. 27779, 2018-Ohio-2753 (an
expert affidavit stating there was a “conscious disregard of, or indifference to, a known
and obvious risk to others under the circumstances where there was great probability that
substantial harm would result” is an improper legal conclusion).
{¶55} The expert reports of Russo and Sinclair are the only documents attached
to appellant’s memorandum in response. Appellant’s sole evidence before the trial court
on summary judgment consisted of materials that did not comply with Civil Rule 56(C) or
Civil Rule 56(E), and appellees raised a timely objection on that basis by filing a motion
to strike. Because appellant failed to submit any proper Civil Rule 56(C) or Civil Rule
56(E) evidence to create a genuine issue of material fact on the issue of malice, the trial
court did not commit error in granting appellees’ partial motion for summary judgment on
the issue of punitive damages. Appellant’s fourth assignment of error is overruled.
V.
{¶56} In her fifth assignment of error, appellant argues the trial court committed
error when it held that she could not discuss applicable sections of the Ohio Administrative
Code (“OAC”) or the Code of Federal Regulations (“CFR”) at trial.
{¶57} The parties filed motions in limine regarding the admission and/or
discussion of certain sections of the CFR and OAC. A motion in limine is “directed to the
inherent discretion of the trial court judge.” Hinerman v. Grill on Twenty First, LLC, 5th
Dist. Licking No. 2020 CA 00054, 2021-Ohio-859. It is a preliminary interlocutory order Stark County, Case No. 2022CA00089 21
and the party’s objection must be raised again at trial in order to consider the admissibility
of the evidence in its actual context. Id. In this case, appellant raised her objections at
trial. “[A] trial court is vested with broad discretion in determining the admissibility of
evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Id.
{¶58} In her motion in limine, appellant stated she sought to introduce multiple
sections of 42 CFR 483, including 42 CFR 483.10, 42 CFR 483.12, 42 CFR 483.24, and
42 CFR 483.25. She does not indicate in her motion in limine what OAC regulations she
sought to introduce, but did state in her opposition to appellees’ motion that she sought
to discuss various rules under Chapter 3701-17 of the OAC.
{¶59} First, we note that appellant makes no mention of any of the CFR or OAC
administrative regulations in her complaint. Additionally, as to the OAC regulations, many
of them mirror what is contained in the statutorily codified Nursing Home Bill of Rights.
These statutes were argued, discussed, and admitted at trial.
{¶60} Next, appellant sought to discuss these regulations, specifically the CFR
regulations, to demonstrate the standard of care. Appellant reasoned that since the staff
at the nursing home were provided with a copy of the regulations and were taught to
comply with these regulations, they had to comply with these regulations to comply with
the standard of care. Appellant cites to her expert reports in support of her motion. She
specifically cites to Russo’s statement that “state and federal regulations were violated in
this case” and Sinclair’s opinion that the “standard of care requires compliance with the
applicable state and federal regulations.” However, there is no private remedy for a
violation of 42 Chapter 483, et seq., and this section does not create the standard of care Stark County, Case No. 2022CA00089 22
for nursing home residents because these federal regulations contemplate administrative,
rather than judicial, enforcement. Harmon v. St. Augustine Manor, N.D. Ohio No.
1:06CV2845, 2007 WL 1072164 (April 5, 2007).
{¶61} Assuming arguendo that the trial court committed error in excluding any
discussion about or the admission of the text of the OAC or CFR administrative
regulations, we find this error to be harmless. Ohio and federal courts have held that
while a violation of an administrative rule does not constitute negligence per se, a violation
of an administrative rule may be admissible as evidence of negligence. Tomasko v.
Sohnly, 5th Dist. Delaware No. 15-CAE-10-0078, 2016-Ohio-2698 (the violation of an
administrative rule does not constitute negligence per se; however, the violation may be
admissible as evidence of negligence); Jackson v. Arka Express, Inc., N.D. Ohio No. 3:21
CV 2393, 2022 WL 1136771; O’Dell v. Vrable III, Inc., 4th Dist. Gallia No. 20CA18, 2022-
Ohio-4156 (if a fall prevention measure in a nursing home violated a governmental
regulation, it cannot be used to assert a claim for negligence per se, but it might be used
as evidence of negligence).
{¶62} Appellant’s argument in both her motion in limine and at trial was that the
administrative regulations were probative of the standard of care. The jury found
Altercare negligent, and specifically stated in Interrogatory Number 2 that Altercare did
not meet the standard of care. Since the administrative regulations would only be
admissible or probative to the issue of negligence and the jury found in favor of appellant
on the issue of negligence, any error did not affect the substantial rights of appellant, as
the administrative regulations could not have changed the outcome in a way favorable to
appellant. Stark County, Case No. 2022CA00089 23
{¶63} Appellant briefly mentions in this assignment of error that the trial court’s
ruling violated the judicial notice provision of Ohio Civil Rule 44.1 and did not comport
with the language contained in 1 OJI CV 311.09. We first note that appellant did not
separately list these as assignments of error. Ohio Civil Rule 44.1(A)(2) provides that the
trial court may take judicial notice of the administrative regulations at issue; however, the
rule does not require the court to take judicial notice of the administrative regulations at
issue. We find no abuse of the trial court’s discretion in denying to take judicial notice of
the administrative regulations, and additionally find any error in the exclusion of them is
harmless error.
{¶64} With regards to the OJI section, during trial, appellant requested the trial
court provide the instruction in 1 OJI CV 311.09, which provides that even if the violation
of the OAC or CFR was not negligence per se, “you will consider the standard of care
required by this law and decide whether such party used the degree of care required. In
this particular case, Plaintiff is prepared to offer expert testimony that the staff at the
nursing home did not exercise the degree of care required by these statutes, and, as a
result, that is relevant to the jury’s determination that the staff was negligent * * *.” As
detailed above, the jury found the staff at the nursing home violated the standard of care
and was negligent. Thus, any error in not admitting the OAC, CFR, or the particular jury
instruction is harmless because the error did not affect the substantial rights of the
adverse party. The jury found in favor of appellant on the standard of care and negligence
issue.
{¶65} Appellant’s fifth assignment of error is overruled. Stark County, Case No. 2022CA00089 24
VI.
{¶66} In her sixth assignment of error, appellant contends the trial court committed
error when it denied her motion for reconsideration of the granting of the motion for
summary judgment on punitive damages and the granting of appellees’ motion in limine
to preclude reference to federal and state regulations.
{¶67} Based upon our analysis and disposition in appellant’s fourth and fifth
assignments of error, we find the trial court did not commit error in denying appellant’s
motions for reconsideration. Appellant’s sixth assignment of error is overruled.
{¶68} Based on the foregoing, appellant’s assignments of error are overruled.
The June 21, 2022 judgment entry of the Stark County Court of Common Pleas is
affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur