Walker v. Taco Bell

2016 Ohio 124

• Court: Ohio Court of Appeals
• Decided: January 15, 2016
• Docket: C-150182
• Status: Published

Opinion

[Cite as Walker v. Taco Bell, 2016-Ohio-124.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

ANTHONY WALKER, : APPEAL NO. C-150182 TRIAL NO. A-1404143 Plaintiff-Appellant, :

vs. : O P I N I O N.

TACO BELL, :

and :

ADMINISTRATOR, OHIO BUREAU : OF WORKERS’ COMPENSATION

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Appeal Dismissed

Date of Judgment Entry on Appeal: January 15, 2016

Law Offices of James A. Whittaker, LLC, and Laura I. Murphy, for Plaintiff- Appellant,

Robbins, Kelly, Patterson & Tucker and Jarrod M. Mohler, for Defendant-Appellant Taco Bell,

Michael DeWine, Ohio Attorney General, and Barbara L. Barber, Assistant Attorney General, for Defendant-Appellee Administrator, Ohio Bureau of Workers’ Compensation.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

S TAUTBERG , Judge.

{¶1} This case involves an appeal from a discovery order compelling plaintiff-

appellant Anthony Walker to provide defendant-appellee the Ohio Bureau of Workers’

Compensation (“the Bureau”) with three medical-record releases. Because Walker has

failed to establish that the trial court’s order is a final order, we are without

jurisdiction and must dismiss this appeal.

Facts and Procedural Posture

{¶2} Walker sued defendants-appellees Taco Bell and the Bureau seeking to

participate in the workers’ compensation fund for injuries he alleges arose out of a

work-place accident. During discovery, the Bureau asked Walker to sign medical-

record releases for three different providers. Walker refused on the ground that he first

wanted the Bureau to acknowledge that he was reserving his right to assert that some

of his medical records were privileged. Apparently, the parties could not reach an

agreement on this issue, so the Bureau moved the trial court for an order compelling

Walker to provide the Bureau with the releases. Walker opposed the motion. He also

moved for a protective order, asking the court to rule that any records that were not

historically or casually related to Walker’s claims were privileged. Following a hearing,

the court granted the Bureau’s motion and denied Walker’s.

{¶3} Walker appealed. The Bureau moved to dismiss Walker’s appeal,

claiming that the trial court’s discovery order was not final and appealable. In

response, Walker claimed, in pertinent part, that the order compelling the discovery of

privileged information was a final order under R.C. 2505.02(B)(4), because once

privileged information is released “the proverbial bell cannot be unrung.”

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} Based on the recent Ohio Supreme Court case of Smith v. Chen, 142

Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, we are compelled to dismiss this

appeal for lack of jurisdiction.

Jurisdictional Analysis

{¶5} This court has “such jurisdiction as may be provided by law to review

and affirm, modify, or reverse judgments or final orders of the courts of record inferior

to the court of appeals within the district * * * .” Article IV, Section 3(B)(2), Ohio

Constitution. Under R.C. 2505.02(A)(3), an order compelling discovery of allegedly

privileged material is a “provisional remedy.” An order granting or denying a

provisional remedy is final if it “determines the action with respect to the provisional

remedy and prevents a judgment in the action in favor of the appealing party with

respect to the provisional remedy.” R.C. 2505.02(B)(4)(a). Further, the order must

foreclose “a meaningful or effective remedy by an appeal following final judgment as to

all proceedings, issues, claims, and parties in the action.” R.C. 2505.02(B)(4)(b).

{¶6} Here, the order compelling Walker to provide signed medical-record

releases to the Bureau prevented a judgment in his favor as to this issue.

Consequently, the requirement of R.C. 2505.02(B)(4)(a) has been met. What is

problematic is Walker’s failure to establish why an immediate appeal is necessary in

this case.

{¶7} Recently, the Ohio Supreme Court held that a party attempting to appeal

an order compelling discovery of privileged materials must establish, pursuant to R.C.

2505.02(B)(4)(b), that an immediate appeal is necessary to afford the appellant a

meaningful and effective remedy. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31

N.E.3d 633, at ¶ 8. In Chen, the appellants wished to appeal a discovery order

compelling to them to disclose a video that the appellants claimed was attorney work-

3 OHIO FIRST DISTRICT COURT OF APPEALS

product. In dismissing the case for lack of jurisdiction, the Chen court stated that the

appellants had “never argued, much less established, that they would not be afforded a

meaningful or effective remedy through an appeal after a final judgment is entered by

the trial court resolving the entire case.” Id. The court therefore presumed that an

appeal “in the ordinary course would be meaningful and effective.” Id.

{¶8} Likewise, in this case Walker has failed to establish why an immediate

appeal of the trial court’s order is necessary. Walker contends only that if privileged

records are released “the proverbial bell cannot be unrung.” But Chen makes clear that

the disclosure of privileged documents during discovery, in and of itself, is insufficient

to establish why an immediate appeal is necessary under R.C. 2505.02(B)(4)(b). Chen

at ¶ 8. Therefore, the maxim cited by Walker, without more, does not demonstrate

why Walker cannot wait until the underlying lawsuit has been resolved to appeal the

trial court’s discovery order. See Burnham v. Cleveland Clinic, 8th Dist. Cuyahoga No.

102038, 2015-Ohio-2044, ¶ 13.

{¶9} Accordingly, we are without jurisdiction and dismiss this appeal. Appeal dismissed.

DEWINE, P.J., and MOCK, J., concur.

Please note: The court has recorded its own entry this date.