[Cite as Warman v. LivaNova Deutschland, 2023-Ohio-4045.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DARREN WARMAN, : APPEAL NOS. C-230149 C-230150 Plaintiff-Appellant, : TRIAL NOS. A-2200202 A-2203770 vs. : O P I N I O N. LIVANOVA DEUTSCHLAND, GMBH, : f.k.a. SORIN GROUP DEUTSCHLAND, GMBH, :
LIVANOVA USA, INC., :
LIVANOVA HOLDING USA, INC., :
TRIHEALTH, INC., :
and :
GOOD SAMARITAN HOSPITAL OF : CINCINNATI, OHIO,
Defendants-Appellees. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 8, 2023
Thomas Law Offices, PLLC, and Louis C. Schneider, for Plaintiff-Appellant,
Rendigs, Fry, Kiely & Dennis, LLP, and Brian Goldwasser, for Defendants-Appellees TriHealth, Inc., and Good Samaritan Hospital of Cincinnati, Ohio, OHIO FIRST DISTRICT COURT OF APPEALS
Faegre Drinker Biddle & Reath, LLP, M. Joseph Winebrenner, Nelson Mullins Riley & Scarborough, LLP, Zachary C. Maciaszek and Dustin B. Rawlin, for Defendants- Appellees LivaNova Deutschland GMBH, LivaNova USA, Inc., and LivaNova Holding USA, Inc.
2 OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} The overarching goal of Ohio’s discovery rules is to prevent unfair
surprise and concealment by facilitating the free flow of relevant information between
parties. However, courts have broad discretion to manage the scope of discovery to
ensure it remains “proportional to the needs of the case.” Civ.R. 26(B)(1).
Accordingly, when plaintiff-appellant Darren Warman proved unable to point to
anything in his own medical records to substantiate his claim of injury (allegedly
caused by defendant-appellee LivaNova’s medical device), the trial court acted within
its discretion to suspend discovery unless and until he could do so. The trial court
afforded him ample time and opportunity to procure relevant expert evidence, but he
mustered neither an opinion indicating that he actually suffered from the relevant
condition nor any indication that some missing discovery would enable his expert to
reach a diagnosis that would justify the lawsuit. On the limited facts in this record, the
trial court acted within its discretion in dismissing his claims for failure to comply with
its discovery order. We therefore affirm its judgment.
I.
{¶2} Mr. Warman underwent heart surgery in July 2015 at defendant-
appellee Good Samaritan Hospital in Cincinnati. In January 2020, he received a letter
from defendant-appellee TriHealth, Inc., notifying him that he may have been exposed
to harmful bacteria emitted from LivaNova’s Sorin Stockert 3T Heater-Cooler Device
(“3T System”), which regulates the patient’s blood temperature during heart surgeries.
The 3T System is the subject of a federal multidistrict litigation (“MDL”) centralized
in the United States District Court for the Western District of Pennsylvania. There,
plaintiffs typically allege that, due to design defects, the 3T System emits 3 OHIO FIRST DISTRICT COURT OF APPEALS
Nontuberculous Mycobacteria (“NTM”), a group of bacteria that includes
Mycobacterium (M.) chimaera, M. abscessus, and M. fortiuitum, among others. They
contend that they contract infections, sometimes years later, resulting from exposure
to aerosolized NTM emitted from the 3T System during heart surgeries. In total,
plaintiffs have brought more than 200 cases relating to NTM exposure from 3T
Systems in federal and state courts.
{¶3} Here, in multiple complaints, Mr. Warman claims he developed an
infection after exposure to M. chimaera emitted by the 3T System during his 2015
surgery. He first sued Good Samaritan Hospital and TriHealth, Inc., (collectively,
“hospital defendants”) in July 2021, claiming common law negligence. After
voluntarily dismissing that case without prejudice, he brought a separate complaint
against the hospital defendants (as “suppliers”) and multiple LivaNova entities
(together, “LivaNova”) (as the designer and manufacturer) for product liability claims
under R.C. 2307.71. LivaNova immediately removed the latter case to a federal court,
which then transferred it to the MDL court. The MDL court remanded the matter back
to the Hamilton County Court of Common Pleas for lack of subject matter jurisdiction.
Shortly thereafter, Mr. Warman refiled his negligence case against the hospital
defendants. After the bouncing procedural ball finally came to a rest, the trial court
consolidated the actions and issued a case management order (“CMO”) in September
2022, setting deadlines for discovery, expert reports, and summary judgment motions.
{¶4} That same month, after the remand, Mr. Warman asked defendants for
discovery. They balked, citing their pending motion to dismiss, and demanded some
proof that he had actually developed a post-operative infection and that it had some
causal connection to NTM emitted by the 3T System, as he claimed. Defendants
4 OHIO FIRST DISTRICT COURT OF APPEALS
turned to the trial court later that month, moving it to modify its CMO to include a
“tiered approach to discovery” under which the court would stay all discovery until Mr.
Warman could support his claims with an expert opinion. The record does not show
any initial discovery requests from either side, and we presume that none was served.
{¶5} In essence, defendants asked the court to impose a “Lone Pine” order.
Under such an order, the trial court typically requires plaintiffs, under penalty of
dismissal, to produce prima facie evidence of injury, exposure to the harmful
substance or device in question, and causation. See generally Nora Freeman
Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2 (2019). Though Lone Pine orders
are somewhat common in mass toxic-tort litigation and MDL cases, trial courts rarely
impose them in single-plaintiff cases (for a host of reasons that we need not explore
here).
{¶6} The trial court considered defendants’ motion at an October 2022
hearing. After first rejecting their motion to dismiss, the trial court entertained
argument from Mr. Warman and defendants regarding the status of discovery, Mr.
Warman’s medical records, and what, if any, information he needed in discovery from
defendants to establish the basis for his claims. Mr. Warman’s counsel objected to
defendants’ motion, arguing he was entitled to complete discovery, but assured the
court: “I’ve got all kinds of medical records that he’s got an infection. Do you want me
to have a doctor produce a report that my client got an infection as a result of the
surgery? I can do that.” Consistent with that admission, defendants argued that he
would have everything he needed—namely, his own medical records—to both establish
that he had some type of post-operative infection and that he had or has NTM in his
system. The trial court agreed with defendants and instructed Mr. Warman “to show
5 OHIO FIRST DISTRICT COURT OF APPEALS
me something that shows your client had this or currently has it” within 60 days,
referring either to the presence of NTM in Mr. Warman’s system or other evidence of
an NTM-related infection. It added, “You got to show he’s got it or you’re out.”
However, it held defendants’ motion in abeyance and made no definitive ruling
regarding a stay of discovery.
{¶7} Mr. Warman’s initial time ran out at a hearing in December 2022. By
the time of the hearing, he had not produced an expert statement or other evidence of
any post-operative infection (let alone one possibly linked to M. chimaera) despite his
promises at the October hearing. Accordingly, the trial court granted defendants’
motion to modify its CMO and issued an order that read, “Plaintiff shall produce an
expert report substantiating the infection claimed in the Complaint on or before March
3, 2023. Discovery is hereby STAYED until Plaintiff produces said expert report.”
During the hearing, the court further stated “on March 3rd, at 1:30, you will all be here
for report [sic]. It will be produced on that day or the cases will be dismissed.”
Notably, as Mr. Warman’s counsel acknowledged, the court’s March 3 deadline
mirrored the court’s original CMO deadline for his expert disclosure and report.
{¶8} The court dismissed Mr. Warman’s claims on March 3, 2023 at 3:41
p.m. pursuant to its discovery order. Mr. Warman’s counsel failed to appear at the
status conference held that afternoon and had not yet filed an expert disclosure or
report. A couple of hours after the dismissal, Mr. Warman filed an expert disclosure
identifying an expert who would testify about “the risk of post-operative infection to
Darren Warman as the result of Defendants’ product(s).” In a letter attached to the
filing, the expert states that Mr. Warman was exposed to the 3T System and “was at
risk for [an NTM infection],” noting that NTM emitted by the system can incubate for
6 OHIO FIRST DISTRICT COURT OF APPEALS
as long as five to seven years. (Emphasis added.) The expert did not comment on the
fact that his report was being filed nearly eight years after the surgery. Nor did the
expert discuss whether Mr. Warman developed any infection or unexplained negative
symptoms after his surgery. Regarding discovery, the expert suggested:
“Additional discovery and information would be beneficial as I develop
my opinions in this case. This would include, but not be limited to, the
information that [hospital defendants] has and had about NTM
infections from the [3T Systems] they were using during their cardiac
surgery procedures.”
{¶9} Although their expert disclosure and reports were not due until April
2023, hospital defendants submitted an expert assessment in December 2022. After
reviewing Mr. Warman’s medical records and his complaints, their expert concluded
“there is no objective evidence that Darren Warman developed any infection as a result
of being exposed to [M. chimaera]” from the 3T System used in his July 2015 surgery.
Further, the expert describes Mr. Warman’s course of treatment after the surgery,
including multiple blood cultures negative for M. chimaera. He identifies a
pacemaker pocket infection that left him hospitalized for six days in April 2018, but
notes that a culture from that infection site was positive only for Pseudomonas, a
bacterium not connected to the 3T System. Mr. Warman’s expert neither responded
to hospital defendants’ expert report nor contested its findings.
{¶10} Mr. Warman filed this appeal, arguing that the trial court unfairly
truncated discovery. He cites no case law in his appellate brief, only raising arguments
under Ohio’s discovery rule, Civ.R. 26. In a single assignment of error, he challenges
the dismissal resulting from his failure to comply with the court’s discovery order.
7 OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶11} Few Ohio appellate courts have had occasion to address the prudence of
a Lone Pine order or a similar discovery order, and just one court has considered the
issue in any depth. See Simeone v. Girard City Bd. of Edn., 171 Ohio App.3d 633,
2007-Ohio-1775, 872 N.E.2d 344 (11th Dist.). Because the issue is insubstantially
briefed in the appeal before us, and because the circumstances of this case do not
facilitate a robust analysis of the potential benefits and drawbacks of Lone Pine
orders,1 we decline to discuss the overall legality and wisdom of such orders under
Ohio law. Rather, for the narrow reasons stated below, we hold that the trial court did
not abuse its discretion in staying discovery while requiring Mr. Warman to
substantiate his injury. Nor did the court err in ordering dismissal of Mr. Warman’s
claims after he failed to provide even basic proof that he suffered an injury, an essential
element of any tort claim.
{¶12} The trial court’s order staying discovery while requiring Mr. Warman to
produce evidence of an NTM-related infection is best characterized as a discovery
order. See, e.g., Simeone at ¶ 23-24. In general, a trial court has broad discretion to
regulate discovery, and orders concerning discovery matters will not be reversed
absent an abuse of discretion. State ex rel. Ebbing v. Ricketts, 133 Ohio St.3d 339,
2012-Ohio-4699, 978 N.E.2d 188, ¶ 19. Abuse of discretion occurs when “a court
exercis[es] its judgment, in an unwarranted way, in regard to a matter over which it
has discretionary authority.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-
1 It is also unclear that this order even constitutes a “Lone Pine” order because it only required proof
of injury, rather than injury and causation. 8 OHIO FIRST DISTRICT COURT OF APPEALS
3304, 187 N.E.3d 463, ¶ 35. Further, appellate courts reverse discovery orders “ ‘when
the trial court has erroneously denied or limited discovery.’ ” Mauzy v. Kelly Servs.,
75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996), quoting 8 Wright, Miller & Marcus,
Federal Practice and Procedure, Section 2006 (2d Ed.1994). “Thus, ‘an appellate
court will reverse the decision of a trial court that extinguishes a party’s right to
discovery if the trial court’s decision is improvident and affects the discovering party’s
substantial rights.’ ” Mauzy at 592, quoting Rossman v. Rossman, 47 Ohio App.2d
103, 110, 352 N.E.2d 149 (8th Dist.1975).
{¶13} Civ.R. 26 governs discovery matters. “Unless otherwise limited by court
order, the scope of discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional
to the needs of the case.” Civ.R. 26(B)(1). In determining proportionality, courts
consider “the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources,
the importance of discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit.” Id. According to a staff note
regarding the July 2020 amendment to Civ.R. 26, which added the proportionality
language, “[a] party claiming that a request is important to resolve the issues should
be able to explain the ways in which the underlying information bears on the issues as
that party understands them.” 2020 Staff Note, Civ.R. 26. Further, “[t]he purpose of
discovery under the civil rules is to prevent unfair surprise and the secreting of
evidence by ensuring the free flow of information between the parties upon request.”
Weckel v. Cole + Russell Architects, 2013-Ohio-2718, 994 N.E.2d 885, ¶ 24 (1st Dist.).
“[A] trial court's exercise of its discretion to end discovery ‘must be justified by a
9 OHIO FIRST DISTRICT COURT OF APPEALS
weightier interest than expediency,’ particularly when * * * the party opposing
discovery alone possessed the facts substantiating or disproving the matter in
dispute.” Id. at ¶ 33, quoting Rossman at 110. Compare Dansberry v. Mercy Health-
West Park, 1st Dist. Hamilton No. C-210304, 2022-Ohio-260, ¶ 12-13, 17 (reversing
trial court’s denial of plaintiff’s request for additional discovery when defendants
obfuscated critical facts necessary to plaintiff’s case).
{¶14} In Ohio’s only significant case on Lone Pine orders, the Eleventh District
held that “the trial court abused its discretion in prematurely issuing [a] ‘Lone Pine’
order” and that it further abused its discretion in dismissing plaintiffs’ claims under
Civ.R. 41(B)(1) for noncompliance with the order. Simeone, 171 Ohio App.3d 633,
2007-Ohio-1775, 872 N.E.2d 344, at ¶ 65. In Simeone, a group of students and
teachers who attended and worked in an intermediate school building and suffered
health problems sued defendants involved in constructing the building for various
torts, including product liability claims. After plaintiffs requested discovery,
defendants moved for a Lone Pine order. Plaintiffs filed a motion to compel discovery,
but the court denied it and granted defendants’ motion for a Lone Pine order six
months later. They filed for reconsideration to compel discovery and submitted expert
affidavits stating they could not meet the order’s requirements without discovery from
defendants, but the court kept its order in place. It required plaintiffs to identify their
specific injuries, the contaminant they were exposed to, testing relied upon to show
exposure, and expert opinions on causation. The court eventually dismissed the case
for failure to comply over one year later.
{¶15} The Simeone court noted that the circumstances typically preceding a
Lone Pine order—either a plaintiff’s attempt to thwart discovery or their failure to set
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forth a prima facie claim—were not present in that case. Id. at ¶ 43, 46. Because “there
had yet to be any meaningful discovery” prior to the trial court’s Lone Pine order, and
because “the timing of the issuance of the ‘Lone Pine’ order * * * effectively and
inappropriately supplanted the summary judgment procedure provided in Civ.R. 56,”
the court held that the trial court “put the cart before the horse” and denied plaintiffs
“the procedural protections of Civ.R. 56.” Id. at ¶ 42, 49, 53, 59.
{¶16} This case differs from Simeone in several important ways. First, in
Simeone, plaintiffs “requested various tests and other documents that are in the privy
of the appellees,” and plaintiffs’ experts claimed they could not comply with the trial
court’s “Lone Pine” order without reviewing those documents. Id. at ¶ 61. Here,
however, Mr. Warman did not argue that he was denied access to any specific tests,
documents, or other information from defendants that would have enabled his expert
to substantiate whether he had an infection. Additionally, unlike the plaintiffs in
Simeone, Mr. Warman never filed a motion to compel discovery (nor, as best we can
tell, ever served discovery). In response to questions on this point at oral argument,
Mr. Warman’s counsel pointed to the court’s blanket stay of all discovery, implying a
motion to compel would have been a fool’s errand. But even so, Mr. Warman had
ample opportunity at both the October and December hearings to explain to the trial
court what specific information in defendants’ possession he needed to supplement
his own medical records for the purpose of identifying an injury and connecting it to
defendants’ device (and actual, served discovery prior to the court’s stay could have
bolstered the point). His inability to do so suggests that the problem with filing a
motion to compel was not just that it may have been met with skepticism or hostility;
it was that the motion would have lacked specificity and substance.
11 OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Furthermore, in the letter submitted in the evening after the case was
dismissed, his expert merely indicated that he was in the process of reviewing Mr.
Warman’s medical records and that additional discovery from defendants would help
him form an opinion. This letter contains no specifics in terms of what information is
actually needed and why (beyond a suggestion that more evidence might be
“beneficial”), nor does it even hint that Mr. Warman has or had any condition
attributable to the 3T System. As the trial court concluded in issuing its discovery
order, his medical records should contain sufficient information for his expert to at
least conclude whether he even had an infection caused by M. chimaera. Mr.
Warman’s own counsel claimed as much—that he had “all kinds of medical records
that he’s got an infection”—at the October 2022 hearing, but by March 3, he could offer
the court nothing to validate the point.
{¶18} Additionally, Mr. Warman’s expert’s assertion that M. chimaera
infections are hard to diagnose and can incubate for five to seven years fails to
reconcile that he wrote the letter more than seven years after Mr. Warman’s July 2015
heart surgery. Finally, the expert never claimed that Mr. Warman’s own medical
records were lacking or deficient in any way.
{¶19} Contrast plaintiff’s expert’s letter with the report tendered by the
defense expert in December. He describes the nature and purpose of Mr. Warman’s
July 2015 surgery (an aortic valve replacement) and subsequent course of care, which
included placement of a permanent pacemaker and an April 2016 pacemaker pocket
revision. Some complications arose from the revision, but Mr. Warman was
consistently negative for fever, chills, or unexplained weight loss, symptoms common
in M. chimaera infection cases. Following a February 2018 pacemaker malfunction
12 OHIO FIRST DISTRICT COURT OF APPEALS
and subsequent replacement, Mr. Warman contracted a pacemaker pocket infection
leading to a six-day hospital stay in April 2018. The defense expert discerns that
multiple blood cultures were taken and were negative for M. chimaera, but a pocket
site culture was positive for Pseudomonas, an unrelated bacterium. He further notes
that throughout Mr. Warman’s course of care from 2015 to 2021, his medical records
indicate no suspicion for an NTM-related infection. He concluded, accordingly, that
“it is not medically plausible that Mr. Warman would have infection due to [M.
chimaera] for several years and not have significant systemic manifestations such as
weight loss or anemia, or focal clinical manifestations, and positive cultures.”
Therefore, there was “no objective evidence that Darren Warman developed any
infection as result of being exposed to [M. chimaera].” Mr. Warman’s expert does not
refute (or mention) these conclusions at all, even though the defense expert’s report
was filed more than two months prior to the plaintiff’s report deadline.
{¶20} The vagueness of plaintiff’s expert’s letter dovetails with the lack of any
discovery served (or at least filed) in this case. Generally, to show that a party has been
denied a reasonable opportunity to obtain discovery, a party must show specifically
what was needed and why, rather than just speculating that a smoking gun might
emerge from a pile of documents. See Dansberry, 1st Dist. Hamilton No. C-210304,
2022-Ohio-260, at ¶ 12-14 (describing plaintiff’s diligence in the litigation and her
motion for additional discovery time to depose a key witness and criticizing defendant
for “hiding critical facts,” including the witness’s identity). Of course, everyone might
like more information, but Mr. Warman’s expert never explains how that information
would illuminate a diagnosis that could not be reached from the medical records alone.
13 OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Ultimately, the trial court acted reasonably in concluding that, absent
an explanation or a motion to compel to the contrary, Mr. Warman had all the evidence
he needed to at least identify an injury potentially linked to the 3T System. And we
also underscore that the trial court afforded Mr. Warman ample time here—in
addition to the nine months between filing the claims in January 2022 and the October
2022 motions hearing, the trial court gave Mr. Warman nearly five additional months
to procure an expert report. Furthermore, the final deadline the court provided for
the expert report, March 3, 2023, matches the original due date for his expert
disclosure and report established in the court’s initial case management order from
September 2022—the timeline could not have caught Mr. Warman or his expert off
guard.
{¶22} Thus, the court’s decision to stay discovery pending corroboration of
Mr. Warman’s injury is “ ‘justified by a weightier interest than efficiency.’ ” Weckel,
2013-Ohio-2718, 994 N.E.2d 885, at ¶ 33, quoting Rossman, 47 Ohio App.2d at 110,
352 N.E.2d 149. Rather than rushing Mr. Warman out the door, the court’s order
guarded against a potentially frivolous claim that, although sufficiently pleaded to
survive a motion to dismiss, apparently lacked basic evidentiary support. Moreover,
because Mr. Warman did not show that defendants were “secreting” information that
they “alone possessed,” and because the stay did not threaten to inflict “unfair
surprise,” the court’s order does not undermine the purpose of Ohio’s discovery rules.
Id. at ¶ 24, 33. Instead, the court acted within the scope of its discretion in managing
the scope of discovery under Civ.R. 26, ensuring discovery remained tailored to the
needs of the case. We therefore conclude that the trial court did not abuse its
discretion in imposing the discovery order.
14 OHIO FIRST DISTRICT COURT OF APPEALS
III.
{¶23} The trial court’s ultimate decision to dismiss the case for noncompliance
with its discovery order is best characterized as an involuntary dismissal under Civ.R.
41(B)(1). “We review a decision to dismiss a case pursuant to Civ.R. 41(B)(1) for an
abuse of discretion, and dismissals with prejudice are subject to heightened scrutiny.”
Williams v. Metro, 1st Dist. Hamilton No. C-190321, 2020-Ohio-3515, ¶ 23. “Despite
the heightened scrutiny to which dismissals with prejudice are subject, this court will
not hesitate to affirm the dismissal of an action when ‘the conduct of a party is so
negligent, irresponsible, contumacious or dilatory as to provide substantial grounds
for a dismissal with prejudice for a failure to prosecute or obey a court order.’ ”
Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 48, 684 N.E.2d 319 (1997),
quoting Tokles & Son v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 632, 605 N.E.2d
936 (1992).
{¶24} The trial court acted within its discretion in dismissing the case under
Civ.R. 41(B)(1) for Mr. Warman’s failure to comply with the court’s order. From the
trial court’s admonishments at the October and December hearings, he had adequate
notice of the trial court’s intent to dismiss if he could not substantiate his claims. Even
if it had considered the substance of Mr. Warman’s expert disclosure and letter,
tendered later in the evening following the court’s dismissal, the disclosure and letter
would not have changed the outcome—Mr. Warman failed to substantiate that he
actually had an infection, rendering dismissal appropriate.
{¶25} Arguably, as the court explained in Simeone, a summary judgment
motion might have been the more appropriate procedural avenue to dispose of these
claims rather than an involuntary dismissal due to failure to comply with the court’s 15 OHIO FIRST DISTRICT COURT OF APPEALS
discovery order (particularly since the defense had already filed their expert report).
But the interference with the summary judgment process motivating the court’s
decision in Simeone is not present here. In Simeone, the court explained that allowing
a case to proceed through the normal summary judgment stage empowers the plaintiff
to file a Civ.R. 56(F) motion to extend their time to respond when more discovery is
needed. Simeone, 171 Ohio App.3d 633, 2007-Ohio-1775, 872 N.E.2d 344, at ¶ 56. The
court further stated that a Civ.R. 56(F) motion could give plaintiff more time to “obtain
affidavits from expert witnesses to successfully oppose” the summary judgment
motion. Id. at ¶ 57. But here, in addition to the nine months between filing and the
October 2022 hearing, the court gave Mr. Warman nearly five months to substantiate
his claim with an expert opinion before dismissing the case. Additionally, in contrast
to the plaintiffs in Simeone, Mr. Warman never identified what specific tests,
documents, records, or other information he needed that would fill in the gaps for his
expert. The trial court asked only for information that Mr. Warman’s own medical
records would have included, if it existed at all, and he asserts no deficiency or errors
in his medical records, let alone any that could be resolved by defendants in discovery.
Given Mr. Warman’s inability to point to an injury in his medical history possibly
attributable to defendants’ medical device, we are satisfied that the court’s discovery
order and subsequent dismissal did not violate his substantial rights.
{¶26} Therefore, we conclude that the court acted within its discretion in
dismissing Mr. Warman’s cases with prejudice following his failure to satisfy the
court’s discovery order. Accordingly, we overrule his sole assignment of error and
affirm the judgment of the trial court.
16 OHIO FIRST DISTRICT COURT OF APPEALS
* * *
{¶27} In sum, although we decline to assess the overall legality and wisdom of
Lone Pine orders under Ohio law, we hold that the trial court, in this instance, acted
within its discretion in staying discovery until Mr. Warman could provide a basic
evidentiary basis for an essential element of his claims. Upon his failure to do so, the
court acted within its discretion in dismissing his cases with prejudice. We affirm the
judgment of the trial court and overrule Mr. Warman’s sole assignment of error.
Judgment affirmed.
WINKLER and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.