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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
NAZARETH DELI LLC, et al. CASE NO. 18CV010044
Plaintiffs, JUDGE STEPHEN L. MCINTOSH
V. DEFENDANTS JOHN W. DAWSON
INSURANCE, INC. DBA JOHN
JOHN W. DAWSON INSURANCE DAWSON ASSOCIATES AND
INC. dba JOHN DAWSON MICHAEL D. PALMER’S
ASSOCIATES, et al. MOTION TO QUASH PLAINTIFFS’
NOTICE OF FILING DEPOSITION OF
Defendants. DELANEY SMITH,
Now come defendants, John W. Dawson Insurance, Inc. dba John Dawson Associates
and Michael D. Palmer, by and through their undersigned counsel, Marshall Dennehey, P.C., and
pursuant to the Ohio Rules of Civil Procedure, hereby move this Honorable Court to Quash
Plaintiffs’ “Notice of Filing Deposition” of Delaney Smith, M.D., dated July 7, 2023. A
memorandum in Support of said Motion is attached hereto.
Respectfully submitted,
MARSHALL DENNEHEY, P.C.
/s/ Ray C. Freudiger
RAY C. FREUDIGER (0055564)
312 Elm Street, Suite 1850
Cincinnati, Ohio 45202
Phone: 513.372.6800
Fax: 513.372.6801
Email: refreudiger@mdweg.com
Counsel for Defendants, John W. Dawson Insurance,
Inc., dba John Dawson Associates and Michael D.
Palmer
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
NAZARETH DELI LLC, et al. CASE NO. 18CV010044
Plaintiffs, JUDGE STEPHEN L. MCINTOSH
V. DEFENDANTS JOHN W. DAWSON
INSURANCE, INC. DBA JOHN
JOHN W. DAWSON INSURANCE DAWSON ASSOCIATES AND
INC. dba JOHN DAWSON MICHAEL D. PALMER’S
ASSOCIATES, et al. MOTION TO QUASH PLAINTIFFS’
NOTICE OF FILING DEPOSITION OF
Defendants. DELANEY SMITH,
MEMORANDUM
I INTRODUCTION
On July 7, 2023, Plaintiffs, Hany Baransi (hereinafter “Baransi”) and Nazareth Deli LLC
(hereinafter “Nazareth Deli”) (hereinafter collectively the “Plaintiffs”), filed a “Notice of Filing
Deposition” of Delaney Smith, M.D. (hereinafter “Dr. Smith”). Although it was captioned as a
“Notice of Filing Deposition,” said Notice declared that on Thursday, March 7, 2024 at 11:00
a.m., Plaintiffs intend to take the deposition of Dr. Smith pursuant to Civ.R. 30(B), et seq.
Defendants, John W. Dawson Insurance, Inc. dba John Dawson Associates (hereinafter
“Dawson”) and Michael D. Palmer (hereinafter “Palmer”) (collectively the “Defendants”),
hereby move to quash Plaintiffs’ Notice of Filing Deposition.
IL. RELEVANT PROCEDURAL HISTORY
On December 3, 2018, Plaintiffs filed suit against Defendants alleging claims for
negligence, breach of fiduciary duty, and negligent misrepresentation.
On November 9, 2020, Plaintiffs filed a Civ.R. 56 Motion for Summary Judgment. In
support of said Motion, Plaintiffs submitted the sworn affidavit of Dr. Smith.
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On December 7, 2020, Defendants filed a Memorandum Contra Plaintiffs’ Motion For
Summary Judgment. On that same day, Defendants filed a Motion To Strike And Motion
In Limine seeking, in relevant part, to strike the Affidavit of Dr. Smith in its entirety.
On July 15, 2021, this Honorable Court issued a Decision and Entry granting, inter alia,
Defendants’ Motion To Strike the Affidavit of Dr. Smith. In doing so, this Honorable
Court held that the information contained in the affidavit of Dr. Smith is “not relevant to
the issues before the Court.” (emphasis added).
Notably, the Tenth Appellate District Court, in its November 8, 2022 Decision, did not
tule on these issues, finding that the issues were mooted by the Court’s previous ruling.
On remand, Plaintiffs filed a Motion to Reconsider on December 9, 2022, requesting the
reconsideration of, inter alia, the July 15, 2021 Decision striking Dr. Smith’s affidavit
On January 6, 2023, Defendants filed a Memorandum Contra to Plaintiffs December 9,
2022 Motion to Reconsider
On April 10, 2023, this Honorable Court entered an Amended Case Scheduling Order,
which outlined the following deadlines:
e Dispositive Motion Deadline October 2, 2023
Discovery Cut Off October 11, 2023
Virtual Pretrial Date January 22, 2024 at 9:00AM
e Trial Assignment March 11, 2024 at 10:30AM
o On July 7, 2023, Plaintiffs filed a “Notice of Filing Deposition” of Dr. Smith, which
declares that on Thursday, March 7, 2024, Plaintiffs intend to take the deposition of Dr.
Smith pursuant to Civ.R. 30(B), et seq.
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Til. LEGAL ANALYSIS
A. Plaintiffs’ Notice of Filing Deposition is Improper and Untimely
On July 7, 2023, Plaintiffs filed a pleading titled “Notice of Filing Deposition” which
read as follows
NOTICE OF FILING DEPOSITION
PLEASE TAKE NOTICE that on Thursday, March 7, 2024 at
11:00 a.m., the deposition by video, audio, telephonic, and/or
stenographic means of Delaney Smith, M.D. will be taken at the
office of 1880 MacKenzie Drive, Ste. 111, Columbus, Ohio 43220,
upon oral examination pursuant to Civ.R. 30(B), et seq. Said
deposition will continue from day to day to day until completed
Plaintiffs’ filing is improper for a multitude of reasons. As a result, the purpose of, and
procedure to be utilized in, this deposition are unclear, and Defendants are constrained to address
each plausible option herein. Regardless, Plaintiffs should be estopped from conducting the
March 7, 2024 in any manner.
1. Plaintiffs’ Attempted Deposition is Procedurally Improper as
Identified
Initially, Plaintiffs have filed a “Notice of Filing Deposition,” which is ordinarily
intended to indicate that a party is filing the transcript of a previously conducted deposition. It is
therefore believed that Plaintiffs intended to file a “Notice of Examination” as proscribed by
Civ.R. 30(B). Defendants will proceed hereunder based on said presumption.
“Under Civ.R. 30(A), a witness may be compelled to deposition only by the use of
subpoena as provided by Civ.R. 45, as contrasted with the attendance of a party who may be
compelled by the use of notice of examination under Civ.R. 30(B).” Koeblitz v. Koeblitz, 2021-
Ohio-2269, § 10 (citing State ex rel. The V Cos. v. Marshall, 692 N.E.2d 198, 201 (Ohio 1998))
Plaintiffs have certified that the March 7 deposition is to be conducted pursuant to Ohio Civ.R.
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30(B). However, the intended purpose of Rule 30(B) is to compel the “attendance of a party
deponent.” Ohio Civ.R. 30. The rule is not applicable to nonparties. Koeblitz v. Koeblitz, 2021-
Ohio-2269, J 10. Plaintiffs cannot take the deposition of Dr. Smith, a nonparty who has already
been rejected as an expert by this Honorable Court, pursuant to Civ.R. 30(B)
In addition to being procedurally improper, Plaintiffs’ “Notice of Filing Deposition” fails
to dictate if said deposition is intended to be of a lay witness, or an expert witness. As a result,
Defendants will address each scenario below.
2. Plaintiffs’ Attempted Deposition Should Be Quashed as Untimely.
Pursuant to Civ.R. 26, parties may obtain discovery by deposition upon oral examination.
Ohio Civ. R. 26(A). However, parties are constrained to conduct discovery in accordance with
the time schedule established by the Court. If Plaintiffs’ March 7, 2024 is intended to be a
discovery deposition, it is untimely.
On April 10, 2023, this Honorable Court entered an Amended Case Scheduling Order,
which set the discover deadline as October 11, 2023. Plaintiffs have now attempted to schedule a
deposition five (5) months after this deadline, on March 7, 2024. If Plaintiffs truly intend to
conduct the March 7, 2024 deposition pursuant to Civ.R. 30(B), said deposition would
consequently be required to be (1) a discovery deposition, and (2) of a party deponent. The
proposed deposition of Dr. Smith, five (5) months after the discovery deadline, is neither. As a
result, Dr. Smith’s testimony is inadmissible, and Plaintiffs’ Notice of Filing Deposition, and any
further attempts to depose Dr. Smith, should be quashed
3. Plaintiffs’ Attempted Deposition Should Be Quashed as Improper if
Sought as a Deposition of an Expert Witness.
Although Plaintiffs have not explicitly sought to conduct the March 7, 2024 deposition
pursuant to Civ.R. 27, the ambiguous nature of Plaintiff's “Notice of Filing Deposition” forces
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Defendants to address that issue. Civ.R. 27 codifies when and how an individual may conduct a
perpetuation deposition. However, Rule 27 is intended to apply either to a prospective plaintiff or
defendant before a civil action is commenced. Ohio Civ. R. 27, 1972 Staff Note (emphasis
added). This rule is not intended to allow a party to circumvent a Court’s scheduling in an active
matter and conduct depositions whenever they so please. Thus, Civ.R. 27 is inapplicable here.
Yet, even if this court were to consider the allowance of a perpetuation deposition, the
deposition of Dr. Smith as an expert remains improper. Civ.R. 26(B)(7) dictates that before an
expert witness is permitted testify, the party offering that expert’s testimony must take several
steps, including producing the expert report of said witness. Civ.R. 26(B)(7)(a-h). Plaintiffs have
not produced any expert report drafted by Dr. Smith, and Defendants have not had an
opportunity to investigate the opinions set forth by Dr. Smith. That is undoubtedly because this
Honorable Court has already ruled that Dr. Smith cannot be called as an expert, because her
testimony is in no way relevant in this matter.! “Evidence which is not relevant is not
admissible.” Ohio Evid. R. 402 (emphasis added).
4 Plaintiffs’ Attempted Deposition Should Be Quashed as Improper if
Sought as a Deposition of a Lay Witness.
Because this Honorable Court has already held that Dr. Smith cannot be called as an
expert, it is anticipated that Plaintiffs now intend to offer Dr. Smith as a lay witness treating
physician. Yet, even as a lay witness, Dr. Smith’s testimony is inadmissible, as it remains
irrelevant.
A lay witness’s testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (1) rationally based on the perception of the witness and (2)
helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
1 “The cause and extent of Plaintiff Barani’s injuries related to the automobile accident are not issues before this
Court.” Nazareth Deli LLC, 18CV10044, Decision dated July 15, 2021 at 12.
6
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Ohio Evid. R. 701 (emphasis added). This Honorable Court has already determined that the
cause and extent of Plaintiff's injuries are not issues before the Court, and thus, Dr. Smith’s
testimony is in no way relevant to any fact at issue in this matter. Nazareth Deli LLC,
18CV10044, Decision dated July 15, 2021 at 12.? Unless Baransi’s treating physician intends to
testify on how Defendants were negligent, or breached a fiduciary duty, then her testimony is
irrelevant and should be precluded.
B. This Honorable Court’s July 15, 2021 Decision Remains in Effect
As discussed herein, this Honorable Court has already determined whether Dr. Smith
should be permitted to testify as an expert in this matter. In a Decision and Entry dated July 15,
2021, this Honorable Court this Honorable Court held that the “the cause and extent of Plaintiff
Barani’s injuries related to the automobile accident are not issues before this Court,” and as a
result, the information to be provided by Dr. Smith is “not relevant.” See Nazareth Deli LLC,
18CV10044, Decision dated July 15, 2021 at 12 (emphasis added). In doing so, this Honorable
Court held that the affidavit of Dr. Smith was to be stricken from the record in its entirety
Notably, this portion of the July 15, 2021 Decision and Entry was in no way impacted by
Decision of the Tenth District. Therefore, this Honorable Court’s holding that Dr. Smith’s
testimony is irrelevant in this matter should remain in full effect, and Plaintiff should be
precluded from utilizing Dr. Smith as an expert witness.
Plaintiffs have not made an adequate or persuasive argument that this Honorable Court
should reconsider the July 15, 2021 Decision and Entry. Defendants refer the this Honorable
Court to its December 7, 2020 Memorandum Contra Plaintiffs’ Motion for Summary Judgment,
as well as Defendants’ December 7, 2020 Motion in Limine and Motion to Strike. These
? As discussed herein, this Honorable Court should not reconsider it’s July 15, 2021 Decision and Entry.
7
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Motions and responses contain the substance of Defendants basis for requesting the testimony
and affidavit of Dr. Smith being stricken.
Iv. CONCLUSION
Based upon the foregoing, Defendants, John W. Dawson Insurance, Inc. dba John
Dawson Associates and Michael D. Palmer, respectfully request this Honorable Court grant
Defendants’ Motion to Quash Plaintiff's “Notice of Filing Deposition” of Delaney Smith, M.D.,
with prejudice, and any other relief the Court may deem equitable
Respectfully submitted,
MARSHALL DENNEHEY, P.C.
/s/ Ray C. Freudiger
RAY C. FREUDIGER (0055564)
312 Elm Street, Suite 1850
Cincinnati, Ohio 45202
Phone: 513.372.6800
Fax: 513.372.6801
Email: refreudiger@mdweg.com
Counsel for Defendants, John W. Dawson Insurance,
Inc., dba John Dawson Associates and Michael D.
Palmer
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044
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CERTIFICATE OF SERVICE
I hereby certify that on the 27" day of September, 2023, a true and correct copy of the
foregoing was forwarded to all counsel of record by the Court’s electronic filing system and
email
Scott E. Smith
Brian R. Noethlich
Michael L. Dillard, Jr.
Scott Elliot Smith, LPA
5003 Horizons Drive, Suite 100
Columbus, OH 43220
Haw.
midi
Attorneys for Plaintiffs
Adam J. Bennett
Andrew P. Cooke
Cooke Demers, LLC
260 Market Street, Suite F
New Albany, OH 43054
abenne gatiomeys com
Attorney for Defendant/New Party Plaintiff Ohio BWC
MARSHALL DENNEHEY, P.C.
By: /s/_ Ray C. Freudiger
RAY C. FREUDIGER (0055564)
Counsel for Defendants John W. Dawson
Insurance, Inc. dba John Dawson Associates and
Michael D. Palmer
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 OG569 - U6 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO NAZARETH DELI LLC, et al. CASE NO. 18CV010044 Plaintiffs, JUDGE STEPHEN L. MCINTOSH V. DEFENDANTS JOHN W. DAWSON INSURANCE, INC. DBA JOHN JOHN W. DAWSON INSURANCE DAWSON ASSOCIATES AND INC. dba JOHN DAWSON MICHAEL D. PALMER’S ASSOCIATES, et al. MOTION TO QUASH PLAINTIFFS’ NOTICE OF FILING DEPOSITION OF Defendants. DELANEY SMITH, Now come defendants, John W. Dawson Insurance, Inc. dba John Dawson Associates and Michael D. Palmer, by and through their undersigned counsel, Marshall Dennehey, P.C., and pursuant to the Ohio Rules of Civil Procedure, hereby move this Honorable Court to Quash Plaintiffs’ “Notice of Filing Deposition” of Delaney Smith, M.D., dated July 7, 2023. A memorandum in Support of said Motion is attached hereto. Respectfully submitted, MARSHALL DENNEHEY, P.C. /s/ Ray C. Freudiger RAY C. FREUDIGER (0055564) 312 Elm Street, Suite 1850 Cincinnati, Ohio 45202 Phone: 513.372.6800 Fax: 513.372.6801 Email: refreudiger@mdweg.com Counsel for Defendants, John W. Dawson Insurance, Inc., dba John Dawson Associates and Michael D. Palmer Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 OG569 - U6 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO NAZARETH DELI LLC, et al. CASE NO. 18CV010044 Plaintiffs, JUDGE STEPHEN L. MCINTOSH V. DEFENDANTS JOHN W. DAWSON INSURANCE, INC. DBA JOHN JOHN W. DAWSON INSURANCE DAWSON ASSOCIATES AND INC. dba JOHN DAWSON MICHAEL D. PALMER’S ASSOCIATES, et al. MOTION TO QUASH PLAINTIFFS’ NOTICE OF FILING DEPOSITION OF Defendants. DELANEY SMITH, MEMORANDUM I INTRODUCTION On July 7, 2023, Plaintiffs, Hany Baransi (hereinafter “Baransi”) and Nazareth Deli LLC (hereinafter “Nazareth Deli”) (hereinafter collectively the “Plaintiffs”), filed a “Notice of Filing Deposition” of Delaney Smith, M.D. (hereinafter “Dr. Smith”). Although it was captioned as a “Notice of Filing Deposition,” said Notice declared that on Thursday, March 7, 2024 at 11:00 a.m., Plaintiffs intend to take the deposition of Dr. Smith pursuant to Civ.R. 30(B), et seq. Defendants, John W. Dawson Insurance, Inc. dba John Dawson Associates (hereinafter “Dawson”) and Michael D. Palmer (hereinafter “Palmer”) (collectively the “Defendants”), hereby move to quash Plaintiffs’ Notice of Filing Deposition. IL. RELEVANT PROCEDURAL HISTORY On December 3, 2018, Plaintiffs filed suit against Defendants alleging claims for negligence, breach of fiduciary duty, and negligent misrepresentation. On November 9, 2020, Plaintiffs filed a Civ.R. 56 Motion for Summary Judgment. In support of said Motion, Plaintiffs submitted the sworn affidavit of Dr. Smith. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 OG569 - U6 On December 7, 2020, Defendants filed a Memorandum Contra Plaintiffs’ Motion For Summary Judgment. On that same day, Defendants filed a Motion To Strike And Motion In Limine seeking, in relevant part, to strike the Affidavit of Dr. Smith in its entirety. On July 15, 2021, this Honorable Court issued a Decision and Entry granting, inter alia, Defendants’ Motion To Strike the Affidavit of Dr. Smith. In doing so, this Honorable Court held that the information contained in the affidavit of Dr. Smith is “not relevant to the issues before the Court.” (emphasis added). Notably, the Tenth Appellate District Court, in its November 8, 2022 Decision, did not tule on these issues, finding that the issues were mooted by the Court’s previous ruling. On remand, Plaintiffs filed a Motion to Reconsider on December 9, 2022, requesting the reconsideration of, inter alia, the July 15, 2021 Decision striking Dr. Smith’s affidavit On January 6, 2023, Defendants filed a Memorandum Contra to Plaintiffs December 9, 2022 Motion to Reconsider On April 10, 2023, this Honorable Court entered an Amended Case Scheduling Order, which outlined the following deadlines: e Dispositive Motion Deadline October 2, 2023 Discovery Cut Off October 11, 2023 Virtual Pretrial Date January 22, 2024 at 9:00AM e Trial Assignment March 11, 2024 at 10:30AM o On July 7, 2023, Plaintiffs filed a “Notice of Filing Deposition” of Dr. Smith, which declares that on Thursday, March 7, 2024, Plaintiffs intend to take the deposition of Dr. Smith pursuant to Civ.R. 30(B), et seq. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 O0G569 - U6 Til. LEGAL ANALYSIS A. Plaintiffs’ Notice of Filing Deposition is Improper and Untimely On July 7, 2023, Plaintiffs filed a pleading titled “Notice of Filing Deposition” which read as follows NOTICE OF FILING DEPOSITION PLEASE TAKE NOTICE that on Thursday, March 7, 2024 at 11:00 a.m., the deposition by video, audio, telephonic, and/or stenographic means of Delaney Smith, M.D. will be taken at the office of 1880 MacKenzie Drive, Ste. 111, Columbus, Ohio 43220, upon oral examination pursuant to Civ.R. 30(B), et seq. Said deposition will continue from day to day to day until completed Plaintiffs’ filing is improper for a multitude of reasons. As a result, the purpose of, and procedure to be utilized in, this deposition are unclear, and Defendants are constrained to address each plausible option herein. Regardless, Plaintiffs should be estopped from conducting the March 7, 2024 in any manner. 1. Plaintiffs’ Attempted Deposition is Procedurally Improper as Identified Initially, Plaintiffs have filed a “Notice of Filing Deposition,” which is ordinarily intended to indicate that a party is filing the transcript of a previously conducted deposition. It is therefore believed that Plaintiffs intended to file a “Notice of Examination” as proscribed by Civ.R. 30(B). Defendants will proceed hereunder based on said presumption. “Under Civ.R. 30(A), a witness may be compelled to deposition only by the use of subpoena as provided by Civ.R. 45, as contrasted with the attendance of a party who may be compelled by the use of notice of examination under Civ.R. 30(B).” Koeblitz v. Koeblitz, 2021- Ohio-2269, § 10 (citing State ex rel. The V Cos. v. Marshall, 692 N.E.2d 198, 201 (Ohio 1998)) Plaintiffs have certified that the March 7 deposition is to be conducted pursuant to Ohio Civ.R. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 OG569 - U6 30(B). However, the intended purpose of Rule 30(B) is to compel the “attendance of a party deponent.” Ohio Civ.R. 30. The rule is not applicable to nonparties. Koeblitz v. Koeblitz, 2021- Ohio-2269, J 10. Plaintiffs cannot take the deposition of Dr. Smith, a nonparty who has already been rejected as an expert by this Honorable Court, pursuant to Civ.R. 30(B) In addition to being procedurally improper, Plaintiffs’ “Notice of Filing Deposition” fails to dictate if said deposition is intended to be of a lay witness, or an expert witness. As a result, Defendants will address each scenario below. 2. Plaintiffs’ Attempted Deposition Should Be Quashed as Untimely. Pursuant to Civ.R. 26, parties may obtain discovery by deposition upon oral examination. Ohio Civ. R. 26(A). However, parties are constrained to conduct discovery in accordance with the time schedule established by the Court. If Plaintiffs’ March 7, 2024 is intended to be a discovery deposition, it is untimely. On April 10, 2023, this Honorable Court entered an Amended Case Scheduling Order, which set the discover deadline as October 11, 2023. Plaintiffs have now attempted to schedule a deposition five (5) months after this deadline, on March 7, 2024. If Plaintiffs truly intend to conduct the March 7, 2024 deposition pursuant to Civ.R. 30(B), said deposition would consequently be required to be (1) a discovery deposition, and (2) of a party deponent. The proposed deposition of Dr. Smith, five (5) months after the discovery deadline, is neither. As a result, Dr. Smith’s testimony is inadmissible, and Plaintiffs’ Notice of Filing Deposition, and any further attempts to depose Dr. Smith, should be quashed 3. Plaintiffs’ Attempted Deposition Should Be Quashed as Improper if Sought as a Deposition of an Expert Witness. Although Plaintiffs have not explicitly sought to conduct the March 7, 2024 deposition pursuant to Civ.R. 27, the ambiguous nature of Plaintiff's “Notice of Filing Deposition” forces Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 OG569 - U6 Defendants to address that issue. Civ.R. 27 codifies when and how an individual may conduct a perpetuation deposition. However, Rule 27 is intended to apply either to a prospective plaintiff or defendant before a civil action is commenced. Ohio Civ. R. 27, 1972 Staff Note (emphasis added). This rule is not intended to allow a party to circumvent a Court’s scheduling in an active matter and conduct depositions whenever they so please. Thus, Civ.R. 27 is inapplicable here. Yet, even if this court were to consider the allowance of a perpetuation deposition, the deposition of Dr. Smith as an expert remains improper. Civ.R. 26(B)(7) dictates that before an expert witness is permitted testify, the party offering that expert’s testimony must take several steps, including producing the expert report of said witness. Civ.R. 26(B)(7)(a-h). Plaintiffs have not produced any expert report drafted by Dr. Smith, and Defendants have not had an opportunity to investigate the opinions set forth by Dr. Smith. That is undoubtedly because this Honorable Court has already ruled that Dr. Smith cannot be called as an expert, because her testimony is in no way relevant in this matter.! “Evidence which is not relevant is not admissible.” Ohio Evid. R. 402 (emphasis added). 4 Plaintiffs’ Attempted Deposition Should Be Quashed as Improper if Sought as a Deposition of a Lay Witness. Because this Honorable Court has already held that Dr. Smith cannot be called as an expert, it is anticipated that Plaintiffs now intend to offer Dr. Smith as a lay witness treating physician. Yet, even as a lay witness, Dr. Smith’s testimony is inadmissible, as it remains irrelevant. A lay witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. 1 “The cause and extent of Plaintiff Barani’s injuries related to the automobile accident are not issues before this Court.” Nazareth Deli LLC, 18CV10044, Decision dated July 15, 2021 at 12. 6 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 OG569 - U7 Ohio Evid. R. 701 (emphasis added). This Honorable Court has already determined that the cause and extent of Plaintiff's injuries are not issues before the Court, and thus, Dr. Smith’s testimony is in no way relevant to any fact at issue in this matter. Nazareth Deli LLC, 18CV10044, Decision dated July 15, 2021 at 12.? Unless Baransi’s treating physician intends to testify on how Defendants were negligent, or breached a fiduciary duty, then her testimony is irrelevant and should be precluded. B. This Honorable Court’s July 15, 2021 Decision Remains in Effect As discussed herein, this Honorable Court has already determined whether Dr. Smith should be permitted to testify as an expert in this matter. In a Decision and Entry dated July 15, 2021, this Honorable Court this Honorable Court held that the “the cause and extent of Plaintiff Barani’s injuries related to the automobile accident are not issues before this Court,” and as a result, the information to be provided by Dr. Smith is “not relevant.” See Nazareth Deli LLC, 18CV10044, Decision dated July 15, 2021 at 12 (emphasis added). In doing so, this Honorable Court held that the affidavit of Dr. Smith was to be stricken from the record in its entirety Notably, this portion of the July 15, 2021 Decision and Entry was in no way impacted by Decision of the Tenth District. Therefore, this Honorable Court’s holding that Dr. Smith’s testimony is irrelevant in this matter should remain in full effect, and Plaintiff should be precluded from utilizing Dr. Smith as an expert witness. Plaintiffs have not made an adequate or persuasive argument that this Honorable Court should reconsider the July 15, 2021 Decision and Entry. Defendants refer the this Honorable Court to its December 7, 2020 Memorandum Contra Plaintiffs’ Motion for Summary Judgment, as well as Defendants’ December 7, 2020 Motion in Limine and Motion to Strike. These ? As discussed herein, this Honorable Court should not reconsider it’s July 15, 2021 Decision and Entry. 7 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 OG569 - U7 Motions and responses contain the substance of Defendants basis for requesting the testimony and affidavit of Dr. Smith being stricken. Iv. CONCLUSION Based upon the foregoing, Defendants, John W. Dawson Insurance, Inc. dba John Dawson Associates and Michael D. Palmer, respectfully request this Honorable Court grant Defendants’ Motion to Quash Plaintiff's “Notice of Filing Deposition” of Delaney Smith, M.D., with prejudice, and any other relief the Court may deem equitable Respectfully submitted, MARSHALL DENNEHEY, P.C. /s/ Ray C. Freudiger RAY C. FREUDIGER (0055564) 312 Elm Street, Suite 1850 Cincinnati, Ohio 45202 Phone: 513.372.6800 Fax: 513.372.6801 Email: refreudiger@mdweg.com Counsel for Defendants, John W. Dawson Insurance, Inc., dba John Dawson Associates and Michael D. Palmer Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 04 12:18 PM-18CV010044 OG569 - U7 CERTIFICATE OF SERVICE I hereby certify that on the 27" day of September, 2023, a true and correct copy of the foregoing was forwarded to all counsel of record by the Court’s electronic filing system and email Scott E. Smith Brian R. Noethlich Michael L. Dillard, Jr. Scott Elliot Smith, LPA 5003 Horizons Drive, Suite 100 Columbus, OH 43220 Haw. midi Attorneys for Plaintiffs Adam J. Bennett Andrew P. Cooke Cooke Demers, LLC 260 Market Street, Suite F New Albany, OH 43054 abenne gatiomeys com Attorney for Defendant/New Party Plaintiff Ohio BWC MARSHALL DENNEHEY, P.C. By: /s/_ Ray C. Freudiger RAY C. FREUDIGER (0055564) Counsel for Defendants John W. Dawson Insurance, Inc. dba John Dawson Associates and Michael D. Palmer