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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
BRIEF IN OPPOSITION
September 6,2023 14:05
By: MICHAEL J. RUTTINGER 0083850
Confirmation Nbr. 2956087
KERRI VEGA CV 21 944077
vs.
Judge: JOAN SYNENBERG
UNIVERSITY HOSPITALS HEALTH SYSTEM, INC.
Pages Filed: 6
Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
KERRI VEGA, ) CASE NO. CV 21 944077
)
Plaintiff, ) JUDGE DEBORAH M. TURNER
)
v. ) DEFENDANT UNIVERSITY
) HOSPITALS HEALTH SYSTEM, INC.’S
UNIVERSITY HOSPITALS HEALTH ) OPPOSITION TO PLAINTIFF’S
SYSTEM, INC. ) MOTION TO RECONSIDER SUMMARY
) JUDGMENT RULINGS
Defendant. )
I. INTRODUCTION
Plaintiff, Kerri Vega, presents this Court with no new evidence and identifies no obvious
error of law to support her Motion to Reconsider the July 26, 2023 Opinion and Order, in which
this Court granted in part and denied in part, the Motion for Summary Judgment filed by University
Hospitals Health System, Inc. (“University Hospitals”). Instead, Plaintiff merely reasserts her own
interpretation of the applicable Ohio law, including Ohio Administrative Code §§ 109:4-3-05 and
109:4-3-07, without identifying any statute, regulation, Attorney General opinion, or decision that
takes her side. This Court did not err in concluding that these regulations do not apply to patients
or hospitals. Nor did it err in concluding that the undisputed fact that Plaintiff did not pay any
incorrect bills was conclusive of her CSPA claims based on R.C. 3923.81 and R.C. 1751.60(A).
For those reasons, this Court should deny Plaintiff’s motion.
II. LAW AND ARGUMENT
A. Motions to Reconsider are generally disfavored.
Motions to reconsider a trial court’s non-final order, while permitted under Civ.R. 54(B),
“are generally discouraged and may be entertained solely at the discretion of the Court.” Santagate
Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP
v. Pennsylvania Higher Educ. Assistance Agency (PHEAA), Franklin C.P. No. 16CV007291, 2018
WL 11028787, at *1 (June 4, 2018). When considered, “the test generally applied upon the filing
of a motion for reconsideration is whether the motion calls the attention of the court to an obvious
error in its decision, or raises an issue for consideration that was either not considered at all or was
not fully considered by the court when it should have been.” Woerner v. Mentor Exempted Village
School Dist. Bd. of Educ., 84 Ohio App. 3d 844, 846, 619 N.E.2d 34 (11th Dist. 1993), quoting
Columbus v. Hodge, 37 Ohio App. 3d 68, 68, 523 N.E.2d 515 (10th Dist. 1987).
B. Plaintiff’s argument concerning the definition of “deposit” does not merit
revisiting this Court’s conclusion that OAC § 109:4-3-07 does not apply to
patients or hospitals.
Plaintiff's first argument for reconsideration, which pertains to the definition of “deposit”
under the so-called OAC § 109:4-3-07 “Receipt Rule” misses the mark. Whether this Court applied
the correct definition of “deposit” is immaterial because the Court found “this regulation
inapplicable to patients and hospitals.” Opinion and Order at 9. Because the Receipt Rule does not
apply to patients or hospitals, the question of whether Plaintiff's alleged “partial payments” to
University Hospitals were “deposits” is irrelevant. Nor does Plaintiff's reference to Warren v.
Denes Concrete, Inc., 9th Dist. Nos. 08CA009414 & 08CA009422, 2009-Ohio-2784, call for a
different result because the plaintiff's CSPA claim in that case did not involve a hospital system,
but a concrete contractor, against whom it was undisputed the Receipt Rule may apply. See id. at
2. Plaintiff's reliance on the Warren case merely underscores the fact that there is not a single
decision—reported or unreported—applying the Receipt Rule to a provider of medical services.
Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP
C. Plaintiff’s argument as to the meaning of “labor” does not call for
reconsidering this Court’s finding that OAC § 109:4-3-05 does not apply to
patients or hospitals.
This Court should deny Plaintiff's request for reconsideration of its finding that the
“Service Rule” in OAC § 109:4-3-05 does not apply for largely the same reasons as with the
Receipt Rule above. Plaintiff relies on a limitless definition of “labor,” which is not defined in the
OAC, to argue that any aspect of care provided to a hospital patient is by definition a “service,”
and therefore, every hospital must always provide its patients “with a form which indicates the
date, the identity of the supplier, the consumer’s name and telephone number, the reasonably
anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or
service.” OAC § 109:4-3-05(A)(1). Her argument proves too much in light of the fact that, as with
the Receipt Rule, no court decision or Ohio Attorney General opinion has ever applied the Service
Rule to a hospital system.1
In any event, this Court’s decision declining to apply the Service Rule did not rest on the
definition of “labor,” as Plaintiff argues. On the contrary, the Court found “Defendants’ arguments
are well taken,” Opinion and Order at 9, and these included other bases for declining to apply the
Service Rule. No matter how “labor” is defined, this Court could refuse to apply the Service Rule
because the provision applies only to services for which there is a “cash selling price” ascertainable
“[a]t the time of the initial deposit,” or an “anticipated completion date” known “at the time of the
1On September 1, 2023, Plaintiff filed a Notice of Supplemental Authority in support of this
motion citing a decision from the Ninth District Court of Appeals in a case filed by Plaintiff's
counsel as a pro se Plaintiff, Myers v. Univ. Hosp. Health Sys., 9th Dist. No. 30465, 2023-Ohio-
3045. Plaintiff indicates that this decision is relevant in that it reversed a grant of summary
judgment from the Summit County Court of Common Pleas. The Ninth District’s decision,
however, is immaterial because it contains no discussion or analysis of any of the CSPA arguments
raised by Plaintiff in her Motion. The Ninth District simply did not reach the question of whether
these Ohio Administrative Code provisions apply to hospital systems.
Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP
initial face to face contact and prior to the commencement of any repair or service.” OAC § 109:4-
3-05(A)(1). Medical services, generally—particularly ongoing treatments like those alleged by
Plaintiff—do not fit those criteria. Consequently, there were other bases for declining to apply the
Service Rule even if this Court accepts Plaintiffs’ definition of “labor.”
D. Reconsideration of this Court’s decision rejecting CSPA liability under R.C.
3923.81 and 1751.60(A) is meritless because Plaintiff does not dispute this
Court’s finding that she never paid any incorrect bills.
This Court should reject Plaintiff’s argument challenging this Court’s ruling as to R.C.
3923.81 and R.C. 1751.60 because Plaintiff still does not allege that she paid any incorrect
invoices. She, therefore, fails to identify any fault in this Court’s conclusion that “[t]he unrefuted
evidence presented by Defendants demonstrates that Plaintiff was never required to pay anything
other than the corrected invoices.” Opinion and Order at 10. Instead, Plaintiff seems to suggest
that even issuing a mistaken invoice is enough for liability under these two Ohio Revised Code
provisions, despite being unable to identify a single statute or decision supporting her theory. Her
argument would again prove too much because, taken to its logical extent, it suggests there is
CSPA liability for every erroneous hospital bill, thus effectively converting the CSPA into a strict
liability trap. Yet, in Grgat v. Giant Eagle, Inc., 2019-Ohio-4582, 135 N.E.3d 846, 17, the Eighth
District held “there is nothing in the plain language of R.C. 1345.02(B) that indicates a purpose to
impose strict liability. And courts have declined to interpret the statute in a manner that would
impose strict liability.” Plaintiff’s argument is therefore foreclosed by precedent.
E. Even if this Court were to reconsider the issues Plaintiff raises, there were
alternative bases for granting University Hospitals’ Motion for Summary
Judgment that the Court did not reach.
Finally, even if this Court chooses to reconsider any aspect of its July 26 Opinion and
Order, there are alternate bases for granting University Hospitals summary judgment on the same
Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP
claims Plaintiff raises here. In its initial motion, University Hospitals identified Eighth District
precedent requiring that a plaintiff seeking to establish CSPA liability must prove that the allegedly
deceptive action caused damages to the Plaintiff. See BAC Home Loans Servicing, L.P. v. Tabac,
8th Dist. No. 99724, 2013-Ohio-5582, 16. Even if Plaintiff's arguments about the Service Rule,
Receipt Rule, R.C. 3923.81, and R.C. 1751.60(A) are correct—and they are not—Plaintiff still has
not identified any way in which University Hospitals’ alleged violations caused her economic loss.
This Court already noted in its Opinion and Order the undisputed fact that Plaintiff did not pay any
of her invoices until they had been corrected—a fact Plaintiff does not dispute. See Opinion and
Order at 10, 11. Thus, Plaintiff's inability to prove causation is a separate, alternative ground for
granting summary judgment on these same claims.
III. CONCLUSION
In its July 26, 2023 Opinion and Order, this Court carefully parsed the language of the very
Ohio Administrative Code provisions that Plaintiff claims it misread. Plaintiff's mere
disagreement with the Court's interpretation, supported by no contrary authority, does not merit
reconsidering this Court's well-reasoned opinion. This Court should, therefore, deny Plaintiff's
Motion.
Respectfully submitted,
s/ Michael J. Ruttinger_____________
Michael J. Ruttinger (0083850)
Tucker Ellis LLP
950 Main Avenue - Suite 1100
Cleveland, OH 44113
Tel: 216.592.5000
Fax: 216.592.5009
E-mail: michael .ruttinger@tuckerellis. com
Attorney for Defendant University Hospitals
Health System, Inc.
Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP
PROOF OF SERVICE
A copy of the foregoing was filed electronically on September 6, 2023. Service of this
filing will be made pursuant to Civ.R. 5(B)(2)(f) and Civ.R. 5(B)(3) by operation of the Court’s
electronic filing system upon:
Daniel J. Myers (0087909) Attorney for PlaintiffKerri Vega
Myers Law, LLC
600 East Granger Road
Second Floor
Cleveland, OH 44131
E-mail: DMyers@MyersLawLLC.com
s/ Michael J. Ruttinger
Attorney for Defendant University Hospitals
Health System, Inc.
Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP
6150168.1
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF IN OPPOSITION September 6,2023 14:05 By: MICHAEL J. RUTTINGER 0083850 Confirmation Nbr. 2956087 KERRI VEGA CV 21 944077 vs. Judge: JOAN SYNENBERG UNIVERSITY HOSPITALS HEALTH SYSTEM, INC. Pages Filed: 6 Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO KERRI VEGA, ) CASE NO. CV 21 944077 ) Plaintiff, ) JUDGE DEBORAH M. TURNER ) v. ) DEFENDANT UNIVERSITY ) HOSPITALS HEALTH SYSTEM, INC.’S UNIVERSITY HOSPITALS HEALTH ) OPPOSITION TO PLAINTIFF’S SYSTEM, INC. ) MOTION TO RECONSIDER SUMMARY ) JUDGMENT RULINGS Defendant. ) I. INTRODUCTION Plaintiff, Kerri Vega, presents this Court with no new evidence and identifies no obvious error of law to support her Motion to Reconsider the July 26, 2023 Opinion and Order, in which this Court granted in part and denied in part, the Motion for Summary Judgment filed by University Hospitals Health System, Inc. (“University Hospitals”). Instead, Plaintiff merely reasserts her own interpretation of the applicable Ohio law, including Ohio Administrative Code §§ 109:4-3-05 and 109:4-3-07, without identifying any statute, regulation, Attorney General opinion, or decision that takes her side. This Court did not err in concluding that these regulations do not apply to patients or hospitals. Nor did it err in concluding that the undisputed fact that Plaintiff did not pay any incorrect bills was conclusive of her CSPA claims based on R.C. 3923.81 and R.C. 1751.60(A). For those reasons, this Court should deny Plaintiff’s motion. II. LAW AND ARGUMENT A. Motions to Reconsider are generally disfavored. Motions to reconsider a trial court’s non-final order, while permitted under Civ.R. 54(B), “are generally discouraged and may be entertained solely at the discretion of the Court.” Santagate Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP v. Pennsylvania Higher Educ. Assistance Agency (PHEAA), Franklin C.P. No. 16CV007291, 2018 WL 11028787, at *1 (June 4, 2018). When considered, “the test generally applied upon the filing of a motion for reconsideration is whether the motion calls the attention of the court to an obvious error in its decision, or raises an issue for consideration that was either not considered at all or was not fully considered by the court when it should have been.” Woerner v. Mentor Exempted Village School Dist. Bd. of Educ., 84 Ohio App. 3d 844, 846, 619 N.E.2d 34 (11th Dist. 1993), quoting Columbus v. Hodge, 37 Ohio App. 3d 68, 68, 523 N.E.2d 515 (10th Dist. 1987). B. Plaintiff’s argument concerning the definition of “deposit” does not merit revisiting this Court’s conclusion that OAC § 109:4-3-07 does not apply to patients or hospitals. Plaintiff's first argument for reconsideration, which pertains to the definition of “deposit” under the so-called OAC § 109:4-3-07 “Receipt Rule” misses the mark. Whether this Court applied the correct definition of “deposit” is immaterial because the Court found “this regulation inapplicable to patients and hospitals.” Opinion and Order at 9. Because the Receipt Rule does not apply to patients or hospitals, the question of whether Plaintiff's alleged “partial payments” to University Hospitals were “deposits” is irrelevant. Nor does Plaintiff's reference to Warren v. Denes Concrete, Inc., 9th Dist. Nos. 08CA009414 & 08CA009422, 2009-Ohio-2784, call for a different result because the plaintiff's CSPA claim in that case did not involve a hospital system, but a concrete contractor, against whom it was undisputed the Receipt Rule may apply. See id. at 2. Plaintiff's reliance on the Warren case merely underscores the fact that there is not a single decision—reported or unreported—applying the Receipt Rule to a provider of medical services. Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP C. Plaintiff’s argument as to the meaning of “labor” does not call for reconsidering this Court’s finding that OAC § 109:4-3-05 does not apply to patients or hospitals. This Court should deny Plaintiff's request for reconsideration of its finding that the “Service Rule” in OAC § 109:4-3-05 does not apply for largely the same reasons as with the Receipt Rule above. Plaintiff relies on a limitless definition of “labor,” which is not defined in the OAC, to argue that any aspect of care provided to a hospital patient is by definition a “service,” and therefore, every hospital must always provide its patients “with a form which indicates the date, the identity of the supplier, the consumer’s name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service.” OAC § 109:4-3-05(A)(1). Her argument proves too much in light of the fact that, as with the Receipt Rule, no court decision or Ohio Attorney General opinion has ever applied the Service Rule to a hospital system.1 In any event, this Court’s decision declining to apply the Service Rule did not rest on the definition of “labor,” as Plaintiff argues. On the contrary, the Court found “Defendants’ arguments are well taken,” Opinion and Order at 9, and these included other bases for declining to apply the Service Rule. No matter how “labor” is defined, this Court could refuse to apply the Service Rule because the provision applies only to services for which there is a “cash selling price” ascertainable “[a]t the time of the initial deposit,” or an “anticipated completion date” known “at the time of the 1On September 1, 2023, Plaintiff filed a Notice of Supplemental Authority in support of this motion citing a decision from the Ninth District Court of Appeals in a case filed by Plaintiff's counsel as a pro se Plaintiff, Myers v. Univ. Hosp. Health Sys., 9th Dist. No. 30465, 2023-Ohio- 3045. Plaintiff indicates that this decision is relevant in that it reversed a grant of summary judgment from the Summit County Court of Common Pleas. The Ninth District’s decision, however, is immaterial because it contains no discussion or analysis of any of the CSPA arguments raised by Plaintiff in her Motion. The Ninth District simply did not reach the question of whether these Ohio Administrative Code provisions apply to hospital systems. Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP initial face to face contact and prior to the commencement of any repair or service.” OAC § 109:4- 3-05(A)(1). Medical services, generally—particularly ongoing treatments like those alleged by Plaintiff—do not fit those criteria. Consequently, there were other bases for declining to apply the Service Rule even if this Court accepts Plaintiffs’ definition of “labor.” D. Reconsideration of this Court’s decision rejecting CSPA liability under R.C. 3923.81 and 1751.60(A) is meritless because Plaintiff does not dispute this Court’s finding that she never paid any incorrect bills. This Court should reject Plaintiff’s argument challenging this Court’s ruling as to R.C. 3923.81 and R.C. 1751.60 because Plaintiff still does not allege that she paid any incorrect invoices. She, therefore, fails to identify any fault in this Court’s conclusion that “[t]he unrefuted evidence presented by Defendants demonstrates that Plaintiff was never required to pay anything other than the corrected invoices.” Opinion and Order at 10. Instead, Plaintiff seems to suggest that even issuing a mistaken invoice is enough for liability under these two Ohio Revised Code provisions, despite being unable to identify a single statute or decision supporting her theory. Her argument would again prove too much because, taken to its logical extent, it suggests there is CSPA liability for every erroneous hospital bill, thus effectively converting the CSPA into a strict liability trap. Yet, in Grgat v. Giant Eagle, Inc., 2019-Ohio-4582, 135 N.E.3d 846, 17, the Eighth District held “there is nothing in the plain language of R.C. 1345.02(B) that indicates a purpose to impose strict liability. And courts have declined to interpret the statute in a manner that would impose strict liability.” Plaintiff’s argument is therefore foreclosed by precedent. E. Even if this Court were to reconsider the issues Plaintiff raises, there were alternative bases for granting University Hospitals’ Motion for Summary Judgment that the Court did not reach. Finally, even if this Court chooses to reconsider any aspect of its July 26 Opinion and Order, there are alternate bases for granting University Hospitals summary judgment on the same Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP claims Plaintiff raises here. In its initial motion, University Hospitals identified Eighth District precedent requiring that a plaintiff seeking to establish CSPA liability must prove that the allegedly deceptive action caused damages to the Plaintiff. See BAC Home Loans Servicing, L.P. v. Tabac, 8th Dist. No. 99724, 2013-Ohio-5582, 16. Even if Plaintiff's arguments about the Service Rule, Receipt Rule, R.C. 3923.81, and R.C. 1751.60(A) are correct—and they are not—Plaintiff still has not identified any way in which University Hospitals’ alleged violations caused her economic loss. This Court already noted in its Opinion and Order the undisputed fact that Plaintiff did not pay any of her invoices until they had been corrected—a fact Plaintiff does not dispute. See Opinion and Order at 10, 11. Thus, Plaintiff's inability to prove causation is a separate, alternative ground for granting summary judgment on these same claims. III. CONCLUSION In its July 26, 2023 Opinion and Order, this Court carefully parsed the language of the very Ohio Administrative Code provisions that Plaintiff claims it misread. Plaintiff's mere disagreement with the Court's interpretation, supported by no contrary authority, does not merit reconsidering this Court's well-reasoned opinion. This Court should, therefore, deny Plaintiff's Motion. Respectfully submitted, s/ Michael J. Ruttinger_____________ Michael J. Ruttinger (0083850) Tucker Ellis LLP 950 Main Avenue - Suite 1100 Cleveland, OH 44113 Tel: 216.592.5000 Fax: 216.592.5009 E-mail: michael .ruttinger@tuckerellis. com Attorney for Defendant University Hospitals Health System, Inc. Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP PROOF OF SERVICE A copy of the foregoing was filed electronically on September 6, 2023. Service of this filing will be made pursuant to Civ.R. 5(B)(2)(f) and Civ.R. 5(B)(3) by operation of the Court’s electronic filing system upon: Daniel J. Myers (0087909) Attorney for PlaintiffKerri Vega Myers Law, LLC 600 East Granger Road Second Floor Cleveland, OH 44131 E-mail: DMyers@MyersLawLLC.com s/ Michael J. Ruttinger Attorney for Defendant University Hospitals Health System, Inc. Electronically Filed 09/06/2023 14:05 / BRIEF / CV 21 944077 / Confirmation Nbr. 2956087 / CLSLP 6150168.1