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s Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AM-12CV004494
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IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
LINDSAY GIANNOBILE, et al., ::
:
Plaintiffs,
Case No: 12CV004494
VS.
Judge Hogan
RIVERSIDE RADIOLOGY
AND INTERVENTIONAL
ASSOCIATES, INC., et al.,
Defendants.
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO MOTION OF DEFENDANTS
KIMBERLY SHEPHERD, M.D., KINGSDALE GYNECOLOGICAL ASSOCIATES,
INC. AND MATERNOHIO CLINICAL ASSOCIATES, INC. TO COMPEL
DEPOSITIONS OF PLAINTIFFS’ EXPERTS FILED OCTOBER 21, 2014
Plaintiffs Lindsay Giannobile and Antonio Giannobile, by and through counsel, now
respond to the motion to compel depositions of Plaintiffs’ experts filed on October 21, 2014, by
Defendants Kimberly Shepherd, M.D. and her practice groups.
For the reasons expressed in the attached Memorandum, Plaintiffs respectfully ask the
Court to deny Defendants’ motion to compel depositions of Plaintiffs’ experts and to order
Defendants to fulfill their duty to cooperate with appropriate discovery.
Respectfully submitted,
eo scm
I ek
Daniel N. Abraham (0023457)
Colley, Shroyer & Abraham Co., L.P.A.
536 South High Street
Columbus, Ohio 43215
(614) 228-6453 Phone
(614) 228-7122 Fax
dabraham@csajustice.com
Attorney for Plaintiffs
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MEMORANDUM IN OPPOSITION
Factual Bac! ound
Defendants Kimberly Shepherd, M.D. and her practice groups have filed a motion to
compel the depositions of Plaintiffs’ expert witnesses, Drs. Fred Duboe (OB/GYN) and Michael
Van Scoy-Mosher (oncology). It is important to note that Plaintiffs’ counsel has not refused to
make these witnesses available for deposition. However, Defendants Mary Pat Borgess, M.D.
and Phillip Schaffer, M.D., the radiologists, have not yet been deposed and scheduling the
depositions of Plaintiffs’ experts before all of the parties have been deposed would be premature.
This is particularly true in this case. Defendants’ contention that the testimony of the
Defendant radiologists has no bearing on the testimony of the Plaintiffs’ experts ignores Dr.
Shepherd’s deposition testimony. Dr. Shepherd testified that she relied on the radiologists’
interpretations of the films in connection with her treatment of Ms. Giannobile. In order for
Plaintiffs’ experts to have all of the information they need to provide opinions concerning the
care given by Dr. Shepherd, they need to know what the radiologists observed and considered
when they interpreted Ms. Giannobile’s films.
Despite Ms. Giannobile’s rapidly deteriorating condition, counsel for Dr. Shepherd has
consistently failed to cooperate in scheduling Ms. Giannobile’s discovery and videotaped trial
depositions as well as depositions of the Defendants and other witnesses in this case. On June 5,
2014, we requested available dates to schedule the depositions of Ms. Giannobile, Dr. Shepherd
and Dr. Borgess but received no response. (Abraham Affidavit! $3, Exhibit 1) Six days later, on
June 11, 2014, we learned of Ms. Giannobile’s deteriorating health and provided defense counsel
with fifteen (15) dates available to proceed with depositions. While counsel for Dr. Shepherd
again failed to respond, counsel for the remaining Defendants confirmed their availability on
A true and accurate copy of the Affidavit of Daniel N. Abraham is attached as Exhibit A.
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June 25, 2014, the first of the dates proposed. In response to an additional request directed to Dr.
Shepherd’s counsel, he advised that he was not available on June 25" and claimed that he did not
have an updated set of Plaintiffs medical records even though updated records had been
provided to him as recently as June 17, 2014. When asked what records he believed were
missing, he did not respond. The undersigned had provided Dr. Shepherd’s counsel with
numerous authorizations and he had obtained copies of the records on his own but had not shared
those with Plaintiff's counsel. (See Abraham Affidavit, Exhibit 1, documenting communication
regarding the stated events) The undersigned has consistently complied with the Court’s request
to provide updated medical records and/or authorizations. (Abraham Affidavit 7)
This was not the first time the undersigned attempted to make Plaintiff available for her
deposition. Ms. Giannobile’s deposition was originally scheduled for October 24, 2013. When
Dr. Shepherd’s counsel was contacted to confirm his availability for the deposition, we were told
that his availability was contingent upon receipt of updated medical records. At a status
conference with the Court on September 25, 2013, counsel agreed not to proceed with the
deposition until updated medical records were provided and Dr. Shepherd’s counsel agreed to
gather all of the medical records and assemble a master set that would be Bates stamped. The
records were eventually produced but were not Bates stamped. (See Abraham Affidavit, Exhibit
)y
Eventually Plaintiffs deposition was scheduled for July 14, 2014. However, on the
Friday prior to the scheduled deposition, Dr. Shepherd’s counsel advised that he would not
proceed with the deposition because he had just received additional medical records from the
undersigned’s office. As the cover letter sent with the records explained, these were copies of all
of the medical records previously provided and were sent to address any claimed discrepancy in
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what had been produced. Nevertheless, the undersigned continued to accommodate Dr.
Shepherd’s counsel, providing additional dates to reschedule Ms. Giannobile’s deposition.
(Abraham Affidavit 4] 4, 5, Exhibit 2)
On July 16, 2014, counsel for the parties finally confirmed that Ms. Giannobile’s
discovery deposition would be taken on July 24, 2014, with the videotaped trial deposition
following on August 25, 2014. (Abraham Affidavit { 6) In a letter confirming these dates, the
undersigned renewed his request for available dates to depose Dr. Shepherd, Dr. Borgess and Dr.
Schaefer, indicating that he would like to obtain the depositions within the next 90 days if
possible, noting the number of depositions to be completed before the trial date. (Abraham
Affidavit J 6, Exhibit 3)
By his own admission, Defendants’ counsel first began requesting the depositions of
Plaintiffs’ experts on September 17, 2014. As of that date, Defendants’ counsel had not yet
provided dates when his own client, Dr. Shepherd, could be deposed, despite numerous requests
from Plaintiffs’ counsel dating back to long before the renewed request made on July 16, 2014.
(Abraham Affidavit { 8) Dr. Shepherd was eventually deposed on October 9, 2014. However,
dates have not been provided for the deposition of Dr. Shepherd’s nurse, even though she is
listed on their witness list. (Abraham Affidavit ] 9)
To the extent there have been any delays in this case, they are delays resulting from the
conduct of Dr. Shepherd’s counsel and his failure to cooperate in the scheduling of depositions
of Plaintiff and the other parties in this case.” These delays continue even as he asks the Court to
compel depositions of Plaintiffs’ experts.
? The e-mails attached to Defendants’ Motion to Compel Depositions of Plaintiffs’ Experts reflect Plaintiffs’
counsel’s efforts to keep discovery moving in this case as well as the challenges presented by the schedules of the
parties and their counsel.
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Law and Argument
Plaintiffs’ experts will be made available for depositions once Dr. Borgess and Dr.
Schaeffer have been deposed. While Civ. R. 26(B)(5) addresses discovery related to expert
witnesses, it does not speak to the timing of these depositions. It is reasonable to insist that the
depositions of the parties be completed in advance of any expert witness depositions to avoid
having to recall the expert to continue his or her deposition if information learned during the
deposition of the party has some bearing on the opinion of the expert. This is particularly true in
this case where Dr. Shepherd has already testified that she relied on the interpretation of the
films done by Dr. Borgess and Dr. Schaeffer in treating Ms. Giannobile. Without knowing what
the radiologists observed and considered in interpreting Ms. Giannobile’s films, Plaintiffs’
experts are not in a position to offer their opinions concerning the treatment provided to Ms.
Giannobile by Dr. Shepherd.
However, even it the Court is inclined to consider Defendants’ untimely motion,
Defendants’ motion fails to comply with Civ. R. 37. Civ. R. 37(A)(2) identifies those
circumstances in which a party may file a motion for an order compelling discovery. The rule
specifically applies to situations where a party has failed to answer interrogatories or respond to
requests for production of documents. As to depositions, the rule applies to those instances where
a witness fails to respond to specific questions or lines of questioning during a deposition. It does
not apply to an alleged failure on the part of counsel to produce expert witnesses for depositions.
Before they can seek the intervention of the Court, Defendants had to have made a
reasonable effort to resolve the dispute. “Before filing a motion authorized by this rule, the party
shall make a reasonable effort to resolve the matter through discussion with the attorney . . . The
motion shall be accompanied by a statement reciting the efforts made to resolve the matter . . .”
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Civ. R. 37(E). Plaintiffs do not deny that Defendants’ counsel has requested to take the
depositions of Plaintiffs’ experts. Plaintiffs are not deliberately delaying these depositions but
have not been able to complete the depositions of the parties due to some scheduling challenges.
Plaintiffs have been diligent in their efforts to complete the remaining depositions and the parties
have been circulating dates to complete the depositions of the remaining witnesses, including the
treating physicians and nurses.
Defendants’ motion to compel also fails to comply with the technical requirements in
Civ. R. 37 because Defendants failed to attach a statement reciting counsel’s efforts to resolve
the matter. The motion itself does nothing more than identify dates on which Defendants’
counsel requested these depositions. The attached emails confirm the dates but these
unauthenticated e-mails are not sufficient to comply with Civ. R. 37(E) which generally requires
an affidavit that details the communications between counsel describing their efforts. Where
counsel fails to attach the requisite statement to the motion to compel, the Court may deny the
motion. Stephenson v. Grant Hosp., 10" Dist. No. 11 AP-253, 201 1-Ohio-5622, q 10.
Finally, while counsel expresses concern over the February 2, 2015 trial date, Plaintiffs
have already filed a motion to continue the trial date to accommodate the undersigned’s
participation in another trial set to begin on the same date in a case which is not only older, but
also involves counsel for Defendants Mary Pat Borgess, M.D., Phillip Schaffer, M.D. and
Riverside Radiology and Interventional Associates, Inc. Completing the depositions of
Defendants Borgess and Schaeffer before scheduling the depositions of Plaintiffs’ experts will in
no way delay the proceedings in this case.
’
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Conclusion
For the foregoing reasons, Plaintiffs urge the Court to overrule Defendants’ motion to
compel depositions of Plaintiffs’ experts.
Respectfully Submitted,
Daniel N. Abraham (0023457)
Colley, Shroyer & Abraham Co., L.P.A
536 South High Street
Columbus, Ohio 43215
(614) 228-6453 Phone
(614) 228-7122 Fax
dabraham@csajustice.com
Attorney for Plaintiffs
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CERTIFICATE OF SERVICE
Thereby certify that a copy of the foregoing was submitted for e-filing this o day of
ls. and served via the Franklin County Clerk’s e-Service, upon the following counsel
of record:
Brant E. Poling, Esq. John H. Burtch, Esq.
300 East Broad Street, Ste. 350 OhioHealth Corporation
Columbus, OH 43215 180 East Broad Street, 34th Floor
bpoling@poling-law.com Columbus, OH 43215
Attorney for Defendants jburtch@bakerlaw.com
Kimberly Shepherd, M.D., Attorney for Defendants
Kingsdale Gynecologic Assoc, Inc. and OhioHealth Corporation and
MaternOhio Clinical Associates, Inc. Riverside Breast Health Center
Gerald Todaro, Esq.
Arnold Todaro & Welch Co., LPA
2075 Marble Cliff Office Park
Columbus, OH 43215
gtodaro@arnoldlaw.net
Attorney for Defendants
Mary Pat Borgess, M.D., Phillip Schaffer,
M.D. and Riverside Radiology and
Interventional Associates, Inc.
/s/ Daniel N. Abraham
Daniel N. Abraham (0023457)