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  • LINDSAY GIANNOBILE Vs RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET AL VS.RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET ALPROFESSIONAL TORT document preview
  • LINDSAY GIANNOBILE Vs RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET AL VS.RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET ALPROFESSIONAL TORT document preview
  • LINDSAY GIANNOBILE Vs RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET AL VS.RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET ALPROFESSIONAL TORT document preview
  • LINDSAY GIANNOBILE Vs RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET AL VS.RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET ALPROFESSIONAL TORT document preview
  • LINDSAY GIANNOBILE Vs RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET AL VS.RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET ALPROFESSIONAL TORT document preview
  • LINDSAY GIANNOBILE Vs RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET AL VS.RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET ALPROFESSIONAL TORT document preview
  • LINDSAY GIANNOBILE Vs RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET AL VS.RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET ALPROFESSIONAL TORT document preview
  • LINDSAY GIANNOBILE Vs RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET AL VS.RIVERSIDE RADIOLOGY AND INTERVENTIONAL A ET ALPROFESSIONAL TORT document preview
						
                                

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s Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AM-12CV004494 oc147 - #H 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 Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AM-12CV004494 oc14a7 - H5 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. Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AM-12CV004494 0c147 - H6 ’ 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 Era inklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AM-12CV004494 0c147 - H6l 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. Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AM-12CV004494 0c147 - H6 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 . . .” Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AM-12CV004494 0c147 - HE 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. ’ Franklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AM-12CV004494 0c147 - HE 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 ’ F ‘ranklin County Ohio Clerk of Courts of the Common Pleas- 2014 Nov 03 10:40 AN12CV004494 | 0Cj47° - HE 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)