IN THE SUPREME COURT OF OHIO

Esther Berlin, Administrator of the Estateof Charles Berlin,

Appellant,

VS.

John Thompson, MD, et al.

Appellees

On Appeal from the StarkCounty Court of Appeals,Fifth District

Court of AppealsCase No. 2007CA00115

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTESTHER BERLIN, ADMINISTRATOR OF THE ESTATE OF CHARLES BERLIN

John A. McNally, III, (#0006028)McLAUGHLIN McNALLY ATTORNEYS500 City Centre OneP.O. Box 507Youngstown, Ohio 44501-0507Phone: (330) 744-4481Fax: (330) 744-0444Email: iam@mm-lawyers.com

COUNSEL FOR APPELLANT, ESTHER BERLIN,ADMINISTRATOR OF THE ESTATE OF CHARLES BERLIN

Michael J. Fuchs (#007645 1)222 South Main StreetAkron, Ohio 44308Phone: (330) 376-2700Fax: (330) 376-4577Email: mhudak(Qralaw.com CLi_R,i( OF COURT

SUPPiEPJIC #.;^JU:i f ilF OHIOCOUNSEL FOR APPELLEES, JOHN THOMPSON, MD, ET AL.

I. ASSIGNMENT OF ERROR - THE TRIAL COURT ERREDBY GRANTING SUMMARY JUDGMENT IN FAVOR OF

THE DEFENDANT-APPELLEE, JOHN THOMPSON, MD, et al.(LeQalStandard)

The Seventh District Court of Appeals held in a 2006 case:

"[*Pl 1] * * * Under Civ. R. 56, summary judgment is only proper whenthe movant demonstrates that, viewing the evidence most strongly in favorof the non-movant, reasonable minds must conclude no genuine issue as toany [**5] material fact remains to be litigated and the moving party isentitled to judgment as a matter of law. Doe v. Shaffer (2000), 90 OhioSt.3d 388, 390, 2000 Ohio 186, 738 N.E.21d 1243. A fact is materialwhen it affects the outcome of the suit under the applicable substantivelaw. Russell v. Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 304,733 N.E.2d 1186.

[*P12] When moving for summary judgment, a party must produce somefacts that suggest that a reasonable fact-finder could rule in her favor.Brewer v. Cleveland Bd ofEdn. (1997), 122 Ohio App.3d 378, 386, 701N.E.2d 1023. "The moving party bears the initial responsibility ofinforming the trial court of the basis for the motion, and identifying thoseportions of the record which demonstrate the absence of a genuine issue offact on a material element of the nonmoving party's claim." Dresher v.Burt (1996), 75 Ohio St.3d 280, 296, 1996 Ohio 107, 662 N.E.2d 264.The trial court's decision must be based upon "the pleadings, depositions,answers to interrogatories, written admissions, affidavits, transcripts ofevidence, and written stipulations of fact, if any, timely filed in theaction." Civ.R. 56(C). The nonmoving party has the reciprocal burden ofspecificity and cannot rest on mere allegations or denials in the pleadings.Id. At 293. Windsor Props. v. Smith, 2006 Ohio 495, (7`h App. Dist.2006).

These principles are the same as announced by this Court and the Fifth

District Court of Appeals.

5

II. ASSIGNMENT OF ERROR - THE TRIAL COURT ERRED BY GRANTINGSUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT-APPELLEE, JOHN

THOMPSON, M.D., ET AL. AND THE FIFTH DISTRICT COURTOF APPEALS IMPROPERLY AFFIRMED THE SAME.

(Factual/Legal)

The Trial Court erred in granting Defendant's Motion to Preclude the testimony

of Dr. D. James Dallis, F.A.C.S., under Ohio Rule of Evidence 601(D), as the trial court

improperly applied Rule 601(D), to Dr. Dallis, when he clearly was a witness competent

to testify.

He was the witness identified by the Plaintiff to testify on the standard of care and

the Trial Court certified its Order as a final, appealable order:

"This Court ruled on the 6th day of April, 2007, that the testimony of Plaintiff'sExpert, Dr. D. James Dallis, F.A.C.S., would not be permitted in this case asPlaintiff's expert was not qualified under the Ohio Rules of Evidence.

As this was the only expert identified by counsel for Plaintiff, Plaintiff cannotpresent his case by way of expert testimony.

This is a final order and there is no just reason for delay."

This decision was affirmed by the Fifth District Court of Appeals.

A. THE TRIAL COURT IMPROPERLY APPLIED THE LEGALSTANDARD OF RULE 601(D) AND THE CASE OF

CROSSWHITE V. DESAI (1989), 64 OHIO APP. 3D 170

A.

It is clear that the trial court improperly applied the legal standard in this particular matter.

As counsel put forth in his opposition to Defendant's Motion for Summary Judgment, Dr. D. James Dallis,

F.A.C.S., is a witness, who can properly testify to the standard of care.

Despite Plaintiffls argument, the trial court applied an improper legal standard in precluding his

testimony.

Rule 601(D) provides as follows:

6

"(D) A person giving expert testimony on the issue of liability in any claim asserted in anycivil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, ortreatment of any person by a physician or podiatrist, unless the person testifying is licensedto practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicineand surgery by the state medical board or by the licensing authority of any state, and unlessthe person devotes at least one-half of his or her professional time to the active clinicalpractice in his or her field of licensure or to its instruction in an accredited school. Thisdivision shall not prohibit other medical professionals who otherwise are competent totestify under these rules from giving expert testimony on the appropriate standard of care intheir own profession in any claims asserted in any civil action against a physician, podiatrist,medical professional, or hospital arising out of the diagnosis, care, or treatment of anyperson."

The trial court, prima facia, applied Rule 601(D) by stating:

"The foregoing authorities establish that Ohio Evidence Rule 601(D) may not categoricallyrender retired physicians incompetent to testify in medical malpractice proceedings.However, the foregoing authorities also suggest that the testimonial competence orqualification of a retired physician is a fact-driven inquiry, which will depend upon theunique facts of each case.

In Crosswhite, Alridge, and Celmer, (lower court) supra, the profile of each retiredphysician-expert witness was significantly different from the profile of Dr. Dallis. Dr.Dallis' deposition testimony establishes: (1) that he last actively practiced medicine in late1997; and (2) that his medical teaching endeavors, which occurred from 1997 to 2004,involved approximately ten hours per year. The alleged medical malpractice, upon whichPlaintiff Berlin bases her Complaint, occurred in May and/or June 2003, which was nearlysix years after Dr. Dallis retired from the active medical practice. While Dr. Dallismaintains his professional license and attends professional conferences, the Court concludesthat neither the letter nor the spirit of Ohio Evidence Rule 601(D) allows his testimony as anexpert witness in this matter. Accordingly, the Court finds the Defendants' motion toexclude plaintiff s expert well-taken, and SUSTAINS same." (Trial Court Entry of April 6,2007, pp. 7-8).

Plaintiff was entitled to have her claim evaluated by a Jury.

Accordingly, the Motion to Preclude Dr. Dallis's testimony should have been overruled by

the Trial Court and reversed by the Fifth District Court of Appeals.

B. THE PLAINTIFF ADVANCED AND PROVED ISSUES OFMATERIAL FACTS SO THAT THE MOTION TO

PRECLUDE SHOULD HAVE BEEN OVERRULED.

Again, as Plaintiff advanced in their opposition to Defendant's Motion for Sunnnary

7

Judgment:

"It is undisputed that the Ohio Rules of Evidence do provide a framework for theevaluation of a medical experts testimony in a medical negligence case; however, thattechnical compliance is not as great as the general purpose of the Ohio Rules of Evidenceto determine whether or not a medical expert should possess the degree of competence ofan individual who has facts, knowledge, and experience, who will assist the trier of factin determining the ultimate resolution of a case.

Dr. Dallis testified truthfully and honestly in his deposition that he is primarily retired;what counsel for the Defendant has ignored is his additional qualifications set forth in hisdeposition as follows:

"Q. When did you close that office?A. The office itself was closed in the end of May of 96--Q. Have you practiced--A. --I was--let me finish now.Q. Sure.A. I was director of surgery at St. E's (St. Elizabeth's) Hospital at the

time, and I remained as director of surgery for another year and ahalf.

Q. That office closed in May of 96, you remained another year and ahalf, so that would be basically the end of 97.

A. That's exactly correct.Q. All right. What have you done in the practice of medicine since

1997?A. I have been attending various meetings, various medical meetings,

both at the hospital and have been maintaining my credentials.Namely, the meetings were all surgical type meetings.

Q. Are these CME meetings?A. Yes, sir." (Tr. pages 5-6)

***

"Q. Okay.A. And you just sort of become emeritus, and then from that point

you can do a lot of things. For a period of time, I was doing someteaching to the residents, and to the medical students, this is after Ifinished now.

Q. After 97?A. Yes." (Tr. pages 7-8)

*:^*

Q. What date would you point to as to when you were no longer doingany teaching or anything of that sort in the practice of medicine?

A. Well, you almost have to say never because you go to the meetings

8

and you're discussing at meetings and the meetings are for the

residents and interns.Q. Okay. When was the last time you actually had some instructional

responsibility for either a medical student or a resident or anintern?

A. A couple of years ago.Q. 2004?A. Around that time. (Tr. pages 7-8)

^**

Q. All right. With an emeritus status to your hospital privileges, whatdoes that allow you to do, or it that more of an honorary title?

A. It's more of an honorary title, but what -- I mean, we don't takecare of patients--

Q. Uh-huh.A. --we go to discussions of different programs that they have for

CME credits, and at the same time most of the CME credits that Igo to are really conferences which are given for the residents andintems, and the questions that they have, and we all attempt toanswer them.

Q. Okay. Anything other than that?A. You mean as far as CME credits are concerned?Q. Or the emeritus status.A. No, that's it." (Tr. pages 10-11)

In short, Dr. Dallis is a Board Certified Surgeon; he practiced surgery for over fortyyears; he continues to teach residents and interns; and he has the competency to testify asan expert witness in this matter."

***

Reported cases clearly and succinctly have put the emphasis on knowledge, experience,and qualifications, and not a technical compliance with Ohio Rule of Evidence 601, asshown by the following notations from 0 Jur 3d:

"Active clinical practice, construedWhere a physician was not a professional witness and the physician's 20-year experiencesatisfied the purpose intended by the active clinical practice rule, the physician wascompetent to testify in accordance with Ohio R. Evid. 601(D) and RC §2743.43;consequently, the trial court abused its discretions in excluding the physician's testimony.Sharon M. Aldridge Administratrix of the Estate of Earl E. Aldridge v. Gardner, -OhioApp. 3d -,- N.E. 2d -, 2005 Ohio App. LEXIS 868 (Feb. 23,2005).

Basis for exclusion of witness' testimony under Ev.R 601Essential inquiry for determining if a medical expert meets the competency requirements

9

of Ohio R. Evid. 601(D) is to determine whether the witness has acquired that specialexperience or experiential background in the field he seeks to judge, or whether theperson is a "hired gun" or a "professional expert" who lacks any clinical experience.Schmelzer v. Lesar, - Ohio App. 3d -, - N.E. 2d -, 2004 Ohio App.LEXIS 2172 (May 4,2004).

Expert WitnessFor purposes of EvidR 601(D), flexibility is permitted in determining whether aphysician spends an adequate percentage of time engaged in active clinical practice. Aphysician was qualified to testify where he spent many years in active clinical practice,including all times relevant to the particular lawsuit: AldridQe v. Garner, 159 Ohio App.3d 688 (2005).

Medical MalpracticeTrial court did not abuse its discretion in allowing an administratrix's expert to testify inher medical malpractice action on behalf of a decedent, as he was competent to testifyunder Ohio R. Evid. 601(D) in that he adequately established that he had been engaged inmedical professional work so related or adjunctive to patient care as to be a part of it,despite the fact that he conducted patient-based research; the court noted that the nature,value, and extent of the expert's experience was a matter of credibilitv rather than one ofcompetence. Maggie J. Smith, Administratrix of the Estate of Lawrence A. Smith v Sass ,Friedman & Assocs., - Ohio App.3d -, - N.E. 2d -, 2004 Ohio App. LEXIS 467 (Feb. 5,2004)." (emphasis added).

As these reported cases all deal with the issue of "that special experience or experientialbackground" versus whether or not a person is a "hired gun" or a "professional expert"who lacks any clinical experience, Dr. Dallis clearly and succinctly so qualifies."

Plaintiff does not dispute that "the testimonial competence or qualification of a retired physician

is a fact-driven inquiry, which depends upon the unique facts of each case." (Trial Court decision, p. 7).

In this instance, it was an abuse of discretion for the Trial Court to preclude Dr. Dallis's testimony.

This improper preclusion was affirmed by the Fifth District Court of Appeals.

After the case was appealed to the Fifth District Court of Appeals, this Court announced its

decision in Celmer v. Rodgers, 2007-Ohio-3697.

The Fifth Circuit had this to say about Celmer:

10

"Appellant cites the recent Ohio Supreme Court opinion in Celmer v. Rodgers, 2007-Ohio-3697, in support of her position. However, upon review of the Celmer decision, wedo not find the holding helpful to Appellant's cause. The syllabus in Celmer states:

{¶19} In a medical malpractice action where trial continuances requested by the defenseand the insolvency of a defendant's carrier delay trial for such time as the plaintiff'smedical expert no longer devotes one-half of his professional time to the active clinicalpractice of medicine, and where the medical expert is not a professional witness, a trialcourt has discretion to permit that witness to testify as an expert at trial.

{¶20} In the case subjudice, Appellant does not assert delay caused by appellees. Dr.Dallis' testimony demonstrates he retired long before the cause of action accrued. Dr.Dallis does not devote one-half of his professional time to the active clinical practice ofmedicine, nor did Appellant demonstrate Dr. Dallis devotes one-half of his time tomedical instruction in an accredited school. Accordingly, the trial court did not abuse itsdiscretion in excluding the testimony of Dr. Dallis as an expert witness pursuant to OhioRule Evidence 601(D)."

While the Court disavowed Celmer as not controlling, it ignored two things: first, Celmer's

description of a proposed witness as "not (being) a professional witness," which he is not; second, Rule

401(D), as written does not require "one-half of his or her professional time" to "its instruction in an

accredited school."

As "one-half' appears in only the first past of the sentence and not the second, one-half is not a

requirement for instruction in an accredited medical school.

Dr. Dallis is not a professional witness and Dr. Dallis does instruct in an accredited hospital, the

trial court and the Fifth District Court of Appeals abused their discretion in not finding that Dr. Dallis

equals the requirements of Rule 401(D).

11

CONCLUSION.

For these reasons, the granting of the Motion to Preclude was improper; it should have been

reversed by the Fifth District Court of Appeals and the Fifth District Court of Appeals improperly

applied Celmer vs. Rodgers, 2007-Ohio-3697.

Here, precluding the Dallis testimony was wrong and his competence was, as a matter of law,

for the Jury to evaluate, not for the trial court to totally preclude.

The Supreme Court should reverse decision of the Fifth Circuit Court of Appeals and the Trial

Court and remand this matter to the Trial Court for a trial on the merits.

RESPECTFULLY SUBMITTED,McLAUGHLIN McNALLY ATTORNEYS

LVIJOHN A. ( 02'8)McN LLY III #0006500 City Centre OneP.O. Box 507Youngstown, Ohio 44501-0507Telephone: 330-744-4481ATTORNEY FORPLAINTIFF-APPELLANT

CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum In Support Of Jurisdiction OfAppellant Esther Berlin,

Administrator of the Estate of Charles Berlin was served by ordinary U.S. mail this ^ day of

December, 2007, upon: Michael J. Fuchs, Esquire, 222 South Main Street, Akron, Ohio 44308,

Counsel For Appellees, John Thompson, MD, et al.

JOHN A. McNA Y, III (#000602ATTORNEY FORPLAINTIFF-APPELLANT

S^^^I

12

COURT OF APPEALSSTARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

ESTHER BERLIN, ADM. OF THE JUDGES:ESTATE OF CHARLES BERLIN Hon.. W. Scott Gwin, P..J.

Hon.. William B. Hoffman, J.Plaintiff•Appellant Hon. John W. Wise, J.

-vs-

JOHN THOMPSON, MD, ET AL.

Defendant-Appellees

Case No.2007CA00115

OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court ofCommon Pleas, Civil Case No.2006CV03554

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellant

Affirmed

For Defendant-Appellees

JOHN A., MCNALLY, III MICHAEL J. HUDAKMcLaughlin McNally Attorneys MICHAEL J.. FUCHS500 City Centre One - P.O..Box 507 222 South Main StreetYounstown, Ohio 44501-0507 Akron, Ohio 44308

t,7RllE.°,Yiil V A Al _• "'1 ^^^7-^

i

P,

6

Stark County, Case No. 2007CA00115 2

Hoffman, J.

{11} Plaintiff-appellant Esther Berlin, Administratix of the Estate of Charles

Berlin, appeals the April 6, 2007 Judgment Entry of the Stark County Court of Common

Pleas excluding the testimony of Appellant's sole expert witness upon the motion of

Defendants-appellees John Thompson, M.D. and Alliance Medical Specialists, Inc.

STATEMENT OF THE CASE AND FACTS

{12} On November 7, 2005, appellant initiated the within medical malpractice

action. Appellant's complaint alleged John Thompson, M.D. and Alliance Medical

Specialists, 1nc, negligently caused the death of Charles Berlin on September 22, 2004.

{13} In the course of discovery, Appellant offered the testimony of Dr.

Demetrious Dallis as her only expert. On August 23, 2006, Appellant voluntarily

dismissed the action. On September 20, 2006, Appellant refiled the action, and the

parties agreed to the incorporation of all discovery from the initial action.

{14} On February 1, 2007, Appellees moved the trial court to exclude the

testimony of Dr.. Dallis, arguing Dr.. Dallis does not meet the requirements of Evidence

Rule 601(D) to testify as an expert witness. Appellees further moved the trial court for

summary judgment in their favor as Dr.. Dallis was Appellant's sole expert witness..

{15} Via Judgment Entry of April 6, 2007, the trial court granted Appellees'

motion to exclude the testimony of Dr. Dallis, finding Dr. Dallis was not engaged in the

active clinical practice of medicine at the time of the alleged negligence or at any time

after the lawsuit was filed..

Stark County, Case No. 2007CA00115

{16} The parties subsequently submitted a Judgment Entry acknowledging

summary judgment was appropriate in Appellees' favor, which the trial court approved

and filed on April 17, 2007.

{17} Appellant now appeals the April 6, 2007 Judgment Entry of the Stark

County Court of Common Pleas excluding the testimony of Appellant's expert witness

Dr. Dallis.

{18} Appellant raises the following assignment of error:

{79} "I. ASSIGNMENT OF ERROR - THE TRIAL COURT ERRED BY

GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT-APPELLEE,

JOHN THOMPSON, M..D., ET.AL.."

{110} In the sole assignment of error, Appellant maintains the trial court erred in

exduding the testimony of Dr. Dallis, and improperly applied Evidence Rule 601(D) in

determining whether Dr.. Dallis was competent to testify as an expert witness, resulting

in summary judgment in favor of Appellees.

{111} Evidence Rule 601(D) states:

{112} "Every person is competent to be a witness except:

{¶13} """

{114} "(D) A person giving expert testimony on the issue of liability in any claim

asserted in any civil action against a physician, podiatrist, or hospital arising out of the

diagnosis, care, or treatment of any person by a physician or podiatrist, unless the

person testifying is licensed to practice medicine and surgery, osteopathic medicine and

surgery, or podiatric medicine and surgery by the state medical board or by the

licensing authority of any state, and unless the person devotes at least one-half of his or

Stark County, Case No. 2007CA00115 4

her professional time to the active clinical practice in his or her field of licensure, or to its

instruction in an accredited school. This division shall not prohibit other medical

professionals who otherwise are competent to testify under these rules from giving

expert testimony on the appropriate standard of care in their own profession in any

claim asserted in any civil action against a physician, podiatrist, medical professional, or

hospital arising out of the diagnosis, care, or treatment of any person." (Emphasis

added.)

{115} It is undisputed Dr. Dallis maintained current licensure to practice

medicine in Ohio. However, the trial court found Dr. Dallis did not meet the other

requirements of Evidence Rule 601(D) necessary to testify as a competent expert

witness.

{116} The malpractice alleged in Appellant's complaint occurred in May andlor

June of 2003. During his deposition testimony, Dr.. Dallis testified he retired from the

active practice of medicine in 1997. Since his retirement, Dr. Dallis testified he attends

various medical meetings, both at the hospital and elsewhere and has been maintaining

his credentials. Dr. Dallis stated the last time he had some instructional responsibility

for a medical student, resident or intern was a couple of years ago, and was only a very

short time each year of plus or minus ten hours per year..

{¶17} The active clinical practice or instruction requirement of Rule 601(D) is a

subjective requirement. Crosswhite v.. Desai (1989), 64 Ohio App.3d 170.

{¶18} Appellant cites the recent Ohio Supreme Court opinion in Ceimer v.

Rodgers , 2007-Ohio-3697, in support of her position However, upon review of the

Stark County, Case No. 2007CA00115 5

Celmer decision, we do not find the holding helpful to Appellant's cause. The syllabus

in Celmer states:

{119} "In a medical malpractice action where trial continuances requested by the

defense and the insolvency of a defendant's carrier delay trial for such time as the

plaintiffs medical expert no longer devotes one-half of his professional time to the active

clinical practice of medicine, and where the medical expert is not a professional witness,

a trial court has discretion to permit that witness to testify as an expert at trial "

{1[20} In the case subjudice, Appellant does not assert delay caused by

appellees. Dr. Dallis' testimony demonstrates he retired long before the cause of action

accrued, Dr. Dallis does not devote one-half of his professional time to the active

clinical practice of medicine, nor did Appellant demonstrate Dr. Dallis devotes one-half

of his time to medical instruction in an accredited school. Accordingly, the trial court did

not abuse its discretion in excluding the testimony of Dr. Dallis as an expert witness

pursuant to Ohio Rule of Evidence 601(D)..

Stark County, Case No. 2007CA00115 6

{121} The Aprif 6, 2007 Judgment Entry of the Stark County Court of Common

Pleas is affirmed.

By: Hoffman, J.

Gwin, P.I. and

Wise, J. concur

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIOFIFTH APPELLATE DISTRICT

ESTHER BERLIN, ADM. OF THEESTA'fE OF CHARLES BERLIN

Plaintiff-Appellant

-vs-

JOHN THOMPSON, MD, ET AL.,

Defendant-Appellees

JUDGMENT ENTRY

Case No. 2007CA00115

For the reason stated in our accompanying Memorandum-Opinion, the judgment

entry of the Stark County Court of Common Pleas is affirmed.. Costs assessed to

Appellant.