Stanton v. University Hospitals Health System, Inc.

*760 Mary Eileen Kilbane, Judge. ¶ 1 William R. Stanton, administrator of the estate of Margaret F. Stanton, appeals from an order of the trial court that denied its motion for a protective order and ordered the estate to produce its nurse paralegal for deposition on the sole issue of how the expert reports were generated. We affirm. ¶ 2 On February 24, 2002, 98-year-old Margaret Stanton was admitted to University Hospitals System Bedford Medical Center (“UHHS Bedford”) with symptoms of hemorrhagic cystitis. While at UHHS Bedford, Ms. Stanton fell and fractured her hip and was moved to Heritage Care Nursing and Rehabilitation Center. At Heritage, Ms. Stanton fell to the floor for a second time and was returned to UHHS Bedford. Upon arriving at UHHS Bedford, she was diagnosed with dehydration and acute renal failure. Ms. Stanton stayed at the UHHS Bedford facility through the end of March 2002, at which time her family withdrew intravenous feeding and support, and Ms. Stanton passed away. ¶ 3 On February 17, 2004, William R. Stanton, in his capacity as administrator of the estate, filed a survivorship and wrongful-death action against Heritage, AHAVA Health Care, L.L.C. (“Ahava”), and UHHS Bedford. The complaint sought damages for wrongful death against UHHS Bedford and alleged violations of the Nursing Home Resident’s Rights and negligence against both Ahava and Heritage. The complaint additionally demanded damages for malice and disregard for the safety and well-being of Ms. Stanton. ¶ 4 In January 2005, UHHS Bedford deposed the estate’s experts, Cheryl Vajdik, R.N., and Dr. Stephen Aiello. During their respective depositions, the estate discovered that opposing counsel’s nurse paralegal, Barbara Roberts, had assisted both experts in preparing their reports. UHHS Bedford and Ahava cite several portions of the experts’ depositions that they claim mandated Ms. Roberts’s deposition. The following excerpts follow the questioning of Dr. Aiello regarding the creation of his expert report: A: Did I write it? I actually worked with Barbara Roberts in Ms. Blackburn’s office to put that into a form that you could use. They are my ideas put into a form that works for the legal system. Q: And some of the words were chosen for you and they better expressed what you were thinking, the lawyer’s office chose those words? A: There were some that were, yes. And I would hope vice versa, and maybe I chose some things that were a little better expressed. But there were many things that were better expressed by someone who knows how to do this. Q: There was no letter indicating, here is a copy of the draft of my expert report, or here — the way I understood this went, is you looked at the stuff, gave some building blocks for an opinion to lawyers. *761 A: Uh-huh. Q: The lawyers wrote the report, sent it back to you, right? A: Yes. Q: And then you edited it? A: A draft. Q: Right. And then you edited it? A: Right. Q: So the way this collaboration worked is you spoke with — what’s her name? Roberts? A: Barbara Roberts. Q: You spoke with Ms. Roberts? A: Yes. Q: And Ms. Roberts wrote the report, faxed you back a draft? A: Yes. Faxed me back a draft and edited the draft. I believe I faxed it back to her, and then she sent me the final copy, which was then — I signed. ¶ 5 At her deposition, and in response to questions regarding the submission of her own expert report, Vajdik testified: Q: Did you write that? A: I called and had a phone conference call and gave them all my opinions over the phone, and they typed it. But this is what I’ve said. * * * Q: Did you supply anything in writing to them before they sent you back this report? A: No. I gave them all my opinions over the telephone in great detail. Q: So this is worded or written by the lawyer’s office? * * * A: It’s typed by the lawyer’s office. It’s written — these are my words. They typed it. These are my opinions. Q: Did they transcribe what you told them, do you know? A: Transcribed? You mean— Q: Did they write this from memory following the conversation? Is that your understanding of what happened? A: I imagine my understanding is they wrote down what I said. Q: Did you dictate it or have a conversation? *762 A: I had a conversation with all my opinions. Q: And after that conversation where you gave them your opinions, they wrote the report? * * * A: They typed the report based on the opinions I gave them. Q: When I think of type, I think of handing someone either a tape or something written out and that person looks and types up exactly what I’m saying or have written. That is not what occurred here, correct? A: I wasn’t on the other side, so I’m not sure how she took down the information that I gave her. Q: Is this word for word what you said in that conversation? A: It appears to be what I said. I mean I — word for word — I mean these are my opinions. This is what I’ve said. These are the words that I’ve used. Q: Were there any drafts? A: I believe there was a draft, yes. Q: Do you have a copy of the draft in your file? A: No. I don’t keep them. ¶ 6 Based on this testimony, on February 25, 2005, UHHS Bedford and Ahava requested the deposition of Barbara Roberts, a nurse paralegal for attorney Catherine Blackburn, one of the attorneys representing the estate. The parties claimed to have requested the deposition because of the belief that Roberts had written the reports for both of the estate’s experts. ¶ 7 The estate refused to allow Roberts to be deposed and moved for a protective order. UHHS Bedford and Ahava opposed the motion, and in May 2005, the trial court denied the motion, ruling, “Defendant may depose Plaintiffs nurse paralegal only on the issue of how Plaintiffs expert reports were generated.” The estate appealed from this order in a single assignment of error which states: The trial court abused its discretion when it ruled that counsel for defendants may depose the in-house nurse paralegal for plaintiffs counsel about conversations with expert witnesses. ¶ 8 Civ.R. 26(C) allows the trial court to grant protective orders regarding discovery in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fifth Third Bank v. Jones-Williams, Franklin App. No. 04AP-935, 2005-Ohio-4070, 2005 WL 1870772. The decision to grant or deny a protective order is within the trial court’s discretion. Hahn v. Satullo, 156 Ohio App.3d 412, 2004-Ohio-1057, 806 N.E.2d 567, citing Van-American Ins. Co. v. Schiappa (1999), 132 Ohio App.3d 325, 330, *763 724 N.E.2d 1232. Absent an abuse of discretion, an appellate court may not overturn the trial court’s ruling on discovery matters. Feichtner v. Cleveland (1994), 95 Ohio App.3d 388, 397, 642 N.E.2d 657, citing Vinci v. Ceraolo (1992), 79 Ohio App.3d 640, 607 N.E.2d 1079. ¶ 9 In its sole assignment of error, the estate contends that deposing a paralegal concerning conversations with witnesses implicates the work-product of its counsel. Although the estate concedes that it found no case law that directly addresses whether conversations between an attorney’s paralegal and witnesses constitutes the work product of the attorney, it asserts that since a paralegal works at the discretion and direction of the attorney, there is no distinction between the work product of the two. See Community Mut. Ins. Co. v. Tracy, 73 Ohio St.3d 371,1995-Ohio-296, 653 N.E.2d 220. ¶ 10 The estate also cites Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, in which the Supreme Court first enumerated the attorney work-product doctrine. This doctrine is now codified in Federal Rules of Civil Procedure 26(b)(3), which provides: [A] party may obtain discovery of documents and tangible things otherwise discoverable * * * and prepared in anticipation of litigation or for trial by or for another party * * • * only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. ¶ 11 This rule also states, “In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.” In order to obtain discovery of attorney work product, the proponent must show both substantial need and undue hardship. Castle v. Sangamo Weston, Inc. (C.A.11, 1984), 744 F.2d 1464, 1467. However, when the work product involves the attorney’s mental impressions, conclusions, opinions, or legal theories, such a showing will not suffice because this “opinion work-product” enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances. Cox v. Admr. U.S. Steel & Carnegie (C.A.11, 1994), 17 F.3d 1386, 1422. In requesting the deposition of Roberts, UHHS Bedford requested the deposition only after both Dr. Aiello and Vajdik testified that Roberts actually wrote their expert reports. After requesting Roberts’s deposition, UHHS Bedford submitted that it sought her deposition solely to establish bias and challenge the credibility of the expert witnesses. ¶ 12 In conjunction with Civ.R. 26(C), Cuyahoga County Local Rule 21.1(A), entitled “Trial Witness,” requires that “each counsel shall exchange with all other *764 counsel written reports of medical and non-party expert witnesses expected to testify in advance of the trial.” The testifying experts and the bases of their opinions must be disclosed in compliance both with Civ.R. 26(C) and C.P.Loc.R. 21.1. ¶ 13 Although the estate disclosed the expert reports, the testimony at deposition revealed several inconsistencies regarding the ultimate creation of the expert reports. Dr. Aiello’s deposition clearly indicated that his expert report contained words chosen by someone else and that “there were many things that were better expressed by someone who knows how to do this.” The issue in this case is complicated by the fact that both expert witnesses admitted at deposition that they were not the sole or initiating authors of the expert reports on which they relied. ¶ 14 At oral argument, counsel for the estate asserted that a paralegal’s preliminary creation of an expert report is commonplace. However, this court can find no case law or other indicia that this is so commonplace as to negate the need to depose Roberts on this single issue. A review of Ohio case law suggests that expert reports must be authored by the expert who is testifying. While the dissent contends that Ahava misses the distinction between the reports themselves and the mental processes that went into creating them, the trial court’s order of Roberts’s deposition goes solely to the issue of how the reports were generated, protecting any intrusion into the mental processes that went into creating the reports. In Reliance Ins. Co. v. Keybank U.S.A., Natl. Assn. (N.D.Ohio 2006), 2006 WL 543129, the court addressed this very issue and distinguished “fact” and “mental impressions” as they relate to a claimed work-product privilege. ¶ 15 In Keybank, the court was faced with defense counsel’s motion to compel production of documents constituting a draft expert report. The motion to compel was filed after plaintiffs expert witness explained that plaintiffs counsel “assisted” him in writing the report. Keybank moved to compel production of the “notes” between the attorney and its expert; however, opposing counsel claimed that the notes were protected by the work-product doctrine. ¶ 16 The court analyzed the request and distinguished between “fact work product,” which consists of the “written or oral information transmitted to the attorney and recorded as conveyed by the client and may be obtained upon a showing of substantial need and the inability to otherwise obtain the information,” and “opinion work-product,” which is any material reflecting the attorney’s mental impressions, opinions, conclusions, judgments, or legal theories. See In re Columbia/HCA Healthcare Corp. Billing Practices Litigation (C.A.6, 2002), 293 F.3d 289. Keybank noted the holdings of several other courts that had found that when an expert reviews materials otherwise protected by the work-product *765 doctrine, the disclosure requirements contained in Fed.R.Civ.P. 26(a)(2)(b) trump the nondisclosure protections afforded under Fed.R.Civ.P. 26(b)(3). Using this holding, the court found that plaintiffs attorney, in assisting its expert with this report, was not acting in his capacity as a lawyer, but instead, was acting simply as a conduit between the expert and the secretary who typed the report. For this reason, any claim of work-product protection was inapplicable. ¶ 17 Keybank also held that although the Federal Rules contemplate that an attorney may provide assistance in the preparation of the report, “the assistance of counsel contemplated by Rule 26(a)(2)(B) is not synonymous with ghostwriting.” Id. citing, Manning v. Crockett (May 18, 1999), N.D.Ill. No. 95 C 3117, 1999 WL 342715. ¶ 18 In the instant case, it is clear from the trial court’s order that it recognized the limits of allowing such a deposition to take place and therefore did not permit the defendants unfettered access to Roberts to discover thoughts and strategies for trial. Instead, the trial court limited the inquiry to specific questioning regarding the sole issue of how the estate’s expert reports were generated. Therefore, the only method to determine how the expert report was authored is to depose Roberts on this single, narrow issue. ¶ 19 The dissent also characterizes one of the issues in the case as whether Roberts’s participation in the drafting of the proposed experts’ reports removes the work-product privilege. As in the situation in Keybank, this characterization underplays Roberts’s precise role. As previously discussed, Vajdik testified that she gave her opinions to Roberts over the phone, that she does not know whether Roberts transcribed these opinions, that she failed to dictate her opinions and instead merely had a “conversation” with Roberts, and that she was “unsure of how [Ms. Roberts] took down the information that [she] gave her.” While it was suggested that the practical effect of allowing Roberts’s deposition would be “disastrous,” it would be arguably equally disastrous to allow attorneys or their employees to generate a report in such a way that makes the use of an “expert” merely a rubber stamp of a report generated in-house. ¶ 20 We recognize that the issue of allowing a paralegal to be deposed may lead to a slippery slope; however, because of the very specific and extremely narrow nature of the trial court’s order, and because the ruling was based on a highly unusual set of facts, we hold that the trial court properly avoided the pitfall of allowing an improper blanket deposition and allowed the deposition to proceed on only this very narrowly defined issue. For these reasons, and solely because of the specific nature of the trial court’s order, the estate’s sole assignment of error lacks merit. ¶ 21 The ruling of the trial court is affirmed. Order affirmed. *766 Karpinski, P.J., concurs. McMonagle, J., dissents.