KRISTINA WASHINGTON, INDIVIDUALLY AND AS AD, ET AL vs. AIR METHODS CORPORATION, ET AL., CV-19-911942, 03-22-2021-D-MO (Ohio State, Cuyahoga County, Court of Common Pleas Mar. 22, 2021) (2024)

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`IN THE COMMON PLEAS COURT
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`OF CUYAHOGA COUNTY, OHIO
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`) )
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` CASE NO.: CV 21 942964
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`) )
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` Consolidated with Case No. CV 19 911942
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`) for purpose of dispositive motion practice
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`KRISTINA WASHINGTON,
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`Individually and as Administrator of the
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`Estate of Amani Marie Mann, et al.
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`) )
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` JUDGE JOHN D. SUTULA
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`Plaintiffs
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`) )
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` DEFENDANTS UNIVERSITY
`) HOSPITALS HEALTH SYSTEM, INC.,
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`) EMH REGIONAL MEDICAL CENTER,
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`) UNIVERSITY HOSPITALS ELYRIA
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`) MEDICAL CENTER, AND BRIAN
`
`) CULLISON'S MOTION FOR
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`) JUDGMENT ON THE PLEADINGS
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`) AND/OR SUMMARY JUDGMENT
`
`) )
`
` Jeanne M. Mullin, Esq. (0071131)
`) REMINGER CO., L.P.A.
`
`)
`
`101 West Prospect, Suite 1400
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`) Cleveland, Ohio 44115
`) Phone: (216) 687-1311
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`) Fax: (216) 687-1841
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`) E-Mail: jmullin@reminger.com
`
`) )
`
` Counsel for Defendants, University Hospitals
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`) Health System, Inc., EMH Regional Medical
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`) Center, University Hospitals Elyria Medical
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`) Center and Brian Cullison, M.D.
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`)
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`-vs-
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`AIR METHODS CORPORATION, et al.
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`Defendants.
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`Now come Defendants, University Hospitals Health System, Inc., EMH Regional Medical
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`Center, University Hospitals Elyria Medical Center, and Brian Cullison, M.D1. (collectively, “UH
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`Defendants”), by and through counsel, Reminger Co., L.P.A., and hereby respectfully move this
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`1 Dr. Cullison, by and through counsel, specifically states he has not been served with the Complaint filed in Case No.
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`CV 21 942964. See Affidavit of Brian Cullison, MD at Paragraph 3, attached hereto as Exhibit C.
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 911942 / Confirmation Nbr. 2210182 / CLSLP
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`Court for judgment in their favor pursuant to Civ.R. 12(C) and/or 56(C) on the grounds that no
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`genuine issues of material fact exist on any of Plaintiffs’ claims or assertions against the UH
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`Defendants, thereby entitling the UH Defendants to judgment as a matter of law.
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`A Brief in Support is attached hereto and incorporated herein by reference.
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`Respectfully submitted,
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`____ /s/ Jeanne Mullin_________________
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`Jeanne M. Mullin, Esq. (0071131)
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`REMINGER CO., L.P.A.
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`101 West Prospect, Suite 1400
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`Cleveland, Ohio 44115
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`Phone: (216) 687-1311
`(216) 687-1841
`Fax:
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`E-Mail: jmullin@reminger.com
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`Counsel for Defendants, University Hospitals
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`Health System, Inc., EMH Regional Medical
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`Center, University Hospitals Elyria Medical Center,
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`and Brian Cullison, M.D.
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 911942/ Confirmation Nbr. 2210182 / CLSLP
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`I.
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`INTRODUCTION/PROCEDURAL HISTORY
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`BRIEF IN SUPPORT
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`On March 1, 2019, Plaintiffs, Kristina Washington, as Administrator of the Estate of Amani
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`Marie Mann, and Alramon Mann, filed their Initial Complaint (hereinafter “Initial Complaint”)
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`against several Defendants, including the moving Defendants, University Hospitals Health
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`System, Inc., EMH Regional Medical Center, University Hospitals Elyria Medical Center, and
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`Brian Cullison, M.D. (“Dr. Cullison”) (collectively, “UH Defendants”), as well as Co-Defendants
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`Air Methods Corporation, Air Methods Corporation d/b/a University Hospitals Medevac, Rocky
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`Mountain Holdings, Inc., Christina R. Yurkonis, RN, and George Miu, EMT, RN (collectively,
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`“Air Methods”). That case was assigned Cuyahoga County Court of Common Please Case No.
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`CV 19 911942. Plaintiffs’ claims in that case arose from medical care and treatment provided to
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`Decedent, Amani Marie Mann. (See Compl. at 1, 14-16 in Case No. CV 19 911942, filed on
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`03/01/2019). Of note, the Initial Complaint was not supported by an Affidavit of Merit as to the
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`UH Defendants. Rather, Plaintiffs sought and were granted an extension of time to do so. (See
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`03/26/2019 Judgment Entry in Case No. CV 19 911942).
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`On October 15, 2019, Plaintiffs voluntarily dismissed the UH Defendants without
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`prejudice. (See Plaintiffs’ Voluntary Dismissal in Case No. CV 19 911942, filed on 10/15/2019).
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`Of significance, that dismissal came without Plaintiffs ever supporting the Initial Complaint
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`against the UH Defendants with an Affidavit of Merit as required by Civil Rule 10(D)(2).2 The
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`case then proceeded against Air Methods. Based on the docket and as part of the Court’s case
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`2 Arguably, Plaintiffs’ failure to file an Affidavit of Merit in the underlying action to support their medical
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`claims against the UH Defendants prior to their dismissal of that case (which rendered the original
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`Complaint a legal nullity) is fatal to this refiled action. The UH Defendants expressly preserve the
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`affirmative defense of the statute of limitations and Civil Rule 10(D) defenses, and reserve the right to seek
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`dismissal on that basis should this Motion fail.
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 9119423/ Confirmation Nbr. 2210182 / CLSLP
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`management order, Plaintiffs were ordered to disclose their experts and produce their expert
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`reports on or before October 30, 2020, and Air Methods was ordered to disclose their experts and
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`produce their expert reports on or before November 30, 2020. Prior to any expert disclosure
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`deadline, by order dated August 13, 2020, the Court ordered Air Methods to identify any person
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`or entity from whom/which apportionment would be sought so either side could join them to the
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`case. (See 08/13/2020 Judgment Entry in Case No. CV 19 911942). Such identification was to
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`occur on or before August 21, 2020. (Id.). Based on a docket review, that date came and went and
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`no such disclosure was made. Plaintiffs then disclosed their experts and, consistent with their
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`dismissal of the UH Defendants, Plaintiffs failed to produce any expert opinion that claimed the
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`UH Defendants were negligent or caused injury to Plaintiffs. (See Plaintiffs’ Motion for Extension
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`of Time for File Affidavit(s) of Merit filed on 1/14/21).3 On November 30, 2020, Air Methods
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`identified its experts and produced requisite expert reports. Through that disclosure, Plaintiffs
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`came to believe that Air Methods may attempt to seek apportionment from one or more of the UH
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`Defendants, including Dr. Cullison, despite the fact that they did not identify the UH Defendants,
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`including Dr. Cullison, as culpable non-parties pursuant to the Court’s August 13, 2020 Order.
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`(Id.).
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`The apparent focus of Plaintiffs’ concern are statements made in the expert reports of two
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`of Air Methods’ experts, David Kantor, M.D., and Leslie Lewis, D.N.P. Plaintiffs assert that these
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`experts have opined through their reports that Dr. Cullison was “ultimately responsible” for the
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`ventilator settings used by Air Methods, claiming he was the “on-site medical control physician”
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`for the Air Methods transport team. (Id.; see also Report of David Kantor M.D. dated November
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`3 Plaintiffs have essentially stipulated through the arguments they made in their Motion for Extension of
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`Time to file Affidavit(s) of Merit that they have no expert that claims the UH Defendants were negligent
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`and do not intend to make such an assertion. Rather, they believe Air Methods may attempt to support such
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`a claim.
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 9119424/ Confirmation Nbr. 2210182 / CLSLP
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`27, 2020, attached hereto as Exhibit A, and Report of Leslie Lewis DNP dated November 29, 2020,
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`attached as Exhibit B). Although these assertions by these experts are not in any way supported by
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`the testimony of Air Methods' own employees or any other evidence developed in the case, the
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`assertions apparently raised sufficient concern about an “empty chair defense” to cause Plaintiffs
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`to refile a Complaint against the UH Defendants. (See Complaint filed in Case No. CV 21 942964
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`(hereinafter “Refiled Complaint”)).
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`There are several noteworthy threshold matters relative to the Refiled Complaint against
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`the UH Defendants. First, it is, once again, not supported by an Affidavit of Merit. Instead,
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`Plaintiffs moved for an extension of time to comply with Civil Rule 10(D)(2) - sort of. In that
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`regard, they moved for additional time not for Plaintiffs to support the Refiled Complaint with an
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`Affidavit of Merit, but rather for Air Methods to support their anticipated apportionment/non-party
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`fault with an Affidavit of Merit. (See Plaintiffs' Motion for Extension of Time for File Affidavit(s)
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`of Merit, filed on 1/14/21). This is unorthodox to say the least. Second, in their Refiled Complaint,
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`Plaintiffs fail to actually allege the UH Defendants were negligent and/or that negligence by the
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`UH Defendants was the proximate cause of any harm to Plaintiffs, including the death of Amani
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`Mann. In other words, in contravention to Civ. R. 8(A), Plaintiffs fail to “set forth a claim for
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`relief ...[with] a short and plan statement of the claim showing that [they are] entitled to relief.”
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`Instead, Plaintiffs plead in the Refiled Complaint only that “Air Methods alleges that some, or all,
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`of the UH Defendants were negligent or may be responsible for Air Methods' negligence in failing
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`to properly evaluate, diagnose, manage and/or treat Amani Marie Mann, leading to her unfortunate
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`and untimely death.” (See Refiled Compl. at 10) (Emphasis added). In response to Plaintiffs'
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`Refiled Complaint, the UH Defendants have filed an Answer wherein they deny any claim that
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`they were negligent and/or that any action or inaction by them caused or contributed to Plaintiffs'
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 9119425/ Confirmation Nbr. 2210182 / CLSLP
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`injuries, including Amani Mann's unfortunate passing. (See Answer of Defendants to Plaintiffs'
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`Refiled Complaint, filed on March 22, 2021). Based on Plaintiffs' failure to allege that they believe
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`the UH Defendants were negligent, and based on the UH Defendants' denial that they were
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`negligent, the UH Defendants are entitled to Judgement on the Pleadings.
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`Given the nature of the claims asserted, however, the Court's analysis may not end there.
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`In that regard, because Plaintiffs do plead in their Refiled Complaint that some other party alleges
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`the UH Defendants were negligent and caused or contributed to Amani Mann's death, the UH
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`Defendants also move for summary judgment on that claim. Toward that end, the UH Defendants
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`are entitled to Judgment in their favor because neither Plaintiffs nor Air Methods in Case No. CV
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`19 911942 can get a claim of any alleged negligence by the UH Defendants in front of a jury as
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`neither party has the requisite expert support to do so. While the UH Defendants concede that two
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`of Air Methods' experts opine in their reports that Dr. Cullison was “ultimately responsible” for
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`the ventilator settings used by Air Methods, and claim he was the “on-site medical control
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`physician” for the Air Methods transport team, those claims are insufficient to seek either a non­
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`party fault or apportionment instruction as neither expert goes so far as to allege that any of the
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`UH Defendants, including Dr. Cullison, breached the standard of care or was negligent in any way,
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`nor that any action or inaction by any UH Defendant directly or proximately caused injury or the
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`death to Amani Mann. (See, e.g., Ex. A, Dr. Kantor Report; and Ex. B, DNP Lewis Report).
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`While neither Plaintiffs nor Air Methods can meet their respective burdens to establish a
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`claim that the UH Defendants were negligent, the UH Defendants can establish that they were not
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`negligent. Specifically, Dr. Brian Cullison, who is a board certified emergency medicine specialist,
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`has opined that he and the other UH emergency department providers met the standard of care in
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 911942/ Confirmation Nbr. 2210182 / CLSLP
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`his care and treatment of Amani Mann. (See Affidavit of Brian Cullison, M.D. at 11, attached
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`hereto as Exhibit C).
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`Since the claims against the UH Defendants are unquestionably medical claims, Ohio law
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`requires that qualified medical expert testimony be presented for not only Plaintiffs to establish
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`their medical-negligence claim, but also for Air Methods to establish any such claim. Because
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`neither Plaintiffs nor Air Methods have produced expert testimony critical of the care the UH
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`Defendants provided to Amani, there is no evidence upon which a prima facie case of medical
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`negligence can be established against the UH Defendants and, therefore, any claim against them
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`is insufficient as a matter of law. Accordingly, the UH Defendants are entitled to a dismissal on
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`the merits.
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`II.
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`STATEMENT OF RELEVANT FACTS
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`On March 5, 2018, Amani Mann presented to the University Hospitals Elyria Medical
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`Center's emergency room after suffering an asthma flareup that could not be controlled on home
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`breathing treatments and appeared to be acutely ill. Dr. Cullison was the emergency room
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`physician on duty to whom Amani was assigned. (See Ex. C, Cullison Affidavit at 5). Rachel
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`Pinner, R.N. and Michael Parobek, R.N. were her nurses. (See Pertinent Portions of Rachel Pinner,
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`R.N.'s Deposition attached hereto as Exhibit D and Pertinent Portions of Michael Parobek, R.N.'s
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`Deposition attached hereto as Exhibit E, complete copies of Rachel Pinner and Michael Parobek's
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`deposition transcripts are being filed concurrently herewith). While in the emergency department,
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`Amani developed respiratory distress and required intubation. (See Ex. C, Cullison Affidavit at
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`5).
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`It was ultimately decided that Amani needed a higher level of care than what could be
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`provided at Elyria Medical Center and arrangements were made to transfer her to an institution
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 9119427/ Confirmation Nbr. 2210182 / CLSLP
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`that could provide her the level of pediatric critical care she needed. (Id.). Amani was intubated
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`and, while critical, she remained stable while arrangements were made to transfer her. (Id.). As
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`part of the transfer process, Dr. Cullison spoke with the receiving pediatric intensive care physician
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`that would be receiving Amani at the Cleveland Clinic main campus. (Id. at 6). Dr. Cullison also
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`received ventilator settings and other recommendations directly from the receiving physician to be
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`used during the transferring of Amani to the Cleveland Clinic for further care. (Id.).
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`The Air Methods transport team arrived at UH Elyria Medical Center that evening and took
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`over the care and treatment of Amani as part of standard practice for the transport team to assume
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`primary care of a patient when the patient is to be life flighted. (Id. at 7). The Air Methods flight
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`team members in this case included Christina Yurkonis, R.N. and E.M.T. George Miu. Upon their
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`arrival, Dr. Cullison communicated the information he received from the receiving pediatric doctor
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`to the transport team, including the ventilator settings. (Id.). As the emergency department
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`physician assigned to Amani, Dr. Cullison remained involved in Amani's care in a limited way
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`while she remained in the emergency department. For example, he reviewed lab results and
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`radiology studies that had been ordered and returned, and he and the ER nurses were involved in
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`medication administration. (Id at 8). Otherwise, absent Air Methods bringing a specific issue
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`regarding patient care to Dr. Cullison, Dr. Cullison would not have been involved in the ventilation
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`management of Amani once the Air Methods flight team arrived and took over her care. (Id).
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`The fact that Air Methods took over the patient's care on their arrival to UH Elyria does
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`not come from Dr. Cullison alone; but both Rachel Pinner, R.N. and Michael Parobek, R.N.
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`testified it was standard for the transport team to take over patient care on arrival. (See Ex. D,
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`Pinner Depo. at p. 38:18-23, Ex. E, Parobek Depo. at p.7:3-9). Rachel Pinner explained that once
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`the transport personnel take over care, the responsibility for the patient remains theirs from the
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 91194$/ Confirmation Nbr. 2210182 / CLSLP
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`time they arrive until the time they depart, and if they needed to involve a physician, they would
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`involve their medical control physician, not Dr. Cullison. (See Ex. D, Pinner Depo. at pp. 38:23­
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`39:6). The Air Methods team agreed. In that regard, the Air Methods personnel were following
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`their patient care guidelines once they arrived at UH Elyria. (See Ex. F, Christina Yurkonis, R.N's
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`Deposition at pp. 139:25-140:3, a complete copy of Christina Yurkonis' deposition transcript is
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`being filed concurrently herewith). While Dr. Cullison would make his voice heard if he was
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`present and disagreed with something the transport team was doing, if he was not present or had
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`no reason to disagree with what the flight team was doing, the flight crew was in charge of patient
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`care. (Id. at 140:4-10). Neither Christina Yurkonis nor George Miu claim they ever sought out
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`advice from Dr. Cullison on the ventilator settings or that they otherwise advised him they had
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`changed from the ventilator settings he communicated to them. Rather, they admit they changed
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`them based on the patient care guidelines and that if they felt they had any issues outside of their
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`guidelines, they would call their “medical control” who was not Dr. Cullison. (Id. at pp. 82:4­
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`83:5, 144:6-145:8); see also Ex. G, George Miu Deposition taken on October 2, 2019 at 171:14­
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`172:23, a complete copy of George Miu's deposition transcript is being filed concurrently
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`herewith). No one from the transport team raised any concerns about Amani's ventilation to Dr.
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`Cullison and no one sought out orders or advice from him regarding the ventilator settings after
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`the initial settings were communicated. (See Ex. C, Cullison Affidavit at 8).
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`The term “medical control” is a term of art with specific meaning in the context of an
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`emergency patient transport. (Id. at 9). An assigned “medical control” is the physician assigned
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`to a transport of a patient who is available to make clinical decisions if something falls outside of
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`the transport crew's established written care guidelines. (Id.; see also Ex. F, Yurkonis Depo. at p.
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`82:4-8). According to Air Methods' Flight Nurse, Christina Yurkonis, the flight team's medical
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`control on March 5, 2018 relative to their transport of Amani Mann was likely Jeffrey Luk, M.D.
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`(Id. at p. 83:23-25). Dr. Cullison was not the transport team's medical control. (See Ex. C, Cullison
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`Affidavit at 9). If the Air Methods team had questions or concerns after taking over the patient's
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`care, the practice would be for them to communicate directly with their assigned medical control.
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`(Id.). If they had gone to Dr. Cullison with a question or concern about the ventilator management
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`of the patient, he would have documented that communication, including his response, in the
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`medical record. (Id.). There is no indication in the medical records that such communication
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`occurred and Dr. Cullison confirms that the flight crew did not seek out advice, guidance, or orders
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`from him regarding the ventilation management of the patient after he communicated the settings
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`given to him by the receiving physician. (Id. at 10). Of note, no one from Air Methods claims
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`otherwise.
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`Unfortunately, Amani Mann's condition worsened during transport and after arrival at The
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`Cleveland Clinic. Shortly after arrival, she had a cardiac arrest and code resuscitation ensued.
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`Despite those efforts, Amani's condition remained critical and she ultimately died on March 9,
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`2018.
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`III. LAW AND ANALYSIS
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`A.
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`Standards of Review
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`1. Motion for Judgment on the Pleadings Standard
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`A motion for judgment on the pleadings has been characterized as a belated Civ.R.
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`12(B)(6) motion and the same standards of review apply. Gawloski v. Miller Brewing Co., 96 Ohio
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`App.3d 160, 163 (9th Dist. 1994). Civil Rule 12(C) provides that “[a]fter the pleadings are closed
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`but within such time as not to delay the trial, any party may move for judgment on the pleadings.”
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`Under Civ.R. 12(C), “dismissal is appropriate where a court: (1) construes the material allegations
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`in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving
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`party as true; and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support
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`of [her] claim that would entitle [her] to relief.” State ex relMidwest Pride IV, Inc. v. Pontious, 75
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`Ohio St.3d 565, 570 (1996). Therefore, it is appropriate for a court to grant judgment on the
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`pleadings where the plaintiff has failed to allege a set of facts, which if true, would establish the
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`defendant’s liability. Walters v. First National Bank of Newark, 69 Ohio St.2d 677, 679 (1982).
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`2.
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`Motion for Summary Judgment Standard
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`Civil Rule 56(C) establishes the standard to be applied in determining whether a party is
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`entitled to summary judgment:
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`Summary judgment shall be rendered forthwith if the pleadings,
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`depositions, answers to interrogatories, written admissions,
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`affidavits, transcripts of evidence in the pending case, and written
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`stipulations of fact, if any, timely filed in the action, show that there
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`is no genuine issue as to any material fact and that the moving party
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`is entitled to judgment as a matter of law . . .
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`“A successful motion for summary judgment rests on the two-part foundation that there is no
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`genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
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`of law.” Preston v. Baltimore and Ohio Railroad Company, 49 Ohio App. 3d 70, 72 (6th Dist.
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`1988), citing Norris v. Ohio Standard Oil Company, 70 Ohio St. 2d 1, 2-3 (1982). A party moving
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`for summary judgment bears the initial burden of demonstrating that there is no genuine issue as
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`to any material fact on the essential elements of the non-moving party’s claims. Dresher v. Burt,
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`75 Ohio St. 3d 280, 293 (1996). A non-moving party, however, has a reciprocal burden, outlined
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`in Civ.R. 56(E), to set forth specific facts showing that there is a genuine issue for trial.
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`If the non-moving party fails to produce such evidence on each element of their case,
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`summary judgment is proper. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wing v. Anchor
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`Media 59 Ohio St. 3d 108 (1991), paragraph three of the syllabus. The Supreme Court of Ohio has
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`stated:
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`However, if the moving party has satisfied its initial burden, the non­
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`moving party then has the reciprocal burden outlined in Civ. Rule
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`56(E) to set forth specific facts showing that there is a genuine issue
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`for trial and, if the non-movant does not so respond, summary
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`judgment, if appropriate, shall be entered against the non-moving
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`party.
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`Dresher at 293.
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`A plaintiff's failure to create a genuine issue of material fact as to any one of the requisite
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`elements of his or her claim entitles the movant to summary judgment as “there can be no genuine
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`issue as to any material fact, since a complete failure of proof concerning an essential element of
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`the non-moving party’s case necessarily renders all other facts immaterial.” Id. at 288, quoting
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`Celotex, supra.
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`“[I]f the court is satisfied, after construing the evidence most strongly against the moving
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`party, that there is no genuine issue of material fact, that a reasonable jury could not render a
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`verdict in the non-moving party’s favor, and, therefore, that the moving party is entitled to
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`judgment as a matter of law, the court should grant summary judgment in favor of the moving
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`party.” Paul v. Uniroyal Plastics Company, 62 Ohio App. 3d 277, 282-283 (6th Dist. 1988);
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`Harless v. Willis Day Warehousing Company, 54 Ohio St. 2d 64, 66 (1978).
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`The UH Defendants are entitled to a dismissal under both Rules 12(C) and 56(C).
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`B.
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`Plaintiffs’ Refiled Complaint Fails to Meet the Minimum Pleading
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`Requirements of Civ.R. 8(A) and, thus, Dismissal of Their Claims are
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`Appropriate Pursuant to Civ.R. 12(C).
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`From a pleading standpoint, Plaintiffs’ refiled Complaint has failed to set forth any viable
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`claims against the UH Defendants and is, thus, subject to dismissal. Notwithstanding the fact that
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 9119422 Confirmation Nbr. 2210182 / CLSLP
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`Plaintiffs have failed to produce a sufficient affidavit of merit pursuant to Civ.R. 10(D)(2) - which
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`Plaintiffs oddly assert should be Air Methods' responsibility given their view that they are the
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`party seeking to assert that the UH Defendants are somehow liable for Amani's death - Plaintiffs
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`have also failed to set forth any actual claims of wrongdoing as it relates to the UH Defendants.
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`In that regard, rather than alleging themselves that the UH Defendants were negligent in their care
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`and treatment of Amani, Plaintiffs unorthodoxly claim that such liability is based on an anticipated
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`claim by Air Methods. (See Refiled Complaint at 10). While odd, the reason for this
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`unconventional approach is simple: Plaintiffs do not believe the UH Defendants were negligent
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`in providing medical care and treatment to Amani, but seek to preclude a non-party fault or
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`apportionment jury instruction.
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`Regardless of their motive, the fact of the matter is that Plaintiffs' Refiled Complaint fails
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`to state a claim upon which relief may be granted based on its failure to adhere to Civ. R. 8(A)
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`requirements, and based on Plaintiffs failure to provide any statement showing that Plaintiffs are
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`entitled to some relief against the UH Defendants. Ohio Rule of Civil Procedure 8(A) provides
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`that pleadings that set forth a claim for relief must “contain (1) a short plain statement of the claim
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`showing that the party is entitled to relief, and (2) and demand for judgment for the relief to which
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`the party claims to be entitled.” In other words, notice pleading under Civ.R.
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`8(A)(1) and (E) requires that a claim concisely set forth only those operative facts sufficient to
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`give “fair notice of the nature of the action.” Ford v. Brooks, No. 11AP-664, 2012 Ohio 943,
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`13 (10th Dist.). “Nevertheless, to constitute fair notice, the complaint must allege sufficient
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`underlying facts that relate to and support the alleged claim; the complaint may not simply state
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`legal conclusions.” Allstate Ins. Co. v. Electrolux Home Prods., No. 97065, 2012 Ohio 90, 9 (8th
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`Dist.), citing Clemens v. Katz, No. L-08-1274, 2009 Ohio 1461, 7 (6th Dist.).
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 9119423 Confirmation Nbr. 2210182 / CLSLP
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`In this case, Plaintiffs’ own pleading acknowledges to this Court that there is no evidence
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`to support a claim that the UH Defendants have any liability relative to Amani’s death. Because it
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`is indisputable that Plaintiffs’ Refiled Complaint is deficient such that they cannot prove any set
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`of facts entitling them to recovery, dismissal of their claims are appropriate pursuant to Civ.R.
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`12(C) for failure to state a claim upon which relief can be granted. See O'Brien v. University
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`Community Tenants Union, 42 Ohio St. 2d 242 (1975), syllabus; see also JPMorgan Chase Bank,
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`N.A. v. Belden Oak Furniture Outlet, Inc., No. , 2010-Ohio-4444, 21 (5th Dist.) (holding that a
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`motion for judgment on the pleadings can raise a failure to state a claim).
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`C.
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`Neither Plaintiffs nor Co-Defendants’ can establish a prima facie case for
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`medical negligence.
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`Even if the Court elects to construe Plaintiffs’ Complaint as pleading some potentially
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`viable claim against the UH Defendants, the UH Defendants are nevertheless entitled to a dismissal
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`as a matter of law because neither Plaintiffs nor Air Methods have produced evidence by way of
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`expert support to establish aprimafacie case for medical negligence against them in Case No. CV
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`19 911942. It has long been established that “in order to establish medical malpractice, it must be
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`shown by a preponderance of evidence that the injury complained of was caused by the doing of
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`some particular thing or things that a physician or surgeon of ordinary skill, care and diligence
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`would not have done under like or similar conditions or circ*mstances, or by the failure or
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`omission to do some particular thing or things that such a physician or surgeon would have done
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`under like or similar conditions and circ*mstances, and that the injury complained of was the direct
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`and proximate result of such doing or failing to do some one or more of such particular things.”
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`Bruni v. Tatsumi, 46 Ohio St.2d 127, (1976), paragraph one of the syllabus; Ramage v. Central
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`Ohio Emergency Serv. Inc., 64 Ohio St.3d 97, 102 (1992); Littleton v. Good Samaritan Hosp. &
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`Health Ctr., 39 Ohio St.3d 86, 93 (1988). It is not sufficient for the plaintiff to opine as to the
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 9119424 Confirmation Nbr. 2210182 / CLSLP
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`

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`elements; rather, the elements must be supported by expert testimony. Bruni, 46 Ohio St.2d at 130­
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`132. Common sense dictates that the same would be true for any cross-claim by a co-defendant
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`or for any claim for apportionment by a co-Defendant, and relevant case law affirms that common
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`sense.
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`In Crosswhite v. Desai, the court explained the underlying principle for requiring expert
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`testimony in a medical malpractice case:
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`It has long been the rule in most jurisdictions that in cases of medical
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`malpractice, expert testimony is not merely permitted but required of the
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`plaintiff to meet his burden of proof. Commenting on the rule, Wigmore
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`classifies medical malpractice as an issue of special experience concerning which
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`testimony may be received only of a person of that special experience. * * *. Absent
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`that requirement, a plaintiff would prefer ‘ * * * to rest his case on the mere facts of
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`his sufferings, and to rely upon the jury's untutored sympathies, without attempting
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`specifically to evidence the defendant's unskillfulness as the cause of those
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`sufferings.' Ohio has long followed suit, holding ‘* * * that expert testimony is
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`ordinarily needed to establish the requisite standard of care and skill a physician
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`owes in his treatment of a patient.' Hoffman v. Davidson (1987), 31 Ohio St.3d 60,
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`62, 508 N.E.2d 958, 960-61 (citing Bruni v. Tatsumi (1976), 46 Ohio St.2d 127,
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`346 N.E.2d 673).
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`(Citations omitted). Crosswhite v. Desai, 64 Ohio App.3d 170, 174 (2nd Dist.1989). If “the
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`plaintiff fails to present expert testimony that a physician breached the applicable standard of care
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`and that the breach constituted the direct and proximate cause of the plaintiffs injury, a court may
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`enter summary judgment in favor of the defendant-physician.” Armeni v. Aromatorio, No.
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`11MA48, 2012-Ohio-1500, 34 (7th Dist.), citing Click v. Georgopoulos, No. 08MA240, 2009-
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`Ohio-6245,
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`29-30 (7th Dist.); Korreckt v. Ohio Health, No. 10AP819, 2011-Ohio-3082,
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`12
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`(10th Dist.); Hitch v. Thomas, No. L-09-1292, 2010-Ohio-3630, 47 (6th Dist.); Nye v. Ellis, No.
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`09-CA-80, 2010-Ohio-1462, 38 (5th Dist.); Taylor v. McCullough-Hyde Memorial Hosp., 116
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`Ohio App.3d 595, 599-600 (12th Dist. 1996).
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`Electronically Filed 03/22/2021 22:34 / MOTION / CV 19 911942$ Confirmation Nbr. 2210182 / CLSLP
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`Ohio law is equally clear that qualified medical experts are required not only for plaintiffs
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`to establish a medical-negligence claim, but also for a defendant to pursue any claim for
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`apportionment against another. See Kritzwiser v. Bonetzky, No. 8-07-24, 2008-Ohio-4952,
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`22
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`(3rd Dist.) (upholding the trial court's decision not to submit a defendant's apportionment claim
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`to the jury in a malpractice claim where the defendant “.. .did not present any expert testimony or
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`other evidence during the jury trial regarding contributory fault or the liability of others that the
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`jury could have used to apportion liability to non-parties..”).
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`In accord with these expert-testimony requirements, Cuyahoga County Local Rul