[Cite as Aubry v. Univ. of Toledo Med. Ctr., 2011-Ohio-2620.]

                                                        Court of Claims of Ohio
                                                                                   The Ohio Judicial Center
                                                                           65 South Front Street, Third Floor
                                                                                      Columbus, OH 43215
                                                                            614.387.9800 or 1.800.824.8263
                                                                                       www.cco.state.oh.us




LAWRENCE AUBRY, et al.

       Plaintiffs

       v.

THE UNIVERSITY OF TOLEDO MEDICAL CENTER f/k/a MEDICAL UNIVERSITY OF
OHIO AT TOLEDO

       Defendant
       Case No. 2007-05814

Judge Clark B. Weaver Sr.
Magistrate Lewis F. Pettigrew

JUDGMENT ENTRY




        {¶ 1} Plaintiff,      Lawrence       Aubry,      brought   this   action    alleging      medical
malpractice.1 Plaintiff’s wife, Joyce Aubry, asserted a claim for loss of consortium. The
issues of liability and damages were bifurcated. Following a trial on the issue of liability,
the court issued a decision and judgment entry on July 21, 2010, entering judgment for
plaintiffs in an amount to be determined at the damages phase of the trial.                             On
September 3, 2010, the court issued an amended judgment entry, pursuant to R.C.
2307.23, apportioning liability for plaintiff’s injury equally between a physician employed
by defendant and another physician, G. Mark Seal, M.D., who was not employed by
defendant. The case proceeded to trial before the magistrate on the issue of damages.
On February 10, 2011, the magistrate issued a decision recommending judgment for
plaintiffs in the amount of $25.
        {¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to


1
 As used herein, “plaintiff” shall refer to Lawrence Aubry.
Case No. 2007-05814                           -2-                    JUDGMENT ENTRY

a magistrate’s decision within fourteen days of the filing of the decision, whether or not
the court has adopted the decision during that fourteen-day period as permitted by
Civ.R. 53(D)(4)(e)(i).” Plaintiffs timely filed objections.
       {¶ 3} The magistrate found that the evidence established damages of $250,000
for plaintiff’s past and future pain and suffering; $150,000 for plaintiff’s past and future
loss of enjoyment of life; $150,000 for Joyce Aubry’s loss of consortium; $61,000 for
past medical expenses; and $75,000 for future medical expenses.
       {¶ 4} The magistrate concluded that the non-economic damages award must be
reduced to $250,000 pursuant to R.C. 3345.40(B)(3). The magistrate then concluded
that plaintiffs’ award must be further reduced by 50 percent, pursuant to R.C. 2307.23,
in order to account for the negligence attributable to Dr. Seal. Lastly, the magistrate
concluded that, pursuant to R.C. 3345.40(B)(2), the $295,000 that plaintiffs received in
settlement of their claim against Dr. Seal must be deducted from their award against
defendant. The magistrate thus found that plaintiffs were entitled to a net monetary
award of $0, notwithstanding their filing fee of $25.
       {¶ 5} In their first objection, plaintiffs assert that the magistrate erroneously
calculated their gross compensatory damages as $675,000, even though the individual
damages found by the magistrate totaled $686,000.             Upon review, plaintiffs’ first
objection is SUSTAINED and the magistrate’s decision is hereby modified such that
plaintiffs’ gross compensatory damages shall amount to $686,000.
       {¶ 6} In their second objection, plaintiffs argue that the magistrate erred in
applying the R.C. 3345.40(B)(3) cap on non-economic damages against the gross
compensatory damages so as to reduce the non-economic damages from $400,000 to
$250,000. Plaintiffs argue that the magistrate should have first apportioned the gross
compensatory damages equally between defendant and Dr. Seal, such that the award
for non-economic damages against defendant would be $200,000, and would not be
subject to any reduction under R.C. 3345.40(B)(3).
Case No. 2007-05814                        -3-                      JUDGMENT ENTRY

      {¶ 7} R.C. 3345.40(B) provides, in part:
      {¶ 8} “[I]n an action against a state university or college to recover damages for
injury, * * * damages * * * that do not represent the actual loss of the person who is
awarded the damages shall not exceed two hundred fifty thousand dollars in favor of
any one person.” Inasmuch as the instant action is one against a state university to
recover damages for injury, non-economic damages cannot exceed $250,000. Given
that the magistrate found that non-economic damages amounted to $400,000, the
magistrate appropriately reduced this amount to $250,000 by operation of R.C.
3345.40(B)(3). Plaintiffs’ second objection is OVERRULED.
      {¶ 9} In their third objection, plaintiffs argue that the magistrate erred in reducing
their award against defendant by the amount of their settlement with Dr. Seal.
According to plaintiffs, their settlement with Dr. Seal was not a “benefit” as that term is
used in R.C. 3345.40(B)(2), and thus should not be deducted from their award against
defendant pursuant to that statute. Plaintiffs also assert that the principles of several
liability and apportionment of damages do not entitle defendant to a setoff against their
settlement with Dr. Seal.     Plaintiffs acknowledge that they presented those same
arguments in their October 1, 2010 motion for partial summary judgment, which is
appended to their objections and incorporated by reference.           However, the court
addressed those arguments and denied plaintiffs’ motion in its decision of November
10, 2010, and for the reasons set forth therein, plaintiffs’ third objection is
OVERRULED.
      {¶ 10} Upon review of the record, the magistrate’s decision and the objections,
the court finds that the magistrate has properly determined the factual issues and
appropriately applied the law, with the exception that the amount of gross compensatory
damages is modified as set forth above.           Therefore, plaintiffs’ first objection is
SUSTAINED, plaintiffs’ second and third objections are OVERRULED, and the court
adopts the magistrate’s decision and recommendation as its own, including findings of
fact and conclusions of law contained therein.
Case No. 2007-05814                          -4-                     JUDGMENT ENTRY

          {¶ 11} Judgment is rendered for plaintiffs in the amount of $25, representing the
filing fee paid by plaintiffs. Court costs are assessed against defendant. The clerk shall
serve upon all parties notice of this judgment and its date of entry upon the journal.



                                           _____________________________________
                                           CLARK B. WEAVER SR.
                                           Judge
cc:


Anne B. Strait                                 Thomas W. Gallagher
Brian M. Kneafsey, Jr.                         400 Toledo Legal Building
Assistant Attorneys General                    416 North Erie Street
150 East Gay Street, 18th Floor                Toledo, Ohio 43604-5622
Columbus, Ohio 43215-3130

RCV/cmd
Filed May 11, 2011
To S.C. reporter May 26, 2011
