[Cite as Burnham v. Cleveland Clinic, 2017-Ohio-1277.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 102038



                                DARLENE BURNHAM
                                                          PLAINTIFF-APPELLEE

                                                    vs.


                         CLEVELAND CLINIC, ET AL.
                                                          DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-14-823973

        BEFORE: Kilbane, P.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                         April 6, 2017
ATTORNEYS FOR APPELLANTS

Bret C. Perry
Jason A. Paskan
Bonezzi Switzer Polito & Hupp Co., L.P.A.
1300 East 9th Street
Suite 1950
Cleveland, Ohio 44114




ATTORNEY FOR APPELLEE

Alexander L. Pal
Obral, Silk & Associates
55 Public Square
Suite 1700
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

      {¶1} This case is before this court on remand from the Ohio Supreme Court in

Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000 (“Burnham II”), for

review of our decision in Burnham v. Cleveland Clinic, 8th Dist. Cuyahoga No. 102038,

2015-Ohio-2044 (“Burnham I”).

      {¶2} In our decision, we relied on the Ohio Supreme Court’s decision in Smith v.

Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, and concluded that the trial

court’s grant of plaintiff-appellee Darlene Burnham’s (“Burnham”) motion to compel was

not a final, appealable order. Burnham I. In Burnham II, the Ohio Supreme Court

reversed our dismissal and remanded the matter for us to consider the merits of

defendants-appellants Cleveland Clinic and Cleveland Clinic Health System’s (“Clinic”)

appeal. For the reasons set forth below, we affirm the trial court’s judgment.

      {¶3} The facts of this appeal were set forth by this court in Burnham I.

      In March 2014, Burnham filed a complaint against the [Clinic] for injuries
      she sustained while visiting her sister at the main campus of the Cleveland
      Clinic Hospital. Burnham alleges that a [Clinic] employee negligently
      poured liquid on the floor and failed to warn her of this condition, causing
      her to slip and fall. Burnham propounded interrogatories and a request for
      production of documents with her complaint.

      Burnham’s discovery requests sought information pertaining to the identity
      of witnesses, witness statements, and the incident report pertaining to her
      slip and fall. [The incident report is titled “Safety Event Reporting
      System” and is referred to as “SERS.”] [The Clinic] objected to the
      majority of Burnham’s requests, citing either the attorney-client privilege,
      work-product doctrine, or peer review and quality assurance privilege. It
      did provide the names of the employees involved in the incident and the
      employee who was present at the time of Burnham’s fall. In June 2014,
      Burnham filed a motion compelling the [Clinic] to produce discovery
       responses, including the SERS report. The trial court then ordered the
       parties to submit a brief regarding the privilege issue and ordered the
       [Clinic] to file a privilege log. The trial court also conducted an in camera
       inspection of the SERS report. After considering both parties’ arguments
       and the in camera inspection, the trial court found that the report was not
       privileged and granted Burnham’s motion to compel. The court ordered
       the [Clinic] to respond to Burnham’s discovery requests and produce the
       SERS report to Burnham.

       ***

       The [Clinic then appealed to this court, arguing] that the SERS report is
       protected under the attorney-client privilege. It maintains that the report
       was prepared to aid its risk management and law departments, as well as
       outside counsel, in the investigation of a potential lawsuit.

Id. at ¶ 2-3, 5.

       {¶4} Relying on Chen, we dismissed the appeal for lack of a final, appealable

order, finding that

       the [Clinic] failed to establish that they would not be afforded a meaningful
       or effective remedy through an appeal after a final judgment is entered.
       Burnham seeks the production of the incident report (SERS) documenting
       her slip and fall. In its supplemental brief, the [Clinic] argues that the
       SERS report is subject to the attorney-client privilege, and once the report is
       disclosed “the bell will have rung” if it contains sensitive material, and it
       would have no adequate remedy on appeal. While the [Clinic] contends
       that “the bell will have rung,” it does not affirmatively establish that an
       immediate appeal is necessary, nor does it demonstrate how it would be
       prejudiced by the disclosure. Without an indication that the requirement in
       R.C. 2505.02(B)(4)(b) has been met, we do not have a final, appealable
       order.

Id. at ¶ 13.

       {¶5} The Clinic appealed from our decision to the Ohio Supreme Court in

Burnham II. The court accepted the Clinic’s discretionary appeal to
       resolve whether an order compelling the production of documents allegedly
       protected by the attorney-client privilege is a final, appealable order under
       R.C. 2505.02(B)(4). [The court] also accepted review to clarify our
       holding regarding privilege, the attorney work-product doctrine, and R.C.
       2505.02(B)(4)(b) in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480,
       31 N.E.3d 633.

Id. at ¶ 1. The Burnham II court held that

       an order requiring the production of information protected by the
       attorney-client privilege causes harm and prejudice that inherently cannot
       be meaningfully or effectively remedied by a later appeal. Thus, a
       discovery order that is alleged to breach the confidentiality guaranteed by
       the attorney-client privilege satisfies R.C. 2505.02(B)(4)(b) and is a final,
       appealable order that is potentially subject to immediate review. Other
       discovery protections that do not involve common law, constitutional, or
       statutory guarantees of confidentiality, such as the attorney work-product
       doctrine, may require a showing under R.C. 2505.02(B)(4)(b) beyond the
       mere statement that the matter is privileged. Our holding in Chen is
       limited to the latter context.

       Because [the Clinic] has plausibly alleged that the attorney-client privilege
       would be breached by disclosure of the requested materials, the order
       compelling the disclosure is a final, appealable order. Contrary to the
       dissent’s view, we are not characterizing the requested material as being
       covered by the attorney-client privilege, but are merely requiring appellate
       review of the trial court’s decision. We therefore reverse the dismissal of
       the appeal and remand to the court of appeals to determine whether the trial
       court erred in ordering the incident report released.

Id. at ¶ 2-3.

       {¶6} In the dissent, Justice Pfeifer stated that he dissents from

       elevating the incident report in this case to the exalted status of being the
       product of attorney-client privilege, requiring the immediate intervention of
       the appellate court to protect the [Clinic] from what exactly — the
       disclosure of its top-secret ratio of water to Mop & Glo? This was a
       run-of-the-mill, wet-floor, slip-and-fall case that generated an automatically
       produced report, a business record that involved in its production no
       interaction between the client and its in-house or outside counsel; its
       purpose was to notify the risk-management and law departments of an event
       that might result in legal action.

       “Trial courts * * * have extensive jurisdiction over discovery, including
       inherent authority to direct an in camera inspection of alleged privileged
       materials * * *.” State ex rel. Abner v. Elliott, 85 Ohio St.3d 11, 16,
       1999-Ohio-199, 706 N.E.2d 765 (1999). The trial court did its job here
       and found the report to not be privileged; its decision can be reviewed on
       appeal in due course without doing damage to the sanctity of the
       attorney-client privilege.

Id. at ¶ 80-81.

       {¶7} We now address the Clinic’s sole assigned error — whether the trial court

erred in ordering the production of the SERS report.

                                   Standard of Review

       {¶8} Generally, a discovery dispute is reviewed under an abuse of discretion

standard. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909

N.E.2d 1237, ¶ 13, citing State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children &

Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574, 853 N.E.2d 657.             However,

whether the information sought in discovery is confidential and privileged “is a question

of law that is reviewed de novo.” Id., citing Castlebrook, Ltd. v. Dayton Properties Ltd.

Partnership, 78 Ohio App.3d 340, 604 N.E.2d 808 (1992).

                                Attorney-Client Privilege

       {¶9} “In Ohio, the attorney-client privilege is governed by * * *

R.C. 2317.02(A), and in cases not addressed in R.C. 2317.02(A), by common law.”

State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824

N.E.2d 990, ¶ 18. “R.C. 2317.02(A), by its very terms, is a mere testimonial privilege
precluding an attorney from testifying about confidential communications.” Id. at ¶ 26.

Whereas, the common-law attorney-client privilege “‘reaches far beyond a proscription

against testimonial speech.     The privilege protects against any dissemination of

information obtained in the confidential relationship.’” Id., quoting Am. Motors Corp. v.

Huffstutler, 61 Ohio St.3d 343, 348, 575 N.E.2d 116 (1991).

      {¶10} In Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28,

2003-Ohio-3358, 790 N.E.2d 817, ¶ 12 (8th Dist.), we stated that

      the party invoking the protection of the attorney-client privilege must
      establish the following: “(1) where legal advice of any kind is sought, (2)
      from a professional legal advisor in his capacity as such, (3)
      thecommunications relating to that purpose, (4) made in confidence, (5) by
      the client, (6) are at his instance permanently protected, (7) from disclosure
      by himself or by his legal advisor, (8) except the protection be waived.”
      Fausek v. White (C.A.6, 1992), 965 F.2d 126, 129, quoting Humphreys,
      Hutcheson & Moseley v. Donovan (C.A.6, 1985), 755 F.2d 1211, 1219.
      The attorney-client privilege, where not waived, protects communications
      relating to a fact of which the attorney was informed by his client, without
      the presence of strangers, for the purpose of securing primarily either an
      opinion of law or legal services, or assistance in some legal proceeding, and
      not for the purpose of committing a crime or tort. United States v. United
      Shoe Machine Corp. (D.Mass.1950), 89 F.Supp. 357, 358.

      {¶11} Here, the Clinic maintains the SERS report is subject to the attorney-client

privilege and not discoverable because it was prepared to aid its risk management and law

departments, as well as outside counsel, in their investigation of a potential lawsuit. In

support of its argument, the Clinic relies primarily on Cleveland Clinic Health Sys. — E.

Region v. Innovative Placements, Inc., 283 F.R.D. 362 (N.D.Ohio 2012) (“CCHS”).

      {¶12} In CCHS, the Northern District Court found that CCHS’s SERS report

regarding the death of a patient was protected by peer-review privilege and attorney-client
privilege. The patient (“M.D.”) died while in Huron Hospital’s emergency department.

Richard Briganti (“Briganti”) was a nurse at the hospital who was involved with M.D.’s

care. Innovative Placements, Inc. employed Briganti and placed him at Huron Hospital.

M.D.’s estate sought compensation for M.D.’s death from CCHS. CCHS reached a

settlement agreement with M.D.’s estate before the estate filed suit against it. CCHS

thereafter filed a complaint against Innovative Placements, Inc., and Briganti for

indemnity. Id. at 364.

       {¶13} Innovative Placements, Inc., and Briganti filed a letter with the court

alleging that CCHS had failed to respond to their discovery requests properly and

adequately. CCHS maintained that some of the requested documents, including the

SERS report, were protected by Ohio’s peer-review privilege statute as well as by the

attorney-client privilege and the work-product doctrine. Id.

       {¶14} The court found that the report was privileged as peer-review materials.

CCHS, 283 F.R.D. at 368. The court further found that the SERS report was protected

from discovery by the attorney-client privilege. Id. The CCHS court held that the

attorney-client   privilege   generally   covers   incident    reports   prepared   for   the

risk-management department of a hospital. Id. at 369, citing Flynn v. Univ. Hosp., Inc.,

172 Ohio App.3d 775, 2007-Ohio-4468, 876 N.E.2d 1300, ¶ 13. The court noted that

CCHS included with its documents to the court an affidavit by Carol J. Moskowitz

(“Moskowitz”), a registered nurse and a licensed attorney who works in the Office of
General Counsel for CCHS and participated in its investigation of M.D.’s death. In her

affidavit, Moskowitz declared that

      she — as a licensed attorney, Clinical Risk Manager, and employee in
      Plaintiffs’ Office of General Counsel — compiled the information in the
      Documents and participated in their creation for purposes of peer review,
      quality assurance, and in anticipation of litigation; and that she participated
      in peer review and quality assurance meetings.

Id. at 369. Based on the foregoing, the court found that it was objectively reasonable for

CCHS to anticipate litigation. Id.

      {¶15} We find the instant case distinguishable from CCHS. In CCHS, the SERS

report did not contain any statements made by the plaintiff (patient), and the individual

who prepared the report, was identified. She averred that

      as a licensed attorney, Clinical Risk Manager, and employee in [CCHS’s]
      Office of General Counsel — [she] compiled the information in the
      Documents and participated in their creation for purposes of peer review,
      quality assurance, and in anticipation of litigation; and that she
      participated in peer review and quality assurance meetings completed.

(Emphasis added.) Id. at 369. Whereas in the instant case, the SERS report potentially

contains statements made by Burnham (a nonpatient), and the Clinic has refused to

identify the individual or individuals who completed the report or identify anyone else

who gave a witness statement in the report. Without the SERS report, Burnham, as the

plaintiff, does not know if the report contains any statements regarding the incident made

by her or any witnesses, who completed the report, or if the report was specifically

completed by a member of the risk management or legal department in anticipation of
litigation. Furthermore, it is unknown if the person who completed the SERS report

created it in anticipation of litigation.

       {¶16} We recognize that while “[c]ommunications made to an employer’s counsel

by employees are encompassed within the attorney-client privilege[, the] privilege does

not prevent disclosure by the employees of the underlying facts.” Tyes v. St. Luke’s

Hosp., 8th Dist. Cuyahoga No. 65394, 1993 Ohio App. LEXIS 5735, *3 (Dec. 2, 1993).

Here, the trial court reviewed the parties’ briefs on the matter, reviewed the SERS report

through an in camera inspection, and concluded that the report should be disclosed to

Burnham. We agree, there is no indication in the record that the person who completed

the SERS report, did so in anticipation of litigation or was a risk manager or an employee

of the Clinic’s Office of General Counsel. Therefore, we do not find that the Clinic has

satisfied its burden of proof that the SERS report is privileged.

       {¶17} Accordingly, the sole assignment of error is overruled.

       {¶18} Judgment is affirmed.

       It is ordered that appellee recover of appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR
