       [Cite as Siegel v. Lifecenter Organ Donor Network, 2011-Ohio-6031.]




                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO


DANIEL SIEGEL,                                 :          APPEAL NO. C-100777
                                                          TRIAL NO. A-0802827
     and                                       :
                                                          O P I N I O N.
FRANCES B. SIEGEL, Individually and :
as administratrix of the Estate of
Jessica Ann Siegel,                 :

     Plaintiffs-Appellants,                    :

     vs.                                       :

LIFECENTER          ORGAN          DONOR :
NETWORK,
                                               :
LYNNE BEBEE,
                                               :
CINCINNATI EYE BANK,
                                               :
    and
                                               :
DONNA J. SCHRUFFENBERGER,
                                               :
    Defendants-Appellees.


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part and Cause
                           Remanded

Date of Judgment Entry on Appeal: November 23, 2011


John H. Metz, for Plaintiffs-Appellants,

Rick L. Weil, for Defendant-Appellee LifeCenter Organ Donor Network,
                         OHIO FIRST DISTRICT COURT OF APPEALS


Graydon, Head & Ritchey, LLP, and Harry J. Finke IV for Defendants-Appellees
Cincinnati Eye Bank and Donna Schruffenberger.

Please note: This case has been removed from the accelerated calendar.

SYLVIA S. HENDON, Judge.

       {¶1}    Plaintiffs-appellants Daniel and Frances Siegel appeal from the trial

court’s entry of summary judgment in favor of defendants-appellees LifeCenter

Organ Donor Network (“LifeCenter”), Lynne Beebe, the Cincinnati Eye Bank (“Eye

Bank”), and Donna J. Schruffenberger. For the following reasons, we reverse the trial

court’s judgment in favor of LifeCenter and Beebe on the state law claims. We affirm

in all other respects.

                                           Facts

       {¶2}    Jessica Ann Siegel was sixteen years old when she died unexpectedly of

complications following surgery. Within hours of her death and shortly before

midnight, LifeCenter employee Lynne Beebe telephoned Jessica’s father, Daniel

Siegel, at home asking if he would consent to donating Jessica’s organs. This

conversation was recorded and is in the record on appeal. According to Beebe’s

deposition testimony, she believed that Daniel had consented to the removal of

Jessica’s organs during this call. She therefore had completed a consent form to this

effect with Daniel over the telephone. Daniel testified that he had not consented.

       {¶3}    Shortly after finishing the conversation with Daniel, Beebe faxed the

completed consent form to Donna Schruffenberger at the Eye Bank. Based on the

consent form, Schruffenberger removed Jessica’s eyes.

       {¶4}    This lawsuit followed. The Siegels sued defendants-appellees for

conversion, assault, battery, desecration of a corpse, interference with the right of




                                              2
                      OHIO FIRST DISTRICT COURT OF APPEALS



sepulcher, mental anguish, and emotional distress. They also asserted a civil rights

violation.

       {¶5}    Following extensive discovery and motion practice, defendants-

appellees moved the trial court for summary judgment. The trial court entered

judgment in favor of all the defendants-appellees as to all counts on the basis of the

“good faith” exception to civil liability contained in R.C. 2108.20. The trial court also

overruled various other motions that the Siegels had filed. The Siegels now appeal.

       I. Summary Judgment in Favor of LifeCenter

       {¶6}    In the Siegels’ first assignment of error, they claim that the trial court

erred in granting summary judgment in favor of LifeCenter. The Siegels are correct

as to the state law claims, only.

       {¶7}    Our standard of review is de novo. Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Summary judgment is appropriate

only if, after viewing the evidence most strongly in favor of the nonmoving party,

reasonable minds can only conclude that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law. See Civ.R.

56; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267. If any

doubts exist, the issue must be resolved in favor of the nonmoving party. Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95, 604 N.E.2d 138.

       {¶8}    The trial court granted summary judgment to LifeCenter based on the

“good faith” exception to liability in R.C. 2108.20. At the time of Jessica’s death in

2006, however, the “good faith” exception was contained in former R.C. 2108.08.

Former R.C. 2108.08 provided that “[a] person who in good faith acts, or attempts to

act, in accordance with sections 2108.01 to 2108.12, 2108.15, 2108.17, and 2108.18 of




                                               3
                     OHIO FIRST DISTRICT COURT OF APPEALS



the Revised Code, or the anatomical gift laws of another state, is not liable for

damages in any civil action or subject to prosecution in any criminal proceeding for

his act.” The code sections delineated in former R.C. 2108.08 were collectively

referred to as the Uniform Anatomical Gift Act (“UAGA”). In relevant part, the UAGA

controlled who could consent to organ donation and how.

       {¶9}   The question presented here is whether there is a genuine issue of fact

concerning whether LifeCenter and Beebe acted in good faith when attempting to

obtain Daniel’s consent.

                                      “Good Faith”

       {¶10} Ohio courts have not adopted a definition of “good faith” under Ohio’s

UAGA. But other jurisdictions have addressed the meaning of “good faith” contained

in similar anatomical-gift-act statutes. See Nicoletta v. Rochester Eye and Human

Parts Bank, Inc. (1987), 136 Misc.2d 1065, 1068, 519 N.Y.S.2d 928; Schembre v.

MidAmerica Transplant Assn. (Mo. 2004), 135 S.W.3d 527, 532; Lyon v. United

States (D.Minn. 1994), 843 F.Supp. 531, 533; Ramirez v. Health Partners of S. Ariz.

(1998), 193 Ariz. 325, 972 P.2d 658, ¶15; Kelly-Nevils v. Detroit Receiving Hosp.

(1994), 207 Mich. App. 410, 526 N.W.2d 15; Rahman v. Mayo Clinic (Minn. 1998),

578 N.W.2d 802, 805; Andrews v. Ala. Eye Bank (Ala. 1999), 727 So.2d 62. All of

these courts have cited with approval the Black’s Law Dictionary (5th Ed., 1979) 623

definition of “good faith,” i.e., “an honest belief, the absence of malice and the

absence of design to defraud or to seek an unconscionable advantage.”

       {¶11} In the interest of uniformity, we adopt this definition as well. See

former R.C 2108.09 (uniformity among the states is a goal of the UAGA). But we

note that this definition applies only to those cases brought under the former law. In




                                              4
                        OHIO FIRST DISTRICT COURT OF APPEALS



2009, Ohio adopted a second Uniform Anatomical Gift Act, the “UAGA 2.” Under

current law, the legislature has indicated that good faith means “honesty-in-fact” or

“honesty-of-intent,” and is to be determined under a subjective standard. See official

comment to R.C. 2108.20. Under former R.C. 2108.08, the question of good faith is

determined under an objective standard. See id.

                    The Conversation Between Beebe and Daniel

        {¶12} The Siegels first assert that the conversation between Daniel and

Beebe creates an issue of whether the good-faith exception to liability applies in this

case.

        {¶13} When Beebe spoke with Daniel on the night of Jessica’s death, Bebee

referred to herself as an “afterlife specialist,” and told Daniel that “there is a very

good chance that Jessica could be a hero * * * through the gift of donation.” Beebe

explained that Jessica’s organs, bones, skin, and her connective tissue could be used

to “really change the lives of several families that are in need right now,” and asked

him, “is that the kind of gift that you would like to honor your daughter Jessica

with?” Daniel replied, “Ah, yes it would.” Beebe then read Daniel a consent form.

But she failed to read the first sentence that stated “I hereby make this anatomical

gift from the body parts of Jessica Siegel who died on 8/23/06 in Cincinnati, Ohio.”

Beebe also did not read the consent form’s footnote. The footnote stated “Consent

for bone of the lower body includes: hemi pelvis, tibia, fibula, femur and iliac crest,

talus, patella, fascia, soft tissue.”

        {¶14} After reading most of the consent form to Daniel, Beebe explained

that Jessica’s organs could be donated or could be used for medical and educational

purposes. She asked if Daniel would “like to authorize both of those priorities.”




                                              5
                     OHIO FIRST DISTRICT COURT OF APPEALS



Daniel’s response was inaudible. Beebe then told Daniel that “the final step in the

donation process is the completion of a medical-social behavioral risk questionnaire

that is mandated by the Food and Drug Administration before the tissues can be

transplanted. It takes about 15 minutes; we do it right over the phone * * *” Daniel

responded, “I don’t know if I really want to do that right now.” So Beebe agreed to

call Daniel back the next morning around 10:00 or 11:00. She also told Daniel that

“we will go ahead and start the recovery process, we just won’t be able to transplant

until that interview.” Daniel responded, “No problem. Okay.” Beebe later testified

that “the recovery process” referred to the harvesting of organs prior to

transplantation, but she did not tell Daniel this during their conversation.

       {¶15} Beebe called Daniel back at 8:05 a.m., two hours earlier than expected.

Daniel told her that he needed to get his wife’s “permission on everything.” Beebe

called again at 9:22 a.m., and Daniel informed Beebe that they did not wish to

donate.

                                    Questions of Fact

       {¶16} The Siegels claim that the type of language used by Beebe such as

“afterlife specialist,” “hero,” and “honor,” and Beebe’s failure to read the complete

consent form raise a question of whether Beebe had exercised “good faith” in her

dealings with Daniel. They also argue that the use of the conditional “would” in the

question “Is this the type of gift that you would like to honor your daughter Jessica

with?” intentionally conveyed a hypothetical question, only. The Siegels further

contend that Beebe’s representation that there was “a final step in the donation

process” had communicated that nothing would happen until this last step was




                                               6
                      OHIO FIRST DISTRICT COURT OF APPEALS



completed. Finally, the Siegels allege that the fact that there had been no definition

of “recovery process” in the conversation was also indicative of a lack of good faith.

       {¶17} Aside from the recorded conversation between Daniel and Beebe, the

Siegels point to conversations between Beebe and hospital personnel following

Jessica’s death, the timing of the telephone calls to Daniel, other recorded phone

calls by LifeCenter employees pertaining to procuring Jessica’s organs, and the

training that LifeCenter employees receive as evidence that LifeCenter and Beebe

had not acted in good faith.

       {¶18} In response, LifeCenter essentially contends that the recorded

telephone conversation between Daniel and Beebe is dispositive of the issue of good

faith. LifeCenter argues that summary judgment was properly entered because it

appeared that Daniel had consented to the removal of Jessica’s eyes after Beebe had

completed the consent form with Daniel over the telephone.

       {¶19} Based on the arguments and evidence presented, we are convinced

that there remains an issue of fact concerning whether LifeCenter and Beebe had

acted in good faith when attempting to secure Daniel’s consent. Daniel’s statements

cannot be viewed in a vacuum. Instead, we find that “all facts and circumstances

reasonably applicable” to the issue of good faith should be put before a jury. See

Netzley v. Nationwide Mut. Ins. Co. (1971), 34 Ohio App.2d 65, 75, 296 N.E.2d 550.

       {¶20} But we sustain the Siegels first assignment of error in part, only. For

reasons detailed below, we find that the trial court properly entered judgment in

favor of LifeCenter on the Siegels’ civil rights claim. The balance of the trial court’s

judgment in favor of LifeCenter and Beebe, however, is reversed.




                                               7
                       OHIO FIRST DISTRICT COURT OF APPEALS




         II. Summary Judgment In Favor of the Eye Bank and
         Schruffenberger

         {¶21} In their sixth assignment of error, the Siegels argue that the trial court

erred in granting summary judgment in favor of the Eye Bank and Donna

Schruffenberger on their state-law claims. This argument has no merit.

                              Good Faith Exception Applied

         {¶22} The Eye Bank’s involvement in this case began when Donna

Schruffenberger received a facially valid consent form from LifeCenter and Beebe.

The consent form appeared to comply with former R.C. 2108.04(E)(3), which

allowed for consent via the telephone. The Siegels have presented no evidence that

the Eye Bank and Schruffenberger had reason to doubt the legitimacy of this

document. Since there was no evidence to create a “genuine issue of fact” concerning

whether these parties relied on the document in good faith, we find that the trial

court correctly concluded that the “good faith” exception to liability in former R.C.

2108.08 applied. See Andrews, supra; Rahman, supra; Lyon, supra; Nicoletta,

supra.


                                      No Joint Venture

         {¶23} The Siegels’ claim, however, that the Eye Bank should nevertheless be

held liable under an agency theory because it operated a joint venture with

LifeCenter. Not so. Among other requirements, a joint venture does not exist unless

the parties share in profits and losses, and have an equal right to direct each others’

conduct. Silver Oil Co. v. Limbach (1989), 44 Ohio St.3d 120, 123, 541 N.E.2d 612;



                                                8
                     OHIO FIRST DISTRICT COURT OF APPEALS



see, also, Ford v. McCue (1955), 163 Ohio St. 498, 127 N.E.2d 209; Heritage

Oldsmobile Cadillac v. Fifth Third Bank (Oct. 10, 1990), 1st Dist. No. C-890370.

Here, the Eye Bank produced an affidavit from its executive director, Beth Binnion,

stating that the Eye Bank and LifeCenter do not share these characteristics. The

Siegels offered no evidence to the contrary

       {¶24} The Siegels’ sixth assignment of error is overruled.

       III.   The Civil-Rights Claims

       {¶25} In their third assignment of error, the Siegels allege that their civil-

rights claims against LifeCenter and the Eye Bank should have survived summary

judgment. They are incorrect.

       {¶26} To prevail on a Section 1983, Title 42, U.S. Code (“Section 1983”)

claim, a plaintiff must prove: (1) that the conduct in controversy was committed by a

person acting under color of state law and (2) that the conduct deprived plaintiff of a

federal constitutional or statutory right. Parratt v. Taylor (1981), 451 U.S. 527, 535,

101 S.Ct. 1908, overruled in part on other grounds in Daniels v. Williams (1986), 474

U.S. 327, 330-331, 106 S.Ct. 662; 1946 St. Clair Corp. v. Cleveland (1990), 49 Ohio

St.3d 33, 34, 550 N.E.2d 456.

       {¶27} The Siegels first argue that LifeCenter was acting under color of state

law because LifeCenter is licensed and regulated by the Department of Health and

Human Services. It is well-settled that government licensure or regulation of a

private entity, alone, does not transform that entity into a state actor. Rendell Baker

v. Kohn (1982), 457 U.S. 830, 102 S.Ct. 2764; Blum v. Yaretsky (1982), 457 U.S. 991,

102 S.Ct. 2777. This argument has no merit.




                                              9
                         OHIO FIRST DISTRICT COURT OF APPEALS



       {¶28} In regard to the Eye Bank, the Siegels cite Brotherton v. Cleveland

(C.A.6, 1992), Slip Op No. 91-3316, as establishing that eye banks, in general, are

state actors. That was not the holding of Brotherton. Brotherton involved an appeal

from a dismissal under Fed.R.Civ.P. 12(B)(6). In that case, the court held that the

defendant eye bank was potentially liable under Section 1983 because the eye bank’s

challenged actions were allegedly closely intertwined with the Hamilton County

Coroner, a state actor, so that the two parties could be deemed to be acting in

concert. In the instant case, there was no entanglement with a state actor and

Brotherton is distinguishable.

       {¶29} We hold that summary judgment was properly entered in favor of

LifeCenter and the Eye Bank on the civil rights claims. The Siegels’ third assignment

of error is overruled.

       IV. The Statute is Constitutional

       {¶30} In their second assignment of error, the Siegels contend that former

R.C 2108.08 was (1) void for vagueness; and (2) violated the Equal Protection

Clauses of the United States and Ohio Constitutions. Neither argument has merit.

                             R.C. 2721.12(A) is Inapplicable

       {¶31} Defendants-appellees assert that this court is without jurisdiction over

this constitutional claim pursuant to R.C. 2721.12(A). R.C. 2721.12(A) requires a

party challenging the constitutionality of a statute in a declaratory judgment action

to serve a copy of its complaint on the attorney general. Without service, a court has

no jurisdiction to determine the claim. But that code section does not apply where, as

here, the constitutionality of a statute is challenged in a civil action for damages.

Cleveland Bar Assn. v. Picklo, 96 Ohio St.3d 195, 2002-Ohio-3995, 772 N.E.2d 1187;




                                             10
                      OHIO FIRST DISTRICT COURT OF APPEALS



see, also, Pinchot v. Charter One Bank, F.S.B., 99 Ohio St.3d 390, 2003-Ohio-4122,

792 N.E.2d 1105, ¶6, fn. 1; Thorp v. Strigari, 155 Ohio App.3d 245, 2003-Ohio-5954,

800 N.E.2d 392, ¶12. We therefore have jurisdiction to address the merits of the

Siegels’ argument.

                           Presumption of Constitutionality

       {¶32} All statutes are presumed to be constitutional. State ex rel. Dickman v.

Defenbacher (1955), 164 Ohio St. 142, 128 N.E.2d 59, paragraph one of the syllabus;

Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 274, 503 N.E.2d 717. The party

challenging the constitutionality of a statute bears the burden of proving beyond a

reasonable doubt that the statute and a constitutional provision are incompatible.

Defenbacher, supra; State v. Warner (1990), 55 Ohio St.3d 31, 43, 564 N.E.2d 18.

The Siegels have failed to do so.

                             Void For Vagueness Doctrine

       {¶33} A statute is void for vagueness unless it (1) provides sufficient notice of

its proscriptions to facilitate compliance by persons of ordinary intelligence, and (2)

is specific enough to prevent official arbitrariness or discrimination in its

enforcement. Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d

1115, ¶84, citing Kolender v. Lawson (1983), 461 U.S. 352, 357, 103 S.Ct. 1855. This

determination “must be made in light of the facts presented in the given case and the

nature of the enactment challenged.” Id., citing Hoffman Estates v. The Flipside,

Hoffman Estates, Inc. (1982), 455 U.S. 489, 495, 102 S.Ct. 1186. Regulations that

are directed to economic matters and impose civil penalties are subject to a “less

strict” vagueness test, but if the enactment is directed towards a constitutionally

protected right, a more stringent vagueness test applies. Hoffman Estates, 455 U.S.




                                              11
                     OHIO FIRST DISTRICT COURT OF APPEALS



at 498-499, 102 S.Ct. 1186. The “less strict/more stringent” standards have never

been precisely enunciated. Horney at ¶85, 853 N.E.2d 115. But the critical question

under either standard “is whether the law affords a reasonable individual of ordinary

intelligence fair notice and sufficient definition and guidance to enable him to

conform his conduct to the law * * *.” Id. at ¶86, citing Rockford v. Grayned (1972),

408 U.S. 104, 108-109, 92 S.Ct. 2294; Papachristou v. Jacksonville (1972), 405 U.S.

156, 92 S.Ct. 839.

       {¶34} The Siegels allege that former R.C. 2108.08 interferes with their right

to a jury trial under the United States and Ohio Constitutions. But there is nothing

in that code section that precludes a defendant from trying a case to a jury. The

question of “good faith” can be litigated.    We therefore find that a “less strict

vagueness test” is mandated. But even under a more stringent review, the Siegels fail

to demonstrate how former R.C. 2108.08 is unconstitutional.

       {¶35} The Siegels make conclusory allegations that the phrases “in

accordance with,” and “anatomical gift laws of another state,” are unconstitutionally

vague. They provide no supporting analysis for these claims. So, the Siegels have

not met their burden to demonstrate how these terms render the statute

unconstitutional.

       {¶36} The Siegels also contend that the term “good faith” makes the statute

void for vagueness because there is no clear standard of what “good faith” entails in

the context of the UAGA. As discussed above, “good faith” must be determined in

light of all relevant circumstances. It therefore does not lend itself to a precise

definition applicable to every conceivable situation. Given Black’s Law Dictionary’s

definition and the existence of case law adopting that definition in the context of




                                             12
                     OHIO FIRST DISTRICT COURT OF APPEALS



other, similar uniform gift acts, we find that the Siegels cannot demonstrate that

former R.C. 2108.08 is unconstitutionally vague. See Connally v. General Constr.

Co. (1926), 269 U.S. 385, 391-392, 46 S.Ct. 126 (a statute is not void-for-vagueness

where there exists a common-law meaning for an ambiguous term.) This argument

has no merit.

                                    Equal Protection

       {¶37} The Siegels next claim that former R.C. 2108.08 violated the Equal

Protection Clauses of the Ohio and United States Constitutions because it provided

special privileges and immunities to a select class.     We hold that there was no

violation.

       {¶38} The standard for determining whether a statute violates equal

protection is the same under both the United States and Ohio Constitutions. Am.

Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. (1999), 87

Ohio St.3d 55, 60, 1999-Ohio-248, 717 N.E.2d 286; Beatty v. Akron City Hospital

(1981), 67 Ohio St. 2d 483, 491, 424 N.E.2d 586. Unless a classification warrants

heightened review because it jeopardizes the exercise of a fundamental right or

because it categorizes on the basis of an inherently suspect characteristic, the Equal

Protection Clauses require only that the classification rationally further a legitimate

state interest. State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d

770, ¶39; State ex rel. Vana v. Maple Hts. City Council (1990), 54 Ohio St.3d 91, 92,

561 N.E.2d 909, citing Clements v. Fashing (1982), 457 U.S. 957, 963, 73, 102 S.Ct.

2836. Analysis of whether a state interest is served may be based on reasonable

speculation unsupported by evidence or empirical data. Am. Assn. of Univ.

Professors, 87 Ohio St.3d at 58, 1999-Ohio-248, 717 N.E.2d 286.




                                              13
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶39} The Siegels have not demonstrated grounds for a heightened review.

Therefore, the rational-basis test applies. We grant substantial deference to the

legislature when applying an equal-protection rational-basis test. Williams, at ¶40.

       {¶40} Former R.C. 2108.08 was enacted to encourage the procurement of

anatomical gifts. That is a valid state interest because organ donation is related to the

health and welfare of Ohio’s citizens. See Benjamin v. Columbus (1957), 167 Ohio St.

103, 110, 146 N.E.2d 854. And the “good faith” provision of former R.C. 2108.08 was

rationally related to attaining this goal.       Providing protection from criminal

prosecution or civil liability to those who act in good faith in accordance with the

UAGA supports the goal of organ donation.

       {¶41} The Siegels’ second assignment of error is overruled.

       V. Striking of Affidavits

       {¶42} In their fourth assignment of error, the Siegels contend that the trial

court erred by striking the affidavits of Ebony Craddieth and Kimyotta Fernanders,

both former LifeCenter employees. This argument has no merit.

       {¶43} Although it is not entirely clear, the Siegels appear to argue that the

trial court should have considered Craddieth’s and Fernanders’ affidavits when

ruling on LifeCenter’s motion for summary judgment.            Under Civ.R. 56(E), an

affidavit must be made on personal knowledge and must “set forth such facts as

would be admissible in evidence.” Further, the affidavit must “show affirmatively

that the affiant is competent to testify to the matters stated in the affidavit.” Civ.R.

56(E). An affidavit that does not meet these requirements is subject to a motion to

strike. We will not reverse a trial court's ruling on a motion to strike absent an abuse

of discretion. Hickory Grove Investors Ltd. v. Jackson, 180 Ohio App.3d 60, 2008-




                                               14
                     OHIO FIRST DISTRICT COURT OF APPEALS



Ohio-6428, 904 N.E.2d 546, ¶15; Samadder v. DMF of Ohio, Inc., 154 Ohio App.3d

770, 2003-Ohio-5340, 798 N.E.2d 1141, ¶17.

       {¶44} The Siegels claim that Craddieth and Fernanders were expert

witnesses. In their affidavits these women testified to the issue of “good faith.”

Under Evid.R. 702, a witness is qualified to testify as an expert if: “(A) The witness’

testimony either relates to matters beyond the knowledge or experience possessed by

lay persons or dispels a misconception common among lay persons; (B) The witness

is qualified as an expert by specialized knowledge, skill, experience, training, or

education regarding the subject matter of the testimony;” and “(C) The witness’

testimony is based on reliable scientific, technical, or other specialized information.”

In making this determination, a trial court focuses on whether the witness’ opinion is

based on scientifically valid principles, and not whether the expert's conclusions may

be correct. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 1998-Ohio-178, 687

N.E.2d 735, paragraph one of the syllabus.

       {¶45} Craddieth’s     and   Fernanders’     affidavits   do   not   meet   these

requirements. The affidavits do not set forth how the ultimate issue of “good faith” is

beyond the knowledge of lay persons, or how expert testimony in this regard would

help to dispel a “misconception common among lay persons.” Further, the affidavits

do not demonstrate that Craddieth or Fernanders had had specialized training based

on scientifically valid principles that would qualify them to properly determine

whether LifeCenter and Beebe had acted in “good faith” when attempting to acquire

Daniel’s consent. The only qualifications listed were that these women had been

trained by LifeCenter and had worked for LifeCenter. We hold that the trial court’s

decision to strike these affidavits was not an abuse of discretion. Blakemore v.




                                              15
                      OHIO FIRST DISTRICT COURT OF APPEALS



Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.              The Siegels’ fourth

assignment of error is overruled.

       VI. Civ. R. 37 Sanctions

       {¶46} In their fifth assignment of error, the Siegels assert that the trial court

erred when it failed to impose sanctions on LifeCenter’s attorney under Civ.R. 37.

The Siegels specifically contend (1) that counsel’s unilateral decision to take a break

during Beebe’s deposition “when plaintiffs were getting extremely important

testimony on the key issue,” warranted sanctions; and (2) that counsel should have

been sanctioned for instructing Beebe not to answer counsel’s question concerning

what had transpired during the break.

       {¶47} Civ.R. 37 sets forth the procedure and grounds for court-ordered

sanctions against a party unjustifiably resisting discovery. This rule does not allow

for sanctions based on an attorney’s unilateral decision to take a break during a

deposition. We therefore hold that there was no error in the trial court’s refusal to

impose sanctions based on this conduct.

       {¶48} Where a witness has refused to answer a question posed during a

deposition, as in this case, Civ.R. 37(A)(2) allows the opposing party to seek a court

order compelling the witness to answer. If there is no compliance, the trial court

may then impose sanctions. Grady v. Kalinsky, D.D.S., Inc., 165 Ohio App.3d 306,

2005-Ohio 5550, 846 N.E.2d 537, ¶17; Sexton v. Sugar Creek Packing Co. (1973), 38

Ohio App.2d 32, 311 N.E.2d 535. Sanctions are based on the party’s failure to follow

the court’s order. Civ.R. 37(B).

       {¶49} Here, the Siegels filed a motion with the trial court entitled “motion to

compel discovery and for sanctions.” But the motion requested sanctions, only. And




                                              16
                     OHIO FIRST DISTRICT COURT OF APPEALS



the trial court never issued an order directing Beebe to answer counsel’s question

concerning what had transpired during the break. Since the Siegels failed to follow

proper Civ.R. 37 procedure, they had no grounds to request sanctions.

       {¶50} Accordingly, the Siegels’ fifth assignment of error is overruled.

       VII.   Motions to Amend

       {¶51} In the Siegels’ seventh assignment of error, they argue that the trial

erred when it granted the Eye Bank’s motion to amend its answer under Civ.R. 15(A).

Civ.R. 15(A) provides that a party may amend its pleading by leave of court and that

such leave “shall be freely granted when justice so requires.”     We review the trial

court’s decision for an abuse of discretion.       Wilmington Steel Products, Inc. v.

Cleveland Elec. Illuminating Co. (1991), 60 Ohio St.3d 120, 121-122, 573 N.E.2d 622.

       {¶52} Here, the Eye Bank moved the trial court to allow it to amend its

answer so that it could assert that it had acted in “good faith.” The Eye Bank filed its

motion only a few months after filing its first answer. And the motion was made at

the beginning of the discovery process, before any of the parties had taken

depositions. Under these circumstances, we hold that the trial court did not abuse its

discretion in granting the Eye Bank’s motion to amend. See Blakemore, supra. This

assignment of error is overruled.

       {¶53} In their eighth assignment of error, the Siegels claim that the trial

court should have granted their Civ.R. 15(B) motion to amend the pleadings to

conform to the evidence. But Civ.R. 15(B) does not apply in this case. It is applicable

only in cases that have gone to trial, not those determined on summary judgment.

Civ.R. 15(B); see, also, Suriano v. NAACP, 7th Dist. No. 05 JE 30, 2006-Ohio-6131.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



We therefore hold that the trial court did not abuse its discretion in overruling this

motion. See Blakemore, supra. The Siegels’ eighth assignment of error is overruled.

       VIII. Conclusion

       {¶54} In sum, we reverse the trial court’s entry of summary judgment on the

Siegels’ state-law claims against LifeCenter and Beebe. The trial court’s judgment is

affirmed in all other respects.

                    Judgment affirmed in part, reversed in part, and cause remanded.

SUNDERMANN, P.J., and CUNNINGHAM, J., concur.

Please Note:
       The court has recorded its own entry on the date of the release of this decision.




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