[Cite as Dakin v. Springboro Pediatrics, 2013-Ohio-2867.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




CRAIG DAKIN, ADMINISTRATOR OF                           :
THE ESTATE OF GRACIE LYNN DAKIN,
                                                        :   CASE NO. CA2012-11-113
        Plaintiff-Appellant,
                                                        :        OPINION
                                                                  7/1/2013
   - vs -                                               :

                                                        :
SPRINGBORO PEDIATRICS, INC., et al.,
                                                        :
        Defendants-Appellees.
                                                        :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             Case No. 11CV79143


Richard B. Reiling, 5045 North Main Street, Suite 320-D, Dayton, Ohio 45415, for for plaintiff-
appellant

Lindhorst & Dreidame Co., LPA, Michael F. Lyon, 312 Walnut Street, Suite 300, Cincinnati,
Ohio 45202, for defendants-appellees, Springboro Pediatrics and Charles Hutchison, M.D.



        S. POWELL, J.

        {¶ 1} Plaintiff-appellant, Craig Dakin, Administrator of the Estate of Gracie Lynn

Dakin, appeals from a decision of the Warren County Court of Common Pleas granting

summary judgment in favor of defendants-appellees, Springboro Pediatrics, Inc. and Charles

Hutchison, M.D. In appealing this decision, appellant argues the trial court erred in denying

his Motion to Continue Trial and Leave to Name Additional Expert Witnesses.
                                                                                Warren CA2012-11-113

        {¶ 2} This case arises out of the tragic death of Gracie Lynn Dakin (Dakin). Dakin

was seen in Dr. Charles Hutchison's office on February 28, 2008 complaining of flu-like

symptoms.       Two days later, she died.           Her cause of death was "acute suppurative

streptococcal bronchopneumonia" (pneumonia). Appellant is the father of Dakin. On

February 9, 2011, appellant, in his representative capacity as administrator of Dakin's estate,

filed a wrongful death medical malpractice suit against several defendants including Dr.
                                                                                                   1
Hutchison and his employer, Springboro Pediatrics, Inc. (Springboro Pediatrics).                       In the

complaint, appellant alleged Dakin would have survived if she had been properly diagnosed

and treated by Dr. Hutchison. Attached to the complaint was an affidavit of merit by Dr. Mark

T. Hash.

        {¶ 3} On June 13, 2011, the trial court issued a scheduling order, setting a trial for

November 5, 2012. The scheduling order also set discovery deadlines for the parties' expert

witnesses. Pursuant to the order, appellant was required to identify his expert witnesses by

July 11, 2011 and provide his experts' reports to the opposing parties by August 12, 2011.

        {¶ 4} On July 12, 2011, Appellant moved for additional time to disclose

"supplemental" expert witnesses. The trial court granted this motion, extending the deadline

for appellant to identify his expert witnesses to August 3, 2011. Appellant failed to identify

any other experts beside Dr. Hash. Springboro Pediatrics and Dr. Hutchison disclosed their

expert witnesses in accordance with the court's scheduling order.

        {¶ 5} Approximately one month before trial, on October 4, 2012, appellant filed a

Motion to Continue Trial and Leave to Name Additional Expert Witnesses. In this motion,

appellant explained that Dr. Hash was deposed in December 2011, and during the



1. Appellant also brought suit against TriHealth, Inc. d.b.a. Bethesa Medical Center, Harold Taylor, M.D., and
Qualified Emergency Specialists, Inc., who also treated Dakin. However, appellant voluntarily dismissed the
claims against TriHealth, Inc. on June 7, 2011, and the claims against Dr. Taylor and Qualified Emergency
Specialists, Inc. on April 25, 2012. These defendants are not parties to this appeal.
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deposition, Dr. Hash testified that he was unable to say how long the pneumonia was present

in Dakin's system or whether the pneumonia could have been detected by a chest x-ray on

the day of Dr. Hutchison's examination. As a result of this testimony, appellant conceded

that he was unable to prove his claim. Specifically, appellant was unable to provide evidence

to establish that a deviation from the appropriate standard of care was the direct and

proximate cause of Dakin's death. Appellant further stated that "after months of searching

[appellant] believes that he has located an expert that will opine to a reasonable degree of

certainty that the pneumonia was present (and detectable) at the time of Dr. Hutchison's

examination." Accordingly, "in the interests of justice" appellant requested the trial court

continue the trial so he could "present testimony as to causation." Dr. Hutchison and

Springboro Pediatrics objected to the motion.

       {¶ 6} On October 12, 2012, the trial court denied appellant's motion and granted

leave to Springboro Pediatrics and Hutchison to file a motion for summary judgment.

Springboro Pediatrics and Dr. Hutchison filed a motion for summary judgment, and on

October 24, 2012, the trial court granted the motion as appellant was unable to present any

evidence on causation.       It is from that judgment appellant appeals, setting forth one

assignment of error.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT ERRED BY DENYING APPELLANT'S REQUEST FOR

LEAVE TO NAME AN ADDITIONAL EXPERT AND TO CONTINUE TRIAL.

       {¶ 9} Appellant asserts in his sole assignment of error that the trial court abused its

discretion in denying his request to continue trial and name an additional expert. He asserts

that the trial court's decision to deny his motion necessarily required the trial court to grant Dr.

Hutchison and Springboro Pediatrics' motion for summary judgment as he freely admitted

that without this additional expert's testimony he would be unable to prove his case.
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Appellant argues the trial court should have granted his motion because the trial had not

previously been continued and Dr. Hutchison and Springboro Pediatrics were unable to show

they would be prejudiced by the continuance.

       {¶ 10} The decision to grant or deny a continuance is entrusted to the sound discretion

of the trial court. Black v. Black, 12th Dist. No. CA2008-06-022, 2009-Ohio-92, ¶ 11, citing

State v. Unger, 67 Ohio St.2d 65, 67 (1981). Likewise, decisions related to discovery are

also committed to the sound discretion of the trial court. Silver v. Jewish Home of Cincinnati,

190 Ohio App.3d 549, 2010-Ohio-5314, ¶ 21 (12th Dist.). Accordingly, we review the trial

court's decision for an abuse of discretion. An abuse of discretion is more than an error of

law or judgment; it implies the trial court's attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶ 11} In ruling on a motion for continuance, the trial court may consider the following

factors:

              the length of the delay requested; whether other continuances
              have been requested and received; the inconvenience to
              litigants, witnesses, opposing counsel and the court; whether the
              requested delay is for legitimate reasons or whether it is dilatory,
              purposeful, or contrived; whether the [movant] contributed to the
              circumstance which gives rise to the request for a continuance;
              and other relevant factors, depending on the unique facts of
              each case.

Unger at 67-68; Tener v. Tener-Tucker, 12th Dist. No. CA2004-05-061, 2005-Ohio-3892, ¶

42. The court should weigh any potential prejudice to the movant against the "court's right to

control its own docket and the public's interest in the prompt and efficient dispatch of

judgment." Black at ¶ 12, citing Unger at 67.

       {¶ 12} In the case at bar, appellant argued that the need for an additional expert did

not arise until after the deposition of Dr. Hash. Dr. Hash's deposition was taken on

December 6, 2011. Appellant stated that since Dr. Hash's deposition, he had been searching


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for an expert who could testify that "the pneumonia was present (and detectable) at the time

of Dr. Hutchison's examination." In his October 4, 2012 memorandum in support of his

motion, appellant also stated he "believe[d] that he has located an expert" who would provide

this requisite testimony. Dr. Hutchison and Springboro Pediatrics "strenuously objected" to

the motion, arguing that they were prepared for trial on November 5, 2012, and that any

continuance would prejudice them as they had adhered to the court's scheduling orders.

       {¶ 13} In evaluating appellant's motion, the trial court found that this action was first

filed on August 20, 2009, and during this time, appellant did not name any expert witnesses.

According to the trial court, appellant voluntarily dismissed the case in August 2010 and re-

filed the present action on February 9, 2011. The trial court further noted that appellant

disclosed Dr. Hash as the only expert in the case. Finally, the trial court observed that

appellant had not requested or taken the deposition of any defense experts in preparation for

the November 5, 2012 trial. After considering these factors, the trial court denied appellant's

motion.

       {¶ 14} After a review of the record, we find the trial court did not abuse its discretion in

denying appellant's motion. As noted by the trial court, this case had a long history which

included appellant's continued failure to name any additional experts. Appellant had over

four months from the time he re-filed this action in February 2011 until the July 2011 deadline

to name expert witnesses. Even after the trial court granted appellant's request to extend the

time to name additional expert witnesses to August 3, 2011, he still did not name any other

expert witnesses. Furthermore, even if the trial court accepted appellant's argument that the

need for additional expert testimony was not known until after Dr. Hash's deposition on

December 6, 2011, appellant still waited nearly 10 months to request leave to name an

additional expert. This request was made more than one year after the deadline to name

such expert witnesses had passed and it was made just one month before trial. From this

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                                                                    Warren CA2012-11-113

record, appellant had ample time to find and secure an expert witness. It appears the delay

in securing such testimony was attributable to appellant.

       {¶ 15} Moreover, Dr. Hutchison and Springboro Pediatrics complied with all scheduling

orders set forth by the trial court and had the appropriate expert testimony to defend against

appellant's claims. A continuance of the trial, contrary to appellant's arguments, would have

prejudiced Dr. Hutchison and Springboro Pediatrics as they had prepared for trial based on

the testimony provided by appellant's only expert witness, Dr. Hash.

       {¶ 16} Appellant knew at the time of filing his case in February 2011 that he would be

required to present expert testimony as to the medical standard of care, breach of that

standard of care, and causation in order to establish his medical malpractice claim. See

Longbottom v. Mercy Hosp. Clermont, 12th Dist. Nos. CA2011-01-005 and CA2011-01-006,

2012-Ohio-2148, ¶ 32. The trial court was not obligated to delay the proceedings until such

time that appellant was able to prove his case. Based on these facts and circumstances, the

trial court did not act arbitrarily, unreasonably, or unconscionably in denying appellant's

motion.

       {¶ 17} Appellant's sole assignment of error is overruled.

       {¶ 18} Judgment affirmed.


       HENDRICKSON, P.J., and PIPER, J., concur.




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