[Cite as Cruz v. Kettering Health Network, 2012-Ohio-24.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

RAFAEL M. CRUZ, M.D.                              :
                                                  :         Appellate Case No. 24465
        Plaintiff-Appellant                       :
                                                  :         Trial Court Case No. 10-CV-3012
v.                                                :
                                                  :
KETTERING HEALTH NETWORK,                         :         (Civil Appeal from
et al.                                            :         (Common Pleas Court)
                                                  :
        Defendant-Appellee                :
                                                 :
                                              ...........

                                              OPINION

                              Rendered on the 6th day of January, 2012.

                                               .........

KENNETH A. LAZARUS, Atty. Reg. #0001663, Lazarus & Associates, 1025 Thomas
Jefferson Street, N.W., Suite 110-G, Washington, D.C. 20007
and
LEE C. FALKE, Atty. Reg. #0003922, and ADAM R. WEBBER, Atty. Reg. #0080900, Falke
& Dunphy, LLC, 30 Wyoming Street, Dayton, Ohio 45409
        Attorneys for Plaintiff-Appellant

GREGORY G. LOCKHART, Atty. Reg. #0007791, and TIMOTHY G. PEPPER, Atty. Reg.
#0071076, Taft Stettinius & Hollister LLP, 40 North Main Street, Suite 1700, Dayton, Ohio
45423
      Attorneys for Defendant-Appellee

                                               .........
                                                                                             2


       HALL, J.

       {¶ 1} Rafael M. Cruz appeals from the trial court’s Civ.R. 12(B)(6) dismissal of his

verified petition for an order requiring pre-suit discovery pursuant to Civ.R 34(D).

       {¶ 2} Cruz advances two assignments of error on appeal. First, he contends the trial

court erred in denying pre-suit discovery in accordance with Civ.R. 34(D). Second, he claims

the trial court erred in denying him leave to amend his petition pursuant to Civ.R. 15(A).

       {¶ 3} The record reflects that Cruz, a urologist, maintained hospital privileges at

appellee Kettering Medical Center (KMC) for more than forty years. Appellee Kettering

Health Network (KHN) is a holding company that owns KMC. Appellee Roy Chew is the

president of KMC. Appellee Francisco Perez is the chief executive officer of KHN. Appellee

Greg Wise is the vice president for medical affairs at KMC.

       {¶ 4} On April 9, 2010, Cruz filed a petition alleging that in the spring of 2009,

Perez and Wise asked him about his retirement plans. Cruz responded that he intended to

continue practicing medicine. Shortly thereafter, one of Cruz’s colleagues allegedly informed

him that “an effort was underway to force him out of KMC.” Cruz’s petition further alleged

that in July 2009, his wife was injured due to substandard care she received while an

emergency patient at KMC. Thereafter, in August 2009, KMC allegedly responded to Cruz’s

request for a two-year extension of his hospital privileges by giving him a six-month,

conditional reappointment. The condition imposed involved a focused peer review and

physician evaluation. According to Cruz, he subsequently received a “highly complementary”

report from a doctor who served as an evaluator and proctor. Despite the positive report,

Cruz alleged that KMC then ordered him to undergo a physical and mental evaluation and to
                                                                                              3


participate in another peer review period. Cruz challenged this demand. In response, KMC

allegedly announced that his conditional reappointment had expired and that its expiration

constituted a voluntary, automatic resignation of his medical-staff membership and privileges.

According to Cruz, KMC representatives subsequently refused to meet with him or to answer

any of his questions.

       {¶ 5} Cruz’s petition alleged that he had a number of potential causes of action

against the appellees, including breach of contractual, statutory, and constitutionally based

rights, violation of age-discrimination laws, defamation, and other claims. Cruz further

claimed that he required discovery to determine the identity of all adverse parties, to facilitate

full pleading of his causes of action, and to remedy the appellees’ refusal to provide the

information he believed was necessary to support his claims. As a result, his petition

requested an opportunity to conduct discovery in accordance with Civ.R. 34(D), which

permits a trial court to grant limited, pre-suit discovery under certain circumstances.

       {¶ 6} On May 11, 2010, the appellees moved to dismiss Cruz’s petition under Civ.R.

12(B)(6). Over Cruz’s opposition, the trial court sustained the motion to dismiss on January 5,

2011. In support, the trial court reasoned that Cruz could bring claims against the known

defendants, while naming “John Does” as additional defendants until traditional discovery

revealed their identities. The trial court also found that much of the information Cruz sought

was exempt from discovery under R.C. 2305.252, which establishes a peer-review privilege.

As a result, the trial court held that Cruz could prove no set of facts entitling him to pre-suit

discovery and that no amendment could cure the petition’s defects. This timely appeal

followed.
                                                                                               4


       {¶ 7} In his first assignment of error, Cruz contends the trial court erred in denying

pre-suit discovery under Civ.R. 34(D), which provides:

       {¶ 8} “(1) Subject to the scope of discovery provisions of Civ. R. 26(B) and 45(F), a

person who claims to have a potential cause of action may file a petition to obtain discovery as

provided in this rule. Prior to filing a petition for discovery, the person seeking discovery shall

make reasonable efforts to obtain voluntarily the information from the person from whom the

discovery is sought. The petition shall be captioned in the name of the person seeking

discovery and be filed in the court of common pleas in the county in which the person from

whom the discovery is sought resides, the person’s principal place of business is located, or

the potential action may be filed. The petition shall include all of the following:

       {¶ 9} “(a) A statement of the subject matter of the petitioner’s potential cause of

action and the petitioner’s interest in the potential cause of action;

       {¶ 10} “(b) A statement of the efforts made by the petitioner to obtain voluntarily the

information from the person from whom the discovery is sought;

       {¶ 11} “(c) A statement or description of the information sought to be discovered with

reasonable particularity;

       {¶ 12} “(d) The names and addresses, if known, of any person the petitioner expects

will be an adverse party in the potential action;

       {¶ 13} “(e) A request that the court issue an order authorizing the petitioner to obtain

the discovery.

       {¶ 14} “(2) The petition shall be served upon the person from whom discovery is

sought and, if known, any person the petitioner expects will be an adverse party in the
                                                                                              5


potential action, by one of the methods provided in these rules for service of summons.

         {¶ 15} “(3) The court shall issue an order authorizing the petitioner to obtain the

requested discovery if the court finds all of the following:

         {¶ 16} “(a) The discovery is necessary to ascertain the identity of a potential adverse

party;

         {¶ 17} “(b) The petitioner is otherwise unable to bring the contemplated action;

         {¶ 18} “(c) The petitioner made reasonable efforts to obtain voluntarily the

information from the person from whom the discovery is sought.”

         {¶ 19} This court has not specifically adopted a standard of review to be applied to

dismissal, pursuant to Civ. R. 12(B)(6), of a petition for discovery under Civ. R. 34(D).

Ordinarily, review of a trial court’s decision on a Civ.R. 12(B)(6) motion is de novo. Stanfield

v. Amvets Post No. 88, Miami App. No. 06CA35, 2007–Ohio–1896, ¶ 9. Nevertheless, the

standard of review for a trial court’s disposition of discovery issues is an abuse of discretion.

State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 1998-Ohio-329; Board of Clark

County Com'rs v. Newberry, Clark App. No. 2002-CA-15, 2002-Ohio-6087. Appellant argues

that the standard for review should be de novo.     (Appellant’s Brief at 5-6; Reply Brief at 1).

The appellees argue that the standard is abuse of discretion. (Appellees’ Brief at 3).

         {¶ 20} In Baker v. Cooper Farms Cooked Meats, Van Wert App. No. 15–09–03,

2009-Ohio-3320, an injured worker filed a petition for discovery pursuant to Civ R. 34 and

R.C. 2317.48. He claimed he was injured while working in Cooper Farms factory on a

machine. He alleged that he may have product liability and intentional tort claims, but he had

insufficient information to pursue the claims. The trial court granted the petition for discovery.
                                                                                            6


Cooper Farms appealed. On review, the court of appeals stated: “This Court reviews discovery

issues under an abuse of discretion standard.” Id. at ¶ 7, citing State v. Ross, Allen App. No.

1-08-47, 2009-Ohio-188, at ¶11; Geggie v. Cooper Tire & Rubber Co., Hancock App. No.

5-05-01, 2005-Ohio-4750, ¶25. However, Ross was a criminal case where the defendant

requested discovery of a police department computer hard drive which might contain on-line

chats with a police officer posing as a fourteen-year-old girl and the defendant. Whether the

hard drive would be produced was the subject of an evidentiary hearing and an in camera

inspection by the trial court. Both of these elements involve degrees of discretion. The request

was denied. Geggie was a wrongful death action filed when a worker died as a result of being

caught in a tire manufacturing machine. His estate brought actions against his employer and

the machine manufacturer. The trial court granted summary judgment for the employer. On

review, the court of appeals first stated that review of a summary-judgment order is de novo.

Geggie, at ¶9. But with regard to the second assignment of error, regarding a discovery issue,

the court of appeals determined that it reviews discovery issues with an abuse-of-discretion

standard and noted that trial courts are given broad discretion in the management of discovery.

The trial court’s decision was about documents that were included in a privilege log. It

appeared that a hearing had been held and the trial court had conducted an in camera review

of the documents before denying the discovery. Again, discretion was involved in the trial

court’s determination.

       {¶ 21} In Rood, M.D. v. FRJ, Ltd., Lake App. No. 2010-L-077, 2011-Ohio-2712, the

court of appeals was faced with the trial court’s partial denial of a Civ. R. 12(B)(6) motion to

dismiss of a petition for discovery under Civ. R. 34(D) and R.C. 2317.48. The court stated,
                                                                                              7


without discussion, that it “reviews discovery issues under an abuse of discretion standard,”

citing Cooper, supra. But there is no indication that the trial court had exercised its discretion

in the partial denial, and partial granting, of the petition.

        {¶ 22} Our court previously has indicated that review of whether privilege applies to

discovery of medical records is a question of law that we should review de novo. “In general,

discovery orders are reviewed under an abuse-of-discretion standard. (Citation omitted). But

whether the information sought is confidential and privileged from disclosure is a question of

law that is reviewed de novo. (Citation omitted). When a court’s judgment is based on an

erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate.

(Citations omitted).” Bogart v. Blakely, Miami App. No.2010 CA 13, 2010-Ohio-4526, ¶ 9;

see, also, Enquip Technologies Group, Inc. v. Tycon Technoglass, S.R.L., Greene App. No.

2009 CA 42, 2010-Ohio-28, ¶104. When the denial of a petition for discovery involves a

question of law and the trial court was in no better position than the court of appeals to

evaluate whether to grant or deny the petition, we believe that decision should be reviewed de

novo.

        {¶ 23} Nevertheless, upon review, we find no error in the trial court’s dismissal of

Cruz’s petition pursuant to Civ.R.34(D).         We reach this conclusion, however, based on

reasoning that differs somewhat from the trial court’s. As a preliminary matter, we conclude

that Cruz’s ability to identify five defendants (KMC, KHN, Chew, Perez, and Wise) might not

necessarily preclude him from obtaining pre-suit discovery. Rule 34(D) itself recognizes that a

petitioner seeking pre-suit discovery already might know the identity of one or more

defendants. As set forth above, Civ.R. 34(D)(1)(d) obligates a petitioner to include in his
                                                                                           8


petition “[t]he names and addresses, if known, of any person the petitioner expects will be an

adverse party in the potential action[.]” If knowing the identity of at least one adverse party

prevented a petitioner from obtaining discovery under Civ.R. 34(D), then providing the

identifying information required by Civ.R. 34(D)(1)(d) would be self-defeating. The drafters

of Civ.R. 34(D) could not have intended a petitioner to defeat his own petition by identifying

one or more known adverse parties.

       {¶ 24} Although Civ.R. 34(D)(3)(a) preludes pre-suit discovery unless it is “necessary

to ascertain the identity of a potential adverse party,” this does not mean such discovery can

be used only to identify the first adverse party. Reading Civ.R. 34(D)(3)(a) this narrowly

would mean that any petitioner who complies with Civ.R. 34(D)(1)(d) by providing the names

and addresses of expected adverse parties would defeat his own petition. A more reasonable

interpretation of Civ.R. 34(D)(3)(a) is that pre-suit discovery must be necessary to ascertain

the identity of an adverse party, regardless of how many known adverse parties exist. If resort

to the traditional discovery process could be expected to result in identification of other

potential adverse parties, then reliance on Civ.R. 34 would not be necessary. On the other

hand, if the known adverse parties could not be expected to provide the identity of other

potential adverse parties, then resort to pre-suit discovery might be necessary.

       {¶ 25} A 1993 staff note to Civ.R. 34(D) illustrates the foregoing distinction and, in

our view, the rule’s intended use:

       {¶ 26} “The 1993 amendment added new division (D), which provides a method

whereby a person, with court approval, may compel limited discovery before filing a suit in an

effort to determine the identity of a potential adverse party. It provides a mechanism for a
                                                                                            9


party who may have a cause of action to ascertain the identity of potential defendants in a

variety of civil cases, such as products liability, malpractice, negligence, and wrongful death

actions.

       {¶ 27} “For example, the amended rule could be of particular benefit in an industrial

accident case where the potentially liable party may be known to the injured worker’s

employer, but the employer may not be subject to suit. Prior to the amendment, the injured

worker would have had to name the employer as a defendant and initiate discovery to identify

the manufacturer of the machine that allegedly caused the employee’s injury. Once the

manufacturer was identified, the employer would be dismissed as a defendant. However,

unless the injury was intentional, the employer may be immune from suit, and the plaintiff’s

attorney could be subject to a sanction under Civ.R. 11 or R.C. 2323.51 for naming the

employer as a defendant.

       {¶ 28} “Under the amendment, the injured worker in the example noted above could

file a petition for discovery that, if granted, would authorize the worker’s attorney to inspect

and copy documents that would identify the manufacturer of the injury-causing machine or

permit inspection of the employer’s plant to identify the manufacturer. Once this information

is obtained, the employer would not have to be named as a defendant in the action for

damages. The amended rule thus promotes efficiency, avoids the joining of unnecessary

defendants, and reduces the time and expense of identifying those parties who may ultimately

be liable for damages.”

       {¶ 29} The 1993 staff note indicates that pre-suit discovery under Civ.R. 34(D) was

intended to be directed at a non-party who may know the identity of a potential adverse party.
                                                                                            10


The rule enables a plaintiff to obtain identifying information from a non-party without the

need to join the non-party as a defendant. Conceivably, the plaintiff in the example above

might need discovery under Civ.R. 34(D) to identity the manufacturer of the machine even if

other potential adverse parties already were known. This might be the case, for example, if

identified potential adverse parties did not know who manufactured the machine but the

employer, a non-party, did know.

       {¶ 30} Cruz’s pre-suit discovery request in the present case was directed at KMC,

KHN, Chew, Perez, and Wise—all known, potential defendants in his anticipated lawsuit. If

Cruz needs discovery from these entities and individuals, he can obtain it by filing his lawsuit

against them and pursuing traditional discovery under the Civil Rules. The goal of Civ.R.

34(D), to avoid needlessly joining as defendants non-liable parties who may have valuable

information, is not advanced by allowing Cruz to obtain pre-suit discovery from five

defendants he intends to sue. Therefore, Cruz failed to satisfy the requirement of Civ.R.

34(D)(3)(a) because pre-suit discovery is not “necessary to ascertain the identity of a potential

adverse party” in this case.

       {¶ 31} We also reject Cruz’s argument that Civ.R. 34(D) pre-suit discovery is

available to help him “properly frame his complaint” and to gather evidence to support his

anticipated claims. We recognize the existence of some authority holding that one purpose of

Civ.R. 34(D) is to allow pre-suit discovery of facts to determine the viability of a cause of

action against a known defendant. In Benner v. Walker Ambulance Co. (1997), 118 Ohio

App.3d 341, for example, the Sixth District Court of Appeals stated: “The Committee Notes

to [Civ.R. 34(D)] discuss the primary purpose of the rule as being the ability to conduct
                                                                                                               11


limited discovery to ascertain the identity of a potential adverse party. However, the rule itself

permits discovery of the facts necessary to determine if a party has a valid cause of action

against a known adverse party.” Id. at 344; see, also, Riverview Health Institute v. Aetna, Inc.

(July 29, 2010), Montgomery C.P. No. 2010 CV 02306, at 4 (O’Connell, J., citing Benner for

the proposition that Civ.R. 34(D) may be used to discover facts other than the identity of a

potential adverse party).

        {¶ 32} Notably, the Benner court failed to cite any language in Civ.R. 34(D) that

permits discovery for any purpose beyond ascertaining the identity of a potential adverse

party. To the contrary, the rule itself explicitly and unambiguously limits pre-suit discovery to

information      “necessary to ascertain the identity of a potential adverse party[.]” Civ.R.

34(D)(3)(a). To the extent that Cruz and Benner suggest otherwise, we find them

unpersuasive.

        {¶ 33} Having determined (1) that obtaining pre-suit discovery from KMC, KHN,

Chew, Perez, and Wise was not necessary for Cruz to ascertain the identity of a potential

adverse party and (2) that Civ.R. 34(D)(3)(a) does not authorize pre-suit discovery for any

other purpose, we find no error in the trial court’s dismissal of Cruz’s petition under Civ.R.

12(B)(6). In light of his failure to satisfy the requirement of Civ.R. 34(D)(3)(a), Cruz’s

petition failed to state a claim upon which relief could be granted.1 The first assignment of

error is overruled.

        {¶ 34} In his second assignment of error, Cruz contends the trial court should have


          1
            In light of this determination, we need not address Cruz’s argument that the trial court erred in denying
 discovery under Civ.R. 34(D) on the basis that some of the information at issue was protected by a peer-review
 privilege.
                                                                                            12


allowed him to amend his petition rather than dismissing it for failure to state a claim. We

disagree. To the extent that this decision of the trial court involves a discretionary call, we

review that decision on an abuse-of-discretion standard. However, on review, Cruz has failed

to identify any amendment that would cure the defect we identified above, namely that

obtaining pre-suit discovery from KMC, KHN, Chew, Perez, and Wise is not necessary for

him to ascertain the identity of a potential adverse party. As a result, we agree with the trial

court’s assessment that amending the petition would be futile. See Natl. City Bank v. Citizens

Natl. Bank of Southwest Ohio, Montgomery App. No. 20323, 2004-Ohio-6060, ¶26

(recognizing that a motion to amend a complaint may be denied when amendment would be

futile). Accordingly, the second assignment of error is overruled.

       {¶ 35} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                           ..............



       DONOVAN, J., concurs.

       FROELICH, J., dissenting:

       {¶ 36} I agree that a trial court’s dismissal, pursuant to a 12(B)(6) motion, of a Civ.R.

34(D) petition for pre-suit discovery should be reviewed on a de novo basis. Although its

purpose is, by definition, pre-suit discovery, Civ.R. 34(D) provides a remedy for a party that is

different than discovery needed to support or defend a separate cause of action.

       {¶ 37} I disagree that the Appellant’s petition did, as a matter of law, fail to

demonstrate that discovery is necessary to ascertain the identity of a potential adverse party.

Civ.R. 34(D)(3)(a). Apparently, the appellant is concerned that individuals (physicians, staff,
                                                                                          13


administrators, etc.) or entities other than, or in addition to, those named, violated or

conspired to violate his constitutional rights and defamed him.

        {¶ 38} It is true Appellant could name a few known people or entities concerning

which he has non-frivolous grounds to sue and then, through traditional discovery, possibly

ascertain other defendants. And I appreciate that the costs and expenses of a Civ.R.34(D)

proceeding may approximate those of a formal suit. But it is also possible that the appellant

would “discover” that there are no other defendants and that even the named defendants do

not have exposure, due to the facts or due to questions of law such as privileges, immunities,

statutes of repose, or statutes of limitations.

        {¶ 39} I am also concerned about the effect of Ashcroft v. Iqbal (2009), 556 U.S. 662,

129 S.Ct. 1937, 173 L.Ed.2d 868. Arguments that a complaint does not allege sufficient facts

have been successful in state court with citation to Iqbal and/or Bell Atlantic Corp. v.

Twombly (2007), 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929. See, e.g., DiGiorgio v.

City of Cleveland, Eighth Dist. No. 95945, 2011-Ohio-5878; Cirotto v. Heartbeats of Licking

County, Fifth Dist. No. 10-CA-21, 2010-Ohio-4236, cf, Note, Pleading in Ohio after Bell

Atlantic v. Twombly and Ashcroft v. Iqbal: Why Ohio Shouldn’t “Notice” a Change, 58 Clev.

St. L. Rev. 495 (2010), Hoffman, Access to Information, Access to Justice, the Role of

Pre-suit Investigatory Discovery, 40 U Mich. J.L. Reform 217 (Winter 2007).

        {¶ 40} I agree that the products liability intentional tort example cited by the staff

notes to Civ.R. 34(D) is the archetypal use of the Rule; however, its wording is more general

and includes the petition and allegations made by Appellant.

                                            ..........
                       14


Copies mailed to:

Kenneth A. Lazarus
Lee C. Falke
Adam R. Webber
Gregory G. Lockhart
Timothy G. Pepper
Hon. Mary K. Huffman
