Attorneys for Relator, Tara Shipman, M.D. Facsimile: 303 ...1. Dr. Shipman is a Defendant in the...

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ex rel.TARA SHIPMAN, M.D.110 Fairway DriveCortland, Ohio 44410,

Relator,

vs.

KAREN INFANTE ALLENClerk of Courts for the Trumbull CountyCommon Pleas Court106 High StreetWarren, Ohio 44481

and

THOMAS L. ALTIERESheriff of Trumbull County, Ohio150 High Street, N.W.Warren, Ohio 44481

and

THE HONORABLE WYATT MCKAYTrumbull County Common Pleas CourtRoom #4106 High StreetWarren, Ohio 44481,

Respondents.

CASE NO. 11-1543ORIGINAL ACTION SEEKING WRITOF PROHIBITION, ALTERNATIVEWRIT, AND WRIT OF MANDAMUSWITH SUPPORTING AFFIDAVIT

SEP ^7 9 Z011

CLERk OF COURTSUPREME COURT OF OHIO

COMPLAINT FOR WRIT OF PROHIBITION, ALTERNATIVEWRIT AND WRIT OF MANDAMUS AND AFFIDAVIT IN SUPPORT

Respectfully submitted,

^• ^0XV2A,jugT'as G. Leak (0045554)

COUNSEL OF RECORDRoetzel & Andress, LPA1375 East 9th Street, 92h FloorCleveland, OH 44114Telephone: 216.623.0150Facsimile: [email protected]

John V. Jackson (25051)Brian Dodez (0085660)Sutter, O'Connell & Farchione Co., LPA1301 East 9`h Street, Suite 3600Cleveland, OH [email protected]@sutter-law.comTelephone: 216.928.2200Facsimile: 216.928.4400

Joseph A. Farchione (0039199)Wheeler, Trigg & ODonnell LLP1801 California Street, Suite 3500Denver, CO 80202-2617Telephone: 303.244.1928Facsimile: [email protected]

Attorneys for Relator, Tara Shipman, M.D.

2

COMPLAINT FOR WRIT OF PROHIBITION,ALTERNATIVE WRIT AND WRIT OF MANDAMUS

Relator Tara Shipman, M.D. ("Dr. Shipman") seeks a Writ of Prohibition, Alternative

Writ and Writ of Mandamus against Respondents, Karen Infante Allen, Clerk of Courts for The

Trumbull County Common Pleas Court, in her official capacity; Thomas L. Altiere, Sheriff of

Trumbull County, in his official capacity; and The Honorable Wyatt McKay, Trumbull County

Common Pleas Court, in his official capacity (together, the "Respondents") in connection with

the Order of Execution of Judgment in Trumbull County Common Pleas Court Case No. 2006-

CV-02992 upon the Request of Judgment Creditors. Dr. Shipman's Altemative Writ seeks an

emergency stay preventing Respondents from proceeding with any execution of judgment until

the Writ of Prohibition is resolved. Dr. Shipman states that absent the granting of the Altemative

Writ now sought, Respondents could act in the interim to Dr. Shipman's detriment for which Dr.

Shipman has no adequate remedy at law. Dr. Shipman also seeks a Writ of Mandamus from this

Court directing Respondents to vacate the prematurely entered Execution of Judgment.

PARTIES

1. Dr. Shipman is a Defendant in the case captioned Haley Nicole Cobb, a minor, by

Debra Cobb, et al. v. Tara Shipman, M.D., et al., Trumbull County Common Pleas Case No.

2006-CV-02992.

2. Karen Allen Infante is the Clerk of Courts for Trumbull County Common Pleas

Court.

3. Thomas L. Altiere is the Sheriff for Trumbull County, Ohio.

4. The Honorable Wyatt McKay is the presiding judge in Cobb, etc., et al. v.

Shipman, et al., Trumbull County Common Pleas Case No. 2006-CV-02992.

3

JURISDICTION

5. All previous paragraphs of this Complaint are incorporated herein by reference as

if fully stated.

6. This original action is brought pursuant to Section 10 of the Rules of Practice of

the Supreme Court and Article IV, Section 2(B)(1)(d) of the Ohio Constitution.

7. No Prohibition action is pending in any other Court regarding the actions that are

the subject of this Complaint.

8. No Alternative Writ action is pending in any other Court regarding the actions

that are the subject of this Complaint.

9. No Mandamus action is pending in any other Court regarding the actions that are

the subject of this Complaint.

10. Relator Dr. Shipman is a resident of Cortland, Ohio in Trumbull County.

11. Respondent Karen Infante Allen, in her official capacity, is the Clerk of Courts for

Trumbull County Conunon Pleas Court located in Warren, Ohio.

12. Respondent, Thomas L. Altiere is the Sheriff of Trumbull County located in

Warren, Ohio.

13. Respondent The Honorable Wyatt McKay is a Judge in the Trumbull County

Common Pleas Court located in Warren, Ohio.

STATEMENT OF FACTS


if fully restated.

15. This original action stems from a medical malpractice action that was brought by

Debra and Okey Cobb and their minor child, Haley Cobb ("The Cobbs") against Relator Dr.

4

Shipman and Associates in Female Health, Inc., and several other defendants, in Cobb, etc., et al.

v. Shipman, Trumbull County Common Pleas Court Case No. 2006-CV-02992.

16. After settling their claims against the co-defendants for $6.5 million, The Cobbs

pursued their claims against Dr. Shipman.

17. On September 28, 2011, a jury trial commenced and the jury subsequently

returned a verdict in favor of The Cobbs.

18. On October 21, 2010, Respondent Judge McKay entered judgment on the verdict

in the amount of $12,102,000.00 and on January 11, 2011, Respondent Judge McKay reduced

the verdict amount to $9,702,000.00 by applying a set-off for The Cobbs' settlement with the co-

defendants. (Exhibits "A" and "B," respectively.)

19. On October 28, 2010, The Cobbs filed a Motion for Prejudgment Interest, which

immediately rendered the Respondent Judge McKay's judgment on the verdict a non-final

appealable order/judgment pursuant to this Court's decision in Miller v. International Fidelity,

113 Ohio St.3d 474, 866 N.E.2d. 1059, 2007-Ohio-2457. (Exhibit "C.")

20. Consequently, Dr. Shipman, to date, has been precluded from exercising her right

to appeal from the jury verdict so long as the prejudgment interest proceedings remain before

Respondent Judge McKay.

21. During the course of the prejudgment interest proceedings, several discovery

disputes and issues materialized between the parties, and on May 17, 2011, Respondent Judge

McKay issued two discovery orders. (Exhibits "D" and "E.")

22. On May 20, 2011, Dr. Shipman filed an Interlocutory Appeal to the Eleventh

District Court of Appeals in Case No. 2011-T-0049 and that appeal before the Eleventh District

5

involves the Respondent Judge McKay's prejudgment interest discovery orders compelling the

production of privileged and protected materials and information. (Exhibit "F.")

23. After Dr. Shipman filed her Notice of Appeal with the Eleventh District, Dr.

Shipman initially sought from Respondent Judge McKay on May 20, 2011, a Stay of the Trial

Court's proceedings, including any attempts by The Cobbs to execute on the jury's verdict,

because Dr. Dr. Shipman was concerned that The Cobbs would take some action with respect to

the jury verdict during the pendency of her Interlocutory Appeal. (Exhibit "G.")

24. Dr. Shipman argued that she was entitled to a Stay of all proceedings and

execution without the need of the posting of a supersedeas bond because it was Dr. Shipman's

position that since the jury's verdict could not be reversed, altered or changed during the

pendency of her Interlocutory Appeal that there was no need for a supersedeas bond in order to

secure the jury's verdict. (Exhibits "G,", "H," and "L")

25. Dr. Shipman provided Respondent Judge McKay the legal support for why no

supersedeas bond was required for her Interlocutory Appeal from the prejudgment interest

discovery orders, since the jury's verdict was not an issue in the Interlocutory Appeal and was

not yet appealable and, therefore, a supersedeas bond was not required in order to obtain a Stay

pending an Interlocutory Appeal involving the prejudgment interest discovery orders. In other

words, since the jury verdict was not being "superseded" the jury verdict would remain intact

throughout the remaining of the Interlocutory Appeal. (Id..)

26. On June 15, 2011, Respondent Judge McKay issued his Judgment Entry granting

Dr. Shipman's Motion for Stay but only upon the posting of a supersedeas bond or other similar

security in the amount of $14,533,000.00. (Exhibit "J.")

6

27. In his Judgment Entry, Respondent Judge McKay agreed that in certain cases, a

supersedeas bond is not required in order to obtain a Stay, but Respondent Judge McKay

erroneously found that although the jury verdict is not yet appealable and, thus, cannot yet be

challenged, it still constitutes a judgment worth securing with a supersedeas bond. (Id.)

28. Dr. Shipman then sought relief from the Eleventh District Court of Appeals so

that it could correct the legal error committed by Respondent Judge McKay whereby he

improperly ordered that a supersedeas bond be posted on a jury verdict that was not the subject

of the Interlocutory Appeal. (Exhibit "K.")

29. On June 30, 2011, Dr. Shipman filed a Motion Pursuant to App. R. 7 For Stay of

Proceedings Without The Posting of a Supersedeas Bond, arguing, again, that because the jury's

verdict during the pendency of the Interlocutory Appeal could not be reversed, altered or

changed and would remain intact throughout the entirety of the Interlocutory Appeal, Dr.

Shipman should not be required to post a supersedeas bond in order to obtain a stay of the Trial

Court proceedings. (Exhibit "K.")

30. On July 21, 2011, the Eleventh District issued its Judgment Entry ordering that a

Stay of the Trial Court proceedings, including execution on the jury's verdict, required the

posting of a $10.5 million supersedeas bond. (Exhibit "L.")

31. With respect to the argument that no supersedeas bond was required to secure the

non-final appealable jury verdict, the Eleventh District acknowledged that the jury verdict was

"not yet final" pursuant to this Court's decision in Miller. (Id.)

32. Yet, the Eleventh District relied upon the pre-Miller decision of Stewart v. Zone

Cab of Cleveland, Cuyahoga App. No. 79317, 2002-Ohio-335 to erroneously conclude that jury's

verdict was a "final judgment," and, therefore, the Eleventh District erroneously concluded that a

7

supersedeas bond in the amount of $10.5 million was required pending Dr. Shipman's

Interlocutory Appeal. (Id.)

33. On August 31, 2011, on behalf of The Cobbs as Judgment Creditors, The Cobbs'

counsel filed in the underlying medical malpractice action in Trumbull County Case No. 2006-

CV-02992, a Request for Immediate Execution for $9,702,000.00. (Exhibit "M.")

34. On September 2, 2011, Respondent Judge McKay issued a Writ of Execution to

be served by Respondent Sheriff Altiere upon Dr. Shipman (contained within Exhibit "N").

35. On September 6, 2011, a Civil Execution in the sum of $9,702,000.00 was entered

in Trambull County Case No. 2006-CV-02992 by Respondent Allen as Clerk of Courts and on

September 7, 2011, efforts were actually attempted to execute on the judgment.. (Exhibit "N.")

36. On September 6,2011, Dr. Shipman filed with this Court a Notice of Appeal from

the Eleventh District's ordering of a supersedeas bond and a Memorandum in Support of

Jurisdiction challenging the legality of the supersedeas bond. (Exhibits "0" and "P,"

respectively.)

COUNT ONE: WRIT OF PROHIBITION


if fully restated.

38. Respondents have exercised judicial and/or quasi-judicial power by granting The

Cobbs' Request for Immediate Execution for $9,702,000.00

39. Since the jury verdict cannot be reversed, altered or changed and, consequently,

will remain intact through the entirety of Dr. Shipman's Interlocutory Appeal from the

prejudgment interest discovery orders in Eleventh District Case No. 2011-T-0049, Dr. Shipman

cannot exercise her right to appeal from the jury verdict and, simulianeously, The Cobbs cannot

execute on a jury verdict that is not yet a final judgment.

8

40. Respondents lacked either jurisdiction or the authority to grant The Cobbs'

Request for Immediate Execution on a jury verdict that is not yet a final appealable order, and

not yet a final judgment upon which The Cobbs can execute at this time.

41. Respondents' exercise of judicial and/or quasi-judicial power by ordering the

execution of a non-final appealable order/judgment was unauthorized by law.

42. Respondents' actions have damaged Dr. Shipman, since The Cobbs are

proceeding to execute on the jury verdict by levying on Dr. Shipman's property.

43. Dr. Shipman lacks an adequate remedy at law that will timely and wholly prevent

Respondents from allowing The Cobbs to wrongfully levy on Dr. Shipman's property.

44. Dr. Shipman is entitled to a Writ of Prohibition preventing Respondents from

acting in a judicial and/or quasi-judicial manner with a patent and ambiguous lack of jurisdiction

and/or authority.

45. Dr. Shipman is entitled to a Writ of Prohibition ordering Respondents to cease

and desist its Order of Execution on the jury verdict.

COUNT TWO: ALTERNATIVE WRIT


if fully restated.

47. Emergency relief is necessary to prevent Respondents from allowing The Cobbs

to levy on all of Dr. Shipman's property.

48. Absent emergency relief, Dr. Shipman will be detrimentally harmed as The Cobbs

can unjustifiably execute on a jury -verdict that is not yet ripe for execution as long as Dr. Sl-,ipman's

Interlocutory Appeal is pending in the Eleventh District.

49. Dr. Shipman does not have an adequate remedy ai law that would immediately halt

the unwarranted execution of the jury verdict and the unlawful levying on her property.

9

COUNT THREE: WRIT OF MANDAMUS


if fully restated.

51. Respondents lacked either jurisdiction or the authority to grant The Cobbs'

Request for Immediate Execution on a Jury Verdict that is not yet a final appealable order.

52. Dr. Shipman has a clear right to have Respondents revoke the Order of Execution

that is presently allowing The Cobbs to immediately execute on the jury verdict that allows them

to levy on Dr. Shipman's property.

53. Dr. Shipman lacks an adequate remedy at law that will timely and wholly prevent

Respondents from unjustifiably allowing The Cobbs to levy on Dr. Shipman's property.

54. Dr. Shipman is entitled to a Writ of Mandamus requiring Respondents to revoke

the Order allowing The Cobbs to execute on the jury verdict that is not yet ripe for execution as long

as Dr. Shipman's Interlocutory Appeal is pending in the Eleventh District.

PRAYER FOR RELIEF

WHEREFORE, Dr. Shipman requests and is entitled to a Writ of Prohibition ordering

Respondents to cease and desist its Order of Execution on the jury verdict and also cease and

desist all action that allows The Cobbs to levy on any of Dr. Shipman's property.

WHEREFORE, Dr. Shipman requests and is entitled to an Alternative Writ immediately

Staying Respondents' Order of Execution on the jury verdict and also cease and desist any

actions that allow The Cobbs to levy on any of Dr. Shipman's property.

10

WIIEREFORE, Dr. Shipman requests and is entitled to a Writ of Mandamus ordering

Respondents to revoke the Order of Execution of Judgment and to Stay any attempts by The

Cobbs to levy on any of Dr. Shipman's property.

^-zr-L

G4 SG. LEAK (0045554)^

Attorney for Relator, Tara Shipman, M.D.

11

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was mailed by regular U.S. Mail this 9th dayof September, 2011 to the following:

Martin White, Esq.154 Park Avenue, NEWarren, OH 44482

Michael Djordjevic, Esq.Djordjevic, Casey & MarmarosSuite 201 at Maiden Lane17 South Main StreetAkron, OH 44308

Norman A. Moses, Esq.100 Marwood CircleBoardman, OH 44512

Attorneys for Respondents

Attorney for Relator, Tara Shipman, M.D.

12513803 v Ol A 061739.11 l4

IN THE COURT OF COMMON PLEAS- GENERAL.DIVISION-

TRUMBULL COUNTY, OHIO

CASE NUMBER: 2®®1C6-0299r-

®EERA R. COBB, ET AL.PLAINTIFFS

VS. JUDGE W 4VYATT MCKAY

TARA A SHIPMIAN, MD, ET AL.DEFENDANTS JUDGMENT ENTRY

The jury, having returned its verdicts in favor of the Plaintiff, Haley Cobb, in the amount

of $12,102,000.00 and in favor of the Plaintiffs, Debra Cobb and Okey Cobb, Jr in the amount of

$1,800.000.00, and against Defendant, Tara Shipman, M.D., and Defendant, Associates in

Female Health, Inc., the Court having found the Interrogatories in accordance with the verdicts,

and the verdicts having been regular as to form, the Court hereby enters judgment for the

Plaintiff, Haley Cobb, in the amount of $12,102,000.00 and in favor ofAe^.Pla'S^Ptiffl!5tkgiarfc cQ's rn

Cobb and Okey Cobb, Jr„ in the amount of $1,800.000.00 against DefeT o S^^fn^"$,- ^^- _

M.D. and Defendant, Associates in Female Health, Inc. Costs to be taxfo the DefQa

Tara Shipman, M.D. and Associates in Female Health, Inc..OC 5; CC--

a^N -

JUDGE W WYATT CKAY

TO THE CLERK OF COURTS: You Are Ordered to ServeCopies of this Judgment on all Counsel of Record

or Upun the parties who are Unrepresented Forthwithby Ordinary Mail.

JUDGE W WY TT MCKAY

EXHIBIT A

IN THE COURT OF COMMON PLEAS- GENERAL DIVISION -


HALEY NIC®LE COBB, a minor,by DEBRA COBB, et al.

PLAINTIFFS.

vs.

TARA SHIPMAN, M.D., et al.

DEFENDANTS.

CASE NUMBER: 2006 CV 2992

JUDGE W. WYATT McKAY

JUDGMENT ENTRY

This matter comes before the Court on Motion of the Defendants, Tara Shipman, M.D.

and Associates in Female Health, Inc. for a Set-Off of Plaintiff s Settlement with Co-Defendants.

The Court has reviewed the Motion, the response of the Plaintiffs, and the evidence.

On October 21, 2010, following fifteen days of trial, this Court entered a Judgment on the

Verdict in the above captioned case in the amount of $12,102,000.00 in favor of the Pl.aintiff,

Haley Nicole Cobb, a minor, together with a Judgment on the Verdict in the amount of

$1,800,000.00 in favor of the Plaintiffs Okey and Debra Cobb, Haley's parents. The verdicts

both concern Haley's birth in January of 2000, and her resulting medical condition which was

cerebral palsy caused by a lack of oxygen to her brain. Both verdicts were entered against the

Defendants Tara Shipman, M.D. and Associates in Female Health, Inc.

Prior to the jury verdict in this case, the Plaintiffs settled with Co-Defendants Forum

Health, dba Trumbull Memorial Hospital, Butler Wick Trust Company, Administrator of the

Estate of Edmundo Salero, M.D., and the Trumbull Anesthesia Group. On October 18, 2010, the

Trumbull County Probate Court approved the partial settlement by dividing a total of $6.5

million between Haley and her parents. Under that Court's Order, Haley received $2.4 million

EXHIBIT BJAN 12 2011

BY:------ dy'/

and Okey and Debra received $4.1 million. Out of Haley's portion of the settlement, the Probate

Court did not assess any costs of the litigation or attorney fees.

In its Motion for Set-Off, Defendants Shipman and Associates in Female Health argue

that they are entitled to have the jury verdict entered against them set-off by the entire $6.5

million settlement. Meanwhile, the Plaintiffs argue that the Defendants may only set-off the $2.4

million of the verdict in favor of Haley. The Plaintiffs further argue that because the $4.1

million settlement in favor of Okey and Debra exceeds the jury award of $1.8 million, their claim

has already been paid by virtue of the settlement. The Plaintiffs stipulated that the settling Co-

Defendants were "liable in tort" so as to preserve the right of set-off in the remaining Defendants

under former R.C. §2307.32, which is applicable in this case that began in 2000. Under the

relevant portion ofR.C. §2307.32 (F) (1), the settlement in this case "reduces the claim a ag inst

rDr. SShipman and Associatesl to the extent of any amount stipulated by the release or the .

covenant, or in the amount of the consideration paid for it, whichever is greater." (Emphasis

Added)

At its heart, this dispute centers on the additional $2.3 million that belongs to Okey and

Debra by virtue of the Probate Court's division of settlement proceedings. That settlement was

approved before the jury's verdict. Because Okey and Debra received $2.3 million more in

settlement with the Co-Defendants than the $1.8 million the jury awarded them, Dr. Shipman

and Associates suggest that the Probate Court "manipulated" the settlement amount to "lessen

the amount of the set-off available to Dr. Shipman." Unddr Defendants' proposed set-off, the

entire verdict of $13,902,00.00 is reduced by $6.5 million, yielding a resulting verdict of

$7,402,000.00. Under the Plaintiffs' proposed set-off, only Haley's verdict of $12,102,000.00 is

considered, and it is reduced only by $2,400,000.00, whidh is the amount of Haley's Probate

Court approved settlement-yielding a resulting verdict of $9,702,000.00.

Defendants' disagreement with the Probate Court's division of the settlement belies their

own argument that they are entitled to a $6.5 million set-off in the Motion presently before this

Court. This Court agrees with the Plaintiffs that, all along, this case was brought as two separate

multi-faceted claims-with claims on behalf of Haley, and also claims on behalf of her parents,

Okey and Debra. The language of R.C. §2307.32 speaks to the Plaintiffs' claim(s), not to the

tortfeasor's exposure. In this case, there are separate and distinct claims. R.C. §2307.32, by its

operation, reduces the verdict against Haley in the amount of $2.4 million; The total verdict now

owed by the Defendants in this case to Haley Cobb is now $9,702.00.00, and the verdict in favor

of the Plaintiffs Okey and Debra Cobb is now satisfied.

In support of their flawed position, the Defendants rely almost completely on the Ohio

Supreme Court case of Fehrenbach v. O'Malley (2007), 113 Ohio St. 3d 18. In Fehrenbach,

which was a case concerning the tolling of the Statute of Limitations, the Supreme Court held at

the syllabus that "because a parent's claim for loss of consortium against a third party for injuries

to the parent's minor child is an interest that is "joint and inseparable" from the child's own

claim, the parent's claim may be tolled during the child's disability." In that case, the

Fehrenbachs (the parents) argued that because their claim arose from their daughter's injuries,

their claim for loss of consortium should be tolled by the Statute of Limitations applicable to

their daughters' claims for personal injury under R.C. §2305.16. In affirming the Court of

Appeals ruling in the Fehrenbach's favor, the Ohio Supreme Court held that the claims were

"joint and inseparable." In other words, the Fehrenbachs could file their suit for loss of parental

consortium long after the Statute of Limitations would have run for them, because the same

Statute of Limitations was tolled due to their dauglrter's minority age.

However, the Ohio Supreme Court case of Crrindell v. Huber (1971), 28 Ohio St.2d 71 is

still good law in Ohio and it still controls in this case. In that case, the Ohio Supreme Court

stated that "Where a defendant negligently causes injury to a minor child, that single wrong gives

rise to two separate and distinct causes of action: an action by the minor child for his personal

injuries and a derivative action in favor of the parents of the child for the loss of his services and

his medical expenses." (At the time of the Grindell decision, and prior to 1993, the claims for

loss of consortium by a parent for injuries to a child had not yet been expanded.) A complete

reading of the Fehrenbach decision illustrates that loss of consortium claims are derivative

claims that must be brought at the same time as the underlying claim for injury, but that they are

separate claims.

The independent nature of the loss-of-consortium claim is based oncontrol and ownership of the claim. In determining whether ahusband's waiver of his claim terminated a wife's loss-of-consortium claim, we held,"The rightis her separate and personalright arising from the damages she sustains as a result of thetortfeasor's conduct. The right of the wife to maintain an action forloss of consortium occasioned by her husband's injury is a cause ofactlonwhich belongs to her and which does not belong to herhusband." Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 92,585 N.E.2d 384. Because the loss-of-consortium claim belongs notto the person suffering a physical injury but to another, it isindependent, and while the claim may be "separate" in the sensethat it is a distinct and individual claim, it is a derivative action,arising from the same occurrence that produced the alleged injuryto the other familial party.

And the Supreme Court in Fehrenbach also cited the 1970 Staff Notes from Civil Rule 19 stating

that:

{¶ 18} "Rule 19.1 extends the Rule 19 philosophy byrequiring a person with a separate claim to join his claim with thatof another person even though under substantive law there may betwo independent claims which might be pursued separately."(Emphasis Added).

The Ohio Supreme Court held that "becausea parent's claim for loss of consortium against a

third party for injuries to the parent's minor child is an interest that is "joint and inseparable"

from the child's own claim for purnoses of R.C. the parent's claim may be tolled

during the child's disability." (Emphasis Added). Id. at 23. The Court did not hold that the

in said Probate Court proceedings and seek further review there, in a Court that maintains proper

jurisdiction.

The Defendants' Motion for Set Off is hereby DENIED. The Plaintiffs' Motion for Set-

Off is hereby GRANTED, and the resulting principal sum of the verdict in favor of the Plaintiff

Haley Cobb, a minor, through her guardian, against the Defendants is now reduced to

$9,702,000.00 by virtue of the set-off. The verdict in favor of the Plaintiffs Okey and Debra

Cobb is now satisfied.

All in accordance with this Judgment Entry.

SO ORDERED.

...f!^ ^^(./q %9'


TO THE CLERK OF COURTS:YOU ARE ORDERED TO SERVE COPIES OF THIS JUDGMENT

ON ALL COUNSEL OF RECORD OR UPON THE PARTIESWHO ARE UNREPRESENTED FORTHWITH

BY ORDINARY MAIL.

JUDGE W WYATT MCKAY

_T0 C^bb ^^

IN THE COURT OF COMMON PLEASTRUMBULL COUNTY, OHIO

IVIARTIN F. wHRE,Lo., L.P.A.

56 Park Avenue N.EP.O. 6ox 1150

ren, Ohio 44482-1150330/394.9692

=ax: 330/394.6589

HALEY NICOLE COBB, a minorBy DEBRA R. COBB, et al

Plaintiffs

vs.


Defendants

Case No. 2006 CV 2992

Judge W. Wyatt McKay

PLAINTIFFS' MOTION FOR} PRE-JUDGMENT INTEREST)

(Oral Hearing Reauested)

Pursuant to Ohio Revised Code § 1343.03(C), Plaintiffs move this Court for

an Order awarding pre-judgment interest on the verdiol returned by the jury beginning

from Januarv 4, 2000, the date upon which this cause of action accrued.

An oral hearing is requested at which time Plaintiffs will present evidence

that the Defendants, TARA SHIPMAN, M.D. and ASSOCIATES IN FEMALE HEALTH,

INC., failed to make a good faith effort to settle this case and that the Plaintiffs did not fail

to make a good faith effort to settle this case. A memorandum in support of this Motion

will be submitted prior to the hearing.

MARTIN F. WHITE #0009584MARTIN F. WHITE CO., L.P.A.156 Park Avenue, N.E.P.O. Box 1150Warren, OH 44482-1150Tel. (330) 394-9692Attorney for Plaintiffs

EXHIBIT C

YIARTIN F. WHITE,Go., L.P.A.

56 Park Avenue N.EP.O. Boz 1150

en, Ohio 44482-1150330/394.9692

'ax:330/394,b589

CERTIFICATION

A copy of the foregoing Plaintiffs' Motion for Pre-Judgment Interest was

sent by regular U.S. mail this ^^pday of October, 2010 to the following:

Joseph A. Farchione, Jr., Esq.Sutter, O'Connell & Farchione3600 Erieview Tower1301 East 9"' St.Cleveland, OH 44114

Attorney for Defendants,TARA SHIPMAN, M.D. andASSOCIATES IN FEMALE HEALTH, INC.

MARTIN F. WHITEAttorney for Plaintiffs




HALEY NICOLE COBB, a minor,by DEBRA COBB, et al.

PLAINTIFFS.

vs.



DEFENDANTS. JUDGMENT ENTRY

This matter comes before the Court on Motion of the Plaintiffs to Coinpel Discovery and

the in camera inspection of the Defense Attorney File in this case that are Bates stamped 00001

througlt 04056. These documents were provided to this Court by the Defendants herein mtder

seal and under request that a protective order be granted should this Court find any of these

documents discoverable.

The Court once again finds that the Plaintiffs have good cause to review the documents

provided to this Court that are a part of the attorney file in this case. Good cause was established

upon the Affidavit of Attorney White, whereupon he stated that the highest pre-trial offer from

the remaining Defendants herein was $20,000.00.

The Plaintiff's Motion to Compel is hereby GRANTED, and the Defendants are hereby

ORDERED to produce all provided documents, with the following exceptions:

. Bates Stamp 00001 through 00010

® Bates Stamp 00060

• Bates Stamp 00081

EXHIBIT I)

• Bates Stamp 00089 to 00090

















• Bates Stainp 02284 to 02292


® Bates Stainp 02499 to 02505





® Bates Stamp 02669 to 02671



. Bates Stamp 02700 to 02704




® Bates Stanp 02744 to 02745






• Bates Stainp 03792 to 03794 (Section VII only)

® Bates Stamp 03802 (Section VI only)


® Bates Stamp 03814 (Insured Experts only)

• Bates Stamp 03821 to 03823 (Section VI only)

® Bates Stamp 03834 to 03836 (Section VI to Subsection B only)

Duplicates of any above stated excepted documents contained in the files shall also

be excepted from production, consistent with the terms of this Judgment Entry.

Defendants are hereby ORDERED to produce said documents within seven (7) days

upon receipt of this Judgment Entry.

Pursuant to Ohio Civ, R. 26, the Court hereby ORDERS that the documents provided to

the Plaintiffs in discovery under this Judgment Entry shall be subject to a PROTECTIVE

ORDER. Specifically, the Plaintiffs and their attorneys and agents are hereby ORDERED to

refrain from publishing any of the documents provided under this order to third parties for any

use other than the pursuit of the pending Motion for Prejudgment Interest. The Plaintiffs are

further ORDERED to return all of the documents provided pursuant to this Judgment Entry to

the Defendants at the ultimate conclusion of this case.

The Court will consider the admissibility of any of the documents provided pursuant to

this Judgment Entry separately, as the need arises. The provision of these documents pursuant to

this Judgment Entry should not be construed as a ruling on their admissibility.

All until further Order of this Court.

SO ORDERED.

JUDGE W. WYATT McKAY 5 t 1 d^1



BY ORDINARY MAIL.

11 - .. ^ IV;,.JUDGE W WYATT MCKAY

1

From: 330 675 2563 Page: 4/8 Date: 5/18/2011 9:16:54 AM

IN TJiIE COURT OF COMMON PLEAS- GT+:lYEI2AI., DIVISION -


CASE NUMBER: 2066 CV299z

HALI;'Y' NICOLE COBB, a minortiby J,E13ItA COBI31 ®t at.

PLAINTIFFS.

vs.

TATBA SIiIPMAPi, M,17., et al.

,JUI?Gir W. WYATTS'ATT McICA'Y

DEFENDANTS. ;7C7XS-Cpfs^LrNT ENTIt'Y

'1'his matter comes before the Court on Motion of tho Plaintiffs to Compel Discovery and

the Pn camera inspection of the Defense Attorney F ile in this case that are Bates stamped 00001

through 04056, '1'hese documents were provided to this Court by the Dofendants herein under

scal and under request that a protective order be granted should this Court find any of these

documents discoverabie,

The Court once again finds that the Plaintiffs have good cause to review the documents

provicled to this Court that are a part of the attorney file in this case, Good cause was established

upon the Affidavit of Attorney White, whereupon he stated that the highest pre•trial offer from

the remaining Defendants hcrein was $20,000.00,

The plainti('fs Motion to Compel is hereby GRANTED, and the Defendants are hereby

C)RDBItL?D to produce all provided doounionts, with the following oxecutions:

a Bates Stamp 00001 through 00010

• Bates Stanip 00060

m Bates Stamp 00081

From: 830 875 2563 Page: 518 Date: 5J18/2011 9:18:54 AM


• Bates Stanap 00125 to 00127

• Bates S1:amp 00 147 to 00151

• 13ates Stamp 00239 to 00243


• 13ates Stamp 00649 to 00663









• Bates Starnp 02080 to 02138

• C3ates Stamp 02218 to 02131

• 13ates Stamp 02272 to 02274



• 13ates Stamp 02499 to 02505




m Bates Stamp 02660 to 02662

From: 330 675 2563 Page: 6/6 Date: 5116/2011 9:16:54 AM

a Bates Stamp 02669 to 02671



a Bates Stamp 02700 to 02704

e T3ates Stamp 02708 to 02715


o Bates Stamp 02731 to 02737

• Bates Stamp 02744 ta 02745


s Bates Stamp 02755 to 02758


+ t3ates Stamp 03351 to 03359


• Bates Stamp 03792 to 03794 (Section'VCT only)

• Bates Stamp 03802 (Section VI only)


+ t3ates Stamp 03814 (Insured Experts only)

• Bates Stamp 03821 to 03823 (Section VI only)

® Bates Stamp 03834 to 03836 (Section VI to Subsection B only)

Duplicates of any above stated excepted documents contained in the files shall also

be oxeepted fronr production, consistent with the terms of this J'udgment Entry.

Defendants arc hereby OMr1tfsT0 to produce said documents within seven (7) days

upon reoeipt of this 7udgment Entry.

From: 330 675 2563 Page: 718 Date: 5/18/2011 9:16:55 AM

pursuant to Ohio Civ. R. 26, the Court horoby ORDERS that the documents provided to

the Plaintiffs in discovery under this Judgment Entry shall be subjeat to a 1'ROTFCTTVE

t)MpER, Spacifically, the Plaintiffs and their attorneys and agcnts are hereby ORDFR1E17 to

refi•ain from publishing any ofthe documents provided under this order to third parties for any

uso other than the pursuit of the ponding Motioli for Prejudgment Interest. The Plaintiffs are

further ORDERED to roturn all of the documents provided pursuant to this Judgment Entry to

the Defendants at the ultimate conclusion of this case.

The Gourt will consider the admissibility of any of the doouments provided pursuant to

this Judgment Iintry separately, as the need arises, The provision of these documents pursuant to

this Judgtnent I:;ntry should not be consta-ued as a ruling on their admissibility.

All until further Order of this Court,

SO OTiD);RF31).

r[lD(§);W. WYAI' MoKAY 5^/6 IJ r

T(}'IPIIL CI IET2Ii OF COURTS:YOU ARV OItnFAl^,'ri TO SERVE COPIFS OF 'I'T-1fIS .ICJDOMIGNT

ON ALL COIINSE'L OF RFCORD,OR TJ1'ONt'IIIS PARTIESWHO ARF C7N'IIEPRE9MTE1) FORTHWI'I'II

BY OIZDINAI2Y MAI'L.


HALEY NICOLE COBB, a minor ) Case No. 2006 CV 2992By DEBRA R. COBB, et al.

Plaintiffs

V.


Defendants


J®URNAL.ENTRY

Pending before this Court is a Motion for Prejudgment Interest filed on

October 28, 2010 pursuant to R.C. §1343.03(C) on the judgment rendered in favor of

Plaintiff. In conjunction with that motion, on March 10, 2011, pursuant to Civ. R. 30(B),

Plaintiff served Defendant, Tara Shipman, M.D., with a Notice of Deposition Duces Tecum

for her to appear and produce certain documents, including correspondence between herself

and her attorneys and any handwritten notes concerning the litigation. The deposition was

conducted on March 29, 2011. The Defendant did not seek a protective order relative to the

deposition.

Dr. Shipman attended the deposition accompanied by Attorneys John V.

Jackson and Brian Dodez of the law firm that has represented her throughout this matter.

During the deposition, the Defendant testified that she was not producing the requested

documents on the advice of her counsel. During the deposition, there were numerous

objections-to questions-asked-of Dr. Shipinan-relevant to settlement efforts, and she followed

the advice of her counsel to not answer those questions. On April 1, 2011, Piaintiff moved

the Court for an order compelling Dr. Shipman to answer relevant and material questions

EXHIBIT E

propounded at her deposition. Plaintiffs further moved this Court for an order requiring Dr.

Shipman to produce the documents she was directed to bring to her deposition.

The Court has reviewed the deposition of Dr. Shipman and agrees with the

Plaintiff that many of the questions directed to Dr. Shipman were relevant and material to the

issues to be determined at the hearing of prejudgment interest. Accordingly, this Court

grants the Plaintiffs' motion to again take the deposition of Dr. Shipman. The Court further

orders Dr. Shipman to produce the documents requested for an in camera inspection by the

Court to determine whether those documents are discoverable.

Counsel for Plaintiff has indicated that he intends to take the depositions of

some of the defense attorneys who represented Dr. Shipman in this matter, including

Attorney Farchione, Attorney Dodez, and Attorney Hudak. Counsel for the Defendant has

indicated that he would be raising similar objections in those depositions to those raised in

Dr. Shipman's deposition, primarily based upon a claim of attorney client privilege.

It is apparent that the Defendant's objections will ultimately have to be

addressed by the Court. For this reason, the Court has determined that the deposition of Dr.

Shipman and the depositions of all of the defense attorneys will be conducted in the

presence of the Court. These depositions will be taken beginning at 1:30 p.m. on

Wednesday, May 25, 2011 and continued until completed. The testimony will be recorded by

the Court's reporter. The deposition testimony shall be transcribed and will remain under

seal unless otherwise determined by the Court.

In the deposition of Dr. Shipman, any objection made that is based upon

attorney client privilege will be considered at the time the objection is made. The Court may

ask additional questions in order to rule on objections. In that event, the questions will be

addressed to Dr. Shipman in camera and outside of the presence of PlaintifPs counsel. The

questions asked and answers given will be recorded by the court reporter. The Defendant's

legal counsel will be present but will not be permitted to make argument. The depositions of

Attorneys Farchione, Dodez and Hudak will be conducted in a similar fashion.

DATE W. WYATT McKAY, JUDGE

TO THE CI-ERY.. OF C4URTS! YOU ARE ORDERf-p TO SER`iE':.'ICS 0; P;IS IUDG';teNT OPv A LL COUNSEL DE RE(:G; 0

RE UN £PtTft;INTED EC it^^ '` J^tiO Ar ..jaTu i .. ii-r;R U t?(; TyE P'TF EiY Giiui ^^S ^^7nIL ^rh .

or cao;'

s. ^.

6-

) bYIZ jr-

7 `^t ls6a°iboeg

^

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From: 330 875 2563 Page: 118 Date: 5118/2011 9:16:53 AM


HALEY NICOLE COBB, a minor ) Case No. 2006 CV 2892By DEBRA R, COBB, et at.

Plaintiffs

V.

TARA SHIPMAN, M.D„ et al.

Defondants


JOURNAL ENTRY

Pending before this Court is a Motion for Prejudgment Interest filed on

October 28, 2010 pursuant to R,C. §1343.03(C) on the judgment rendered in favor of

Plaintiff. In conjunction with that motion, on March 10, 2011, pursuant to Civ. R. 30(8),

Plaintiff served Defendant, Tara Shlpman, M.D., with a Notice of Deposition Duces Tecum

for her to appear and produce certain documents, including correspondence between hersetf

and her attorneys and any handwriften notes concerning the litigation. The deposition was

conducted on March 29, 2011. The Defendant did not seek a protective order relative to the

deposition.

D'r. Shipman attended the deposition accompanied by Attorneys John V.

Jackson and Brian Dodez of the law firm that has represented her throughout thls matter.

During the depositlon, the Defendant testified that she was not praducing the requested

documents on the advice of her counsel. During the deposition, there were numerous

objections to questions asked of Dr. Shipman relevant to seftlement efforts, and she followed

the advice of her counsel to not answer those questions. On April 1, 2011, Plaintiff moved

the Court for an order compelling Dr. Shlpman to answer relevant and material questions

From: 330 675 2563 Page: 218 Date: 5/1812011 9:16:53 AM

propounded at her deposition. Ptaintiffs further moved this Court for an order requiring Dr.

Shipman to produce the documents she was directed to bring to her deposition.

The Court has reviewed the deposltion of Dr, Shfpman and agrees with the

Plaintiff that many of the questions directed to Dr. Shipman were relevant and material to the

issues to be determined at the hearing of prejudgment interest. Accordingly, this Court

grants the Pla(nf'dfs' motion to again take the deposition of Dr. Shipman. The Court further

orders Dr. Shipman to produce the documents requested for an in camera inspection by the

Court to determine whether those documents are discoverable.

Counsel for Plaintiff has indicated that he intends to take the depositions of

some of the defense attorneys who represented Dr. Shipman In this matter, Including

Attorney Farchione, Attorney Dodez, and Attomey Hudak, Counsel for the Defendant has

Indicated that he woufd be ralsing similar objections in those depositions to those raised in

Dr. Shipman's deposition, primarily based upon a claim of attorney client privilege.

It Is apparent that the Defendant's objeotions will ultimately have to be

addressed by the Court. For thls reason, the Court has determined that the deposition of Dr.

Shipman and the depositions of all of the defense attorneys will be oonducted in the

presence of the Court. These depositions will be taken beginning at 1;30 p.m. on

Wednesday, May 25, 2011 and continued until completed. The testimony will be recorded by

the Court's reporter. The deposition testimony shall be transcrlbed and will remain under

seal unless otherwise determined by the Court.

In the deposition of Dr. Shiprnan, any objection made that is based upon

attorney ciient privllege will be consfdered at the time the objection is made, The Court may

ask additicnal questions in otderto rule on objeotions. In that event, the questions wllt be

addressed to Dr. Shipman in camera and outside of the presence of Plaintiff's counsel. The

From: 330 675 2563 Page: 3/8 Date: 5/18/2011 8:16:53 AM

questions asked and answers given will be reoorded by the court reporter. The Defendant's

legal counsel will be present but will not be permitted to make argument. The depositions of

Attorneys Farchione, Dodez and Hudak wifl be conducted in a similar fashion,

IIV, I MAq ob :

DAT8 W. WYATT McKAY, JUDGE

Tt? TkiF CI ERY It;Qlik`t% YOU ARE ORI3F.RE0 TO SERVE{ v^l^^; 4f Tli!$ Jklp^tCt71 O N AU) COpRt,^^TEpF 41^°^

^ {¢^iFfi R\ t)ItLtNAf^ 4AI^

:^ .3tt Ltcdit{ TIIf RArijkS 41tIU An

NOTICE OF APPEALTrumbull County Court of Common Pleas, Ohio

(ENTER NAME OF TRIAL COURT)

Haley Nicole Cobb, a minor by Debra Cobb, et Trial Court No. 2006 CV 2992al.

Plaintiff-Appell ees Court of Appeals No.-vs-

Tara Shipman, M.D., et al.

Defendant-Appell ants

Notice is hereby given that (name each Appellant) Tara Shipman, M.D. and Associates inFemale Health, Inc.appeals to the Eleventh District Court of Appeals from the trial court Judgment Entry time-

stamped 5/13111; 5/17/11; 5/17/11 ** (describe it and attach a copy of each Judgment Entry

being appealed) (**The 5/13/11 Order refers to Trial Court's 5/11/11 Judament Entry which, in reality, isthe Judgment Entry joumalized on 5/17/11. ) Said judgments are final interlocutory orders since theypermit the discovery of privileged matters under the attorney-client privilege, work product doctrine and/or e eory o e e ense doctrine. R.G.

Check liere if court-appointed andattach copy of appointment and Financial Signature of Attorney or AppellantDisclosure/Affidavit of Indigency.

Douglas G. Leak, Esq. (0045554)

XXXXX Check here if any co-counsel for NameAppellant and attach a separate sheetindicating name, address, and telephone no. 1375 E 9th St., 9th Floor ; One Cleveland Ctr.

Address

Cleveland, Ohio 44114. City, State, Zip Code

216-623-0150 0045554

Telephone No. Atty. Regis. No.

TRANSCRIPT INFORMATION - App. R. 9(B)

I have ordered a complete transcript from the court reporter.Estimated completion date: Estimated number of pages:

xX I have ordered a partial transcript from the court reporter.Estimat.ed completion date: 3 weeks Estimated number of pages:A statement pursuant to App. R. 9 (C) or (D) is to be prepared in lieu of a transcript.

_ Videotapes to be filed. See App. R. 9(A) or (B)_ No transcript or statement pursuant to either App. R. 9(C) or (D) is necessary._ Transcript has been completed and already made part of the record.

Date Signature of Attorney or Appellant

AdmiNForms/New Notise of Appeal.2Revised 06/06/2005

EXHIBIT F


HALEY NICOLE COBB, a minor by ; CASE NO: 2006 CV 2992DEBRA COBB, et al.,

Plaintiffs,

vs.

TARA SHIPMAN, M.D., et al.,

Defendants.

JUDGE WYATT MCKAY

MOTION OF DEFENDANTS FORSTAY OF EXECUTIONOF JUDGMENTS PENDING APPEAL

Defendants Tara Shipman, M.D. and Associates in Female Health, Ine. by their legal

counsel, and pursuant to Civil Rule 62(B), move this Court for an Order staying its Judgment

Entries of October 21, 2011 (Jury Verdict) and December 7, 2010 (Denial of Motion for JNOV

an.d New Trial), pending Defendants' appeal of this Court's discovery orders of May 13, 2011

and May 17, 2011 to the Eleventh District Court of Appeals. As this Court is well aware,

prejudgment interest proceedings are pending and in these proceedings, privileged discovery

matters are at issue. Before the prejudgment interest proceedings can move forward, Defendants

are seeking guidance from the Court of Appeals with respect to these discovery issues. Until the

Court of Appeals decides these issues, this Court should Stay any potential execution of

judgments since these issues must be resolved in order for this Court to rule upon Plaintiffs'

Motion for Prejudgment Interest.

Accordingly, Defendants request that this Court issue an Order staying its Judgments of

October 21, 2011 and December 7, 2010.

EXHIBIT G


Douglas G. Leak (0045554)Roetzel & Andress1375 East 9th StreetOne Cleveland Center, Ninth FloorCleveland, Ohio 44114(216) 623-0150(216) 623 0134 - [email protected]

Joseph A. Farchione (0039199)John V. Jackson (25 05 1)Brian Dodez (0085660)Sutter, O'Connell & Farchione Co., L.P.A.3600 Erieview Tower; 1301 East 9th StreetCleveland, Ohio [email protected]@[email protected](216) 928-2200(216) 928-4400 - Fax

Attorneys for Defendants Tara Shipman, M.D.and Associates in Female Health, Inc.

2


The undersigned hereby certifies that a true and accurate copy of the foregoing has been

served upon the following parties via regular U.S. mail, this _ day of May, 2011:

Michael Dj ordj evic, Esq.Djordjevic, Casey & MarmarosSuite 201 at Maiden Lane17 South Main StreetAkron, OH 44308

Attorney for Plaintiff

Norman A. Moses, Esq.154 Park Avenue, NEWarren, OH 44482


503199 v_01 \ 061739.1114



Douglas G. LeakJoseph A.Farchione

John V. JacksonBrian Dodez

3


HALEY NICOLE COBB, a minor by ; CASE NO: 2006 CV 2992DEBRA COBB, et al.,

Plaintiffs,

vs.


Defendants.

JUDGE WYATT MCKAY

REPLY BRIEF OF DEFENDANTSTARA SHIPMAN, M.D. ANDASSOCIATES IN FEMALE HEALTH,INC.

Defendants Tara Shipman, M.D. and Associates in Female Health, Inc. hereby submit

this Reply to Plaintiffs' Memorandum in Response to Defendants' Motion for Stay of Execution.

At the outset, it must be noted that Plaintiffs do not object to this Court granting a Stay of

Execution. The only issue raised by Plaintiffs in their Memorandum in Response is that any stay

of execution should be accompanied with adequate security, i.e. the posting of a supersedeas

bond. The purpose of this Reply is to claiify for this Court that a supersedeas bond is not

required pursuant to Civ. R. 62(B) and/or R.C. 2505.09(B) and, also, a supersedeas bond is not

warranted in this particular case. '

A. This Court Has Authority To Stay Execution Of A JudgmentPursuant To Civ. R. 62(B) Without The Posting Of ASupersedeas Bond.

Contrary to Plaintiffs' position, neither Civ. R. 62(B) nor R.C. 2505.09(B) require this

Court to order the posting of a supersedeas bond in order to stay any execution of a judgnient

pending an appeal. In Irvine vs. Akron Beacon Journal, 147 Ohio App. 3d 428, 2002-Ohio-224,

the Ninth District Court of Appeals held that Civ. R. 62(B) does not require the posting of a

' Defendants are requesting this Court for a Stay of Execution of Judgment in order to prohibit Plaintiffs fromattempting to execute on the jury's verdict.

EXHIBIT H

supersedeas bond in order for a court to stay any execution on a judgnient. Irvine at ¶106-109.

In fact, the Ninth District confinned that a court may exercise its discretion and stay execution of

judgment without requiring the appealing party to post a supersedeas bond. Irvine, supra at

¶108, citing Whitlatch & Co. vs. Stern, Summit App: No. 15345, 1992 WL 205071.

In their 1Vlemorandum in Response, Plaintiffs cite no authority, whatsoever, that construes

either Civ. R. 62(B) and R.C. 2505.09(B) as mandating the posting of a supersedeas bond before

a stay can be granted. In fact, the Eleventh District Court of Appeals in Lomas & Nettleton Co.

vs. Warren, Geauga App. No. 89-G-1519, 1990 WL 93138 did indeed construe R.C. 2505.09(B)

and held that the posting of a supersedeas bond is not mandatory in order to stay an execution of

ajudgment. Lornas & Nettleton Co., supra.

Based upon the case law cited above, Plaintiffs' position that Civ. R. 62(B) and R.C.

2505.09(B) require the posting of a supersedeas bond is simply wrong. Defendants in this case

are not required to post a supersedeas bond pending their interlocutory appeal on the

prejudgment interest discovery issues.

B. There Exists No Judgment Upon Which A Supersedeas BondCan Be Posted As Security.

The law is well-established that a jury's verdict does not constitute a final judgment

where there remains a pending motion for prejudgment interest. Miller vs. First International

Fidelity & Trust Building, Ltd., 113 Ohio St.3d 474, 866 N.E. 2d 1059, 2007-Ohio-2457. Where

prejudgment interest is sought, it is just another element of damages requested upon a finding of

liability. Until all the damages are determined, including prejudgment interest, an award of

coinpensatory damages is not a final judgment. Id.; see also Adkins vs. Bratcher, Washington

App. No. 06 CA 53, 2007-Ohio-3587.

2

In this case, the jury's verdict in favor of Plaintiffs does not encompass Plaintiffs' prayer

for prejudgment interest. Therefore, since the issue of prejudgment interest remains pending for

determination, the jury's verdict is not yet a final judgment that could be the subject of a

supersedeas bond.2

Based upon the foregoing and for those reasons more fully briefed in their Motion for

Stay, Defendants respectfully request that this Court issue a Stay of Execution and, also, a Stay

on all proceedings pending Defendants' interlocutory appeal to the Eleventh District.


Douglas 1G. Leal4(0V45554)Roetzel & And1375 East 9th StreetOne Cleveland Center, Ninth FloorCleveland, Ohio 44114(216) 623-0150(216) 623 0134 - [email protected]

Joseph A. Farchione (0039199)John V. Jackson (25051)Brian Dodez (0085660)Sutter, O'Connell & Farchione Co., L.P.A.3600 Erieview Tower; 1301 East 9th StreetCleveland, Ohio [email protected] j ackson@sutter-law. [email protected](216) 928-2200(216) 928-4400 - Fax

Attorneys for Defendants Tara Shipinan, M.D.and Associates in Female Health, Inc.

2 By no means are Defendants waiving their opposition to Plaintiffs' Motion for Prejudgment Interest. Defendantsare merely confirming that the jury verdict caimot be a final judgment until Plaintiffs' Motion for PrejudgmentInterest is resolved.

3



served upon the following parties via regalar U.S. mail, this




503469 v_01 \ 061739.1114

0 day of May, 2011:




Joseph A. FarchiJohn V. JacksonBrian Dodez

DouglagG. Leak

4


HALEY NICOLE COBB, a minor by CASE NO: 2006 CV 2992DEBRA COBB, et al.,

Plaintiffs,

vs.


Defendants.

JUDGE WsIATT MCKAY

DEFENDANTS TARA SI-HPMAN,M.D. AND ASSOCIATES IN FEMALEHEALTH. INC.'S SUPPLEMENTALBRIEF IN SUPPORT OF MOTIONFOR STAY OF EXECUTION

Per this Court's instructions, Defendants Tara Shipman, M.D. and Associates in Female

Health, Inc. hereby submit this Supplemental Brief in support of their Motion for Stay of

Execution pending Defendants' interlocutory appeal to the Eleventh District Court of Appeals

from this Court's prejudgment interest discovery orders. Defendants request that this Court issue

a Stay of all proceedings, including any attempt by Plaintiffs to execute on the jury's verdict

without the requirement of the posting of a supersedeas bond. Alternatively, if this Court is

inclined to order the posting of a supersedeas bond, Defendants request that the bond be in an

amount consistent with what Plaintiffs could realistically recover, i.e. $2.0 million for Dr.

Shipman's liability coverage, plus interest and costs. This Court can also order that Dr. Shipman

be prohibited from selling or transferring any significant personal assets or property in order to

protect the remainder of the jury's verdict, an amount this Court can determine.

A. No Supersedeas Bond is Required For An Interlocutory Appeal FromPrejudgment Interest Discovery Orders.

Defendants do not dispute that when the time is ripe for them to exercise their right to

appeal from the jury's verdict, a supersedeas bond may be required pursuant to R.C. 2505.09.

2DIIJUN®l p -^ 26

!_L c(turdTY; PIA!2rS

EXHIBIT I

But, that time has not yet materialized because the jury's verdict is not a final appealable order

as long as Plaintiffs' Motion for Prejudgment Interest remains pending. In other words,

Defendants cannot seek to supersede the jury verdict until there is a final ruling on Plaintiffs'


In justifying an order that Defendants are entitled to a stay of all proceedings and any

attempt by Plaintiffs to execute on the jury verdict without the necessity of the posting of a

supersedeas bond, this Court need not look any fi.uther than the plain language of R.C. 2505.09.

The relevant language of R.C. 2505.09 that mandates the posting of a supersedeas bond is that

the supersedeas bond is posted for the `Tinal order, judgment, or decree that is sought to be

superseded." (Emphasis added). With respect to a "final order," it is undisputed that the jury's

verdict is not a final order since prejudgment interest proceedings remain unresolved. Miller vs.

International Fidelity, 113 Ohio St.3d 474, 866 N.E. 2d 1059, 2007-O1uo-2457. Since the jury's

verdict in this case is not a final order, the posting of a supersedeas bond pursuant to R.C.

2505.09 is not applicable.

Next, R.C. 2505.09 requires that a supersedeas bond be posted on the judgment or decree

"sought to be superseded." In this case, the jury's verdict is not an issue upon appeal since it is

not yet a final appealable order. As such, Defendants' appeal from this Court's interlocutory

prejudgment interest discovery orders does not presently seek to "supersede" the jury's verdict.

Consequently, a supersedeas bond does not have to be posted pursuant to R.C. 2505.09.

In addition to the plain language of R.C. 2505.09, case law in Ohio also supports

Defendants' position herein that a supersedeas bond is not required because the jury's verdict is

not the subject of Defendants' interlocutory appeal. As the Eighth District Court of Appeals

stated in Teuteru vs. P & F Enterprises, Inc. (1970) 21 Ohio App. 2d 122, a supersedeas bond

2

operates to stay the execution of a judgment while that judgment is appealed to a higher court.

In Union Savings Bank vs. Washington Township Board of Zoning Appeals, Montgomery App.

No. 15858, 1996 WL 535304, the Second District Court of Appeals stated:

If the purpose of a supersedeas bond is to compensate an Appelleewhose right to execute on a judgment is stayed thereby, then,logically, there is no need for a supersedeas bond when theunderlying judgment confers no right on which the Appellee canexecute.

Id. at *5.

Additionally, a supersedeas bond is defined in Black's Law Dictionary as:

"An appellant's bond to stay execution on a judgment during thependency of the appeal."

Clearly, a supersedeas bond is intended to apply to the judgment that is actually the

subject of the appeal. In this case, Defendants are not presently seeking to set aside the jury's

verdict with its interlocutory appeal from this Court's prejudgment interest discovety orders.

Consequently, a supersedeas bond is not necessary in order to secure Plaintiffs' jury verdict. A

supersedeas bond would be necessary if the jury's verdict was at stake during the appellate

process, but it is not at this time.

Plaintiffs claim that the posting of a supersedeas bond is mandatory pursuant to R.C.

2505.09. However, this position was explicitly rejected in Whitlack & Conpany vs. Stern,

Summit App. No. 15345, 1992 WL 205071. In Whitlack & Company, supra, the Ninth District

Court of Appeals held that a "trial court may exercise its discretion and stay execution of

judgment without requiring the appellant to post a supersedeas bond." Id. at *9; see also, Lomas

& Nettleton Co. vs. Warren, Geauga App. No. 89-G-1519, 1990 WL 93138; Irvine vs. Akron

Beacon Journal, 147 Ohio App. 3d 428, 770 N.E. 2d 1105, 2002-Ohio-2204. In'cletermining that

a trial court has discretion with respect to the posting of a supersedeas bond, the Ninth District in

3

Whitlock & Cornpany, supra held as follows:

App.R. 7(B) states that a stay of execution :"may" be conditionedupon the filing of a bond in the trial court. R.C. 2505.09 conflictswith the apparent discretion authorized by App.R. 7(B), andinstead requires the posting of a bond. However, Section 5(B),Article 1V of the Ohio Constitution requires us to resolve thisconflict in favor of the appellate rules: "All laws in conflict with

[rules promulgated by the Supreme Court] shall be of no fiuther

force or effect after such rules have taken effect."

Pursuant to Ohio's legal precedents, it is within this Court's discretion to order a stay of

all proceedings without the posting of a supersedeas bond by Defendants.

Finally, with respect to Plaintiffs' claim that they can now execute on the jury's verdict,

such a position is inconsistent with the Ohio Supreme Court's decision in Miller, supra. Clearly,

parties possess rights in legal proceedings, including the right to appeal a judgment to a higher

court. At this tiine, while Plaintiffs' prejudgment interest claim remains pending, Defendants do

not yet have the right to appeal to the Court of Appeals according to the Ohio Supreme Court.

Query: if Defendants cannot presently exercise their right to appeal from the jury's verdict, why

would Plaintiffs have the right to execute on the saine jury verdict? Although the Miller decision

does not directly address the particular issues at hand in this case, its holding is undoubtedly

controlling herein, i.e. the jury verdict is not a final appealable order and, thus, neither

Defendants nor Plaintiffs can exercise their respective rights with respect to the jury's verdict

while prejudgment interest remains unresolved.

Accordingly, Plaintiffs should be prohibited from attempting to execute on the jury's

verdict while Defendants' interlocutory appeal remains pending. Also, all proceedings before

this-Court should be stayed without Defendants being required to post a supersedeas bond.

B. Alternatively, If This Court Is Inclined To Order ThePosting Of A Supersedeas Bond, It Should Be In AnAmount That Plaintiffs Could Realistically Recover.

4

It is within this Court's discretion to determine if a supersedeas bond is necessary and, if

so, its amount. Bibb vs. Honze S & L Co. (1989) 63 Ohio App. 3d 751, 580 N.E. 2d 52. Winton

Savings & Loan Co. vs. Eastfork Trace, Inc., 119 Ohio Misc. 2d 83, 774 N.E. 2d 355, 2001-

Ohio-4386 at paragraph 3 of the syllabus. Although Defendants maintain that a stay in this case

should not require the posting of a supersedeas bond, in the event that this Court is inclined to

order the posting of a supersedeas bond, Plaintiffs' request for a supersedeas bond in excess of

$20 million should be rejected, especially since it includes an amount for the "potential" award

for prejudgment interest. Instead, should tlus Court require a supersedeas bond, the bond should

be in an amount representative of what Plaintiffs could realistically collect on the verdict, i.e.

ProAssurance's policy limits of $2.0 million for Dr. Shipman, plus inferest and costs. This Court

can also issue an appropriate injunctive order in which Dr. Shipman would be prohibited from

selling or transferring any significant personal assets or property in an amount to be determined

by this Court.

With respect to what constitutes an adequate supersedeas bond in cases involving large

verdicts such as this case, there exists very little guidance in Ohio's jurisprudence. However,

other jurisdictions throughout the country have addressed similar issues. Those decisions may

assist this Court.

For example, in Salt River Sand and Rock Co npany vs. Dunevant III (2009) 222 Ariz.

102, 213 P. 3d 251, the court recognized that financial hardship can be a basis for a supersedeas

bond being less than the full judgment. In Salt River Sand, supra the judgment debtor would

have been forced to go out of business if execution on the judgment was not stayed. If there is a

reasonable basis for setting a supersedeas bond in an amount less than the f-ull judgment, the

Court can order such a bond. See, Bruce Burch, Inc. vs. United Farm Workers of America

5

(1989) 160 Ariz 514, 774 P. 2d 818; The Cayuga Indian Nation of New York vs. Pataki (2002)

188 F. Supp. 2d 223 (The Court can use equitable principles to grant a stay without a full bond if

the filing of a supersedeas bong would irreparably harm the judgment debtor); Miami Int'l Realty

Co. vs. Paynter (1986) 807 F.2d 871 (stay of execution of judgment without requiring a

supersedeas bond was appropriate where the defendant did not have enough assets to post bond).

Throughout the country, there is a plethora of authorities that hold that a supersedeas

bond can be posted in an amount reflecting the insurance cornpany's liability coverage, plus

interest and costs upon that amount. Merritt vs. Stafford Company (1968) 68 Cal. Rptr. 447, 440

P.2d 92 927; Fletcher vs. Ratcliffe (1995) New Castle County Civ. A. No. 89C-06-160 SCD,

1995 WL 790992; Fitzgerald vs. Addison (1973) 287 So. 2d 151, 2d Dist. No. 730224; Cansler

vs. Harrington (1982), 231 Kan. 66, 643 P.2d 110; Bowen vs. Government Employees Ins. Co.

(1984) 451 So. 2d 1196, 5^h Cir. No. 83 CA 584; Kissel vs. Clark (1994) 848 S.W. 2d 44, 16`h

Cir. No. WD 46854; Rosato vs. Penton (1981) 182 N.J. Super 493, 442 A.2d 656; Courvoisier

vs. Harley Davidson of Trenton, Inc. (1999), 162 N.J. 153, 742 A.2d 542.

In O'Donnell vs. McGrann (1987), 310 Md. 342, 529 A.2d 372, the Court of Appeals of

Maryland addressed facts and issues virtually identical to this case. In O'Donnell, the Court of

' Appeals upheld the trial court's order staying the entire amount of the judgment upon filing a

supersedeas bond in an amount less than the full judgment. The lesser amount was ordered

because the defendant had limited assets and the amount reflected the insurance company's

liability coverage, plus interest and costs. Additionally, the trial court entered an injunction to

preserve the status quo by preventing the defendant fiom transferring any assets or property. In

affirming the trial court's order, the court of appeals rejected the plaintifrs argument that the

trial court was required to set a bond amount for the full judgment. Instead, the court of appeals

6

held that the trial court was vested with discretion to order the posting of a supersedeas bond in

an amount less than the fall amount.

This Court is, likewise, vested with discretion to decide, in the first place, whether a

supersedeas bond is required. If this Court is inclined to order the posting of a supersedeas bond,

then this Court can exercise its discretion and order that the amount of the supersedeas bond be

less than the full jury's verdict. This Court should follow the equitable reasoning set forth by the

Maryland Court in the O'Donnell case. More specifically, this Court should order a supersedeas

bond reflecting ProAssurance's liability coverage of $2.0 million, plus interest and costs. Also,

this Court can enter an appropriate injunction prohibiting Dr. Sliipman from selling or

transferring any significant personal assets or property, as determined by this Court.

Based upon the foregoing and those reasons already briefed to this Court, Defendants

request that this Court issue an order staying all proceedings, including any attempt by Plaintiffs

to execute on the jury's verdict. Defendants forther request that the stay be ordered without the

requirement of posting a supersedeas bond. Altematively, if this Court is inclined to order the

posting of a supersedeas bond, Defendants request that it be in the amount of $2.0 million, plus

interest and costs. Additionally, this Court has the discretion to issue an order prohibiting Dr.

Shipman from selling or transferring any significant personal assets or property in an amount that

this Court can determine appropriate.

7


Doug^s G. e (0045554)Roetzel & dress1375 East 9th StreetOne Cleveland Center, Ninth FloorCleveland, Ohio 44114(216) 623-0150(216) 623 0134 - [email protected]

Joseph A.Farchione(0039199)John V. Jackson (25051)Brian Dodez (0085660)Sutter, O'Connell & Farchione Co., L.P.A.3600 Erieview Tower; 1301 East 9tli StreetCleveland, Ohio 44114j farchione@sutter-law. comj j ackson@sutter-law. comb do de z@sutter-l aw. o om(216) 928-2200(216) 928-4400 - Fax

Attorneys for Defendants Tara STiipnian, M.D.and Associates in Female Health, Inc.

8



served upon the following parties via regular U.S. mail, this A day of June, 2011:


Attomey for Plaintiff



504661 v 01 \ 061739.1114



Joseph A.F rc oneJohn V. Jac onBrian Dodez

DougP'as G.

9




HALEY NICOLE COBB, a minor,by DEBRA COBB, et al.

PLAINTIFFS.

VS.


DEFENDANTS.


JUDGMENT ENTRY

This matter comes before the Court on the Motion of the Defendants for Stay of

Execution of Judgments Pending Appeal. The Court has reviewed the Motion and all responses

and replies on the Motion and also the briefs submitted on the necessity and adequacy of a

supersedeas bond in this case.

As previously stated by this Court, on October 21, 2010, following fifteen days of trial,

this Court entered a Judgment on the Verdict in the above captioned case in the amount of

$12,102,000.00 in favor of the Plaintiff, Haley Nicole Cobb, a minor, together with a Judgment

on the Verdict in the amount of $1,800,000.00 in favor of the Plaintiffs Okey and Debra Cobb,

Haley's parents. The verdicts both concern Haley's birth in January of 2000, and her resulting

medical condition which was cerebral palsy caused by a lack of oxygen to her brain. Both

verdicts were entered against the Defendants Tara Shipman, M.D. and Associates in Female

Health, Inc. The verdict against the Defendants Shipman and Associates has since been reduced

to$9,702,000.00 by previous Order of this Court. With only a Motion for Prejttdgment Interest

pending, the Defendants have filed an interlocutory appeal on discovery matters related to the

prejudgment interest motion and now seek to stay execution on the underlying judgment in this

case.

EXHIBIT J

While the pending appeal does not yet challenge the underlying judgment, it is an appeal

nonetheless. Civ. R. 62 (B) does not limit its own application to appeals of underlying

judgments. It provides that:

(B) Stay upon appeal. When an appeal is taken theappellant may obtain a stay of execution of a judgment or anyproceedings to enforce a judgment by giving an adequatesupersedeas bond. The bond may be given at or after the time offiling the notice of appeal. The stay is effective when thesupersedeas bond is approved by the court.

R.C. §2505.09 provides that:

Except as provided in section 2505.11 or 2505.12 or anothersection of the Revised Code or in applicable rules governingcourts, an appeal does not operate as a stay of execution until astay of execution has been obtained pursuant to the Rules ofAppellate Procedure or in another applicable manner, and asupersedeas bond is executed by the appellaut to the appellee, withsufficient sureties and in a sum that is not less than, if applicable,the cumulative total for all claims covered by the final order,judgment, or decree and interest involved, except that the bondshall not exceed fifty million dollars excluding interest and costs,as directed by the court that rendered the final order,judgment, ordecree that is sought to be superseded or by the court to which theappeal is taken. That bond shall be conditioned as provided insection 2505.14 of the Revised Code.

The Defendants cite to Lomas & Nettleton Co. vs. Wanen, 1990 WL 93138 (Ohio App.

11 Dist.) and argue that a supersedeas bond is not required under Ohio law. The Eleventh

District Court of Appeals stated "It is our position that the language in R.C. 2505.09 may be

read to avoid the conflict by stating that the trial court or appellate court may direct that

sufficient sureties in certain cases means no sureties." Id. at 1. The Court agrees that in certain

cases, sufficient surety is no surety. However, the Court does not find that this is such a case.

Furthermore, the Defendants cite to Miller v. First International Fidelity & Trust

Buildin ,g Ltd. (2007), 113 Ohio St.3d 474 and argue that the verdict in this case is not a final

judgment because there is a pending motion for prejudgment interest. In Miller, the Ohio

Supreme Court decided that, for purposes of judicial economy, an underlying judgment could not

be appealed where there was a pending motion for prejudgment interest. However, the pending

motion for prejudgment interest does not affect the validity of the judgment on the verdict in this

case, regardless of whether or not it is "final." Ohio Civ. R. 62 (B) speaks to "judgments"

without regard to whether or not thosejudgments are "final." Furthermore, R.C. §2505.09 does

not apply to only "final" judgments, but rather to all judgments. In this case, there is clearly a

judgment in favor of the Plaintiffs against the Defendants.

The granting of a stay of execution is within the sound discretion of this Court. See

Buckles v.. Buckles (1988). 46 Ohio App.3d 118, 121. It is also within the discretion of this Court

to determine whether a bond is necessary and its amount. Bibb v. Home S. & L. Co. (1989), 63

Ohio App.3d 751, 752. The Defendants are unable to cite to any case holding that no bond

should be required when, as here, the Plaintiffs hold an unsecured money judgment. The

judgment in this case is for $9,702,000.00 plus interest. Pending before this Court is a Motion

for Prejudgment Interest dating back to the year 2000. The Court agrees with the Plaintiffs that

the collectibility of such ajudgment is not a given in the current economy.

The Defendants alternatively wish for this Court to set a supersedeas bond in an amount

equal to the policy limits of insurance available in this case, with an accompanying injunction

preventing Dr. Shipman and Associates in Female Health, Inc. from dissipating assets. The

Defendants cite to the non-binding case from the Maryland Court of Appeals, O'Doimell v.

McGann, (1987) 529 A.2d 372. In that case, ajury returned a $5.4 million verdict, which was

subsequently reduced to $2.75 million. The defendant appealed and filed a motion with the

circuit court to set the bond at $1.15 million because the insurance policy limits in that case were

$1 million and the insured's assets totaled $14,000.00. Id. at 373. After a hearing, the circuit

court approved a supersedeas bond for $1.4 million, and enjoined the defendant from transferring

assets. The Court of Special Appeals then increased the bond to $3.1 million, and the Maryland

Court of Appeals granted the defendant's petition of certiorari to address whether the trial court

therein has discretion regarding the amount of security required to stay a judgment. Analyzing

Marylaiid law, the Maryland Court of Appeals stated that Rule 1081 (b)(1) fixes the penalty of

the supersedecis bond in the ordinary money judgment case but Rule 1-402(d) reserves to the

trial court the discrelion to increase or decrease the face amount of that bond in an extraordinary

case. (Emphasis Added.) The Court of Appeals of Maryland then held that Maryland circuit

courts could only exercise discretion to lower a bond amount when the moving party presented a

plan that would preserve the slatus quo during the pendency of the appeal, while also

demonsti.;+ting why the existing rule.s should be altered. Id. at 377. Although eertainly not

controlling, the Court notes that the Defendants' Motion herein would not survive even under the

O'Donnell v. McGann standard.

In this case, the Court is bound by the mandates of Ohio law, not Maryland law. As in

Maryland, in Ohio, this Court likewise has discretion to determine what is an adequate

supersedeas bond. The Court finds that the adequate amount to stay execution of judgment in

this case is $14,553,000.00.

The Defendants' Motion for a Stay of Execution of Judginent Pendi5kpp@ in ^h ^jc_ e-- :.^ _.

matter shall be GRANTED only upon the proper posting of a supersedeas bo^r d-or oiher ^-imi,Iaji.c> ^- sv < ; -=. .o._;_

security in favor of the Plaintiffs Haley, Okey, and Debra Cobb, in the amoru t pf $1,4?533;OO6ri70

with the Trumbull County Clerk of Courts.

SO ORDERED.




BY ORDINARY MAIL,

, ;n, :

^ e ^°®Y^` P,m7

JUDGE W WYATT MCKAY

^ Cohb J12-

IN THE COURT OF APPEALSELEVENTH APPELLATE DISTRICT


HALEY NICOLE COBB, a minor byDEBRA COBB, et aL,

Plaintiffs-Appellees,

vs.

TARA SHIPMAl<I, M.D., et al.,

Defendants-Appellants.

CASE NO: 2011-T-0049

TRIAL COURT CASE NO: 2006 CV 2992

F6LE®COt31gT ®F ARPEtALS

JUN 3 0 2011

TRUMBULL GaUNTY, OHKAREN INFANTE ALLEN, CLERK

MOTION OF DEFENDANTS-APPELLANTS TARA SHIPMAN, M.D.AND ASSOCIATES IN FEMALE HEALTH, INC. PURSUANT

TO APP. R. 7 FOR STAY OF PROCEEDINGS VJI'THOUTTHE POSTING OF A SUPERSEDEAS BOND



Douglas G. Leak (0045554)Roetzel & Andress1375 East 9th StreetOne Cleveland Center, Ninth FloorCleveland, Ohio 44114(216) 623-0150(216) 623 0134 - [email protected]

Attorney for D efen dan ts-Appellan ts

Norman A. Moses, Esq.100 Marwood CircleBoardman, OH 44512Martin Wliite, Esq.154 Park Avenue, NEWarren, OH 44482

Attorneys for Plaintiffs-Appellees

EXHIBIT K

IN THE COURT OF APPEALS

ELEVENTHCOUNTYDOHIO

DISTRICT

HALEY NICOLE COBB, a minor byDEBRA COBB, et al.,


vso

TARA SHIPWIAN:IVI.D., et al.,


CASE NO: 2011-T-0049

TRIAL COURT CASE NO: 2006 CV 2992

MOTION OF DEFENDANTS- M DAPPELLANTS TARA SIiIPMANAND ASSOCIATES IN FEMALEHEALTH INC. PURSUANT TO APP-R 7 FOR STAY OF PROCEEDINGSyVITHOUT THE POSTING OF ASUPERSEDEAS BOND

Now come Defendants-Appellants Tara Shipman, M.D. and Associates in Female Health,

Inc. ("Dr. Shipman") and hereby move this Court pursuant to App. R. 7 for an Order staying all

Trial Court level proceedings, including any attempts by Plaintiffs-Appellees to execute on tbe

jury verdict, pending the instant Interlocutory Appeal without the need to post a supersedeas

bond.' The basis for granting a stay of all Trial Court proceedings without the need for the

posting of a supersedeas bond is that Dr. Shipman's appeal in this case is an Interlocutory

Appeal from prejudgment interest discovery orders and, thus, the jnry verdict is not presently at

jeopardy of being reversed, altered or changed m any manner whatsoever. In other words, the

jury's verdict is not a final appealable order and/or judgment that needs to be secured with a

supersedeas bond pending the instant Interlocutory Appeal involving discovery issues limited to

the prejudgment interest proceedings•

Additionally, although there exists no legal basis upon which a supersedeas bond is

Dr. Shiprnan and Associates in Female Health,Inc. initially sought a stay without anh^he relief

didpost a supersedeas bond from the Trial Court . However,the nstant Motion pursuant to App. R.sought by Dr. Shipman and, thus, Dr. Shipman brnig

7(A). (See Exhibit "A").

required to stay all Trial Court proceedings pending Dr. Shipman's Interlocutory Appeal, Dr.

Shipman is compelled to deznonstrate for this Court how the Trial Court abused its discretion by

granting a stay contingent upon Dr. Shipman posting an unrealistic and coercive supersedeas

bond in the exorbitant amount of $14,553,000.002. The Trial Court's ordering of an

unattainable $14,553,000.00 bond has effectively denied Dr. Shipman's consthrtional right of

appeal. The Trial Court 's setting of such an umeasonably high supersedeas bond will lilcely

force Dr. Shipman to forfeit her right of appeal by exposing her ta the peril of irreparable harnt

from the continued threat of execution on the jury verdict. Public policy favors interpreting bond

considerations in a manner that would allow Dr. Shipman to exercise her constitutional right of

the amount

appeal and provide Appellees with enough security

Dr Shipman.{ m

that realistically reflects

rcollectrble oThe reasons for this Court to issue an order to stay all trial proceedings pending Dr.

ot the need to post a supersedeas bond are more fully setShipman's Interlocutory Appeal withu

forth in the attaclied Brief.Respectfully submitted,

DouglasG. Leak (0045554)Roetzel & Andress1375 East 9th StreetOne Cleveland Center, Ninth Floor

Cleveland, Ohio 44114(216) 623-0150(216) 623 0134 - faxdleak@ralaw•cornAttorney for Defendants-AppellantsTara Shipinan, M.D. and Associatesin Female Health, Inc.

sgayeall Trial Cou t pro eedmgspersedeas bond is required inz By no means is Shipfflanthis Interlocutor Appeal in order

BRIEF

Introo n2010, after a fifteen-day trial, the Trial Court entered a Judgment on the

On October 21,

verdict in the amount of $12,102,000.00 in favor of Plaintiffs-Appellees Haley Cobb, a minor,

and a Judgment on the verdict in the amount of $1,800,000.00 in favor of Haley's parents,

Plaintiffs-Appellees Okey and Debra Cobb 3 Subsequently, Dr. Shipman sought a set-off in the

ainount of $6,500,000.00 reflecting Plaintiffs' settlement with Co-Defendants. However, the

Trial Court denied Dr. Shipman's set-off amount and, instead, granted Plaintiffs' request for a

$2,400,000.00 set-off, thus, reducing the jury's verdict on January 11, 2011 to $9,702,000.00.

On October 28, 2010, Appellees filed a Motion for Prejudgment Interest. Of importance,

the filing of Appellees' Motion for Prejudgment Interest immediately rendered the Trial Court's

judgments on the verdict non-final appealable orders/judgments pursuant to the Ohio Supreme

Court decision inMiller vs. International Fidelity,

113 Ohio St.3d 474, 866 N.E. 2d 1059, 2007-

Ohio-2457. Consequently, Dr. Shipman, to date, has been precluded from exercising her

absolute right to appeal from the jury verdict so long as the prejudgment interest proceedings

remain before the Trial Court•of the prejudgment interest proceedings, several discovery disputes and

During the course

issues materialized between the parties. On May 17, 2011, the Trial Court issued two orders

which are presently the subject of Dr. Shipman's hiterlocutory Appeal in this case. Dr.

involves the Trial Court 's prejudgment interest discoveryShipman's appeal before this Court

According to the Court's docket, as of June 29, 2011, the Trial Court has not yet transmitted its

record to this Court.

orders compelling the production of privileged and protected materials and information 4

After Dr. Shipman filed her Notice of Appeal with this Court, Dr. Shipman initially

sought at the Tr al Court level on May 20, 2011 a Stay of the Trial Court's proceedings,

including any attempts by Appellees to execute on the jury's verdict. Dr. Shipman argued that

she was entitled to a Stay of all proceedings and execution without the need of the posting of a

supersedeas bond.

On May 23, 2011, Appellees filed their Memorandum in Response to Dr. Shipman's

Motion for Stay of Execution. Appellees did not oppose a Stay of the proceedings. But,

Appellees argued that atry Stay should be accornpanied with a supersedeas bond in an amount in

excess of $20,000,000.00. Appellees' request for a supersedeas bond in an amount in excess of

$20,000,000.00 encompassed a monetary amount for any potential prejudginent interest award.

Appellees orally withdrew their request for a supersedeas bond that included any potential award

for prejudgment interest, which to this day remains pending before the Trial Court.

On May 25, 2011, Dr. Shipman filed her Reply Brief to Appellees' Memorandum In

Response. Dr. Shiprnan submitted her Reply Brief in order to clarify for the Trial Court that a

supersedeas bond was not required in this case in order to Stay all Trial Court proceedings

pending Dr. Shipman 's Interlocutory Appeal. Dr. Shipman argued that since her Interlocutory

Appeal did not involve the jury's verdict because it was not a fmal appealable order, no

supersedeas bond was required on a jury verdict that was not presently being challenged upon

appeal.On May 13, 2011, the Trial Court conducted an informal oral hear'ing regarding Dr.

Sliipman's Motion for Stay. The Trial Court ordered that the parties file additional briefs on the

4 There is presently a Preliearing Conference scheduled in this Appeal for July 20, 2011.

issues by June 7, 2011.

On June 7, 2011, Dr. Shipman filed her Supplemental Brief in Support of her Motion for

Stay. Dr. Shipman provided the Trial Court with further legal support for why no supersedeas

bond was required for her Interlocutory Appeal from the prejudgment interest discovery orders.

Once again, Dr. Shipman argued that since the jury's verdict is not an issue in the instant appeal

and is not yet appealable, a supersedeas bond is not required in order to obtain a Stay pending an

Tnterlocutory Appeal involving prejudgment interest discovery orders.

On June 15, 2011, the Trial Court issued its Judgment Entry granting Dr. Shipman's

Motion for a Stay but only upon the posting of a supersedeas bond or other similar security in the

amount of $14,533,000.00. In its Judginent Entry, the Trial Court agreed that in certain cases, a

° " 2 However, thesupersedeas bond is not required in order to obtain a Stay. (Exhibit ` A, pg

. )

Trial Court erroneously found that although the jury verdict is not yet appealable and, thus,

cannot yet be challenged, it constitutes a judgment wor8.i securing witli a supersedeas bond. (Id.,

pg. 3).

The Trial Court then compounded its error by fmding and ordering that the adequate

amount to Stay execution of the jury verdict is $14,553,000.00. Clearly, requiring Dr. Shipman

to post a supersedeas bond in the amount of $14,553,000.00 is unrealistic, impracticable and

would undoubtedly cause Dr. Shipman irreparable harm. Dr. Shipman's predicament is that a

$14,553,000.00 bond cannot realistically be posted and, consequently, she may likely have to

abandon her appeal or risk execution on the jury verdict.

Dr. Shipman is now before this Court so that this Court can correct the legal error

committed by the Trial Court whereby the Trial Court improperly ordered that a supersedeas

bond be posted on a jury verdict that is not the subject of the instant Interlocutory Appeal.

Because the jury's verdict at this time cannot be reversed, altered or changed and will rernain

intact throughout the entirety of this appeal, Dr. Sbipman should not be required to post a

supersedeas bond in order to obtain a stay of the Trial Court proceedings.

11. I,aw and AMnment

A. Pursuant To App. 7, This Court Can Vacate The Trial Court's

JudgmentEntry And Then Order A Stay Of All Trial Court

Proceedings, IncludingAny Attempts To Execute On The Jury

Verdict, WithoutThe Posting Of A Supersedeas Bond

This Court has the authority to revisit the stay issues as initially presented to the Trial

Court and then order the appropriate relief as sought by Dr. Shipman. Appellate Rule 7 govems

stays pending an appeal and provides in pertinent part:

(A) Stay must ordinarily be sought in the first instance in trial

court; motion for stay in court of appeals.Application for a stay of the judgment or order of a trial court

pending appeal, or for the determination of the axnount of and theapproval of a supersedeas bond, must ordinarily be niade in the

first instance in the trial court. A motion forgranting

susuch reliefan njnnetion

order suspending, modifying, restoring or gduring the pendency of an appeal may be made to the court ofappeals or to a judge thereof, but, except in cases of injunction

pending appeal,the motion shall show that application to the

trial court for the relief sought is n ottbapplicationtor

trial court has, by journal entry, denied anfailed to afford the relief which the applicant requested.

(Emphasis added).

Appellate Rule 7(A) provides Dr. Slripman with the mechanism to contest the validity of

the Trial Couit's Judgment Entry which properly granted a Stay but, at the same time,

erroneously conditioned the Stay upon the posting of a supersedeas bond. See,Noernberg vs.

The City of Brook Park,Cuyahoga App. No. 36828, 1977 WL 201674. This Court should

vacate the Trial Court's erroneous Judgment Entry and then order a Stay of all Trial Court

proceedings without the posting of a supersedeas bond.

No Supersedeas Bond is Required For An InterlocutoryAppeal Liniited To Prejudgment Interest Discovery Orders.

Dr. Shiprnan does not dispute that when the rime is ripe for them to exercise their right to

appeal froin the jury's verdict, a supersedeas bond may be required pursuant to R.C. 2505.09.


as long as Appellees' Motion for Prejudgment Interest remains pending. In other words, Dr.

Shipman cannot seek to supersede the jury verdict until there is a final ruling on Appellees'

Motion for Prejudgment hlterest.

In justifying an order that Dr. Shipman is entitled to a stay of all proceedings andany

attempt by Plaintiffs to execute on the jury verdict without the necessity of the posting of a

supersedeas bond, this Court need not look any fiuther than the plain language of R.C. 2505.09.

The relevant language of R.C. 2505.09 that mandates the posting of a supersedeas bond is that

the supersedeas bond is posted for the "final order, judgment, or decree that is sought to be

superseded." (Emphasis added). With respect to a "final order," it is undisputed that the jury's

verdict is not a final order since prejudgnent interest proceedings remain unresolved.Miller vs.

International Fidelity,113 Ohio St.3d 474, 866 N.E. 2d 1059, 2007-Ohio-2457. Since the jury's

is not a final order, the posting of a supersedeas bond pursuant to R.C.verdict in this case

2505.09 is not applicable.

Next, R.C. 2505.09 reqnires that a supersedeas bond be posted on the judgment or decree

"sought to be superseded." In this case, the jury's verdict is not an issue upon appeal sin.ce it is

not yet a final appealable order. As such, Defendants' appeal from this Court's interlocutory

prejudgment interest discovery orders does not presently seek to "supersede" the jury's verdict.

In fact, Dr. Shipman is pxohibited from challenging the jury's verdict via an appeal until the

prejudgment interest proceed'v.igs are resolved. Consequently, a supersedeas bond does not have

to be posted pursuant to R.C. 2505.09.

In addition to the plain language of R.C. 2505.09, case law in Ohio also supports

Defendants' position herein that a supersedeas bond is not requir ed because the jury's verdic eals

not the subject of Defendants' interlocutory appeal. As the Eighth District Court of App

stated inTeuteru vs. P & F Enterprises, Inc.

(1970) 21 Ohio App. 2d 122, a supersedeas bond

operates to stay the execution of a judgment while that judgment is appealed to a higher court.

In Union SavingsBank vs. Washington Township Board of Zoning Appeals,

Montgomery App.

No. 15858, 1996 WL 535304, the Second District Court of Appeals stated:

If the purpose of a supersedeas bond is e lt is stayed ther bylA ,pthen,whose right to execute on a jugmlogically, there is no need for a supersedeas bond when theunderlying judgment confers no right on which the Appellee can

execute.

Id. at *5.

Additionally, a supersedeas bond is defined in Black's Law Dictionary as:

"An appellant's bond to stay execution on a judgment during the

pendency of the appeal."


subject of the appeal. In this case, Dr. Shipman is not presently seeking to set aside the jury's

verdict with her Interlocutory Appeal from this Comt's prejudgment interest discovery orders.

Consequently, a supersedeas bond is not necessaiy in order to secure Appellees' jury verdict. A

supersedeas bond may be necessary if the jury's verdict was at stake during the appellate

process, but it is not at this time.

Appellees claimed that the posting of a supersedeas bond is mandatory pursuant to R.C.

2505.09. However, this position was explicitly rejected inWhitlack & Company vs. Stern,

Summit App. No. 15345, 1992 WL 205071. InWhitlack & Company, supra, the Ninth District

Court of Appeals held that a "trial court may exercise its discretion and stay execution of

judgment without requiring the appellant to post a supersedeas bond."Id. at *9; see also, Loinas

& Nettleton Co. vs. Warren,Geauga App. No. 89-G-1519, 1990 WL 93138;

Irvine vs. Akron

Beacon Journal,147 Ohio App. 3d 428, 770 N.E. 2d 1105, 2002-Ohio-2204. hi determining that

a trial court has discretion with respect to the posting of a supersedeas bond, the Ninth District in

Whitlock & Conipany, supra held as follows:

App.R. 7(B) states that a stay of execution :"may" be conditionedupon the filing of a bond in the trial court. R.C. 2505.09 conflictswith the apparent discretion authorized by App.R. 7(B), andinstead requires the posting of a bond. However, Section 5(B),Article IV of the Ohio Constitution requires us to resolve thisconflict in favor of the appellate rules: "A111aws in conflict with[rules promulgated by the Supreme Couit] shall be of no fint.her

force or effect after such rules have taken effect "

Pursuant to Ohio's legal precedents, it is within this Court's discretion to order a stay of

all proceedings without the posting of a supersedeas bond by Dr. Shipman.

Finally, with respect to Appellees' claim that they can now execute on the jury's verdict,

such a position is inconsistent with the Ohio Supreme Court's decision inMiller, supra. Clearly,

parties possess rights in legal proceedings, including the riglit to appeal a judgment to a liigher

court. At this time, while Appellees' prejudgnent initerest claim remains pending, Dr. Shipman

does not yet have the right to appeal to the Court of Appeals according to the Ohio Supreme

Court.Query: if Dr. Sliipnian cannot presently exercise her right to appeal fron2 the jury's

verdict, wliy would Appellees have the right to execute on the same jury verdict? Further query:

if Plaintiffs could presently execute on the jury verdict, would Plaintiffs have to return the money

if Dr. Shipinan prevails upon appeal from the jury verdict?Although the Miller decision does

not directly address the particular issues at hand in this case, its holding is undoubtedly

controlling herein, i.e. the jtny verdict is not a final appealable order and, thus, neither Dr.

upman nor Appellees can exercise their respective rights with respect to the jury's verdictSl

while prejudgment inteiest remains unresolved.

Accordingly, Appellees should be prohibited from attempting to execute on the jury's

verdict while Dr. Shipman's Interlocutory Appeal remains pending. Also, all proceedings before

the Trial Court should be stayed without Dr. Slv.pman being required to post a supersedeas bond.

Put Drd.B.Unatta'nabfle o5upe®edeasd Bo

Thend Thatgllas Effectvelyis A

Shipman In The Inevitable Predicament Where She Will Likely Have

To Abandon Her Right To Appeal.

Not only did the Trial Court erroneously order the posting of a supersedeas bond, the

Trial Court's ordering of a supersedeas bond in the amount of $14,533,000.00 is so unreasonably

high that it has effectively forced Dr. Shipman to essentially forfeit her right of appeal by

exposing her to peril of irreparable harm from the continued threat of execution on the jury's

verdict. Undoubtedly, Dr. Shipman cannot realistically post such an exorbitant supersedeas bond

and, consequently, the Trial Court's Order will prevent Dr. Shipman from pursuing her rigl t Of

appeal by making Dr. Shipman's personal assets subject to executioii 5

Appellees and the Trial Court have consistently ignored the peril that Dr. Shipman now

faces as a result of a $14,533,000.00 supersedeas bond order. A proper balance of the peril of

irreparable hann and public policy weighs against the Trial Court's unrealistic and unattainable

$14,533,000.00 supersedeas bond.

The governing principle behind a supersedeas bond is to "preserve the status quo while

protecting the non-appealing party's rights pending appeal."Alexander vs. Chesapeake,

5 There has been no dispute that Dr. Shipman cannot post a supersedeas bond in the amount of

14,bilityher coverage

been no r0i^ed ,Oto$the po

533i

,nt0,0

0o OObmin more ev dentilary matei als to support this such, there has

Potoniac and Tidewater Books, Inc.,190 F.R.D. 190, 193 (E.D. Va. 1999). When setting a

supersedeas bond, the Court should "seek to protect judgment creditors as fully as Possibly

without irreparably injuring debtors."Texaco vs. Pennzoil,

784 F. 2d 1113, 1154 (2°a Circuit,

1984) rev'd on other grounds 481 U.S. 1(1987).

Due process requires that since a party has a right of appeal, there must be a fair

opportunity to obtain an adjudication on the merits of the appeal.Texaco, supra at 1154. It is

self-evident that an appeal would be fatile if, by the time the appellate court considers the appeal,

the appeal has been robbed of any effectiveness by the prejudicial application of a bonding law.

Id.By ordering an unattainable supersedeas bond in this case, the Trial Court has effectively

denied Dr. Shipman of her constitutional right of appeal. TheTexaco court undertook a

tliorough analysis of such a titanic bonding requirement:

An inflexible requirement for impressment of a lien and deirial of astay of execution unless a supersedeas bond in the full amount ofthe judgment is posted can in some circumstances be iurational,unnecessary, and self-defeatnig, amounting to a confiscation of thejudgment debtor's property without due process.

Id.

Any security or bond offered by a defendant should sirnply reflect and preserve the

defendant's ability to satisfy the judgment.Alexander,

supra at 193. VJhere a judgnient debtor

does not have the means to secure a full supersedeas bond, a stay rnay issue ui an amount

substantially lower than the judgment. Id.

In Dennerline vs. Atterholt, IndianaCourt of Appeals, Case No. 49AD4-0610-CV-557,

the Court addressed a scenario virtually identical to this case. InDennerline, a jury returned a

verdict in the amount of $17,991,043.00 and an appeal was taken from the jury verdict.b The

Trial Court set an appeal bond in the amount of $20,869,609.88. Upon appeal, the Defendant

requested the appellate court to reconsider the Trial Court's $20,869,609.88 and order a

supersedeas bond reflective of a more realistic collectible amount. In reducing the

$20,886,609.88 appeal bond to $3.0 rnillion, the Court of Appeals based its Order on factors such

as the defendant would suffer irreparable iv.ijury and the defeidant's hardship was likely greater

than the plaintiff. (See attached as Exhibit "B").

The Trial Court in this case failed to observe the above principles and satisfy this purpose

when it ordered Dr. Shipman to post a$14,533,000.00 supersedeas bond. The Trial Court should

have ordered a more realistic supersedeas bond reflective of what Appellees could ever

realistically recover on the jury verdict. As it stands now, the Trial Court has ordered a

supersedeas bond far in excess of the actual funds available to satisfy a judgment, i.e. Dr.

Shipman's $2.0 million in liability coverage. In otlier words, the Trial Court has effectively

created funds that may someday be recoverable that simply do not exist.

It is within this Court's discretion to determine if a supersedeas bond is necessary and, if

so, its amount. Bibb vs. Ho7ne S & L Co.(1989) 63 Ohio App. 3d 751, 580 N.E. 2d 52.

Winton

Saviiigs& Loan Co. vs. Eastfork Trace, Inc.,

119 Ohio Misc. 2d 83, 774 N.E. 2d 355, 2001-

Ohio-4386 at paragraph 3 of the syllabus. Although Dr. Shipman maintains that a stay in this

e the posting of a supersedeas bond, in the event that this Court is inclinedrequircase should not

to order the posting of a supersedeas bond, this Court should require a supersedeas bond that is

representative of what Appellees could realistically collect on the verdict, i.e. the 1-iabilitypolicy

need post

6 Of importance, the defendantsthefro^ the jury's verdict oThis appealdoes not u volve an mgof a supersedeas bond in an appealappeal from the jury's verdict.

limits of $2.0 million for Dr. Shipman, plus interest and costs.

With respect to what constitutes an adequate supersedeas bond in cases involving large

verdicts such as this case, there exists very little guidance in Ohio's jurispradence. However,

other jurisdictions throughout the country have addressed similar issues. Those decisions may

assist this Court.

For example, in Salt River Saiid and Rock Conipany vs. Dunevant III (2009) 222 Ariz.

102, 213 P. 3d 251, the court rccognized that fmancial hardship can be a basis for a supersedeas

bond being less than the full judgnzent. InSalt River Sand,

supra the judgment debtor would

have been forced to go out of business if execution on the judgment was not stayed. If there is a

reasonable basis for setting a supersedeas bond in an aniount less than the full judgment, the

Court can order such a bond. See,Bruce Burch, Inc. vs. United Farrn Workers of America

(1989) 160 Ariz 514, 774 P. 2d 818;The Cayuga Indian Nation of New York vs. Pataki

(2002)

188 F. Supp. 2d 223 (The Court can use equitable principles to grant a stay without a full bond if

the filing of a supersedeas bong would irreparably harm the judgment debtor);Mian2i Int'l Realty

Co. vs. Paynter(1986) 807 F.2d 871 (stay of execution of judgment without requiring a

supersedeas bond was appropriate where the defendant did not have enough assets to post bond).

Throughout the country, there is a plethora of authorities that hold that a supersedeas

bond can be posted in an amount reflecting the insurance company's liability coverage, plus

interest and costs upon that amount. Merritt vs. Stafford Conipany (1968) 68 Cal. Rptr. 447, 440

P.2d 92 927; Fletcher vs. Ratcliffe(1995) New Castle County Civ. A. No. 89C-06-160 SCD,

1995 WL 790992; Fitzgerald vs. Addison (1973) 287 So. 2d 151, 2"a Disi. No. 730224;Cansler

vs. Harrington (1982), 231 Kan. 66, 643 P.2d 110; Bowen vs. Government Employees Ins. Co.

(1984) 451 So. 2d 1196, 5"' Cir. No. 83 CA 584;Kissel vs. Clark (1994) 848 S.W. 2d 44, 16'

Cir. No. WD 46854; Rosato vs. Penton (1981) 182 N.J. Super 493, 442 A.2d 656; Cou voisier

vs. Harley Davidson of Trenton, Inc.(1999), 162 N.J. 153, 742 A.2d 542.

In O'Donnell vs. McGrann(1987), 310 Md. 342, 529 A.2d 372, the Court of Appeals of

Maryland addressed facts and issues virtually identical to this case. InO'Donnell, the Court of

Appeals upheld the trial court's order staying the entire amount of the judgment upon filing a

supersedeas bond in an amount less than the full judgment. The lesser amount was ordered

because the defendant had limited assets and the amount reflected the insurance company's

liability coverage, plus interest an d costs. Additionally, the trial court entered an injLUiction to

preserve the status quo by preventing the defendant from transferring any assets or property. In

affimiing the trial court's order, the court of appeals rejected the plaintiffs argument that the

trial court was required to set a bond amount for the full judgment. Instead, the court of appeals

held that the trial court was vested with discretion to order the posting of a supersedeas bond in

an amount less than the full amount.

This Court is, likewise, vested witlz discretion to decide, in the first place, whether a

supersedeas bond is required. If this Court is inclined to order the posting of a supersedeas bond,

then this Court can exercise its discretion and order that the amount of the supersedeas bond be

far less than the full jury's verdict. This Court should follow the equitable reasoning set forth by

the Indiana Appellate Court in the Dennerline case andlor the Maryland Court in the O'Donnell

case. More specifically, this Court should order a supersedeas bond reflecting Dr. Shipman's

liability coverage of $2.0 million, plus interest and costs.

Based upon the foregoing, Dr. Shipman requests that this Court issue an order staying all

proceedings, including any attempt by Appellees to execute on the jury's verdict. Dr. Shipman

further requests that the stay be ordered without the requirernent of posting a sapersedeas bond.

Alternatively, if this Court is inclined to order the posting of a supersedeas bond, Dr. Shipman

requests that it be in the amount of $2.0 million, plus interest and costs.


Doug ^G.I ak O045554)Roetzel & An ss1375 East 9th StreetOne Cleveland Center, Ninth FloorCleveland, Ohio 44114(216) 623-0150(216) 623 0134 - [email protected]

Attorney for Defendants-AppellantsTara Shipman, M.D. and Associates

in Feinale Health, Inc.

CERTIFICATF OF SERVICE


^ ^served upon the following parties via regular U.S. mail, tlus

3 day of Uta-__, 2011:

Attorney for PlaintiffMichael Djordjevic, Esq.Djordjevic, Casey & MarmarosSuite 201 at Maiden Lane17 South Main StreetAkron, OH 44308



Attomey for Pl aintiff


506816v_01\061739.1114

STATE OF OHIO ) IN THE COURT OF APPEALS) ss.

COUNTY OF TRUMBULL ELEVENTH DISTRICT

DEBRA R. COBB, INDIVIDUALLY AND JUDGMENT ENTRYAS PARENT AND LEGAL GUARDIANOF H.N.C., A MINOR, et al.,

Plaintiffs-Appellees, CASE NO. 2011-T-0049

-vs-

TARAA. SHIPMAN, M.D., et al.,


EILEDCOURT OF APPEALS

JUL 21 2011

TRUMBULL COUNTY, OHKAREN INFANTE ALLEN, CLERK

This matter came on for consideration of appellants', Tara A. Shipman,

M.D. and Associates in Female Health, Inc. (collectively, "Dr. Shipman"), motion

pursuant to App.R. 7 for a stay of proceedings without the posting of a

supersedeas bond. Appellees, Debra R. Cobb and Okey F. Cobb, Jr., and their

minor daughter, H.N.C. (collectively, "the Cobbs") filed a memorandum in

opposition. Dr. Shipman filed a motion for leave to file a reply brief and a Reply

Brief, which motion is hereby granted instanter.

In the underlying proceeding and after extensive briefing, the trial court

issued a detailed judgment entry granting Dr. Shipman's motion for a stay of

execution pending appeal of post-verdict judgments relating to discovery. The

stay order was conditioned upon Dr. Shipman posting a supersedeas bond or

other similar security in the amount of $14,553,000 in favor of the Cobbs.

EXHIBIT L

We find that the trial court did not abuse its discretion in requiring a bond;

however, we find that the amount of the bond is too high given the total amount

of the final judgment outstanding at this time plus interest.

Pr®cedura9 History

The underlying appeal emanates from a medical negligence action relating

to the birth of H.N.C. The Cobbs alleged that as the direct and proximate result

of the negligence of Dr. Shipman, among others, H.N.C. was born with cerebral

palsy caused by a lack of oxygen to her brain which occurred during birth. The

Cobbs filed a complaint against five defendants including appellants, Tara A.

Shipman, M.D., (the physician who delivered H.N.C.), and Associates in Female

Health, Inc., (Dr. Shipman's employer).

Following a 15-day trial, the trial court entered a judgment on the verdict in

the amount of $12,102,000 in favor of H.N.C., together with a judgment on the

verdict in the sum of $1,800,000 in favor of her parents. Both verdicts were

entered against Dr. Shipman and, following motions for set-off, the verdicts were

ultimately reduced to a combined total of $9,702,000. Dr. Shipman was insured;

however, the collective liability limits of the policies are $2,000,000.

The Cobbs filed a motion for prejudgment interest and submitted requests

for production of documents seeking discoverable materials from both Dr.

Shipman's insurance carrier and defense counsel. The Cobbs also served a

notice of deposition duces tecum seeking Dr. Shipman's deposition and the

productior, of documents in her possession including correspondence between

2

herself and her insurer and legal counsel and any handwritten notes relating to

the litigation. Depositions of defense counsel were also requested. Motion

practice ensued with motions for protective order and to compel being submitted

to the trial court. The judgment entries ruling on these discovery-related motions

are the subject of the underlying appeal.

Dr. Shipman also filed a motion for judgment notwithstanding the verdict

and/or new trial, which was denied by the trial court. With the motion for

prejudgment interest pending, Dr. Shipman filed a notice of appeal on the

discovery of privileged matters related to appellees' motion for prejudgment

interest. Dr. Shipman also moved the trial court for a stay of execution of

judgment pending appeal. The Cobbs did not oppose a stay of the proceedings

but argued that any stay should be accompanied by a supersedeas bond in

excess of $20,000,000. Pursuant to its June 15, 2011 judgment entry, the trial

court granted Dr. Shipman's motion for stay conditioned upon the posting of a

supersedeas bond in the amount of $14,553,000.

Dr. Sh°s man's Assertions Re ardin the Need for and Amount of the Bond

In her motion to stay all trial court proceedings pending appeal without the

posting of a supersedeas bond, she argues that the appeal is an interlocutory

appeal from prejudgment interest discovery orders. Dr. Shipman further asserts

that the jury's verdict is not a final, appealable order and/or a judgment that

needs to be secured with a supersedeas bond pending the instant interlocutory

appeal. Dr. Shipman maintains that the jury's verdict is not a°final order" since

3

prejudgment interest proceedings remain unresolved, and therefore, the

supersedeas bond provision of R.C. 2505.09 is not applicable.

In addition; Dr. Shipman argues that the bond amount is "unrealistic,"

"coercive," "impracticable," "unattainable," and "will likely force Dr. Shipman to

forfeit her right to appeal by exposing her to the peril of irreparable harm from the

continued threat of execution on the jury verdict." In essence, Dr. Shipman

maintains that the trial court has ordered a supersedeas bond far in excess of the

actual funds available. to satisfy a judgment, i.e., the $2,000,000 amount of

liability coverage. Thus, at most, she contends that the supersedeas bond

should be set at $2,000,000, plus interest and costs.

The Cobbs' Response

The Cobbs contend that the trial court's condition for stay of execution order

should not be disturbed, stressing that there is no evidence that Dr. Shipman, a

practicing obstetrician, is "destitute" or "uncollectable," or that "she or her insurer"

were unable to post an adequate supersedeas bond. The Cobbs further argue

that because an appeal has been taken in this case, an adequate supersedeas

bond is required under Civ.R. 62(B); that an "adequate" minimum bond cannot be

less than the amount of the judgment, plus interest; and that it is within the trial

court's discretion to set a bond in excess of the minimum amount. The Cobbs

also argue that although the jury verdict is not a final, appealable order at this

time, it is still a final judgment, even though a motion for prejudgment interest has

been filed and remains pending.

4

T'he Need for a B®nd R C 2505 09 Glv R 62(B1 Flnal Orders and Fin^

Appealable Orders

The purpose of a supersedeas bond is to secure the appellee's right to

collect on the judgment during the pendency of an appeal. Mahoney v. Berea

(1986), 33 Ohio App.3d 94, 96. The governing principle behind a supersedeas

bond is to preserve the status quo while protecting the non-appealing party's

rights pending appeal. Buckles v. Buckles (1988), 46 Ohio App.3d 118, 123.

Under R.C. 2505.09, a stay of execution of a judgment may be obtained by

complying with the Appellate Rules of Procedure and executing a supersedeas

bond in an amount not less than the amount of the "final order, judgment, or

decree" and interest. App.R. 7(B) provides that the granting of a stay may be

conditioned upon the filing of a bond or other security. "Determining the need for

the bond and its amount are discretionary matters which will not be overturned by

the appellate court absent a showing of an abuse of discretion." Bibb v. Home

Savings and Loan Co. (1989), 63 Ohio App.3d 751, 752. An abuse of discretion

is the trial court's "'failure to exercise sound, reasonable, and legal decision-

making."' State v. Beechier, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, at %62,

quoting Black's Law Dictionary (8 Ed.Rev.2004) 11.

Civ.R. 62(B), "Stay upon appeal," provides: "[w]hen an appeal is taken the

appellant may obtain a stay of execution of a judgment or any proceedings to

enforce a judgment by giving an adequate supersedeas bond. The bond may be

given at or after the time of filing the notice of appeal. The stay is effective when

the supersedeas bond is approved by the court."

5

Dr. Shipman argues there is no need for a bond at this time inasmuch as

the appeal concerns only interlocutory discovery orders regarding the pending

motion for prejudgment interest. It is her position that the jury verdict is not at risk

of reversal as it is not yet a final, appealable order nor is it a final order that

needs to be secured, relying on Miller v. First lnternatl. Fid. & Trust Bldg., 113

Ohio St.3d 474, 2007-Ohio-2457, for the proposition that "[a] journalized jury

verdict is not a final, appealable order when a motion for prejudgment interest

has been filed and remains pending." Id. at syllabus.

In Miller, the appellant appealed from a judgment overruling its motion for

judgment notwithstanding the verdict or for new trial before the motion for

prejudgment interest had been resolved. Id. at ¶1. The Supreme Court of Ohio

affirmed the Sixth District's dismissal of the appeal for lack of a final, appealable

order. Id. at¶1, 11.

Unlike Miller, Dr. Shipman filed an appeal based on prejudgment interest

discovery orders. Thus, the pending motion for prejudgment interest does not

affect the finality and enforceability of the judgment on the verdict regardless of

its character as a final and appealable order. Although the jury verdict here is not

yet a final, appealable order, it is still a final judgment, pursuant to R.C. 2505.09

and Civ.R. 62(B), even though a motion for prejudgment interest has been filed

and remains pending. See, also, Stewart v. Zone Cab of Cleveland (Jan. 31,

2002), 8th Dist. No. 79317, 2002 Ohio App. LEXIS 378, at *6 (holding that "the

appellate rules operate to toll the appeal time for a party that opts to pursue

6

certain post-judgment motions but this provision for additional time does not

change the finality of the judgment itself' and observing that "the existence of a

pending post-judgment motion does not preclude a successful litigant from

commencing efforts to enforce the judgment.")

In addition, Dr. Shipman relies on a case from the Maryland Court of

Appeals, O'Donnell v. McGann (1987), 529 A.2d 372, for the proposition that this

court should set a supersedeas bond in an amount equal to the policy limits of

insurance available in this case. We note that the court in O'Donnell held that

Maryland circuit courts could only exercise discretion to lower a bond amount

when the moving party presented a plan that would preserve the status quo

during the pendency of the appeal, while also demonstrating why the existing

rules should be altered. Id. at 377.

Applying O'Donnell to the case at bar, we note that Dr. Shipman failed to

present a plan that would preserve the status quo during the pendency of the

appeal either to the trial court or to this court. Other than the existence and

amount of liability insurance coverage available to secure the Cobbs' ability to

collect after appeal, we have no other evidence of available security. In addition,

Dr. Shipman failed to demonstrate why the existing rules should be altered.

Thus, the trial court properly determined that although not controliing in Ohio,

appellants' motion would not survive even under the O'Donnell standard.'

7

The Amount of the Bond

Although the trial court granted the motion for stay of execution of judgment

pending appeal, Dr. Shipman takes issue with the amount of the supersedeas

bond. The minimum amount of the outstanding judgment is approaching

$10,000,000, as interest is currently running at four percent per year post-

judgment. Dr. Shipman is effectively asking this court to modify and reduce the

amount required to effectuate the trial court's stay. Again, this court will not

modify a trial court's ruling on a motion for stay, or an amount of bond set by the

trial court, absent a showing of an abuse of discretion. Bibb, supra, at 752.

As recounted earlier, Dr. Shipman asserts that "[t]he Trial Court's setting of

such an unreasonably high supersedeas bond will likely force Dr. Shipman to

forfeit her right of appeal by exposing her to the peril of irreparable harm from the

continued threat of execution on the jury verdict." This court cannot rest a

decision solely upon speculation; Dr. Shipman's submissions provide no

evidence of attempts to obtain a bond or that it is impossible to obtain a bond in

the amount set by the trial court or in any amount for that matter. We only have

before us an assertion in a footnote that "[t]here has been no dispute that Dr.

Shipman cannot post a supersedeas bond in the amount of $12,533,000.00," and

we note that the Cobbs did not concede this point.

Nor are there any specifics regarding theassets and/or thecolleotability of

Dr. Shipman. We note that unlike here, the Maryland Court at least had before it

the fact that the judgment debtor's assets amounted to onlv $14,000. Dr.

8

Shipman argues in a conclusory fashion that the bond amount should be

"representative of what Appellees could realistically collect on the verdict, i.e. the

liability policy limits of $2.0 million for Dr. Shipman, plus interest and costs," but

she gives us nothing upon which we can base an evaluation of collectability.

Moreover, there is no argument addressing the core question of adequacy.

We fail to see, and Dr. Shipman has not established irreparable harm. Dr.

Shipman also fails to provide any information in the motion why she believes she

would prevail on appeal.

We do, however, find that the trial court exceeded its discretion in setting

the amount of the bond. The amount set by the trial court is too high given the

total amount of the final judgment outstanding at this time plus interest especially

inasmuch as there has been no decision on the merits of the motion for

prejudgment interest. W-VIx ^^î^înî^ti^ of'f05Q9io00

co^9r^^'vpith^•the'rettuir`^rrrents'of°t^ ^. 2505.09 ah'dìs îleqraate-=to maintain-the.

s^`^§k^'do?pending"the apvealA of the judgment relatê to=the discove .ry issues

ai anding atffft^` provide, securftjr foK the th e-amount'of the final judgment outsf

tig^hme;plus inter.est.

Therefore, appellants' motion to stay all trial court proceedings pending

appeal without the posting of a supersedeas bond is hereby overruled, and

appellants' motion to stay execution of the judgment pending appeal is granted.

However, this stay order shall not become effective until appellants have posted

9

with the Trumbull County Clerk of Courts a supersedeas bond in the amount of

$10,500,000, cash or surety.

Furthermore, this stay order only applies to the present appeal before us.

In the event there are additional appeals, either on any ruling by the trial court

regarding prejudgment interest currently pending before it or on the jury's verdict,

appellants may seek a stay but shall provide such additional bond as determined

by the trial court or this court.

DIANE V. GRENDELL, J.,

SEAN C. GALLAGHER, J., Eighth District Court of Appeals, sifting by

assignment,

concur.

FILEDCOURTOFAPPEALS

JUL 2 12011

TRUMBULL COUNTY, OF7KAREN INFANTE ALLEN,CLBR6t

i (;

IN THE COMMON PLEAS COURT OFTRUMBULL COUNTY, OHIO

CASE NO. 2006 CV 02992

JUDGMENT CREDITOR

MAanN F. WHtts,Co., L.BA.

156 Park Avenue N.E.P.O. Box 1150

Narren, Ohio 44482-1150330/394.9692

fax:330/394b589

vs. REQUEST

TARA A. SHIPMAN, MD, ET AL

JUDGMENT DEBTORS

To the Clerk:

Please issue an immediate execution for $9,702,000.00 plus

interest, court costs and any additional court costs arising out of thisexecution. Levy on all property of Judgment Debtor, Tara A. Shipman, MD,including, but not limited to: a 2010 Land Rover Model LR4, VIN#SALAK2D44AA514896, Ohio License Plate Number ECY9690 and any other motorvehicles, water craft, furniture, fixtures, equipment, supplies, inventory,and cash of Judgment Debtor, Tara A. Shipman, MD located at 110 Fairway Drive,

Cortland,Ohio 44410 and 2652 Elm Road, Cortland, Ohio 44410 including but not

limited to any outbuilding, garage or shed llocated/v^ 110 Fairway Drive,

Cortland, Ohio 44410.

MART N F. WHI (#0009584)MARTIN F. WHITE, CO., L.P.A.156 Park Avenue N.E.P.O. Box 1150Warren, OH 44482Telephone No. (330) 394-9692E-mail: [email protected] FOR JUDGMENT CREDITOR

Original Judgment $9,702,000.00 plus interest

Court Costs $ plus $

Total: $ plus $

Less Previously Paid or Credited $

Total: Probable Amount Owed $ plus $

plus the costs of this levSr.

EXHIBIT M

1IIIIII IIIII IBII IIIII IIIII Nln IIIII IIII IIIII IIIN IIIII illl IIII 2D06 CV029020008550040D

CIVIL EXECUTIONRevised Code, Section 2329.09

COU13T OF COMMON PLF, AS, TRUMBULL COUNTY, WARREN, Ok7I0

CASE NO. 2006 CV 02992

State o,f"®hia' Trumbull Coaatpty

TO 7'HE SRERI.i?1F OP+ SAIl) COIJNTXa

^,'OII ARE EiET.BEBX CONMAriDM, that iza your County the goods and chattels o£

TA1tA A S1ETdP1V][A.IaT MD

ou cause to be made the sum of:

coc

o71<.r.Ar_^,;^I

Cmv

xfl-I

T rTl

c^rn9,702,000.00

With interest thereon at the rate of per annum from and, cost of suit, which by the judgment to render unto the said:

c=i^ Dco

J=

DEBRA R COBB

recovered against the said TARA A SHIPMAN MD until paid;and also costs of increase on said judgment and the accruing eosts hereon; aud for want of goodsand chattels that you cause the lands and tenements in your County, of the said:

TARA A SHIPM[P+N MD

Return of this wr'it in SIXTY (60) days.

W,(TIYESS my signature and the seal ofsaid CourtSeptem.ber,2, 2011

KAREN zNFA.NTE ALZ.EN,Cterkvf courPs

By:NANCY W'f.NCrARD, Deputy Clerk

EXHIBIT N

DEBRA R. COBH, F,T AL

IN THE COMMON PLEAS COURT OFTRUMBULL COUNTX, OHIO

1 cASE NO. 2006 CV 02992

JUDGMENT CREDITOR

99.REQUEST

TARA A. SHLPMAN, MD, ET AL

JUDGMENT. DEBTORS ) ..

To the Clerkc

p.ease i9sue an imm®di.ate executi.on for $9,702,000.00 plus

interest, court costs and any additional court cocts arising out of thie

execution. Levyon a11 property of Judgment Debtor, Tara A. Shipman, MD,

i.ncluding, but not limited to: a 2010 Land Rover. Model LR4, vIN#g,ALAK2D94AA514896, Ohio License Plate Number ECX9690 g pp^i g/ot^ ventory^vehicles, water eraft, Eu.rniture, fixtures, equipment,and cash of Judgment Debtor, Tara A. Shipman, MD located at 110 Fairway Drive,

Cortland,-Ohio 44410 and 2652 &].m Road,Cor9:isnd, Ohio 44410 including but not

limited to any outbuilding, garage or shed .lgcated 110 Fairway Drive,A /

cortland, Ohio 44410.

:'

N:d•

_' ^ %=^:i =

••: _lti r

.°GC.- .,> U

ra

^s

'it`'o

ERV. cJ rP.L

original Judgment

MA RT'fl09584 )MARTFN F. WHITE, CO., L.P.A.156 Park Avenue N.E.P.O. Box 1150Warren, OH 44482Telephone No. (330) 394-9692E-mail: [email protected] FOR JUDGMENT CREDITOR

$9,702,000.00 plus interest

Court Costs$ p7,us $

Total: $ plus S

Less Previously Paid orCredited 5

Total; Probable Amount owed

MAR71N F WHITE,Co., L.P.A,

156Park Avr,nuaN,EPA. DaK 1160

Warrzn, Ohio 44462-175D35D/394.9692

Fmc 3S0l394.8589

- plus $

plus the costs of this levy.

User: MAG

Guery Parameters

Title 36:7704607477 Batch 0:

VINIWIN/MIN: SALAK2D44AA514896

Database: COUNTY THEN STATE Status:ALL

Title Information

Title Num 77046D7477

System Date; 07/26/2011

Batch#Su9fix: Control ti

Surfix: 0 PropertyType: VE.HICLE

Privacy Block: EXEMPT

®ontrol N um: 096844815 Cnty of Res78

Title Type: ORIGINAL

Issue Date: 09/30/2009

Evidence: MCO - IN STATTitle statusc ACTIVE

Current Status Date: 09/30/2009 Prev. Title State: OH Prev. Title #:

Reassign State: Admin Hold Desc.:

Admin Hold Type: Purchase Date: 0911212009

inactive Reason Type Inactive Reasan Text:

Trans. Cammcnts• Title Trans comments:

Property Enformation

VIN: SAIAK2D44AA514896

Make: LNDR

MEloage: 15

Conversion:

Sui6x;0 PropertyType!JEHICLE

Make Desc: LAND ROVE Modef: LR4Mileage A MileageBrand: Just. Code

Title Chain Comments;

Brand: Brand Deso:

Brand: Brand Dese:

®rand: Brand Dese:

Miscellaneous Information

Number of Liens: 1

Number of TDDs: 0

Number of Active Liens: I

Admin HaldDate:

Trans 0rigin:

Surrendered to State:

T

BodyTYpo: SWYear: 2010

Model Deset LR4

Condition• GOOD

Number of ®wners: I

1st Owner Informatian

Last Name:• SHIPMAN First Name: TARA M.I.: A Suffix: D®B:

FEIN: Company Name;

Dealer Permtt #: Vndr. Lie. 0: Dealer Name:

Street1: 110 FAIRWAY DR Street2: Clty: CORTLAND

5tate: OH Country: Zip: 44410 int9 Zip:

and owner Information

Last Name: Flrst Name: M.I : Suffix: DOB:

FEIN: Company Name:

Dealer Permit 0: Vndr. Lic, S: Dealer Name:

Streetl: Streat2: City:

State: Country:Zip: Int'1 Zip-

Previous Owner Information

Last Name: First Name: Suffix: D®B:

FEIN: Company Name:

Deaior Permit #: ND002467 vndr. Lio. #:18465941 Dealer Name: LAND ROVER SOLON

9treetlc 6133 KRUSE DR Street2: City: SOLON

3tate: OH Country Zip: 44139 Int'I Zip:

Lien Information

Lien Name: J P MORGAN CHASE BANK NA.

Street 1: 14800 FRYE RD

C}ty; FORT WORTH

TX1 0011 Street Z:

8tatus: A tssue Date: 09I3012009

Cancel Date:

state: TX Zip: 76155 User Io: JAD

Receipt Information

6usiness Date-0913012009 User ID: CA5 Priae: $58466 Trade In: $30000

Total Fees: $18Tota1 Taxes: $1707.36 Total Paid: $1722.36 Change $0Amount.:

Sales Tax Credit: Exemption Code: Vendor Disc®unt: $12.91

Broker Permit #: Broker Vendor 0: Broker Name:


TRUMBULL COUNTY, OI-IIO

CASE NUMBEJO: 2006 CV 2992

HALEY NICOLL C013B, a minor,

by DEBRA CQBB, et al.

PLAINTIFFS.

VS.

TARA SI'IXPMAN, M.D., et al.

DEFF.NDANTS.

JUDGE W. Wti'ATT McKAY

WRIT OF EJ{.ECUTI.ON

To the Trumbull County Sheriff:

You are hereby ORDERED to immediately serve a copy of this Writ oF Execution for

$9,702,000.00 plus interest, court costs and any additional court costs arising from thisExecution. Levy on all property of the Judgment Debtor, Tara A. Shipman, M.D., including

but not limited to: 2010 Land Rover Model LR4, VIN#SALAIC2D44AA514896, Ohio

License Plate number ECY9690, and any other motor vehicles, water craft, fianiture,fixtures, equipment, supplies, inventory, and cash of the Defendant located at 110 Fairway

Drive, Cortland, Ol►io, 44410, and 2652 Elm Rd., Cortland, Ohio, 44410, including but

not limited to access to any outbuilding, garage or shed located at 110 Fairway Drive,

Cortland, Ohio, 44410.

In the event that the execution is not immediately satisfied by the Judgment Debtor, thenthe levying officer shall procced to secure the prernises of the Judgment Debtor for thepurposes oCconducting an inventory and appraisal of the contents of the Judgment Debtortherein, advertise a pablic sale of said contents, and sell said contents and apply the proceedsthereof toward court costs, the expenses of the execution and then toward satisfaction of the

judgment herein.

SO ORDERED.

JUDGE W. WYATT Mc1CAY,,. a

CC: ShorifPCivil

Il^- Ry ^Wt^ 'v

q ..fVr,r

caQt. ^

cn ...NCD

IPl TFIE COURT OF CoMIdY®N PLEAS

- GENEgtAL DIVISION aTRII1Vt8ilI.L COUNTY, Q$Y®

cASE N1JMB E1& 2006 CV 2992

HALEY NICOLE COBB, a minor,by DEBIdA COBB, et al,

PLAINTIFFS.

vs.

TARA SHIPMAR, A4.A., et al,

I3EFENDANTS.

d1JP)GE'tV. wYATT McKAY

JUl)G1N9ENT ENTIt'Y

This matter comes before the Courb on Motion of the Defendants, Tara Shipman, M.D.

and Associates in Female Health, Inc, for a Set-Off of PlaintiiFs Settlement with Co-Defendant.s.

The Court has reviewed the Motion, the responsc of the Plaintiffs, and the cvidence.

On October 21, 2010, following ftfteen days of trial, this Court entered a Judgment on the

Verdict in the above captioned case in the amount of $12,102,000.00 in favor of the Plaintiff,

Haley Nicole Cobb, a minor, together with a]udgment on the Verdaot in the amount of

$1,800,000.00 in favor of the Plaintiffs Okey and Debra Cobb, Haley's parents. The verdicts

both eoncem Haley's birth in January of 2000, and her resulting medical condition which was

cerebral palsy caused liy a lack of oxygen to her brain. Both verdicts were entered against the

Defendants Tara Shipman, M.D. and Associates in Female Health, Inc,

Prior to the jury verdict in this case, the Plaintiffs settled with Co-Defetidants Forotn

Health, dba Ttumbull Memorial Hospital, Butler Wick Trust Company, Administrator cif the

Estate of Edmundo Salerm, M.D., and the'Pnunbuli Anesthesia Group. On October 18, 2010, the

Trumbull County Probate Court approved the partial settlement by dividing a total of $6.5

million between Haley and her parents. Underthat Court's Order, Haley received $2.4 million

IIIIqIqNlqlliqqlNlllqIl^Nl^qlqlqlqlNNl^lMq ^;0

and Okey and Debra received $4.1 million. Out of Haley's portion of the settlement, the Probate

Court did not assess any costs of the liiigation or attomey fees.

In its Motion for Set-Off, Defendants Shipman and Associates in Female Health argue

that they are entitled to have the jury verdict entered against them set-off by the entire $6.5

million setilement. Meanwhile, the Plaintiffs arguc that the Defendants may only set-of.f the $2.4

million of the verdict in favor of Haley. The Plaintiffs further argue that because the $4.1

million settlement in favor of Okey and Debra exceeds the jury award of $1.g million, their claim

has already been paid by virtue of the settlement. 71te Plaintiffs stipulated that the settling Co-

Defendants were "liable in tort" so as to preserve the right of set-0ff in the remaining Defendants

under former R.C. §2307.32, which is applicable in this case that began in 2000. Under the

relevant portion oflt.C. §2307.32 (F) (1), the scttlement in this case "raducea the elaim aeainst

{pr.Shinman and Associatesl to the extent of any amount stipulated by the release or tho

covenant, or in the amonnt of the consideration paid for it, whichever is geater." (Emphasis

Added)

At its heart, this dispute centers on the additional $2.3 million that belongs to Okey and

Debra by virtue of the Probate Court's division of settlement proceedings. That settlement was

approved heforc the jury's verdict. Because Okey and Debra receivcd $2.3 million more in

settlcment with the Co-Defendants than the $1.8 million the jury awarded them, Dr. Shipman

and Associates suggest that the Probate Court "manipulated" the settlement amount to "lessen

the amount of the set-off available to Dr. Shiptnan." Under Defetidants' proposed set-off, the

entire verdict of $13,902,00.00 is reduced by $6.5 million, yielding a resulting verdict of

$7,402,000.00. Under the Plaintiffs' proposed set-off, bnly Iialey's verdict of $12,102,000.00 is

considered, and it is reduced only by $2,400,000.00, wbich is the amount of Haley's Probate

Court approved settlemcnt yielding a resulting verdict ®f $9,702,000.00.

Defendants' disagreement with the Probate Court's division of the settlement belies their

own argument that they are entitled to a $6.5 million set-off in the Motion presently before this

Couit. This Court agrees with the plaintiffs tbat, all along, this case was brought as two separate

multi-faceted claims--with claims on behalf of Haley, and also claims on bebalf of her parents,

Okey and Debra. Tho language of R.C. §2307.32 speaks to the Plaintiffs' claim(s), not to the

tortfeasor's exposure. In tbis case, there are separate and distinct claims. R.C. §2307.32, by its

operation, reduces the verdict against Haley in the ainount of $2.4 million. The total verdict now

owed by the Defeeidants in this case to Haley Cobb is now $9,702.00.00, and the verdict in favor

of the Plaintiffs Okey and Debra Cobb is now satiist9ed.

In support of their flawed position, the Defendants rely almost completely on the Ohio

Supreme Court case of Febrenbach v. O°Malle (2007), 113 ®hio St. 3d 18, In Fehrenbach

wltich was a case concerning tho tolling of the Statute of Limitations, the Supreme Court held at

the syllabus that "because a parent's claim for loss of consortium against a third party for injuries

to the parent's minor child is an interest that is "joint and inseparable" from the child's own

claim, the parent's claim may be tolled during tho child's disability." In that case, the

Fehrenbachs (the parents) argued that because their ®laim arose from their daughter's injuries,

their claim for loss of consortium should be tolled by the Statute of Limitations applicable to

their daughters' claims for personal injury under R.C. §2305.16. In affirming the Court of

Appeals ruling in the Fehrenbach's favor, the Ohio Supreme Court held that the claims were

"joint and inseparable." In other words, the Fehrenbachs could file thcir suit for loss of parental

consortium long after the Statute of Limitations would have run for them, because the same

Statute of Limitations was tolled due to their daughter's minority age.

Orindeil v. El uber (1971),28Howcver, the Ohio Supreme Court case of Ohio St.2d 71 is

still good law in Ohio and it still controls in this case. In tha t easc, the Ohio Supreme Coart

stated that "Where a defendant negligently causes injury to a minor child, that single wrong gives

rise to two separate and distinct causes of actlon: an action by the minor child for his personal

injuries and a derivative aetion in favor of the parents of the child for the loss of his services and

his medical eXpenses." (At the time of the Orindell decision, aad prior to 1993, the claims for

loss of consortium by a parent for injuries to a child had not yet been expanded.) A. cor®plete

reading of the Fehrcnbach decision illustrates that loss of consortium claims arc derivative

claims that must be brought at the same time as the underlying claim for injury, but that they arq

separate claims.

The independent nature of the loss-of-consortium claim is based oncontrol and ownership of the claim. In determining whether ahusband's waiver of his claim tenninated a wife's loss-of-consortium claim, we heid, "'1'he right is her separate and personalright arising from the damages she sustains as a result of thetortfeasor's conduct. The right of the wife to maintain an action forloss of consortium occasioned by her husband's lnjury is a cause ofaction which belongs to her and which does not belong to herhusband:" fiowon v. Kil-l:at'e, lnc. (1992), 63 Ohio St.3d 84, 92,585 N.E.2d 384. Because the loss-of-eonsottium claim belongs notto the person suffering a physical injury but to another, it isindependent, and while the claim may be "separato" in the sensethat it is a distinct and individual claim, it is a derivative aotion,arising from the same occurrence that produced the alleged injury

to the other familial party.

And the Supreme Court in Fehrcnbach also cited the 1970 Stafl'Notes from Civil Rule 19 stating

that:

1118) "Rule 19.1 extends the Rule 19 philosophy byrequiring a person with a senarate claim to join his claim with thatof another person even though under substantive law there may betwo independent claims which might be pursued separately."(Emphasis Added).

The Ohio Supreme Court held that "because a parent's claim for loss of consortium against a

third party for injuries to the parent`s minor child is aa interest that is "joint and inseparable"

from ihe child's own claim for auroases af R.C. 2305.16, the parent's claim may be tolled

during the child's disability." (Emphasis Added). lL& at 23. The Court did not bold that the

parents' claim did not remain a separate and distinet derivative claim. Therefore, Grindeli

remains controlling law in Ohio.

In this case, there were separate Plaintiffs with separate claims. Under Fahrenbach, the

Plaintiffs were required to file their claims for loss of consortium together with Haley's claims.

They complied with Fehrenbach in all respects, made their elaims as separate counts to the

Complaint, and received a separate, a1b®it derivative, verdict from the jury.

Finally, the Defendants also attempt to attack the validity of the Probate Court's division

of the aforementioned settlement prooeeds prior to the jury verdict being entered in this case. At

the time of these proceedings, the Dcfendants were not necessary parties in the Probate Court,

but the Defendants now argue that the proceedings in Probate Court were conducted in bad faith-

Under R.C. §2111.18, settl@ments of claims such as In the case at bar are made `%Aith the advice,

approval, and consent of thc probate coutt." Id, In their brief, the Defendants cite to testimony

elicited from Plaintiffs' counsel and Magistrate CornicelG at a hearing conducted by this Court

on December 14, 2010. Although the Defendants focus on said testimony and believe it supports

their position that the division of the settlement proceeds was not made in good faith, they forget

one important element-the Probate Court. The Defendants attach no evidence that the Probate

Court acted in bad faith in any way shape or form when they exeroised their jurisdiction

conc®rning the division of these procecds. While the motivations of Plaintiffs' counscl are

interesting, they are not substituted for the ultimate decision of the Probate Court. This Court

fihds that Defendants' disagreements with the division of the settlement proceeds arc properly

brought before the Probate Court of Trumbull County, who maintains jurisdaction to rcsolve the

division of settlements concerning minors under R.C. §2111.18. This Court will continue to

honor the ruling of sa'td Court and will continue to respect said Court's jurisdiction, even though

said division does affect the set off in this case. The Defendants are free to attempt to intervene

in said Probate Court proceedings and seek farther revieu'there, in a Court that maintains proper

jurisdiction.endants' Morion for Set ®ff is hereby DENIED' The PlaintifEs' Motion for Set-

The Dcf

Off is hereby GRAh1TED+ and the resulting principal sum of the verdict in favor of the plaintiff

^ey Cobb, a minor, tbrough her guardi®n, against the Defendants is now red^rced to

$9,702,000,00 by virtue of the set-off. The verdict in favor of the P►aintiffs Okey and Debra

Cobb is now satisfeed.

All in accordance with this Judgment Entry.

SO ORDERED.

JUDGE W. WYA-T cK^

Tn4,mcme'tFRS{OFCOURTS:

Y®U AREORDERED TO SERVE COPIES OF TEIIS ^DC^^

ON AI.L CO'UNSEL OF RECORD OR 6JPON TYLE PA.RTXE9RTHWITH

WIiO ARE UN ^ P^RESY MAIL.BY

, J I"61cqks-to •

, Wr) °fp-

J. F oreJP-

P.^Mpnniwk.

^ ... . -+.

jItSan&19^ Jn

SHn IEF'S RETUM

Sheriff's Office,County, Ohio

20^

20-9 at o'clock

I did, on theo'clock -,M, lcey upon:

Received this writ On the - day of.M., pn.d pursuant to its coxomand

^ day of 201--' at

Sheriff

Vs.

PtaBntz:f.f,

De, fertdranC

$,XECgITION

Judgment for.

p1tQ8 Costs:

De€s COs9s:

TntetesC

Ino,reave Costs:

yuercase Costs Clexk:

Increzse Costs Sheriffi

1#MOIJNT PAID:

TO'J.'AL AUB:-

KAREN llVF,1M AI,T,EN, Clerk ojCourte

BY:

Deputy Clerk

Attorney:

Deputy

S]HEI^'+F'S RETiJRId

9ezvice & Retum:

Mileage miles:

To app----..isees^

Capxes for

^(1VEP^1SeffieAt6:

words, per 100,

10 cts:

Pounda€e:

Other:

No.

In the Supreffit? Court of Ohio

APPEAL FROM THE COURT OF APPEALS

ELES'ENTH APPELLATE DISTRICT

TRUMSULL COUNTY, OHIOCAsE No. 2011-T-0049

HALEY NICOLE COBB, a minor by DEBRA COBB, et aL,


V.



NOTICE OF APPEAL OF APPELLANTSTARA SHIP1yIAN, M.D. AND ASSOCIATES IN FEMALE HEALTH, INC.

Martin White, Esq. (0009584)154 Park Avenue, NEWarren, OH 44482


Norman A. Moses, Esq.100 Marwood CircleBoardman; OH 44512

Douglas G. Leak (0045554) (Counsel ofRecord)Roetzel & Andress, LPA1375 East Ninth Street, Suite 900Cleveland, OH [email protected]

Attorney for Defendants Appellants TaraShipman, M.D. and Associates in Female

Health, Inc.


EXHIBIT 0

REDSg) 0 6 2011

CLERK OF COURTSUPRE(tnF COURT OF OHIO

Notice of Appeal of Defendants-AppellantsTara Shaptnan M D and Associates in Female Healtha Ine.

Defendants-Appellants Tara Shipman, M.D. and Associates in Female Health, hic.

hereby give notice of appeal to the Supreme Court of Ohio from the Judgment Entry rendered by

the Trumbull County Court of Appeals, Eleventh Appellate District, entered in Court of Appeals

Case No. 2011-T-049 on July 21, 2011.

This case is one of public and great general interest that warrants a review by the Ohio

Supreme Court. A Memorandum in Support of Jurisdiction is being filed contemporaneously

with this Notice of Appeal.


Dou^glas G. Leak (0045554) KsC7Roetzel & Andress, LPASuite 900, One Cleveland Center1375 East Ninth StreetCleveland, OH 44114216-623-0150216-623-0134 faxdlcakCc?ralaw.coin

^, G , ^&L

Attorney for Defendants-Appellants TaraShipman, M.D. and Associates in FemaleHealth, Inc.

1

CERTIFICATE OF SERViCE

This is to certify that a copy of the foregoing was ma"ed by regular U.S. Mail this

day of 2011 to the following:





^ ^5 1^ r -kac'kDouglas G. Leak ^p

512696 v 01 \ 061739.1114

2

No.

In the Supreme Court of Ohio

APPEAL FR®M THE CoURT oF APPEALS

ELEvENTI3 APPELLATE DISTRICT

TRUIVIBTJLL CQIINTY, OHIo

CAsE No. 2011-T-0049

HALEY NICOLE COBB, a minor by DEBRA COBB, et aL,


V.

TARA SI3IPMAN, M.D., et al.,


MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTSTARA SIYIPMAN, M.D. AND ASSOCIATES IN FEMALE HEALTH, INC.

Martin White, Esq. (0009584)154 Park Avenue, NEWarren, OH 44482



AZtorneysforPlainti^^Appellees

Douglas G. Leak (0045554) (Counsel ofRecord)Roetzel & Andress, LPA1375 East Ninth Street, Suite 900Cleveland, OH 44114216-623-0150 / 216-623-0134 faxdleak(a^^•alaw.com

Attorney for Defendants-Appellants TaraShipman, M.D. andAssociates in FemaleHealth, Inc.

EXHIBIT P

F LEEG' Ut r`; _a,i

ll i_I{YtiF Gi)f ^i{}SUPrLiViE t;uUHI U3 JfiiO

TABLE OF CON'I'EIQTS

Table Of Authorities ..........................................................................................................................

1. Explanation Of Why This Case Is Of Public And Great General Interest .................................

II. Statement Of The Case And Facts .............................................................................................

III. Argument In Support Of Propositions Of Law ..........................................................................

PROPOSITION OF LAW NO. 1: In An Interlocutory Appeal From DiscoveryOrders Pertaining To Prejudgment Interest Proceedings, The Posting Of ASupersedeas Bond Is Not Required On A Jury Verdict That Is Not Yet A FinalAppealable Order As Long As Prejudgment Interest Proceedings Remain PendingAnd, Therefore, The Eleventh Disteict's Judgment Entry Ordering The Postiug OfA$1,0.5 Million Supersedeas Bond Is Legally Lawed And Inconsistent With ThisCourt's Precedents ....................................................................................................................

PROPOSTTION OF LAW NO. 2: The Error In The Eleventh District's LegallyFlawed Judgment Entry Is Compounded By The Erroneous Ordering Of ASupersedeas Bond In An Amount That Is Unrealistic, Unattainable And WouldCause Irreparable Hann ...........................................................................................................

IV. Conclusion ................................................ ..................................................................................

Certificate of Service .........................................................................................................................

Appendix

Judgment Entry of the Trumbull County Court of Appeals,Eleventh Appellate District of July 21, 2011 ................................................................ Appx 1-10

i

TABLE OF ATTi'I3OP2ITIES

CASESPAGE

Dennerline vs. Atterholt, Indiana Court ofAppeals, Case No. 49AD4-0610-CV-557 ..................12

Miller vs. International Fidelity 113 Ohio St.3d 474, 866 N.E.2d 1059, 2007-Ohio-2457 ...... ................................. ........................... ................... ......... 1,2,3,6,8,10

Stewart vs. Zone Cab of Cleveland, Cuyahoga App. No. 79317, 2002-Ohio-335 ...........................6

Teuteru vs. P&FEnterprises,Inc. (1970) 21 Ohio App. 2d 122 ......................................................9

Texaco vs. Pennzoil, 784 F. 2d 1113, 1154 (2"d Circuit, 1984) .....................................................11

Union Savings Bank vs. Washington Township Board of Zoning Appeals, MontgomeryApp. No. 15858, 1996 Wl 535304 ....................................................................................................9

ii

I. EX3'LANATION OE WHY TI3IS CASE YS OF PUBLIC AND GREAT GENERALINTEREST

This case is of great public and general interest because the Eleventh District Court of

Appeals has redefined the legal requirements for the posting of a supersedeas bond in

Interlocutory Appeals. The Eleventh District has improperly expanded the supersedeas bond

requirement to hiterlocutory Appeals from discovery orders in pending prejudgment interest

proceedings even though the underlying jury verdict is not a final appealable order, and cannot

be reversed, altered or changed during the pendency of the Interlocutory Appeal. The Seventh

District's ordering of a $10.5 million supersedeas bond during an Interlocutory Appeal from

discovery orders concerning prejudgment interest proceedings constitutes a legal divergence and

misinterpretafion of this Court's precedents that warrants this Court's review.

In Miller vs. International Fidelity 113 Ohio St.3d 474, 866 N.E. 2d 1059, 2007-Ohio-

2457, this Court held that the filing of a Motion for Prejudgment Interest immediately renders a

Trial Court's judgment on a verdict a non-final appealable order. Consequently, during the

pendency of prejudgment interest proceedings and any ancillary Interlocutory Appeal involving

the prejudgment interest proceedings, a verdict cannot be reversed, altered or changed and,

consequently, will remain intact throughout the entirety of the Interlocutory Appeal. In

accordance with this Court's decision in Miller, the logical legal conclusion is that there is no

requirement for a party to post a supersedeas bond on a verdict that in no way can be adversely

affected by an Interlocutory Appeal. In other words, since an appeal pertaining to discovery

orders in prejudgment interest proceedings does not seek to "supersede" the jury verdict, a

supersedeas bond is not required to secure that jury verdict pending the Interlocutory Appeal.

This ease is of such public and great general interest because the Eleventh District has

issued a Judgment Entry with respect to the requirement of a supersedeas bond that is legally

I

unsound and wholly inconsistent with this Court's holding in the Miller decision. If the Eleventh

District's Judgment Entry is pennitted to stand, confusion and uncertainty throughout Ohio will

result with respect to the requirement of posting a supersedeas bond in Interlocutory Appeals,

especially those involving appealable discovery orders in prejudgment interest proceedings.

Resolution of the legal issues involving non-appealable verdicts, Interlocutory Appeals and

supersedeas bonds is important to the public and is of great general interest to all litigant

throughout Ohio.

This case is of further public and great general interest because not only did the Eleventh

District order the posting of a supersedeas bond that is not legally warranted, the Eleventh

District compounded this error by ordering a $10.5 million supersedeas bond that is unrealisfic,

unattainable and would inevitably cause irreparable harm. The Eleventh District effectively

awarded Appellees a financial windfall by ordering a supersedeas bond which is not reflective of

what Appellees could ever realistically recover on the jury verdict.

The errors in the Eleventh District's Judgment Entry violate the fu.ndamental legal

principles involving supersedeas bonds. There can be no question that the Eleventh District's

Judgment Entry constitutes a legal divergence from this Court's decision in Miller and other

precedents. As a result of the Eleventh District's inconsistent and contradictory Judgment Entry,

there will be confusion and uncertainty with respect to requirements of a supersedeas bond in

Interlocutory Appeals, including those involving prejudgment interest proceedings.

The legal issues presented herein have implications far beyond the parties of this case and

resolution of the issues will guarantee all litigants in Ohio with fair and equitable treatment. This

Court now has the opportunity to provide all Ohio Courts and litigants with guidance and

clarification of the law surrounding supersedeas bonds and Interloeutory Appeals. This Court

2

should accept jurisdiction of this case in order to correct the Eleventh District's legally flawed

Judgment Entry.

U. STATEMENT OF THE CASE ANI) FACTS.

This is a medical malpractice action that was brought by Plaintiffs-Appellees Debra and

Okey Cobb and their minor child, Haley Cobb ("Appellees") against Defendants-Appellants Tara

Shipman, M.D. and Associates in Female Health, Inc. ("Dr. Shipman") and several other

defendants. After settling their claims against the co-defendants for $6.5 nzillion, Appellees then


On September 28, 2011 a jurytrial commenced. The jury subsequently retumed a verdict

in favor of Appellees and on October 21, 2010, the Trial Court entered judgment on the verdict

in the amount of $12,102,000.00. Then, on January 11, 2011, the Trial Court reduced the verdict

amount to $9,702,000.00 by applying a set-off for Appellees' settlement with the co-defendants.

On October 28, 2010, Appellees filed a Motion for Prejudgment Interest. Of importance,

the filing of Appellees' Motion for Prejudgment Interest immediately rendered the Trial Court's

judgment on the verdict a non-final appealable order/judgment pursuant to this Court's decision

in Miller. Conseqnently, Dr. Shipman, to date, has been precluded from exercising her right to

appeal from the jury verdict so long as the prejudgment interest proceedings remain before the

Trial Court.

During the course of the prejudgment interest proceedings, several discovery disputes and

issues materialized between the parties. On May 17, 2011, the Trial Court issued two discovery

orders which are presently the subject of Dr. Shipman's Interlocutory Appeal pending in the

Eleventh District. Dr. Shipman's appeal before the Eleventh District involves the Trial Court's

prejudgment interest discovery orders compelling the production of privileged and protected

3

materials and information.

A$er Dr. Shipman filed her Notice of Appeal with the Eleventh District, Dr. Shipman

initially sought at the Trial Court level on May 20, 2011 a Stay of the Trial Court's proceedings,

including any attempts by Appellees to execute on the jury's verdict.1 Dr. Shipman argned that

she was entitled to a Stay of all proceedings and execution without the need of the posting of a

supersedeas bond. It was Dr. Shipman's position that since the jury's verdict could not be

reversed, altered or changed during the pendency of her Interlocutory Appeal that there was no

need for a supersedeas bond in order to secure the jury's verdict.

On May 23, 2011, Appellees filed their Memorandum in Response to Dr. Shipman's

Motion for Stay of Execution. Appellees did not oppose a Stay of the proceedings. But,

Appellees argued that any Stay should be accompanied with a supersedeas bond in an amount in

excess of $20,000,000.00. Appellees' request for a supersedeas bond in an amount in excess of

$20,000,000.00 encompassed a monetary amount for any potential prejudgment interest award.

Thereafter, Appellees orally withdrew their request for a supersedeas bond that included any

potential award for prejudgment interest, which to this day remains pending before the Trial

Court.

On May 25, 2011, Dr. Shipman filed her Reply Brief to Appellees' Memorandum In

Response. Dr. Shipman submitted her Reply Brief in order to clarify for the Trial Court that a

supersedeas bond was not required in this case in order to Stay all Trial Court proceedings

pending Dr. Shipman's Interlocutory Appeal. Dr. Shipman argued that since her Interlocutory

Appeal did not involve the jury's verdict and it was not a final appealable order, no supersedeas

bondwas required on a jury verdict that was not presently being challenged upon appeal.

I Dr. Shipmau sought a Stay because of her concerns that Appellees would take some action withrespect to the jury verdict during the pendency of the Interlocutory Appeal.

4

The Trial Court conducted an informal oral hearing regarding Dr. Shipman's Motion for

Stay. The Trial Court ordered that the parties file additional briefs on the issues by June 7, 2011.

On June 7, 2011, Dr. Shipman filed her Supplemental Brief in Support of her Motion for Stay.

Dr. Shipman provided the Trial Court with further legal support for why no supersedeas bond

was required for her Interlocutory Appeal from the prejudgment interest discovery orders. Once

again, Dr. Shipman argued that since the jury's verdict was not an issue in the Interlocutory

Appeal and was not yet appealable, a supersedeas bond was not required in order to obtain a Stay

pending an Interlocutory Appeal involving the prejudgment interest discovery orders.

On June 15, 2011, the Trial Court issued its Judgment Entry granting Dr. Shipman's

Motion for Stay but only upon the posting of a supersedeas bond or other similar security in the

amount of $14,533,000.00. In its Judgment Entry, the Trial Court agreed that in certain cases, a

supersedeas bond is not required in order to obtain a Stay. However, the Trial Court erroneously

found that although the jury verdict is not yet appealable and, thus, cannot yet be challenged, it

still constitutes a judgment worth securing with a supersedeas bond.

The Trial Court compounded its error with respect to the posting of a supersedeas bond

by ordering that an adequate amount to Stay execution of the jury verdict was $14,553,000.00.

Clearly, requiring Dr. Shipman to post a supersedeas bond in the amount of $14,553,000.00 was

unrealistic, impracticable and would undoubtedly cause Dr. Shipman irreparable harrn. Dr.

Shipman's predicament was that a $14,553,000.00 bond could not realistically be posted and,

consequently, she was placed into a situation in which she could be forced to abandon her appeal

or risk execution on the jury verdict.

Dr. Shipman then sought relief from the Bleventh District so that it could correct the legal

error committed by. the Trial Court whereby the Trial Court improperly ordered that a

5

supersedeas bond be posted on a jury verdict that was not the subject of the Interlocutory Appeal.

On June 30, 2011, Dr. Shipman filed a Motion Pursuant to App. R. 7 For Stay of Proceedings

Without The Posting of a Supersedeas Bond. Dr. Shipman similarly argued that because the

jury's verdict during the pendency of the Interlocutory Appeal could not be reversed, altered or



Court proceedings. Dr. Shipman then argued, altematively, that if the Eleventh District was

inclined to order the posting of a supersedeas bond that it should be in an amount reflective of

what Appellees could realistically collect on the jury's verdict.

On July 6, 2011, Appellees filed their Memorandum in Opposition to Dr. Shipman's

Motion for Stay. Then, Dr. Shipman filed her Reply Brief on July 18, 2011. Since the legal

issues were fully already briefed on Dr. Shipman's position that no supersedeas bond was

required pending her Interlocutory Appeal, Dr. Shipman only addressed Appellees'

unsubstantiated claims that Dr. Shipman would not be iireparably harmed if she was personally

required to post an exorbitant supersedeas bond.

On July 21, 2011, the Eleventh District issued its Judgment Entry ordering that a Stay of

the Trial Court proceedings, including execution on the jury's verdict, required the posting of a

$10.5 million snpersedeas bond (Appx 1-10). With respect to the argument that no supersedeas

bond was required to secure the non-final appealable jury verdict, the Eleventh District inifially

acknowledged that the jury verdict was "not yet final" pursuant to this Court's decision in Miller.

(Appx. at 6). Yet, the Eleventh District relied upon the pre -Miller decision of Stewart vs. Zone

Cab of Cleveland, Cuyahoga App. No. 79317, 2002-Ohio-335 to erroneously conclude that the

6

jury's verdict was a "final judgment" (Id.) Consequently, the Eleventh District erroneously

concluded that a supersedeas bond was required pending Dr. Shipman's Interlocutory. Appeal.

With respect to the amount of the supersedeas bond, the Eleventh District set the amount

at $10.5 million. The Eleventh District based its ordering of a $10.5 million supersedeas bond

on the impression that Dr. Shipman could not prove that she could not obtain such a bond (Id. at

7-10).

On August 1, 2011, Dr. Shipman filed a Motion for Reconsideration pursuant to App. R.

26(A). In her Motion for Reconsideration, Dr. Shipman offered evidentiary proof that she could

not be personally approved for a supersedeas bond in the amount of $8.5 million. Thereafter, Dr.

Shipman timely filed a Reply Brief on Augnst 15, 2011 with further evidentiary materials

establishing that Dr. Shipman was outrightly rejected for a supersedeas bond. However, the

Eleventh District never considered Dr. Shipman's timely filed Reply Brief in light of the fact that

it denied Dr. Shipman's Motion for Reconsideration on August 12, 2011, three days before the

filing of her Reply Brief. After it was brought to the attention of the Eleventh District that it

failed to consider Dr. Shipman's Reply Brief, on August 26, 2011, the Eleventh District, once

again, renewed its determination that Dr. Shipman was required to post a $10.5 million

supersedeas bond. -

It is clear that the legal conflict and confusion in the Eleventh District's jurisprudence

with respect to the requirement of a supersedeas bond in an Interlocutory Appeal requires

guidance and clarification from this Court. This Court now has the opportanity tp provide all

Ohio Appellate Courts and Trial Courts with clarification on the law regarding supersedeas

bonds in Interlocutory Appeals.

7

III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. 1: In An Interlocutory Appeal From DiscoveryOrders Pertaining To Prejudgment lnterest Proceedings, The Posting Of ASupersedeas Bond Is Not Required On A Jury Verdict That Is Not Yet A FinalAppealable Order As Long As Prejudgment Interest Proceedings Remain PendingAnd, Therefore, The Eleventh District's Judgment Entry Ordering The Posting OfA $10.5 Million Supersedeas Bond Is Legally Lawed And Inconsistent With ThisCourt's Precedents

Dr. Shipman does not dispute that when the time is ripe for her to exercise her right to

appeal from the jury's verdict, a supersedeas bond may be required pursuant to RC. 2505.09.


as long as Appellees' Motion for Prejudgment Interest remains pending. In other words, Dr.

Shipman cannot seek to supersede the jury verdict until there is a final ruling on Appellees'


hi accepting jurisdiction and reversing the Eleventh District's Judgment Entry, this Court

need not look any further than the plain language of R.C. 2505.09. The relevant language of

R.C. 2505.09 that mandates the posting of a supersedeas bond is that the supersedeas bond is

posted for the `°fmal order, judgment, or decree. that is sought to be superseded." (Emphasis

added). With respect to a "final order," it is undisputed that the jury's verdict is not a final order

since the prejudgment interest proceedings remain unresolved. Miller, supra. Since the jury's

verdict in tlris case is not a final order, the posting of a snpersedeas.bond pursuant to R.C.

2505.09 is not applicable, and, therefore, the Eleventh District's Judgment Entry is legally

flawed.

Next, R.C. 2505.09 requires that a supersedeas bond be posted on the judgment or decree

"sought to be superseded." In this case, the jury's verdict is not an issue upon appeal since it is

not yet a fmal appealable order. As such, Dr. Shipman's appeal from the Trial Court's

8

interlocutory prejudgment interest discovery orders does not seek to "supersede" the jury's

verdict. In fact, Dr. Shipman is prohibited from challenging the jury's verdict via an appeal until

the prejudgment interest proceedings are resolved. Simply put, the jury verdict cannot be

disturbed and will remain fully intact pending Dr. Shipman's Interlocutory Appeal.

Consequently, the Eleventh District erred in ordering the posting of a supersedeas bond pursuant

to R.C. 2505.09.

In addition to ignoring the plain language of R.C. 2505.09, the Eleventh District failed to

recognize the case law in Ohio which supports Dr. Shipman's position that a supersedeas bond is

not required because the jury's verdict is not the subject of her Interlocutory Appeal. As the

Eighth District Court of Appeals stated in Teuteru vs. P & F Enterprises, Inc. (1970) 21 Ohio

App. 2d 122, a supersedeas bond operates to stay the execution of a judgment while that

judgment is appealed to a higher court. In Union Savings Bank vs. Washington Township Board

ofZoning Appeals, Montgomery App. No. 15858, 1996 WL 535304, the Second District Court

of Appeals stated:

If the purpose of a supersedeas bond is to compensate an Appelleewhose right to execute on a judgment is stayed thereby, then,logically, there is no need for a supersedeas bond when theunderlying judgment confers no right on wbich the Appellee canexecute.

Id. at *5.


subject of the appeal. In this case, Dr. Shipman is not presently seeking to set aside the jury's

verdict with her Interlocutory Appeal from the Trial Court's pr.ejudgment interest discovery

orders. Consequently, a supersedeas bond is not necessary in order to secure Appellees'jury

verdict. Once again, a supersedeas bond may be necessary if the jury's verdict was at stake

9

during the appellate proeess, but it is not at this time.

With respect to Appellees' claim made below that they can now execute on the jury's

verdict, such a position is inconsistent with this Court's decision in Miller, supra. Clearly,

parties possess rights in legal proceedings, including the right to appeal a judgment to a higher

court. At this time, while Appellees' prejudgment interest claim remains pending, Dr. Shipman

does not yet have the right to appeal to the Court of Appeals from the jury verdict. Query: ifDr.

Shipman cannot presently exercise her right to appeal from the jury's verdict, why would

Appellees have the right to execute on the same jury verdict? Further query: if Plaintiffs could

presently execute on the jury verdict, would Plaintiffs have to return the money if Dr. Shipman

ultimately prevails upon appeal from the jury verdict?

Althoughthe Miller decision does not directly address the particular issues at hand in this

case, its holding is undoubtedly controlling herein, i.e. the jury verdict is not a final appealable

order and, thus, neither Dr. Shipman nor Appellees can exercise their respective rights with

respect to the jury's verdict while prejudgment interest remains unresolved. Accordingly,

Appellees should be prohibited from attempting to execute on the jury's verdict while Dr.

Shipman's Interlocutory Appeal remains pending. Also, all proceedings before the Trial Court

should have been stayed without Dr. Shipman being required to post a supersedeas bond,

because Appellee's jury verdict will remain undisturbed pending Dr. Shipman's Interlocutory

Appeal.

The Eleventh District's failure to follow this Court's decision in Miller is of public and

great general concern. Therefore, this Court should accept jurisdiction in order to address this

obvious error that will undoubtedly cause conflicts throughout Ohio.

10

PROPOSITION OF LAW NO. 2: The Error In The Eleventh District'sLegally Flawed Judgment Entry Is Compounded By The ErroneousOrdering Of A Supersedeas Bond In An Amount That Is Unrealistic,Unattainable And Would Cause Irreparable Harm

Not only did the Eleventh District erroneously order the posting of a supersedeas bond,

the Eleventh District's ordering of a supersedeas bond in the amount of $10.5 million was so

unreasonably high that it has effectively forced Dr. Shipman to essentially forfeit her right of

appeal by exposing her to peril of irreparable harm from the continued threat of execution on the

jury's verdict. Dr. Shipman cannot realistically post such an exorbitant supersedeas bond and,

consequently, the Eleventh District's Judgment Entry will prevent Dr. Shipman from pursuing

her right of appeal by making Dr. Shipman's personal assets subject to execution.2 Appellees

and the Eleventh District have consistently ignored the peril that Dr. Shipman now faces as a

result of a $10.5 million supersedeas bond order. A proper balance of the peril of irreparable

harm and public policy weighs against the Eleventh District's unrealistic and unattainable $10.5

million supersedeas bond.

The goveming principle behind a supersedeas bond is to "preserve the status quo while

proteetang the non-appealing party's rights pending appeal." When setting a supersedeas bond,

the Court should "seek to protect judgment creditors as fully as possibly without irreparably

injuring debtors." Texaco vs. Pennzoil, 784 F, 2d 1113, 1154 (2°d Cirouit, 1984) rev'd on other

grounds 481 U.S. 1 (1987).

By ordering an unattainable supersedeas bond in this case, the Eleventh District has

effectively denied Dr. Shipman of her constitutional right of appeal. An inflexible requirement

for inipressment of a lien and denial of a stay of execution unless a supersedeas bond in the full

Z At the time of the filing of the instant appeal, there is presently scheduled for September 27,

2011 a 7udgment Debtor's Examination of Dr. Shipman before the Tral Court.

11

amount of the judgment is posted can in some circumstances be irrational, unnecessary, and self-

defeating, amounting to a confiscation of the judgment debtor's property without due process. Id.

In Dennerline vs. Atterholt, Indiana Court of Appeals, Case No. 49AD4-0610-CV-557,

the Court addressed a scenario virtually identical to this case. In. Dennerline, a jury retumed a

verdict in the amount of $17,991,043.00 and an appeal was taken from the jury verdict.3 The

Trial Court set an appeal bond in the amount of $20,869,609.88. Upon appeal, the Defendant

requested the appellate court to reconsider the Trial Court's $20,869,609.88 and order a

supersedeas bond reflective of a more realistic collectible amount. In reducing the

$20,886,609.88 appeal bond to $3.0 million, the Court of Appeals based its Order on factors such

as the defendant would suffer irreparable injury and the defendant's hardship was likely greater

than the plaintiff.

The Eleventh District in this case failed to observe the above principles and satisfy this

purpose when it ordered Dr. Shipman to post a $10.5 nzillion supersedeas bond. The Eleventh

District should have ordered a supersedeas bond reflective of what Appellees could ever

realistically recover on the jury verdict. As it stands now, the Eleventh District has ordered a

supersedeas bond far in excess of the actual funds that will even be available to satisfy a

judgment, i.e. Dr. Shipman's $2.0 million in liability coverage. In other words, the Eleventh

District has effectively created fun.ds that may someday be recoverable but simply do not exist.

Although Dr. Shipman adamantly maintained in the first place that a stay in this case

should not have required the posting of a supersedeas bond, iii the event that the Eleventh

District was inclined to order the posting of a supersedeas bond, the Eleventh District should

3 Of importance, the defendants in the Dennerline appeal acknowledged the need to the postingof a supersedeas bond in an appeal from the jury's verdict. This appeal does not involve anappeal from the jury's verdict.

12

have required a supersedeas bond that was representative of what Appellees could realistically

collect on the verdict, i.e. the liability policy limits of $2.0 million for Dr. Shipman, plus interest

and costs.

This Court should accept jurisdiction over the case in order to correct the Eleventh

District's misinterpretation and misapplication of the law goveming supersedeas bonds.

IV. CONCLUSION

Based upon the foregoing, this case should be accepted as an appeal involving matters of

public and great general interest. This Court should resolve the conflict and uncertainty that the

Eleventh District has created with respect to the requirements of posting a supersedeas bond

pending an Interlocutory Appeal. It is extremely important to Courts and all litigants throughout

the State of Ohio that this Court take thc opportunity to clarify the law governing supersedeas

bonds, final appealable orders and Interlocutory Appeals.

Accordingly, Dr. Shipman requests that this Court accept jurisdiction and allow this

appeal to proceed so that the important issues presented can be reviewed on the merits and

reconciled with the existing law in Ohio.


Douglas G. Leak (0045554) kc^C)Roetzel & Andress, LPASuite 900, One Cleveland Center1375 East Ninth StreetCleveland, OH 44114216-623-0150216-623-0134 faxdleak - alaw.coni

Attorney for DefendantsAppellants TaraShipman, M.D. and A.rsociates in FemaleHealth, Inc.

13


ws is to certify that a copy of the foregoing was mailed by regular U.S. Mail this ^

day of t 2011 to the following:



Norman A. Moses, Esq.100 Marwood CircleBoardman, OH 44512Attorneys for Plainti, fjs Appellees

512710 v0l \ 061739.1114

14

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ex rel. CASE NO.TARA SHIPMAN, M.D.,

Relator,

vs. '

KAREN INFANTE ALLEN, et al.,

Respondents.

AFFIDAVIT OF DOUGLAS G. LEAK, ESQ.

STATE OF OHIO

COUNTY OF CUYAHOGA

COMES NOW Afflant, Douglas G. Leak, Esq., being duly sworn and cautioned and

assuring his competency to testify to the matters stated below, based on personal knowledge,

states as follows:

1. This original action stems from a medical malpractice action that was brought by

Debra and Okey Cobb and their minor child, Haley Cobb ("The Cobbs") against Relator Dr.

Shipman and Associates in Female Health, Inc., and several other defendants, in Cobb, etc., et al.

v. Shipman, Trumbull County Common Pleas Court Case No. 2006-CV-02992.

2. After settling their claims against the co-defendants for $6.5 million, The Cobbs


3. On September 28, 2011, a jury trial commenced and the jury subsequently

returned a verdict in favor of The Cobbs.

4. On October 21, 2010, Respondent Judge McKay entered judgment on the verdict

in the amount of $12,102,000.00 and on January 11, 2011, Respondent Judge McKay reduced

the verdict amount to $9,702,000.00 by applying a set-off for The Cobbs' settlement with the co-

defendants. (Exhibits "A" and "B," respectively.)

5. On October 28, 2010, The Cobbs filed a Motion for Prejudgment Interest, which

immediately rendered the Respondent Judge McKay's judgment on the verdict a non-final

appealable order/judgment pursuant to this Court's decision in Miller v. International Fidelity,

113 Ohio St.3d 474, 866 N.E.2d. 1059, 2007-Ohio-2457. (Exhibit "C.")

6. Consequently, Dr. Shipman, to date, has been precluded from exercising her right

to appeal from the jury verdict so long as the prejudgment interest proceedings remain before

Respondent Judge McKay.

7. During the course of the prejudgment interest proceedings, several discovery

disputes and issues materialized between the parties, and on May 17, 2011, Respondent Judge

McKay issued two discovery orders. (Exhibits "D" and "E.")

8. On May 20, 2011, Dr. Shipman filed an Interlocutory Appeal to the Eleventh

District Court of Appeals in Case No. 2011-T-0049 and that appeal before the Eleventh District

involves the Respondent Judge McKay's prejudgment interest discovery orders compelling the

production of privileged and protected materials and information. (Exhibit "F.")

9. After Dr. Shipman filed her Notice of Appeal with the Eleventh District, Dr.

Shipman initially sought from Respondent Judge McKay on May 20, 2011, a Stay of the Trial

Court's proceedings, including any attempts by The Cobbs to execute on the jury's verdict,

because Dr. Dr. Shipman was concerned that The Cobbs would take some action with respect to

the jury verdict during the pendency of her Interlocutory Appeal. (Exhibit "G.")

10. Dr. Shipman argued that she was entitled to a Stay of all proceedings and

executiop_ without the need of the posting of a supersedeas bond because it was Dr. Shipman's

2

position that since the jury's verdict could not be reversed, altered or changed during the

pendency of her Interlocutory Appeal that there was no need for a supersedeas bond in order to

secure the jury's verdict. (Exhibits "G,", "H," and "I.")

11. Dr. Shipman provided Respondent Judge McKay the legal support for why no

supersedeas bond was required for her Interlocutory Appeal from the prejudgment interest

discovery orders, so since the jury's verdict was not an issue in the Interlocutory Appeal and was

not yet appealable and, therefore, a supersedeas bond was not required in order to obtain a Stay

pending an Interlocutory Appeal involving the prejudgment interest discovery orders. (Id..)

12. On June 15, 2011, Respondent Judge McKay issued his Judgment Entry granting

Dr. Shipman's Motion for Stay but only upon the posting of a supersedeas bond or other similar

security in the amount of $14,533,000.00. (Exhibit "J.")

13. In his Judgment Entry, Respondent Judge McKay agreed that in certain cases, a

supersedeas bond is not required in order to obtain a Stay, but Respondent Judge McKay

erroneously found that although the jury verdict is not yet appealable and, thus, cannot yet be

challenged, it still constitutes a judgment worth securing with a supersedeas bond. (Id.)

14. Dr. Shipman then sought relief from the Eleventh District Court of Appeals so

that it could correct the legal error committed by Respondent Judge McKay whereby he

improperly ordered that a supersedeas bond be posted on a jury verdict that was not the subject

of the hiterlocutory Appeal. (Exhibit "K.")

15. On June 30, 2011, Dr. Shipman filed a Motion Pursuant to App. R. 7 For Stay of

Proceedings Without The Posting of a Supersedeas Bond, arguing, again, that because the jury's

verdict during the pendency of the Interlocutory Appeal could not be reversed, altered or


3


Court proceedings. (Exhibit "K.")

16. On July 21, 2011, the Eleventh District issued its Judgment Entry ordering that a

Stay of the Trial Court proceedings, including execution on the jury's verdict, required the

posting of a $10.5 million supersedeas bond. (Exhibit "L.")

17. With respect to the argument that no supersedeas bond was required to secure the

non-final appealable jury verdict, the Eleventh District acknowledged that the jury verdict was

"not yet final" pursuant to this Court's decision in Miller. (Id.)

18. Yet, the Eleventh District relied upon the pre-Miller decision of Stewart v. Zone

Cab of Cleveland, Cuyahoga App. No. 79317, 2002-Ohio-335 to erroneously conclude that jury's

verdict was a "final judgment," and, therefore, the Eleventh District erroneously concluded that a

supersedeas bond in the amount of $10.5 million was required pending Dr. Shipman's

Interlocutory Appeal. (Id.)

19. On August 31, 2011, on behalf of The Cobbs as Judgment Creditors, The Cobbs'

counsel filed in the underlying medical malpractice action in Trumbull County Case No. 2006-

CV-02992, a Request for Immediate Execution for $9,702,000.00. (Exhibit "M.")

20. On September 6, 2011, a Civil Execution in the sum of $9,702,000.00 was entered

in Trumbull County Case No. 2006-CV-02992 by Respondent Allen as Clerk of Courts. (Exhibit

21. On September 6, 2011, Dr. Shipman filed with this Court a Notice of Appeal from

the Eleventh District's ordering of a supersedeas bond and a Memorandum in Support of

Jurisdiction challenging the legality of the supersedeas bond. (Exhibits "0" and "P,"

respectively.)

4

FURTHER AFFIANT SAYETH NAUGHT.

Sworn to and subscribed in my presence this 6L day of September, 2011.

HELEN M. SZUCS, Notary PubGcResidence - Cuyahoga County

t" State Wide Jur sdicl n Ohioo`yD ;: MYCanrtdsslonExpires

5513786 v_vl A 061739.1114

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