Barbato v. Miller5/18/2000
DATE OF ANNOUNCEMENT OF DECISION: MAY 18, 2000
CHARACTER OF PROCEEDING
JUDGMENT REVERSED AND REMANDED.
Defendant-appellant Catherine Miller, 89 years old and in failing health, claims Judge Nancy Margaret Russo abused her discretion when she entered a $375,000 judgment against her as a sanction for her failure to appear at trial. We agree, reverse and remand.
On February 6, 1996, appellees Anna Marie Barbato and her husband, Raymond Slater, filed a complaint with jury demand against Miller praying for a total of $375,000 for the personal injury and property damage claims of Barbato and the loss of consortium claim of Slater. They alleged that on September 6, 1995, while Barbato was operating a car eastbound on Harvard in Oakwood Village, Miller, operating her car westbound on Harvard, went left of center causing a collision and serious injuries to Barbato. Miller answered, denied negligence and affirmatively pleaded that Barbato was solely negligent or more comparatively negligent; negligence of a third party; substantial intervening superseding cause; and sudden emergency. The case was set for trial on October 7, 1997, but voluntarily dismissed on September 25, 1997 through a Civ.R. 41(A)(1) entry.
The identical complaint was refiled on September 1, 1998, and placed on the docket of Judge Nancy McDonnell, but reassigned to Judge Russo on September 18, 1998, pursuant to Sup.R. 36.
Miller refiled her answer and asserted the same affirmative defenses of intervening superseding cause and sudden emergency as before.
At a case management hearing on December 4, 1998, the judge entered the following order journalized on December 11, 1998:
Pltf to complete expert discovery on or before 2-5-99 Deft to complete expert discovery on or before 4-5-99. Trial set for 5-10-99. Final pretrial set 4-26-99 at 3:00 p.m. clients, counsel and adjustors, to appear in person at final pretrial / hr. before trial with ful l settlement authority. Failure to appear will result in sanctions and/or judgment *.
On April 16, 1999, Barbato's lawyer filed a copy of Miller's deposition, taken in the earlier case, and issued a subpoena to her at the Somerset Point Skilled Nursing Facility, commanding her appearance for trial.
In an order journalized April 27, 1999, the judge noted FPT held. All dates and orders remain in effect.
On April 29, 1999, Miller's lawyer filed a motion to quash the subpoena, asserting that Miller's attendance at trial would cause an undue burden to her health. In support of the motion to quash the subpoena was a copy of a March 30, 1999 letter/report from Miller's attending physician, Dr. Charles C. Sevatos, D.O. In pertinent part, the letter stated:
I have been Ms. Miller's attending physician since September 16, 1995, when she was admitted to Somerset Point Skilled Nursing Facility. Since that time Ms. Miller has been treated for a heart condition including an atrial fibrillation, osteoporosis, pernicious anemia, hypothyroidism, urinary incontinence, and arthritis. Ms. Miller is currently being treated with multiple medications for the above noted conditions.
In addition, Ms. Miller has been treated by an audiologist for her hearing deficits.
In 1997, Ms. Miller suffered a transient aschemic attack, or a small stroke for which she was hospitalized. A brain waive study, or an EEG[,] was performed at that time which showed a bihemispheric cortical dysfunction. Having known Ms. Miller since 1995, it is of concern, in my medical opinion, that the stress and excitement of a trial or being called as a witness may very well ex
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