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Ullmann v. Duffus11/15/2005
{ } Plaintiff-appellant, Victoria E. Ullmann ("appellant"), appeals from the judgment of the Franklin County Municipal Court granting summary judgment in favor of defendant-appellee, Anne Duffus, D.V.M. ("Dr. Duffus"). For the following reasons, we affirm.
{ } On April 26, 2004, appellant filed a complaint against Dr. Duffus in the Franklin County Municipal Court, alleging claims for professional negligence, breach of implied warranty, failure to obtain informed consent, and infliction of emotional distress, arising out of Dr. Duffus' treatment of appellant's pet birds. Dr. Duffus is a doctor of veterinary medicine, duly licensed by the state of Ohio. Appellant alleges that Dr. Duffus' negligent treatment of appellant's pet birds resulted in the death of five birds and continued health problems in three others.
{ } On April 24, 2003, appellant presented two of her cockatiels, Osiris and Isis, for examination by Dr. Duffus at the Whitehall Animal Hospital. Dr. Duffus diagnosed Osiris with roundworms and prescribed Panacur, which is the brand name for fenbendazole. Dr. Duffus provided appellant with pre-measured syringes of Panacur for Osiris and Isis. The following day, upon appellant's request, Dr. Duffus provided pre-measured doses of Panacur for appellant's other birds, which had been in contact with Osiris.
{ } On April 28, 2003, appellant telephoned Dr. Duffus' office and expressed concern that Panacur was causing adverse effects on the birds. After Dr. Duffus told appellant that she could not provide hand feeding to the birds, appellant took her birds to the Ohio State University Veterinary Hospital ("OSUVH") for emergency treatment. Appellant waited seven hours for treatment at OSUVH, which, like Dr. Duffus, refused to hand feed appellant's birds. Appellant states that OSUVH failed to provide her birds with appropriate treatment.
{ } On May 1, 2003, appellant took Osiris and Isis to avian specialist R. Mohan, D.V.M., M.S., Ph.D. ("Dr. Mohan"), who informed appellant that Panacur is toxic to parakeets and cockatiels. Between May 1, and May 5, 2003, during which time Dr. Mohan treated Osiris, Isis, and Yazi, appellant's third cockatiel, the three cockatiels died. Two of appellant's parakeets also died. Appellant contends that Panacur poisoned her birds.
{ } In her complaint, appellant alleged that: Dr. Duffus was negligent in dispensing Panacur to appellant's birds; Dr. Duffus violated an implied warranty that Panacur was fit for use by appellant's birds; and Dr. Duffus failed to obtain appellant's informed consent before treating her birds with Panacur. Appellant also alleged a claim for negligent infliction of emotional distress, allegedly caused by Dr. Duffus' actions.
{ } On August 2, 2004, Dr. Duffus filed a motion for summary judgment. Appellant filed a memorandum contra on September 10, 2004, and Dr. Duffus filed a reply memorandum on September 15, 2004. In an entry filed September 23, 2004, the trial court denied Dr. Duffus' motion for summary judgment, citing "genuine issues as to material fact" but offering no additional reasoning for its ruling. On January 6, 2005, the trial court filed a second entry denying Dr. Duffus' motion.
{ } On January 25, 2005, Dr. Duffus filed a motion for reconsideration of her motion for summary judgment based on appellant's failure to submit an expert affidavit in support of her claims. On February 23, 2005, without issuing a decision explaining its ruling, the trial court granted Dr. Duffus' motion for reconsideration and entered summary judgment in favor of Dr. Duffus. Appellant filed a timely notice of appeal from the court's entry of summary judgment.
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