Lynne Gooden v. Chris Batz

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LYNNE GOODEN, et al., :

Plaintiffs,

Case No. 3:18-cv-302

v. :

JUDGE WALTER H. RICE

CHRIS BATZ, et al.,

Defendant. :

DECISION AND ENTRY OVERRULING PLAINTIFFS’ MOTION TO

DISQUALIFY COUNSEL (DOC. #36) AND MOTION TO DECLARE

REPRESENTATION OF MULTIPLE DEFENDANTS BY THE LAW FIRM

OF SURDYK, DOWD & TURNER CO., LPA TO BE JOINT AND TO

LIMIT DISCOVERY, CROSS-EXAMINATION AND PEREMPTORY

CHALLENGES AND TO SUBSTITUTE THE INSURANCE RISK POOLS

AS THE REAL PARTIES IN INTEREST (DOC. #37)

This matter is before the Court pursuant to two motions filed by Plaintiffs,

Lynne Gooden, on behalf of herself and as guardian of Terrell Gooden; Stacy

Carroll, as parent and natural guardian of Kiearra, Madison and Dezmond Carroll;

and Staci Sampson, as parent and natural guardian of Mya Sampson (Plaintiffs”),1

1 Since the filing of this motion, Plaintiffs have filed a Second Amended Complaint, Doc.,

#48, and Kierra Carroll is now identified as a separate Plaintiff. As referenced hereinafter,

“Plaintiffs” will refer to the Plaintiffs identified in the Second Amended Complaint.

and one motion filed by the Vandalia Defendants and the Butler Township

Defendants (collectively, “Defendants”).2

The first motion filed by Plaintiffs is a Motion to Disqualify Defense Counsel

(“Motion to Disqualify”). Doc. #36. The Butler Defendants and Vandalia

Defendants have filed a response, Doc. #42, and Plaintiffs have filed a reply, Doc. #

50.

Plaintiffs’ second motion, Motion to Declare Representation of Multiple

Defendants by the Law Firm of Surdyk, Dowd & Turner Co. LPA to be Joint, to

Limit Discovery, Cross-Examination and Peremptory Challenges and to Substitute

the Insurance Risk Pools as the Real Parties in Interest (“Motion to Declare

Representation Joint”), Doc. #37, is “filed in the alternative” to the Motion to

Disqualify, Doc. #36. The Butler Defendants and Vandalia Defendants have filed a

response, Doc. #43, and Plaintiffs have filed a reply, Doc. #51.

2 Defendants named in the Second Amended Complaint, other than the State of Ohio and

the unidentified Jane and John Does, are divided into two groups: the “Vandalia

Defendants” and the “Butler Township Defendants.” The “Vandalia Defendants” consist

of the following Defendants: Anthony Miller (“Paramedic Miller”); The City of Vandalia

(“City” or “Vandalia”); Arlene Setzer, Mayor, City of Vandalia; Richard Herbst, Vice-

Mayor, City of Vandalia; Bob Ahlers, Member, Vandalia City Council; Mike Blakesly,

Member, Vandalia City Council; Candice Farst, Member, Vandalia City Council; David M.

Gerhard, Member, Vandalia City Council; David Lewis, Member, Vandalia City Council

(collectively, “Vandalia Elected Officials”); and Chad Follick, Fire Chief, City of Vandalia

(“Chief Follick”). The “Butler Township Defendants” consist of the following Defendants:

Chris Batz, Butler Township emergency medical squad, paramedic, firefighter and police

officer (“Captain Batz”); Brent Gallup, Butler Township paramedic (“Paramedic Gallup”);

the Butler Township Board of Trustees (“Township Board”); Mike Lang, Butler Township

Trustee; Kenneth M. Betz, Butler Township Trustee; Joseph E. Flanagan, Jr., Butler

Township Trustee; and Daniel Alig, Butler Township Fire Chief.

For the reasons set forth below, Plaintiffs’ Motion to Disqualify, Doc. #36,

and Motion to Declare Representation Joint, Doc. #37, are overruled.

I. Legal Analysis

A. Introduction

Plaintiffs, in their Second Amended Complaint (“Complaint”), allege that on

August 6, 2016, at approximately 4:06 a. m., the Vandalia Fire Department and

Butler Township Fire Department responded to a motor vehicle accident on

Interstate 75. Doc. #48, PAGEID#1255. When they arrived at the scene, they found

Terrell Gooden partially ejected from the passenger side window and

unconscious. . The Complaint further alleges that “[T]here was one hour and

sixteen minutes during which Gooden received no treatment and suffered a lack

of oxygen for that period of time which should have been addressed by the

Defendants, jointly and severally, and was not.” PAGEID#1257. As a result of

this accident, Mr. Gooden sustained permanently disabling conditions including a

severe brain injury. .

The Complaint alleges 18 causes of action. These claims are alleged

against the following defendants: (1) the fire chiefs of Butler Township and

Vandalia; (2) the individual firefighters and paramedics employed by the

Township and the City; (2) the Township Board, along with their individual

trustees; and (3) the City, along with their mayor, vice-mayor and individual

members of council.3

The claims alleged against Defendants Captain Batz and Paramedics

Gallup (Township Defendants) and Miller (City Defendant) consist of Professional

Negligence (Count 1), Exemption from Political Subdivision Immunity (Count 2),

Willful, Wanton and Malicious Misconduct (Count 3), Indivisible Injury (Count 4),

Abandonment (Count 5), Intentional Infliction of Emotional Distress (Count 6) and

Deliberate Indifference to Serious Medical Needs under 42 U.S.C. § 1983 (Count

12). The claims alleged against all Defendants include Breach of Fiduciary Duty

(Count 7), Violation of Public Policy (Count 8), Constructive Fraud (Count 9),

Consortium (Count 14) and Fraud (Count 18).

The claims alleged against the Defendants, other than Captain Batz and

Paramedics Gallup and Miller, include Joint and Several Liability/Employment

Relationships (Count 10), Failure to Train, Evaluate, or Supervise (Count 11),

Unconstitutional Policy, Failure to Train or Discipline under 42 U.S.C. § 1983

(Count 13) and Willful, Wanton, Reckless Hiring and Retention (Count 17).4

3Also named as Defendants, although not involved in these motions, are the State of Ohio

and unidentified Jane and John Does.

4 Counts 15 and 16 seek declaratory relief for the unconstitutionality of the “Tort Reform

Statutes Per Se and As Applied” and “Unconstitutionality of Immunity Statutes Per Se

and As Applied”

1. Motion to Disqualify

Plaintiffs’ Motion to Disqualify asserts that because the same law firm is

separately representing multiple individuals and entities in this case, with

potentially adverse interests, that “several, non-waivable conflicts of interest,

violating Ohio Rules of Professional Conduct 1.7, Rule 2.1, Rule 1.6, and Rule 1.1,”

are implicated. Doc. #36, PAGEID#1081.5 Plaintiffs further argue that “[E]ither

counsel must be disqualified, or those interests must be treated as joint[,] per

Plaintiffs’ subsequent motion.” (Motion to Declare Representation Joint, Doc.

#37). Finally, Plaintiffs request an evidentiary hearing pursuant to

., 592 F.2d 290 (6th Cir. 1979).

Defendants have responded to Plaintiffs’ Motion to Disqualify by asserting

that while it is the same law firm representing both groups of Defendants,

(Surdyk, Dowd & Turner Co., LPA (“Law Firm”)), each group has separate counsel

from within the Law Firm. Moreover, Defendants contend that Plaintiffs argument

is speculative and is based solely on the allegations made by them in their

Complaint, as opposed to any actual testimony in the case, or for that matter,

based on any actual conflicts uncovered in the discovery phase of this litigation.

5 Effective February 1, 2007, the Ohio Rules of Professional Conduct superseded the Code

of Professional Responsibility. Although common-law precedent was previously relied

upon in determining issues of attorney disqualification, the Sixth Circuit now relies

primarily on the codified Rules of Professional Conduct. See

, 466 F.3d 456, 457 (6th Cir.2006), vacated in part on other

grounds, 472 F.3d 436 (6th Cir.2007) (“applying these accepted rules will lead to greater

uniformity and predictability with regard to the ethical code of conduct”).

Finally, Defendants contend that Plaintiffs lack standing to assert a motion to

disqualify.

2. Motion to Declare Representation Joint

In their Motion to Declare Representation Joint, Doc. #37, filed in the

alternative to their Motion to Disqualify, Doc. #36, Plaintiffs seek to have the

representation of the Butler Township Defendants and the Vandalia Defendants

declared joint. Plaintiffs seek this declaration in order to impose certain

limitations on Defendants during the discovery phase of the case as well as at

trial. Specifically, Plaintiffs argue that because Defendants are “acting as one,”

written discovery should be served on behalf of both groups of Defendants and

that deposition questioning should be conducted by one attorney who is

designated as lead counsel. Plaintiffs further request that because Defendants’

representation is joint, their peremptory challenges and rebuttal evidence at trial

should be limited and their cross examination conducted by the lead counsel on

behalf of both groups of Defendants. Doc. #37, PAGEID#1121. Finally, Plaintiffs

argue that the Court should join the Miami Valley Risk Management Association

(“MVRMA”), the self-insurance risk pool that insures Vandalia, and the

unidentified risk pool that insures Butler Township, as real parties in interest in

the case, since they are “controlling the litigation.”

Defendants contend that “other than the optics” involved with one law

firm representing both groups of Defendants, there is no reason why Vandalia and

Butler Township Defendants cannot be jointly represented by the same Law Firm.

With respect to discovery, Defendants assert that each group of Defendants has

served only one request on each Plaintiff and that any decisions concerning the

procedure at trial is premature since, according to Defendants, it is unclear which

Defendants will remain in the case at the conclusion of discovery. Finally,

Defendants argue that the risk pools are providing the defense for each group of

Defendants and are not controlling the litigation. As such, they should not be

joined.

B. Motion to Disqualify and Rule 1.7, Ohio Rules of Professional Conduct

Plaintiffs’ Motion to Disqualify argues that because the Law Firm has

undertaken “separate representations of multiple parties in the same matter,”

Doc. #36, PAGEID#1081, a non-waivable conflict of interest exists in violation of

Rule 1.7.6 Plaintiffs also contend that Rules, 2.1, 1.6, and 1.1 are also implicated.7

Accordingly, the Law Firm must be disqualified. The standard for disqualification

of an attorney in federal litigation has previously been summarized by this Court.

A motion to disqualify is the proper method for a party-litigant to

bring an issue of conflict of interest or the breach of an ethical duty to

the court's attention. ., 621 F.2d

742, 744 (5th Cir.1980). Confronted with such a motion, courts must

be sensitive to the competing public interests of requiring

professional conduct by an attorney and of permitting a party to

retain the counsel of his choice. ., 769

F.Supp. 254, 257 (S.D.Ohio 1991). In order to resolve these competing

interests, the courts must balance the interests of the public in the

proper safeguarding of the judicial process together with the

interests of each party to the litigation.

, 697 F.2d 704, 711 (6th Cir.1982).

6 Rule 1.7 Conflict of interest: current clients:

(a) A lawyer's acceptance or continuation of representation of a client creates a conflict of

interest if either of the following applies:

(1) the representation of that client will be directly adverse to another current client;

(2) there is a substantial risk that the lawyer's ability to consider, recommend, or carry out

an appropriate course of action for that client will be materially limited by the lawyer's

responsibilities to another client, a former client, or a third person or by the lawyer's own

personal interests.

(b) A lawyer shall not accept or continue the representation of a client if a conflict of

interest would be created pursuant to division (a) of this rule, unless all of the following

apply:

(1) the lawyer will be able to provide competent and diligent representation to each

affected client;

(2) each affected client gives informed consent, confirmed in writing;

(3) the representation is not precluded by division (c) of this rule.

(c) Even if each affected client consents, the lawyer shall not accept or continue the

representation if either of the following applies:

(1) the representation is prohibited by law;

(2) the representation would involve the assertion of a claim by one client against another

client represented by the lawyer in the same proceeding.

7 Rules 2.1, exercising of independent judgment, 1.6, confidentiality of information and

Rule 1.1, competent representation to a client will be discussed, as necessary, in

conjunction with Rule 1.7.

The power to disqualify an attorney from a case is ‘incidental to all

courts, and is necessary for the preservation of decorum, and for the

respectability of the profession.’ , 769 F.Supp. at 256 (quoting

, 9 Wheat. 529, 22 U.S. 529, 531, 6 L.Ed. 152 (1824)).

However, ‘the ability to deny one's opponent the services of his

chosen counsel is a potent weapon.’

, 849 F.2d 222, 224 (6th Cir.1988). Motions for attorney

disqualification should be viewed with extreme caution for they can

be misused as techniques of harassment.

, 689 F.2d 715, 722 (7th Cir.1982

206 F.R.D. 596, 599 (S.D.Ohio 2001), quoting

., 81 F.Supp.2d 876, 878 (S.D. Ohio 2000) (Spiegel, J.).

Plaintiffs assert that the Defendants’ representation “will be directly adverse

to another client,” in contravention of Rule 1.7(1), and that the Law Firm will be

unable to “carry out their duty to take appropriate action. . . because some

compulsory actions for one client will necessarily be limited by the interest of

other clients“ which would violate Rule 1.7(2). Doc. #36, PAGEID#1082. Finally,

Plaintiffs contend, citing to Comment 15 for Rule 1.7,8 that disqualification is

appropriate because of “substantial discrepancy in the clients’ testimony,

8 Lawyer's Responsibility to Current Clients-Same Matter

[15] In litigation. A “material limitation” conflict exists when a lawyer represents

co-plaintiffs or co-defendants in litigation and there is a substantial discrepancy in

the clients' testimony, incompatible positions in relation to another party,

potential cross-claims, or substantially different possibilities of settlement of the

claims or liabilities in question. Such conflicts can arise in criminal cases as well

as civil. The potential for conflict of interest in representing multiple defendants in

a criminal matter is so grave that ordinarily a lawyer should decline to represent

more than one co-defendant. On the other hand, common representation of

persons having similar interests in civil litigation is proper if the requirements of

division (b) are met. [analogous to Model Rule Comment 23]

incompatible positions in relation to another party, potential cross-claims, or

substantially different possibilities of settlement of claims or liabilities in

question.” . According to Plaintiffs, “[A]ll of these to occur in this

case.” (emphasis added). .

In further support of their argument that Defendants have a conflict of

interest, Plaintiffs next cite, but do not discuss, Rule 2.1, exercising of independent

judgment.9 In making this argument, Plaintiffs refer to a number of state and

federal cases, the majority of which predate the 2007 adoption of the Ohio Rules

of Professional Conduct, which involve criminal representation, or are from

jurisdictions outside of Ohio. One case, , 687

F. Supp.2d 591 (E.D. Va. 2009), however, is cited by Plaintiffs in support of the

motion to disqualify and deserves further discussion.

In , the plaintiffs asserted claims for medical malpractice against

several university doctors and nurses, as well as a separate claim against the

university police department and several officers for the use of excessive force in

violation of the Fourth Amendment. One defense attorney represented all the

defendants in the medical malpractice claim while a second defense attorney

represented all the police officers in the excessive force claim. The district court,

9 Rule 2.1 Advisor. In representing a client, a lawyer shall exercise independent

professional judgment and render candid advice. In rendering advice, a lawyer

may refer not only to law but to other considerations, such as moral, economic,

social, and political factors, that may be relevant to the client's situation.

in citing to the Virginia State Bar Rule of Professional Conduct entitled “Conflict of

Interest,” noted that the “asserted conflict must be a real one and not a

hypothetical one or a fanciful one.” ., at 603 (citations omitted). The court further

stated that “disqualification simply cannot be based on mere speculation that ‘a

chain of events whose occurrence theoretically could lead counsel to act counter

to his client's interests might in fact occur.’” . In sustaining the motion to

disqualify, the trial judge cited to conflicting testimony of the individual police

officers and the police chief and found that the expert medical reports created

“significant incompatibility in position” between one doctor and the other medical

professionals. . In short, the district court found that “the conflicts presented

here are real” and not simply based on “judicial intuition or surmise on the part of

opposing counsel.” .

Although Plaintiffs have standing to raise the issue of disqualification of the

Law Firm due to conflicts, ., 197 F.Supp.2d

1025 (Rice, Chief Judge, S.D. Ohio 2002) (“A motion to disqualify is the proper

method for a party-litigant to bring an issue of conflict of interest or the breach of

an ethical duty to the court's attention”), Plaintiffs’ conflict argument is not based

on testimony or evidence but, instead, on speculation. In fact, Plaintiffs

acknowledge as much in their motion by stating that such conflicts are “easily

foreseeable,” Doc. #36, PAGEID#1085, 1088, or “quite likely to lead [to conflicts],”

., PAGEID#1085, or are “likely to occur.” At this time, and unlike , there

is no discovery before the Court that demonstrates “there is a substantial

discrepancy in the clients’ testimony, incompatible positions in relation to another

party, potential cross-claims, or substantially different possibilities of settlement

of claims or liabilities in question.” Simply stating that it “is likely to occur” is not

enough to disqualify a party’s choice of counsel.10 Although Plaintiffs contend

that Defendants cannot satisfy the requirements of Rule 1.7(b), since, even with

informed consent, the representation “is prohibited by law” and/or ”would

involve the assertion of a claim by one client against another client represented by

the lawyer in the same proceeding,” there is nothing offered in support of this

assertion other than “surmise on the part of opposing counsel.” , 687 F.

Supp.2d at 603.

Plaintiffs final argument in support of their motion concerns Rule 1.6,

confidentiality of information. Although Plaintiffs cite to this Rule and assert that

“circumstantial evidence already shows the two attorney groups are sharing

information (as they must), and that it will inevitably lead to shifting of relative

advantages between the co-Defendants,” Plaintiffs provide no evidence produced

in discovery to justify the “drastic step of disqualification of counsel.” .

Plaintiffs have requested an evidentiary hearing on their motion to

disqualify. In ., 697 F.2d 704 (6th

Cir.1982), the Sixth Circuit held that a court need not conduct an evidentiary

hearing on a motion to disqualify, if the court does not need to resolve factual

10Moreover, there is no evidence before the Court that the Law Firm has not satisfied Rule

1.7(b). See, Comment 15 to Rule 1.7.

disputes in order to rule on that motion. In the case before this Court, no factual

disputes have been raised by Plaintiffs’ motion and, as such, no hearing need be

held at this time.

For these reasons, Plaintiffs’ motion to disqualify, Doc. #36, is overruled.

C. Motion to Declare Representation Joint, Doc. #37

In their Motion to declare Representation Joint, Plaintiffs request “[A]

formal determination that Defense counsels’ representation is joint, and that

Defendants are in fact acting as one.” Doc. #37, PAGEID#114. Plaintiffs assert that

by making this determination, “It will significantly simplify the complexities

involved in trying this case to designate one lead counsel, limit discovery, direct

and cross-examinations, sidebars, and peremptory challenges, [with] all the same

number afforded to one party or to Plaintiffs.” Doc. #37, PAGEID#1114. Plaintiffs

also seek to substitute, as parties’ defendants, the MVRMA, the self-insurance risk

pool that insures Vandalia, and the unidentified risk pool that insures Butler

Township.

With respect to discovery, Plaintiffs’ motion fails to provide the Court with

any specifics that would justify, at this time, a limitation on discovery. The Rule

26(f) report filed by the parties agreed that interrogatories would not exceed 40

served upon any party. Doc. #13. Plaintiffs have not explained why this

agreement should be changed. Defendants, on the other hand, have stated that

even though Plaintiffs have named seventeen different Defendants, they have

attempted to limit interrogatories so that each group of Defendants, as opposed to

each individual, would serve only one request on Plaintiffs. Other than repeated

references to “one bite of the apple,” Plaintiffs have not explained to this Court

what, if any, actual abuses have occurred that would justify the Court to limit

discovery.

Plaintiffs also seek a ruling from this Court to limit peremptory challenges

of Defendants, to limit cross-examination to a designated lead attorney and to

limit rebuttal testimony of Defendants. It is well-established that “[D]istrict courts

retain broad discretion over ‘[m]atters of docket control and [the] conduct of

discovery.’” , Case No. 2:06-cv-292,

2017 WL 1177601, *3 (S.D. Oh. March 30, 2017) (quoting ,

86 F.3d 498, 516 (6th Cir. 1996) (quotation omitted); See,

284 B.R. 238 C-3-01-481(S.D. Oh. Sept. 27, 2002)

(“The Sixth Circuit will not interfere with a lower court's control of its docket

except upon the clearest showing that the procedures have resulted in actual and

substantial prejudice to the complaining litigant.”). At this relatively early stage of

the case, Plaintiff’s concern regarding trial procedure is premature. The Court

will, if necessary, address issues of trial procedure following rulings on any

dispositive motions.

Finally, Plaintiffs’ motion also requests that the risk pools that insure the

Vandalia Defendants and the Butler Township Defendants be joined as parties in

place of Defendants. Doc. #37, PAGEID##1125-1126. This is so, according to

Plaintiffs, because the risk pools control the litigation and Ohio has a direct action

statute.11 Plaintiffs’ argument, however, is not well-taken. Plaintiffs essentially

seek to join Defendants’ insurers prior to establishing any liability, arguing that

this is somehow mandatory pursuant to the real party in interest rule in Fed. R.

Civ. P. 17(a). Such action is prohibited by O.R.C. § 3929.06 which permits

commencement of a civil action against an insurer only after a court enters a final

judgment. See, , 878 F.2d 1400, 1403–04 (11th Cir.1989) (“. . .

courts generally do not recognize these companies as real parties to an action[,]

unless they have become subrogated to the rights of their insured after payment

of the loss, they are defending actions brought directly against them, or when, for

some reason, they must assume primary and visible control of the

litigation.”(citations omitted)).

Accordingly, Plaintiff’s Motion to Declare Representation Joint, Doc. #37,

is overruled.

II. Conclusion

For the reasons stated in this Decision and Entry, the Court OVERRULES

Plaintiffs’ Motion to Disqualify Defense Counsel, Doc. #36, and OVERRULES

Plaintiffs’ Motion to Declare Representation of Multiple Defendants by the Law

11 Plaintiffs also assert that principles of estoppel and “Ohio’s Tort Reform Scheme”

require joinder of the risk pools. These two theories, however, are simply variations of

Plaintiffs’ control argument.

Firm of Surdyk, Dowd & Turner Co., LPA to be Joint and to Limit Discovery, Cross-

Examination and Peremptory Challenges and to Substitute the Insurance Risk

Pools as the Real Parties in Interest, Doc. #37.

If, however, as discovery or motion practice proceeds and new facts arise

which Plaintiffs believe warrant a further review of the legal issues raised in these

motions, the Court will consider any new such motions being filed and, if factual

disputes need to be resolved, a hearing will be convened.

Date: April 6, 2020 /s/ Walter H. Rice (tp - per Judge Rice authorization)

WALTER H. RICE

UNITED STATES DISTRICT JUDGE