[Cite as Skorvanek v. Dept. of Rehab & Corr., 2018-Ohio-3870.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
John M. Skorvanek, :
Plaintiff-Appellant, : No. 17AP-222
(Ct. of Cl. No. 2014-845)
v. :
(REGULAR CALENDAR)
Ohio Department of Rehabilitation :
and Correction,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on September 25, 2018
On brief: Swope and Swope, and Richard F. Swope, for
appellant. Argued: Richard F. Swope.
On brief: Michael DeWine, Attorney General, Eric A. Walker,
and Timothy M. Miller, for appellee. Argued: Timothy M.
Miller.
APPEAL from the Court of Claims of Ohio
BROWN, P.J.
{¶ 1} Plaintiff-appellant, John M. Skorvanek, appeals from a decision of the Court
of Claims of Ohio overruling his objections and adopting the magistrate's decision granting
judgment in favor of defendant-appellee, Ohio Department of Rehabilitation and
Correction ("ODRC"). For the reasons which follow, we affirm.
{¶ 2} On October 23, 2014, appellant filed a complaint alleging ODRC was
negligent in failing to supervise and/or control an inmate in its custody, and negligent in
failing to protect appellant. The issues of liability and damages were bifurcated, and the
case proceeded to trial before a magistrate on liability only.
No. 17AP-222 2
{¶ 3} The events giving rise to the complaint occurred November 12, 2013 when
appellant was an inmate at the Pickaway Correctional Institution ("PCI"). Due to health
issues, appellant was housed in the Frazier Health Center ("Frazier") at PCI.
{¶ 4} On the morning of November 12, 2013, as appellant lie sleeping in his bed in
the west bay of the long-term care unit at Frazier, fellow inmate Scott Creech assaulted him.
Prior to the attack, Creech used a microwave which was available for all inmates to heat a
thermos of water until the water was boiling. Creech took the thermos of water from the
microwave and wheeled his wheelchair over to appellant's bed. Creech used both a
wheelchair and a cane for mobility. Creech dumped the water on appellant's face and neck,
and then struck appellant twice with his cane. Appellant suffered burns to his skin and a
laceration to his face as a result of the attack.
{¶ 5} Nurse Lisa Copeland was doing her "morning pill call" in the west bay at the
time of the attack. (Tr. at 62.) Nurse Copeland was at "the next row" of beds over from
appellant's bed when she looked up and "saw Creech standing up with his cane up in the
air." (Tr. at 59-60.) Nurse Copeland began yelling for help and activated her man down
alarm.
{¶ 6} Nurse Heather Hagan was "in the chartroom that connects the bays" when
she heard Nurse Copeland yelling from the west bay. (Tr. at 50.) Nurse Hagan ran into the
west bay, told Creech to drop the cane, and he complied.
{¶ 7} Correction Officer ("C.O.") Deborah Long was the corrections officer
supervising the long-term care unit of Frazier on the morning of November 12, 2013. The
long-term care unit was comprised of approximately 160 inmates dispersed through three
bays: north, east, and west. C.O. Long had a desk that was "right outside" the three bays, in
a central area near the elevator. (Tr. at 192.)
{¶ 8} C.O. Long completed rounds throughout the three bays every 30 minutes
during her shift. C.O. Long explained she was "walking through the chartroom coming
across to this side" when she heard Nurse Copeland yelling from the west bay. (Tr. at 193.)
C.O. Long entered the west bay and placed Creech in handcuffs.
{¶ 9} Appellant considered Creech to be his friend, and could not "believe Creech
did this" to him. (Skorvanek Depo. at 61.) The men slept "two or three beds" apart, talked
often, and had played chess "[a] couple times." (Tr. at 92.) Appellant did not have any
No. 17AP-222 3
problems with Creech and stated there was no bad blood between them. Creech had never
expressed to appellant that he would harm him, and appellant "had no fear of physical harm
from Mr. Creech." (Tr. at 93.)
{¶ 10} During the first five months appellant was at Frazier, he stated Creech "wasn't
bad." (Tr. at 80.) However, Creech became "more despondent" over time, in part because
he needed "a new knee" but was told he would not receive one. (Tr. at 80.) As Creech grew
more despondent, appellant stated Creech stayed in bed a lot "wouldn't talk to anybody on
our row," and when he would talk "he wouldn't make sense." (Tr. at 81.)
{¶ 11} Although Creech had previously informed appellant his cane could "really
hurt somebody," appellant admitted he "never went to anyone at the Department and
warned them that [Creech] shouldn't have this cane." (Tr. at 72; 99.) Appellant stated
Creech "didn't act" on the things he said he wanted to do to other people. (Tr. at 77.)
Appellant characterized Creech's threats as "small talk," and general "[t]ough guy talk."
(Skorvanek Depo. at 26.)
{¶ 12} About 15 days prior to the incident, Creech stopped talking to appellant.
Appellant noted that "[n]othing had happened," but Creech "just quit talking" to him. (Tr.
at 94.) Inmate Donny Waldroop informed appellant that Creech thought appellant was
having Creech followed. However, appellant "never told anyone at the Department that
Creech thought [appellant was] having someone follow him," nor did appellant tell ODRC
staff that Creech had stopped talking to him. (Tr. at 94.) Appellant never informed anyone
in the mental health department that he was concerned about Creech.
{¶ 13} Waldroop testified that, in the month before the incident, Creech "kept
running around telling people he was going to get [appellant]." (Waldroop Depo. at 10.)
However, Waldroop admitted that no one told a C.O. or nurse what Creech had been saying
about appellant, noting that "[n]obody took [Creech] serious." (Waldroop Depo. at 11.)
Waldroop was surprised by the attack; he "would never have dreamed of [the attack]
happening." (Waldroop Depo. at 28.)
{¶ 14} Inmate George Borgmann characterized Creech as "a nut," and as someone
who always "thought people was talking about him." (Borgmann Depo. at 24; 11.)
Borgmann explained that, about "a month or two before it happened," Creech began telling
other inmates he was "going to get" appellant because he believed appellant was talking
No. 17AP-222 4
about him. (Borgmann Depo. at 18; 24.) However, Borgmann never informed an ODRC
employee regarding Creech's comments. Borgmann explained that Creech "threatened
people all the time," and Creech's statements were "just normal idle threats. Really nothing.
You hear it all the time from everybody in these joints." (Borgmann Depo. at 11.)
{¶ 15} Nurses Copeland and Hagan both testified that no inmate ever indicated to
them they were fearful of Creech. C.O. Long "never received any" complaints about Creech.
(Tr. at 194.)
{¶ 16} During discovery, appellant requested Creech's mental health record from
ODRC. ODRC reviewed Creech's mental health record and produced all documents from
the record which it determined were not privileged. ODRC objected to producing the
remaining documents in the record, asserting they were protected from disclosure under
the physician-patient privilege. The magistrate ordered ODRC to submit Creech's mental
health record under seal for the magistrate to review in camera.
{¶ 17} On April 11, 2016, ODRC filed a Civ.R. 26(C) motion for a protective order,
arguing Creech's mental health record was protected from production pursuant to the
physician-patient privilege in R.C. 2317.02. Appellant filed a memorandum in support of
disclosure on April 14, 2016, asserting Creech's assault on appellant made his mental health
record discoverable.
{¶ 18} ODRC called Meredith Rinna, the mental health administrator at Toledo
Correctional Institution to testify at trial. Rinna explained an inmate's mental health record
would include "screening and assessments that are done to determine whether or not a
person is presenting with any clinical symptoms, diagnostic assessments. It's going to also
include progress notes, if there's any treatment or therapy that's going on for the offender;
their treatment plan, which directs the course of treatment for that offender." (Tr. at 147-
48.) Rinna affirmed the documents in Creech's mental health record related to the care,
diagnosis, and treatment of his mental health.
{¶ 19} After conducting its in camera review, the magistrate ruled from the bench
that the documents in Creech's mental health record were privileged. Following trial, the
magistrate issued an order granting ODRC's motion for a protective order.
{¶ 20} On November 16, 2016, the magistrate issued a decision, holding appellant
failed to prove his claims by a preponderance of the evidence. The magistrate reviewed the
No. 17AP-222 5
testimony, and observed that neither appellant, Waldroop, nor Borgmann "felt that Creech
posed a serious threat, and none of them notified a staff member about any concern for
plaintiff's safety." (Mag.'s Decision at 12.) The magistrate concluded that "[c]onsidering the
information known to the three of them and the fact that they were still surprised at the
attack, it is difficult to say that defendant's employees, who knew nothing of the comments
Creech made about plaintiff, should have foreseen the attack." (Mag.'s Decision at 12.) The
magistrate held ODRC "did not have notice, either actual or constructive, that the attack
was impending." (Mag.'s Decision at 12.)
{¶ 21} Appellant filed nine objections to the magistrate's decision and ODRC filed a
reply to appellant's objections. On March 2, 2017, the Court of Claims issued a decision
overruling appellant's objections and adopting the magistrate's decision as its own.
{¶ 22} Appellant appeals, assigning the following eight assignments of error for our
review:
[I.] THE TRIAL COURT AND THE MAGISTRATE ERRED IN
FAILING TO PROVIDE PLAINTIFF-APPELLANT WITH
SCOTT CREECH'S MENTAL HEALTH RECORDS,
INCLUDING ALL RECORDS PERTAINING TO MATTERS
NOT RELATING TO TREATMENT.
[II.] THE TRIAL COURT AND MAGISTRATE ERRED IN
FAILING TO CONSIDER SCOTT CREECH'S PRISON
RECORD OF ASSAULTS, MISCONDUCT, AND BIZARRE
BEHAVIOR, AS CONSTRUCTIVE NOTICE THAT CREECH
WOULD ATTACK ANOTHER INMATE.
[III.] THE TRIAL COURT AND MAGISTRATE ERRED WHEN
THEY FAILED TO CONSIDER DEFENDANT-APPELLEE'S
TOTAL LACK OF SECURITY IN THE MEDICAL BAY WHERE
PLAINTIFF-APPELLANT WAS HOUSED AS NEGLIGENCE
IN NOT PROTECTING THE SAFETY OF DISABLED
INMATES OF VARYING SECURITY LEVEL, UP TO LEVEL 3.
[IV.] THE TRIAL COURT AND MAGISTRATE ERRED IN
FAILING TO CONSIDER C.O. LONG HAD TO MAKE
ROUNDS IN THREE SEPARATE BAYS AND WAS THE ONLY
OFFICER PROVIDING SECURITY FOR 160 INMATES
PREVENTING ANY ABILITY TO PREVENT ASSAULTS AND
PROTECT INMATES' SAFETY.
No. 17AP-222 6
[V.] THE TRIAL COURT AND MAGISTRATE ERRED IN
FAILING TO CONSIDER SCOTT CREECH HAD A METAL
CANE WHICH REQUIRED A RESTRICTION WHICH WAS
NOT PRODUCED BY DEFENDANT-APPELLEE.
[VI.] THE MAGISTRATE ERRED BY FAILING TO PROVIDE
COUNSEL WITH ALL OF SCOTT CREECH'S MENTAL
HEALTH RECORDS OR ALLOWING HIM TO PARTICIPATE
IN AN INSPECTION OF THESE RECORDS, PARTICULARLY
WHEN DEFENSE COUNSEL, WHO ARE NOT STAFF OF
THE DEPARTMENT OF REHABILITATION AND
CORRECTION, WERE ALLOWED ACCESS.
[VII.] THE TRIAL COURT AND MAGISTRATE ERRED IN
PERMITTING A WITNESS TO GIVE AN OPINION THE
SEALED RECORDS WERE ALL PRIVILEGED.
[VIII.] THE MAGISTRATE'S RULING WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY
TO LAW.
{¶ 23} For ease of discussion, we will address appellant's assignments of error out
of order.
{¶ 24} Pursuant to Civ.R. 53, the trial court reviews a magistrate's decision de novo.
Mayle v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-541, 2010-Ohio-2774, ¶ 15,
citing State Farm Mut. Auto. Ins. Co. v. Fox, 182 Ohio App.3d 17, 2009-Ohio-1965, ¶ 10 (2d
Dist.). In ruling on objections to a magistrate's decision, the trial court must undertake an
independent review of the matters objected to in order "to ascertain [whether] the
magistrate has properly determined the factual issues and appropriately applied the law."
Civ.R. 53(D)(4)(d).
{¶ 25} An appellate court, however, reviews a trial court's adoption of a magistrate's
decision for an abuse of discretion. Mayle at ¶ 15. See Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983) (noting an abuse of discretion connotes more than an error of law or
judgment, "it implies that the court's attitude is unreasonable, arbitrary or
unconscionable"). Claims of trial court error must be based on the actions taken by the trial
court, itself, rather than the magistrate's findings. Id. at ¶ 15. Thus, we may reverse the trial
court's adoption of the magistrate's decision only if the trial court acted unreasonably,
arbitrarily or unconscionably. Id.
No. 17AP-222 7
{¶ 26} Appellant's second assignment of error asserts the trial court erred in failing
to consider Creech's prison record of assaults, misconduct, and bizarre behavior as
constructive notice that Creech would attack another inmate.
{¶ 27} To prevail on a negligence claim, a plaintiff must establish the existence of a
duty, a breach of the duty, and an injury resulting proximately therefrom. Menifee v. Ohio
Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984); Strother v. Hutchinson, 67 Ohio St.2d
282, 285 (1981). The plaintiff has the burden to prove each element of their negligence
claim by a preponderance of the evidence. Forester v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 11AP-366, 2011-Ohio-6296, ¶ 7.
{¶ 28} "In the context of a custodial relationship between the state and its inmates,
the state owes a common-law duty of reasonable care and protection from unreasonable
risks of physical harm." McElfresh v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-
177, 2004-Ohio-5545, ¶ 16. Although the state is not an insurer of inmate safety, "once it
becomes aware of a dangerous condition it must take reasonable care to prevent injury to
the inmate." Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 02AP-1109, 2003-
Ohio-3533, ¶ 20. Thus, to constitute a breach, the plaintiff must show that the actions giving
rise to their injuries were foreseeable by prison officials. Phelps v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 16AP-70, 2016-Ohio-5155, ¶ 13, citing McGuire v. Ohio Dept. of Rehab.
& Corr., 10th Dist. No. 96API04-444 (Sept. 30, 1996).
{¶ 29} When one inmate attacks another inmate, "actionable negligence arises only
where prison officials had adequate notice of an impending attack." Metcalf v. Ohio Dept.
of Rehab. & Corr., 10th Dist. No. 01AP-292, 2002-Ohio-5082, ¶ 11. This notice may be
actual or constructive. Id. The distinction between actual and constructive notice is "the
manner in which the notice is obtained rather than the amount of information obtained."
Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-606, 2012-Ohio-1017, ¶ 9.
"Actual notice exists where the information was personally communicated to or received by
the party." Id. Constructive notice " 'is that notice which the law regards as sufficient to
give notice and is regarded as a substitute for actual notice.' " Id., quoting Hughes v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 14. "Whether ODRC
had or did not have notice is a question that depends on all the factual circumstances
No. 17AP-222 8
involved." Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016-Ohio-
3134, ¶ 11 ("Frash II").
{¶ 30} The magistrate noted that, although Creech stopped talking to appellant 15
days before the attack, and although Waldroop and Borgmann heard Creech say he was
going to get appellant, no one informed ODRC staff regarding any concerns about Creech.
The magistrate reviewed Creech's prison disciplinary record dating back to the early 1980s,
and observed that the only two instances of violence in Creech's record were "remote in
time—by more than ten years—from the attack on plaintiff and clearly do not constitute a
pattern of violence that could even arguably confer defendant with notice that the attack by
Creech was impending at any moment." (Mag.'s Decision at 13-14.) The Court of Claims
overruled appellant's objection to the magistrate's decision, noting that appellant's
"contention that the magistrate failed to consider Creech's disciplinary history and
purported 'bizarre behavior' [was] belied by the magistrate's decision." (Decision at 19.)
{¶ 31} The record fails to present any evidence indicating ODRC received actual
notice that Creech would assault appellant. Although Borgmann and Waldroop testified
that Creech told other inmates he was going to "get" appellant, neither Borgmann nor
Waldroop informed ODRC staff regarding Creech's threats. (Waldroop Depo. at 10;
Borgmann Depo. at 24.)
{¶ 32} Appellant asserts Borgmann testified that other "inmates complained to
correctional officers about Creech." (Appellant's Brief at 21.) Borgmann stated that he
"heard" other inmates talking in "the dorm" about Creech, and he saw inmates go "in the
sergeant's office" to complain about Creech. (Borgmann Depo. at 12; 22.) However,
Borgmann admitted he was never present in the sergeant's office when these inmates were
allegedly complaining about Creech, and that accordingly he "never heard what was being
said" by these inmates. (Borgmann Depo. at 22-23.) Thus, Borgmann's testimony does not
establish other inmates notified ODRC staff that an attack from Creech was impending.
{¶ 33} Appellant additionally notes Borgmann "said he saw Creech hit older inmates
with his cane in the bathroom." (Appellant's Brief at 21.) While Borgmann stated he saw
Creech use his cane to hit "weaker old men" in the "bathroom," Borgmann admitted Creech
never did "it so the guards were aware that he was using" his cane as a weapon. (Borgmann
Depo. at 28.) Borgmann never reported these incidents to ODRC staff, noting that he
No. 17AP-222 9
"would never do that." (Borgmann Depo. at 28.) Thus, there was no evidence indicating
ODRC was ever informed that Creech had used his cane to hit other inmates.
{¶ 34} Appellant argues that Creech's prison record and conduct prior to the attack
provided ODRC with constructive notice that Creech would attack another inmate. In Frash
v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016-Ohio-360 ("Frash I"), this
court concluded ODRC had constructive notice that inmate Eugene Groves would assault
another inmate. Groves fatally stabbed Frash in 2010 while both men were incarcerated at
Ross Correctional Institution. We found the following five factual circumstances sufficient
to put ODRC on constructive notice that Groves would assault an inmate:
(1) Groves' regular and repetitive record of stabbing violence
against other inmates (incidents in 1984, 1988, 1994, 1996, and
1999 before being placed on level 5 security) leading up to this
incident in 2010 (which was 4 years after being transferred to
level 3 security in 2006); (2) the fact that these incidents were
a direct result of Groves' permanent mental condition as a
sufferer of paranoid schizophrenia; (3) the fact that the only
guard on duty nearby was an inexperienced relief officer who
had only worked at the prison for two weeks; (4) did not know
the numbers to call in the event of an emergency; and
(5) thought he was guarding level 2 prisoners (less dangerous)
when he was really guarding level 3 prisoners (more
dangerous).
Frash II at ¶ 12, citing Frash I at ¶ 2, 16-19.
{¶ 35} The facts of the instant case are materially different from those present in
Frash I. Creech did not suffer from paranoid schizophrenia, and the C.O. on duty, Long,
was experienced and ended the confrontation swiftly. While Groves' prison record in Frash
I demonstrated Groves' preference for assaulting other inmates by stabbing them, Creech's
prison record does not contain any record of an assault where he used boiling water or his
cane to assault another inmate.
{¶ 36} Creech was incarcerated in 1981 after being convicted of four counts of
manslaughter. However, Creech's disciplinary record from 1981 to November 12, 2013
contains only two incidents of violence: an attempt to strike another inmate with a lock
attached to a belt in 2000, and a fistfight with another inmate in 2002. The conduct report
from the 2000 incident states that Creech "attempt[ed] to hit Inmate Humphrey * * * with
a lock on a belt" because Humphrey had stolen some cigarettes from Creech. (Plaintiff's Ex.
No. 17AP-222 10
10.) The report notes that Creech "verbally stated that if he hadn't been so drunk Humphrey
would be in the morgue now." (Plaintiff's Ex. 10.) Creech pled guilty to the charge before
the Rules Infraction Board, and the board sentenced Creech to five days of disciplinary
control. In the 2002 incident, a C.O. saw Creech fighting another inmate. Creech informed
the board that the other inmate had struck him first, the board did not believe Creech's
version of events, and imposed a penalty of six days of disciplinary control.
{¶ 37} Aside from these two incidents, which occurred over ten years before the
present attack, Creech's prison record contains violations for only non-violent offenses.
Although appellant asserts that Creech's "disciplinary record for 2006 to 2014 was not
provided," plaintiff's Exhibit 10 contains Creech's disciplinary record from ODRC,
including non-violent infractions from 2006, 2007, 2008, 2010, and 2011. (Appellant's
Brief at 19; See Plaintiff's Ex. 10.)
{¶ 38} Creech's security classification was reduced from level 2 to level 1 in 2009.
Creech's security classification remained at level 1, the lowest possible level, from 2009
until the November 12, 2013 incident. Frazier only housed inmates with level 1, 2, or 3
security classifications; level 4 and 5 inmates were "not allowed" at Frazier. (Tr. at 208.)
Thus, at the time of the incident, Creech had been at the lowest security level classification
for four years, and was living in a prison medical facility for low level security prisoners.
Creech had never expressed to appellant that he would harm him, and appellant did not
fear any physical harm from Creech.
{¶ 39} Accordingly, Creech's prison record did not provide ODRC with constructive
notice that an assault from Creech was impending in November 2013. Compare Literal v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-242, 2016-Ohio-8536, ¶ 26 (noting that,
although the attacking inmate's prison record demonstrated he assaulted other inmates in
2010 and 2012, and that he was on cell isolation and bed restriction at the time of the 2013
assault, as the inmate "had no prior disputes with appellant and had made no threats
against appellant or any other inmate in the PC unit," the inmate's prison record, "standing
alone, [did] not permit an inference that DRC either knew or should have known [the
inmate] would attack appellant").
{¶ 40} Appellant testified that, in the weeks prior to the attack, Creech became
despondent, stopped talking to others, and completely stopped talking to appellant.
No. 17AP-222 11
However, an inmate's odd or bizarre behavior alone is insufficient to provide ODRC with
constructive notice that an attack from the inmate is impending. See Watson at ¶ 9-14
(holding that an inmate's "strange behavior prior to the attack," including pacing his cell,
crouching as if he were waiting for someone to come at him, boxing a coat and metal mirror,
and using items to barricade his cell door, did not provide ODRC with constructive notice
that the inmate would assault another inmate); Hughes at ¶ 15 (holding that "[t]he fact that
the ODRC was aware that [the inmate] was not taking his medication, mumbled to himself,
and was acting erratically, [did] not translate into actual or constructive notice that [the
inmate] posed a risk of violence or that his attack on appellant was forthcoming").
{¶ 41} Appellant notes Creech had previously told him he wanted to "hurt" another
inmate at Frazier, inmate Heinz, and had stated that he wanted to "hit [Heinz] with that
cane." (Tr. at 76.) Appellant "talked to the nurse[s]" about the fact that Creech "want[ed]
to hurt [Heinz]." (Skorvanek Depo. at 14.) Prior to November 12, 2013, however, inmate
Heinz moved to a different facility to receive "specialized medical treatment." (Tr. at 100.)
There was no evidence indicating that Creech ever acted on his desire to harm Heinz.
{¶ 42} Thus, although appellant previously informed the nurses that Creech
expressed a desire to harm Heinz, Heinz was not at Frazier on the day Creech attacked
appellant, and Creech never followed through on his threat to harm Heinz. Indeed,
appellant, Borgmann, and Waldroop all testified they did not consider Creech's threats to
harm others to be credible threats of violence. See Frash II at ¶ 13 (noting that it would
"often be unfair to say that ODRC had notice of an attack when they did not know who
would be attacked"); Allen v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-619, 2015-
Ohio-383, ¶ 22 (holding that, although appellant "avers that Decost threatened other
inmates, he does not claim that Decost ever made good on those threats," and thus the "fact
that DRC knew that Decost was a violent offender who had made threats of violence toward
other inmates [was] insufficient, standing alone, to establish constructive notice to DRC of
an imminent attack on appellant").
{¶ 43} Neither Creech's despondent behavior prior to the assault nor his prison
disciplinary record would have suggested to ODRC that Creech posed a risk of physical
violence toward other inmates, including appellant, in November 2013. Accordingly, ODRC
No. 17AP-222 12
did not have notice, either actual or constructive, that an attack from Creech was
impending.
{¶ 44} Based on the foregoing, appellant's second assignment of error is overruled.
{¶ 45} Appellant's fifth assignment of error asserts the trial court erred in failing to
consider ODRC did not produce Creech's medical authorizations for his cane. Appellant
argues that if Creech had a cane without the proper medical authorization, "this [was] proof
of negligence." (Appellant's Brief at 25.)
{¶ 46} Nurse Hagan testified that, in 2013, a patient at Frazier had to have a doctor's
order to have a cane. When asked whether she reviewed Creech's record to see if he had a
doctor's order for his cane, Nurse Hagan stated "I know that he has documentation stating
that he had one and that he had it when he was re-classed to us." (Tr. at 210.)
{¶ 47} The magistrate concluded Nurse Hagan's testimony established that Creech
had a doctor's order authorizing him to have a cane. The Court of Claims overruled
appellant's objection to the magistrate's decision regarding Creech's authorization for his
cane.
{¶ 48} Appellant asserts that Nurse Hagan's testimony was insufficient to establish
that Creech had a doctor's order for his cane. However, the weight to be given evidence and
the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus. The magistrate found Nurse Hagan's
testimony regarding Creech's documentation for his cane to be credible. The Court of
Claims did not abuse its discretion in adopting the magistrate's conclusion that Creech had
medical authorization for his cane. Compare State v. Farthing, 146 Ohio App.3d 720, 726
(2d Dist.2001) (holding that, although the state did not introduce the defendant's "written
waiver into evidence," the counselor's testimony stating that each "inmate signs a waiver
with respect to mental health services" upon entering the prison, was sufficient to establish
the defendant signed such a waiver).
{¶ 49} Based on the foregoing, appellant's fifth assignment of error is overruled.
{¶ 50} Appellant's first assignment of error asserts the trial court erred in failing to
order ODRC to produce Creech's mental health record. The Court of Claims, upon
thoroughly reviewing all of the statutes, civil rules, and case law cited in appellant's
objection to the magistrate's decision, overruled appellant's objection and adopted the
No. 17AP-222 13
magistrate's ruling that Creech's mental health record was privileged from discovery under
the physician-patient privilege.
{¶ 51} Generally, a discovery dispute is reviewed under an abuse of discretion
standard. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, ¶ 13.
However, when the discovery issue involves an alleged privilege, "it is a question of law that
must be reviewed de novo." Id., citing Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,
2009-Ohio-2496, ¶ 13. "The burden of establishing the privilege 'rests with the party
asserting the existence of privilege.' " Evans v. Summit Behavioral Healthcare, 10th Dist.
No. 15AP-241, 2016-Ohio-5857, ¶ 24, quoting Shaffer v. OhioHealth Corp., 10th Dist. No.
03AP-102, 2004-Ohio-63, ¶ 8.
{¶ 52} Parties may "obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action." Civ.R. 26(B)(1). See also
Civ.R. 45(F) (stating that "[n]othing in this rule shall be construed to authorize a party to
obtain information protected by any privilege recognized by law, or to authorize any person
to disclose such information"). Thus, while "[p]arties have a right to liberal discovery of
information under the Rules of Civil Procedure," privileged materials are not subject to
discovery. Ward at ¶ 9. When a party seeks to discover privileged information, "they must
establish an exception to the privilege in order to discover this information; relevancy itself
is not sufficient for purposes of discovery under Civ.R. 26 when matters are privileged." Roe
v. Planned Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973,
¶ 28.
{¶ 53} "In general, medical records are confidential and not subject to disclosure."
Id. at ¶ 46. "Physician-patient and psychologist-patient privileges have been codified in
Ohio to deny the use of such information in litigation except in certain limited
circumstances." Hageman v. Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-
3343, ¶ 49.
{¶ 54} R.C. 2317.02 provides a testimonial privilege, stating that "[t]he following
persons shall not testify in certain respects: * * * (B)(1) [a] physician * * * concerning a
communication made to the physician * * * by a patient in that relation or the advice of a
physician * * * given to a patient." The statute defines a communication as "acquiring,
recording, or transmitting any information, in any manner, concerning any facts, opinions,
No. 17AP-222 14
or statements necessary to enable a physician * * * to diagnose, treat, prescribe, or act for a
patient." R.C. 2317.02(B)(5)(a). See Ward at ¶ 15 (noting that, as the physician-patient
privilege is a statutory privilege which did not exist at common law, the "privilege must be
strictly construed against the party seeking to assert it and may be applied only to those
circumstances specifically named in the statute"). Communications between a psychologist
and client "are placed upon the same basis as those between physician and patient" under
R.C. 2317.02(B). R.C. 4732.19.
{¶ 55} The purpose of the physician-patient privilege is to " 'create an atmosphere
of confidentiality, encouraging the patient to be completely candid and open with his or her
physician [or psychologist], thereby enabling more complete treatment.' Otherwise, the
fear of disclosure 'could seriously impede the patient's chances for a recovery.' " In re
Wieland, 89 Ohio St.3d 535, 538-39 (2000), quoting In re Miller, 63 Ohio St.3d 99, 107-
08 (1992). The privilege "refers to the patients * * *, no mention is made as to whether these
people are parties to cases in which the privilege is sought to be invoked." Hanly v.
Riverside Methodist Hosp. Found., Inc., 71 Ohio App.3d 778, 782 (10th Dist.1991).
Accordingly, R.C. 2317.02(B) prevents a litigant from "discover[ing] the confidential
medical records of nonparties in a private lawsuit." Roe at ¶ 48.
{¶ 56} R.C. 2317.02(B) defines specific exceptions to the privilege. However, none
of the listed exceptions apply to the present dispute. See R.C. 2317.02(B)(1)(a) through (e)
(listing the following exceptions: patient's express consent, patient files a medical
negligence claim, court-ordered treatment in a child custody case, treatment in a criminal
case to determine blood-alcohol/drug content, criminal action against a physician, or will-
contest). R.C. 2317.02(B) "is worded so that the privilege applies unless it is waived," and if
a "situation does not meet one of the waivers expressly set forth in the statute, the privilege
is not waived." Miller at 109.
{¶ 57} If an individual makes statements to a physician or psychologist for purposes
other than diagnosis or treatment, such statements are not protected by the privilege. In re
Jones, 99 Ohio St.3d 203, 2003-Ohio-3182, ¶ 13 (holding that court-ordered psychiatric
evaluations conducted for forensic purposes "are not protected as privileged
communications pursuant to R.C. 4732.19 and former R.C. 2317.02"). Regarding a
prisoner's mental health record, this court has observed that, where a communication
No. 17AP-222 15
between a prisoner and "a psychologist is made for purposes other than to facilitate
diagnosis and treatment (for example determining proper security classification in a
prison), the privilege may not attach." Frash I at ¶ 27.
{¶ 58} In the present case, ODRC produced all the documents from Creech's mental
health record which did not relate to diagnosis or treatment. The magistrate specifically
noted, after reviewing the sealed record in camera, the record did not contain "anything
pertaining to security classification." (Tr. at 229.) Rinna testified that the documents in an
inmate's mental health record do not "enter into the [security] classification"
determination. (Tr. at 169.)
{¶ 59} R.C. 5120.21(C)(2) provides that ODRC shall maintain a "separate medical
record of every inmate," and that each inmate's medical record "shall be * * * kept apart
from and independently of any other record pertaining to the inmate." R.C. 5120.21(E)
states that "[e]xcept as otherwise provided by a law of this state," ODRC "may release
inmate records to * * * a court of record, and * * * the court of record may use those records
for the limited purpose of carrying out the duties of the * * * court of record." Inmate
records released to a court under R.C. 5120.21(E) "shall remain confidential and shall not
be considered public records." Id.
{¶ 60} Although appellant relies on R.C. 5120.21(E) to support his contention that
Creech's mental health record was discoverable, R.C. 5120.21(E) pertains only to ODRC's
release of inmate records to a court. The statute does not provide ODRC with the authority
to release inmate medical records to opposing parties in litigation.
{¶ 61} Relying on R.C. 2317.02(B)(2)(b), appellant states that, because "Creech
committed a crime," the "tests and information obtained about Creech" were discoverable.
(Appellant's Brief at 14.) However, R.C. 2317.02(B)(2) applies to "official criminal
investigation[s]," where a law enforcement officer requests that a healthcare provider
supply the officer with copies of any tests "administered to the specified person to
determine the presence or concentration of alcohol, a drug of abuse, [or] a combination of
them" in the person "at any time relevant to the criminal offense in question." R.C.
2317.02(B)(2)(a). If the healthcare provider possesses the record described in R.C.
2317.02(B)(2)(a), in lieu of testifying, "the custodian of the records may submit a certified
copy of the records." R.C. 2317.02(B)(2)(b). The present case does not involve an official
No. 17AP-222 16
criminal investigation seeking the results of tests administered to Creech to determine his
blood-alcohol/drug content. As such, R.C. 2317.02(B)(2) does not apply to the present case.
{¶ 62} Appellant additionally cites Farthing to support his contention that Creech's
mental health record should have been discoverable. In Farthing, however, the evidence
demonstrated that the defendant-inmate had executed a waiver with respect to the mental
health services he received at a prison. Id. at 726. As such, the court concluded the
defendant-inmate had waived the physician-patient privilege with respect to the statements
he made to the prison mental health counselor. Unlike Farthing, there is no evidence in the
present record demonstrating Creech executed a waiver with respect to the mental health
services he received at ODRC.
{¶ 63} Appellant states that in Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395
(1999), the Supreme Court held that "confidentiality must yield to public interest."
(Appellant's Brief at 17.) Appellant argues the legal principles governing the confidentiality
of medical records must yield to his "need to recover for a brutal assault." (Appellant's Brief
at 17.)
{¶ 64} Biddle established that "an independent tort exists for the unauthorized,
unprivileged disclosure to a third party of nonpublic medical information that a physician
or hospital has learned within a physician-patient relationship." Id., at paragraph one of
the syllabus. In Biddle, a hospital released patient medical information to a law firm for the
firm to contact the patients regarding their potential eligibility for supplemental security
income and possible payment to the hospital. In discussing the tort of unauthorized
disclosure of medical information, the court held that, in the absence of prior authorization,
"a physician or hospital is privileged to disclose otherwise confidential medical information
in those special situations where disclosure is made in accordance with a statutory mandate
or common-law duty, or where disclosure is necessary to protect or further a countervailing
interest that outweighs the patient's interest in confidentiality." Id. at 402.
{¶ 65} Following the decision, some courts began relying on the countervailing
interest balancing test from Biddle as providing authority for litigants in tort actions to
obtain non-party confidential medical information. See Fair v. St. Elizabeth Med. Ctr., 136
Ohio App.3d 522, 527 (2d Dist.2000); Richards v. Kerlakian, 162 Ohio App.3d 823, 2005-
No. 17AP-222 17
Ohio-4414, ¶ 5 (1st Dist.); Cepeda v. Lutheran Hosp., 8th Dist. No. 90031, 2008-Ohio-
2348, ¶ 15.
{¶ 66} In Roe, however, the Supreme Court clarified the balancing test from Biddle
"applie[d] only as a defense to the tort of unauthorized disclosure of confidential medical
information and does not create a right to discover confidential medical records of
nonparties in a private lawsuit." Roe at paragraph one of the syllabus. The court held that
"[a]ny such exception to the physician-patient privilege is a matter for the General
Assembly to address." Id. at ¶ 48. See also Bednarik v. St. Elizabeth Health Ctr., 7th Dist.
No. 09 MA 34, 2009-Ohio-6404, ¶ 21 (noting that "[s]ince Roe has now held that Biddle
does not create the right to discover confidential medical records and that such records
cannot be disclosed in the absence of legislative enactment, the Supreme Court has
precluded appellee from forcing discovery of a non-party patient's privileged medical
records").
{¶ 67} In 2010, the court recognized the physician-patient privilege does not provide
an "absolute protection against disclosure of medical information." Ward at ¶ 30. The
plaintiffs in Ward sought to depose a non-party physician about his own medical
information, to determine whether the physician was the source of the plaintiff's infection.
Because R.C. 2317.02(B) "does not address whether medical information is discoverable
from a patient himself," the court held the statute did "not protect a person from having to
disclose his or her own medical information when that information is relevant to the subject
matter involved in a pending civil action." Id. at ¶ 28. Ward distinguished its holding from
Roe, and affirmed that "medical records of nonparties" are protected from disclosure
where: (1) R.C. 2317.02(B) prohibits the healthcare provider from releasing them, (2) no
statutory exception to the privilege applies, and (3) the non-party patient has not consented
to a release of their records. Id. at ¶ 31, citing Roe.
{¶ 68} The sealed mental health record at issue contain communications between
Creech and his treating psychiatrists. The record contains Creech's diagnosed conditions,
his psychiatrist's plan of treatment for him, and his prescribed medications. These
communications are protected from disclosure under R.C. 2317.02(B), there is no exception
to the privilege which applies to the records, and Creech has not consented to a release of
his mental health record. As such, Creech's mental health record was not subject to
No. 17AP-222 18
discovery. The Court of Claims did not abuse its discretion in adopting the magistrate's
ruling that the record was privileged.
{¶ 69} Appellant argues there should be "an exception to the privilege in cases where
the [non-party] assailant commits a grievous assault on an individual and a civil case arises
out of the attack." (Appellant's Brief at 12.) To the extent appellant appears to request this
court create a new exception to the physician-patient privilege, we hold that any such
exception to the privilege is a matter for the General Assembly to address. Roe at ¶ 48.
{¶ 70} Based on the foregoing, appellant's first assignment of error is overruled.
{¶ 71} Appellant's sixth assignment of error asserts the magistrate erred in not
allowing appellant's counsel to inspect Creech's mental health record. In overruling
appellant's objection to the magistrate's decision on the same basis, the Court of Claims
held appellant was not "entitled to participate in this court's in camera inspection of
purportedly privileged medical or mental health records." (Decision at 17.)
{¶ 72} Indeed, an in camera inspection is a judge's private review of evidence,
occurring "outside the presence of the parties and counsel." State v. Geis, 2 Ohio App.3d
258, 260 (10th Dist.1981). See also Black's Law Dictionary 878 (10th Ed.2014) (defining
"in camera" as "[i]n the judge's private chambers"). Courts should use in camera inspection
to weigh claims of privilege because, " '[b]y conducting such an inspection in chambers
away from the jury and without the presence or participation of counsel for either party,
the trial judge may make the necessary determination without compromising the
confidentiality of any information he finds to be privileged.' " State ex rel. Grandview Hosp.
& Med. Ctr., 51 Ohio St.3d 94, 96 (1990), quoting Henneman v. Toledo, 35 Ohio St.3d 241,
243 (1988).
{¶ 73} However, appellant's precise contention under this assignment of error is
that, because ODRC "provid[ed] access to the Attorney General's office to Creech's records,"
appellant's counsel should have been provided access to Creech's mental health record as
well. (Appellant's Brief at 26.) Yet, appellant's discovery request for Creech's mental health
record obligated ODRC and its attorney to review Creech's record to ascertain whether any
of the documents were privileged. See Civ.R. 26(B)(6)(a). The attorney general is ODRC's
attorney in the present case.
No. 17AP-222 19
{¶ 74} "Non-public records" of ODRC, including inmate mental health records,
"may, in the sole discretion of the director, or designee, be made available to * * * other
persons with a need for access to such documents." Ohio Adm.Code 5120-9-49(F). ODRC's
attorney had a need to access the documents in Creech's mental health record in order to
respond to appellant's discovery request. As such, ODRC had a qualified privilege to
provide Creech's mental health record to its attorney. See Wilson v. Ohio Dept. of Rehab. &
Corr., 73 Ohio App.3d 496, 500 (10th Dist.1991) (holding that ODRC's disclosure of an
inmate's medical record to a federal court in a lawsuit filed by the inmate did not amount
to an invasion of the inmate's privacy because, pursuant to Ohio Adm.Code 5120-9-49(F),
the "disclosure of medical information may be protected by a qualified privilege predicated
upon a 'need to know' or 'need for access' basis," and the "court had a compelling need to
know, or need for access to, that information").
{¶ 75} Appellant's rights were fully protected by the trial court's in camera review of
the record. Compare Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); State v. Stiles, 3d
Dist. No. 1-08-12, 2009-Ohio-89, ¶ 32, citing Ritchie at 60 (noting that "[t]o ensure a fair
trial, a defendant has a right to an in camera review of child abuse records," but "does not
have a right, even through counsel, to inspect the records himself"). Appellant's counsel
did not have a right to inspect Creech's mental health record.
{¶ 76} Based on the foregoing, appellant's sixth assignment of error is overruled.
{¶ 77} Appellant's seventh assignment of error asserts the trial court erred in
permitting Rinna to give an opinion that the sealed record was privileged. During Rinna's
testimony, Rinna explained the only ODRC employees with access to an inmate's mental
health record were "those who work in medical, the institutional inspector, the deputy
warden of special services, and the warden." (Tr. at 147.) Counsel for ODRC asked Rinna if
ODRC staff considered the documents in an inmate's mental health record to be privileged,
and appellant objected.
{¶ 78} The magistrate asked ODRC if it meant "from a policy standpoint, the way
they are kept confidential within DRC as opposed to a legal determination here in this
Court." (Tr. at 149-50.) ODRC's counsel affirmed they were not asking an ultimate question,
but whether ODRC considered an inmate's mental health record confidential within the
No. 17AP-222 20
department. The magistrate overruled the objection, and Rinna affirmed that ODRC
internally considered an inmate's mental health record to be privileged.
{¶ 79} Thus, Rinna testified as an ODRC employee regarding the way ODRC treats
an inmate's mental health record within the department. In overruling appellant's
objection to the magistrate's decision regarding Rinna's testimony, the court noted that
"Rinna was not asked—nor permitted—to render a determination, as a matter of law,
whether a particular document filed under seal in this case [was] privileged." (Decision at
24.) Rinna did not answer a question of law. We find no abuse of discretion in the Court of
Claims' ruling.
{¶ 80} Based on the foregoing, appellant's seventh assignment of error is overruled.
{¶ 81} Appellant's third assignment of error asserts the trial court erred in failing to
consider the total lack of security in the bay where appellant was housed. Appellant's fourth
assignment of error asserts the trial court erred in failing to consider that C.O. Long had to
make rounds through three separate bays and was the only C.O. providing security for 160
inmates.
{¶ 82} The magistrate noted the "officers made rounds regularly," and that C.O.
Long had "walked through the west bay just before the attack while Creech was at the
microwave that was free for inmates to use." (Mag.'s Decision at 14.) The magistrate
observed the "response from both the nursing staff and the security staff" at Frazier on
November 12, 2013 "was swift and effective" in ending the altercation. (Mag.'s Decision
at 15.) In overruling appellant's objections to the magistrate's decision regarding the
amount of security and C.O. Long's obligation to make rounds, the Court of Claims
observed that both objections took "issue with the allocation and location of correctional
staff" in Frazier, and were accordingly issues entitled to discretionary immunity. (Decision
at 21.) The Court of Claims further noted that "there was security in the medical bay."
(Decision at 22.) We find no abuse of discretion in the Court of Claims' decision.
{¶ 83} The doctrine of discretionary immunity "provides that 'the state cannot be
sued for its legislative or judicial functions or the exercise of an executive or planning
function involving the making of a basic policy decision which is characterized by the
exercise of a high degree of official judgment or discretion.' " Hughes at ¶ 16, quoting
Reynolds v. State, 14 Ohio St.3d 68, 70 (1984). "[W]ith respect to penal institutions, prison
No. 17AP-222 21
administrators must be accorded deference in adopting and executing policies and
procedures to maintain order." Id. at ¶ 17, citing Bell v. Wolfish, 441 U.S. 520, 547-48
(1979). See also Scott v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-755, 2013-Ohio-
4383, ¶ 24. Thus, "decisions relating to the allocation and location of correctional staff
concern prison security and administration and, as such, are executive functions that
involve a high degree of official discretion." Hughes at ¶ 18.
{¶ 84} Appellant's contentions in these assignments of error, regarding C.O. Long's
placement and duties to make rounds through the bays, takes issue with ODRC's allocation
and location of C.O. staff in Frazier. Accordingly, discretionary immunity bars appellant's
claims. Moreover, appellant's contention that there was a total lack of security in the west
bay lacks merit.
{¶ 85} Reviewing the security tapes, C.O. Long identified herself walking into the
west bay at 7:11:18 a.m., and standing behind Creech as he permissibly used the microwave.
C.O. Long walked away from the microwave at 7:12 a.m. to continue making her rounds.
The security tapes demonstrate Creech first poured the water on appellant at 7:14:56 a.m.,
Nurse Hagan ran into the west bay at 7:15:19 a.m., and C.O. Long entered the bay at 7:15:28
a.m. C.O. Long had Creech restrained in handcuffs by 7:15:32 a.m. A sergeant and five more
C.O.'s arrived on the scene by 7:16 a.m. Nurse Copeland was present in the west bay
throughout the entire incident, and pressed her man down alarm when the attack began.
{¶ 86} Accordingly, medical and security staff were present at Frazier on
November 12, 2013, and ended the altercation in slightly more than 30 seconds after Creech
commenced the attack.
{¶ 87} Based on the foregoing, appellant's third and fourth assignments of error are
overruled.
{¶ 88} Appellant's eighth assignment of error asserts the magistrate's ruling was
against the manifest weight of the evidence and contrary to law. The Court of Claims
overruled appellant's objection to the magistrate's decision asserting the same.
{¶ 89} Judgments supported by some competent, credible evidence going to all the
essential elements of the case will not be reversed as being against the manifest weight of
the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus. The
weight of the evidence concerns the greater amount of credible evidence, offered in a trial,
No. 17AP-222 22
to support one side of the issue rather than the other. Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, ¶ 12, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
Weight is not a question of mathematics, but depends on its effect in inducing belief. Id.,
citing Thompkins at 387. When applying this standard of review, an appellate court must
presume the findings of the trier of fact are correct, as the trier of fact "is best able to view
the witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony." Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
{¶ 90} Appellant asserts the evidence establishes "there was no protection in
Appellant Skorvanek's unit." (Appellant's Brief at 29.) In reviewing appellant's third and
fourth assignments of error, we observed that there was protection from both medical and
security staff in appellant's unit. Appellant additionally asserts that the depositions of
Borgmann and Waldroop established Creech was "a danger" and that "inmates had advised
staff of their concerns." (Appellant's Brief at 29.) We reviewed Borgmann's and Waldroop's
deposition testimony in our analysis of appellant's second assignment of error, and
observed neither Borgmann nor Waldroop personally informed ODRC staff regarding any
concerns they had about Creech, nor did they hear any other inmates inform ODRC staff
regarding concerns about Creech.
{¶ 91} Having reviewed the evidence presented in the instant case, we find the Court
of Claims' determination, that appellant failed to establish his claims by a preponderance
of the evidence, to be supported by competent, credible evidence and to be in accordance
with law. Accordingly, we overrule appellant's eighth assignment of error.
{¶ 92} Having overruled appellant's eight assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
Judgment affirmed.
LUPER SCHUSTER and BRUNNER JJ., concur.
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