Brannon v. Austinburg Rehabilitation & Nursing Center

Diane V. Grendell, Judge,

concurring in part and dissenting in part.

{¶ 46} I agree with the majority’s affirmance of the trial court’s decision as to Brannon’s alleged CSPA violations regarding ARNC’s billing practices and claims against ACDJFS.

{¶ 47} I disagree, however, with the majority’s conclusion that the trial court’s exclusion of the Brannons’ expert testimony and its award of summary judgment in ARNC’s favor as to the Brannons’ claims of negligence and violations of the patients’ bill of rights constituted error. Brannon’s unsupported allegations in the pleadings do not suffice to necessitate the denial of a summary judgment. *674Brannon failed to present proof of the elements necessary to support a cause of action for medical negligence. Therefore, the award of summary judgment in ARNC’s favor was proper.

{¶ 48} The majority maintains that Brannon’s expert witness, Nurse Mary Taylor, “was more than qualified to render an expert opinion in regard to Brannon’s ordinary negligence claim.” However, Taylor’s testimony was precluded by the trial court’s ruling on a motion in limine.

{¶ 49} “It is well-settled that the court’s grant of a motion in limine is merely a preliminary ruling on an evidentiary issue that is anticipated but not yet presented in its full context.” State v. Archibald, 11th Dist. Nos. 2006-L-047 and 2006-L-207, 2007-Ohio-4966, 2007 WL 2758600, at ¶ 43; State v. Turner, 11th Dist. No. 2007-P-0090, 2008-Ohio-3898, 2008 WL 2955396, at ¶ 16. A motion in limine is frequently used as a precautionary request, limiting inquiry into an area until its admissibility is determined during trial. Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 309, 3 OBR 355, 444 N.E.2d 1358.

{¶ 50} According to Section 3(B)(2), Article IV of the Ohio Constitution, an appellate court can immediately review a judgment of a trial court only if it constitutes a “final order” in the action. Germ v. Fuerst, 11th Dist. No. 2003-L-116, 2003-Ohio-6241, 2003 WL 22764564, at ¶ 3. “As a tentative, interlocutory, precautionary ruling, ‘ * * * finality does not attach when the motion is granted.’ [State v. Grubb (1986), 28 Ohio St.3d 199, 202, 28 OBR 285, 503 N.E.2d 142] ‘ “By its very nature, * * * its grant cannot be error. It is not a ruling on evidence. It adds a procedural step prior to the offer of evidence.” ’ (Citations omitted.) State v. Maurer (1984), 15 Ohio St.3d 239, 259, 15 OBR 379, 396, 473 N.E.2d 768, 787. As such, ‘ “ * * * the ruling [o]n a motion in limine does not preserve the record on appeal[;] * * * an appellate court need not review the propriety of such an order unless the claimed error is preserved by [a timely objection] * * * when the issue is actually reached [during the] * * * trial.” ’ (Emphasis deleted and citation omitted.) Grubb, supra, 28 Ohio St.3d at 203, 28 OBR at 289, 503 N.E.2d at 146.” Dent v. Ford Motor Co. (1992), 83 Ohio App.3d 283, 286, 614 N.E.2d 1074. “Ohio law is clear * * * that a ruling on a motion in limine may not be appealed and that objections to the introduction of testimony or statements of counsel must be made during the trial to preserve evidentiary rulings for appellate review.” Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, at ¶ 34; State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 133; State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 70.

{¶ 51} In the instant case, there was no error preserved for the court to review because the trial court’s ruling on the motion in limine was not a final judgment. ■See Dent, 83 Ohio App.3d at 286, 614 N.E.2d 1074 (“In the present case, finality *675did not attach to the trial court’s preliminary ruling to exclude Sam Bell’s testimony. The issue was never reached during trial because the case never came to trial. There is no error for this court to review. We overrule Dent’s second assignment of error”). The granting of summary judgment in this case ended the matter, and no trial occurred; therefore, this court has no error to review as to the motion in limine.

{¶ 52} As the court’s ruling on the motion in limine excluding testimony is not reviewable by this court, we cannot consider whether Taylor’s testimony was properly excluded. Accordingly, it is irrelevant whether the Brannons’ claim meets the definition of “medical claim.”

{¶ 53} “[A] motion in limine is designed to prevent irrelevant or inadmissible material which is potentially prejudicial from being introduced at. trial. * * * It is an interlocutory device by which a party moves to limit the presentation of evidence during trial until its admissibility may be ascertained within the context of the trial. * * * The key word, as the trial court noted, is ‘trial.’ A motion in limine is antithetical in a summary judgment context.” Pieper v. Williams, 6th Dist. No. L-05-1065, 2006-Ohio-1866, 2006 WL 964725, at ¶ 42. “Although the purpose of such motions is to ascertain the admissibility of evidence at trial, Civ.R. 56 governs the evidence properly considered in summary judgment motions, * * * motions in limine, and the trial court’s rulings on them, play no role in determining defendants’ summary judgment motions even though they may address admissibility issues the court also considers under Civ.R. 56.” Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc., 10th Dist. No. 09AP-788, 2010-Ohio-1649, 2010 WL 1475979, at ¶ 37. Motions in limine do not merge into the final order granting summary judgment. Id. at ¶ 36.

{¶ 54} Accordingly, as Taylor’s testimony was precluded by the trial court’s ruling on the motion in limine, there was not any credible evidence to support any of the Brannons’ claims. Thus, the trial court’s decision to grant summary judgment as to all of the Brannons’ claims was appropriate. I would affirm the judgment of the Ashtabula County Court of Common Pleas, granting ACDJFS, ARNC, and Royal Manor Healthcare’s motions for summary judgment.