Last week the Eighth District issued an opinion that could have an impact on discovery requests. In Chinnock v. Renaissance Center, a plaintiff acting pro se filed a medical malpractice complaint, against two cosmetic dentistry locations and two individual dentists, claiming that the failure to cap a root canal caused his heart attack. The trial court set a typical pretrial schedule, part of which required discovery to be completed by November 2013 and expert reports due by January 22, 2014. Before either deadline, the pro se plaintiff served two sets of interrogatories seeking discovery, the second set of which exceeded the 40 question limit imposed by Civ.R. 33. The trial court denied him leave to serve the second set of interrogatories and the pro se plaintiff appealed that decision, which of course was dismissed as lacking a final appealable order. Unfortunately, the dismissal occurred on February 4, 2014 and the plaintiff ceased any attempts to conduct discovery during the appeal. Compounding matters, the defendants successfully moved for summary judgment based on the lack of an expert report, a necessary component of the medical malpractice claim.
In the second appeal, the Eighth District held, in part, that plaintiff's failure to seek leave before serving the second set of interrogatories was reasons enough to deny leave to serve the second set of interrogatories. Further, the court noted that the plaintiff's second set of interrogatories were really in the nature of requests for documents, and therefore, the plaintiff had alternative method, which conformed to the Civil Rules and for which leave was not required, to obtain his requested discovery. The panel could have avoided the discovery issue altogether because the trial court granted summary judgment based on the plaintiff's lack of an expert report needed to demonstrate causation. It appears that the second set of discovery requests was focused on information responsive the defendants' affirmative defenses. In affirming judgment based on the lack of any expert report, any discovery issues could have been deemed moot. The dispositive issue in the case was the failure to demonstrate the merits of plaintiff's case.
There are not many appellate decisions dealing with discovery, so this case may be an important consideration in handling discovery, especially within the Eighth District. If any party seeks to serve interrogatories upon another party in excess of the question limit, this decision now requires leave to be obtained before serving the interrogatories. This could very-well lead to more discovery disputes because recipients of excessive interrogatory requests, no matter how minimal, could seek to avoid answering for no other reason than leave was not sought before serving the requests. Moving forward, it will be a good idea to contact the opposing parties and seek agreements ahead of the discovery in order to avoid being blind-sided by the implications of Chinnock decision. Absent an agreement, motions for leave to propound extra interrogatories should be filed before the discovery requests are served on the opposing parties.
