IN THE SUPREME COURT OF OHIO

NICOLE MORROW, et al.,

Appellants,

V.

))))))

CASE NO.: 2009-1341

On Appeal from the Franklin CountyCourt of AppealsTenth Appellate DistrictCase No.: 08 CVH 01 0681REMINGER & REMINGER CO. LPA, et al., )

Appellees.)

RESPONSE MEMORANDUM OF APPELLEE THE MEDICAL PROTECTIVECOMPANY TO APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION

W. Frederick Fifner (#0006162)Counsel of RecordFREUND, FREEZE & ARNOLDCapitol Square Office Building65 E. State Street, Suite 800Columbus, OH 43215(614) 827-7300 (phone)(614) 827-7303 (facsimile)ffifner@ffalaw.com

Sean M. Hanifin (pro hac vice pending)Steven W. McNutt (pro hac vice pending)TROUTMAN SANDERS, LLP401 9th Street, NWSuite 1000Washington, DC 20004-2134

(202) 662-2069 (phone)(202) 654-5833 (facsimile)sean.hanifin@troutmansanders.com

steven.mcnutt@troutmansanders.com

Attorneys for AppelleeThe Medical Protective CompanyOf Counsel

Gary W. Hammond (#0001941)Counsel ofRecordHAMMOND, SEWARDS & WILLIAMS556 E. Town StreetColumbus, OH 43215(614) 228-6061 (phone)(614) 228-5883 (facsimile)ghammond@hswlawyers.com

Attorney for AppellantsNicole Morrow, N. Gerald DiCuccio,Gail Zalimeni, Butler Cincione andDiCuccio

LED

p,U(3 2 12009

CLERK OF COURTSUPREME E COURT OF OHIO

Steven G. Janik (#0021934)Counsel ofRecordKelly Rogers (#0078804)Janik L.L.P.9200 South Hills Blvd., Suite 300Cleveland, Ohio 44147(440) 838-7600 (phone)(440) 838-7601 (facsimile)steven.janik@janiklaw.comkelly.rogers@janiklaw.com

Keith Schneider (#0041616)Maguire & Schneider, LLP250 Civic Center Drive, Suite 500Columbus, Ohio 43215(614) 224-1222 (phone)(614) 224-1236 (facsimile)kwschneider@maguire-schneider.com

Attorneys For AppelleeReminger & Reminger Co., L.P.A.

Thomas E. Boyle (#0007459)Counsel ofRecordMark C. Melko (#0069396)Wiles, Boyle, Burkholder &Bringardner Co., L.P.A.300 Spruce Street, Floor OneColumbus, Ohio 43215-1173(614) 221-5216 (phone)(614) 221-4541 (facsimile)tboyle@wileslaw.commmelko@wileslaw.com

Counsel for AppelleeFamily Medicine Foundation, Inc.

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................ ....... ................... i

1. THIS CASE DOES NOT RAISE A SUBSTANTIAL CONSTITUTIONALQUESTION NOR IS IT A CASE OF PUBLIC OR GREAT GENERALINTEREST . .. ... ... .. ..... .. ... .. ..... ..... . . ..... .. ... .. ... .. .. ... ...... . ....... ..... .. ... .. ... . . .....1

II. STATEMENT OF THE CASE .....................................................................3

III. OPPOSITION TO PROPOSITIONS OF LAW ..................................................6

A. Opposition to Proposition of Law No. 1: Ohio's Corrupt Practices Act,2923.31 et seq., does not grant Appellants a private right of actionagainst Appellees because Appellants have not alleged a"pattern" or an"enterprise" as required by the Act ........................................................6

B. Opposition to Propositions of Law No. 2: The Testimonial ImmunityDoctrine is not abrogated by Ohio's Falsification Statute, RC2921.13 .......................................................................................10

C. Opposition to Propositions of Law No. 3: The Testimonial ImmunityDoctrine is not abrogated by Ohio's Corrupt Practices Act, RC 2923.31et seq., or Ohio's Falsification Statute, RC 2921.13 ...................................10

IV CONCLUSION ......................................................................................13

I. THIS CASE DOES NOT RAISE A SUBSTANTIAL CONSTITUTIONALQUESTION NOR IS IT A CASE OF PUBLIC OR GREAT GENERAL INTEREST

This case does not raise a substantial constitutional question. In fact, it does not raise any

constitutional question at all. Despite making a bald claim that their appeal raises a substantial

constitutional question, Appellants fail to cite a single constitutional provision in their

Memorandum of Support of Jurisdiction or advance any constitutionally based arguments

whatsoever. As the Appellants cannot even make an argument to support their claim, they

plainly do not have an appeal of right due to a "substantial constitutional question."

This case also is not a case of public or great general interest warranting a discretionary

appeal. As the Court has repeatedly explained, the Court's "role as a court of last resort is not to

serve as an additional court of appeals on review, but rather to clarify rules of law arising in

courts of appeals that are matters of public or great general interest." State v. Bartrum, (2009)

121 Ohio St. 3d 148, 153 (citing Section 2(B)(2)(e), Article IV of the Ohio Constitution); see

also Williamson v, Rubich, (1960) 171 Ohio St. 253, 253-254. This is not a case where the

Court's decision will have a significant impact on other cases or the citizens of Ohio in general.

Nor is it a case where there is a certified conflict between appellate courts that resolving would

bring clarity to Ohio law. Instead, the Appellants raise three issues, that while of interest to the

parties, do not merit the Court's attention as issues of great public importance.

As their first point of appeal, the Appellants raise an unusual fact pattern - that is

unlikely to be repeated - and seek to have the Court review whether the facts, as alleged by the

plaintiffs, are sufficient to constitute a violation of Ohio's Corrupt Practices Act, R.C. 2923.34

(the "OCPA"). In advancing this argument, Appellants do not raise issues of law, but merely

assert that the Court of Appeals improperly applied the law to the specific facts of this case.

They do not request the Court resolve an issue of law. They simply, and inappropriately, seek an

additional level of appellate review.

As their second point of appeal, the Appellants apparently misread the Court of Appeals

decision and believe that their claims of falsifications under R.C. 2921.13 were dismissed, in

part, because they failed to show reliance on the allegedly false statements. This was not a basis

for the Court of Appeals decision. Accordingly, there is no reason for this Court to review it.

As their third point of appeal, Appellants assert that the testimonial immunity doctrine

does not "eviscerate" claims for falsification and claims for the violation of the OCPA. They

contend that if the Court of Appeals decision is permitted to stand no person will be able to bring

claims for falsification or for violation of the OCPA, where the predicate acts are perjury. If this

was actually the case, it might warrant the Court's attention. Appellants, however,

mischaracterize the Court of Appeals decision and attempt to raise an issue where none exists.

First, the Court of Appeals never determined that the testimonial immunity doctrine

barred all claims for falsification. In fact, it specifically held that "immunity does not nullify the

statutory cause of action for civil liability based on falsification." See Tenth District Decision at

11. The Court of Appeals explained "[i]ndeed a number of situations could give rise to a claim

for falsification outside of a prior civil action, where the witness immunity would not be

implicated." Id. Like any common law doctrine which bars a statutory cause of action, such as

waiver, estoppel, laches, and unclean hands, the fact that the testimonial immunity doctrine

applies to certain claims does not mean the statute has been eviscerated. Accordingly, the

alleged conflict of law invented by the Appellants does not exist and would not be a cause for

discretionary review.

Second, the Court of Appeals did not find it necessary to reach the question of whether

the testimonial immunity doctrine barred Appellants' alleged cause of action under the OCPA. It

held that the facts as pled by the Appellants did not constitute a cause of action under the OCPA.

Accordingly, this further mischaracterization of the Court of Appeals decision does not provide a

basis for review.

II. STATEMENT OF THE CASE

This case is a case of litigation resulting in litigation about the original litigation.

Appellant Morrow and her attorneys, Appellants N. Gerald DiCuccio, Gail Zalimeni, and Butler

Cincione and DiCuccio (the "Butler Firm"), obtained a default judgment in a tort action. They

defended the default judgment through appeal. They then filed this action, asserting that

wrongful conduct in the prior litigation caused them to have to litigate unnecessarily. The Tenth

Appellate District, unanimously, affirmed the trial court's dismissal of this action for the failure

to state a claim under R.C. 12(b)(6).

A. The Bri,eht Action

On September 22, 1998, Appellant Nicole Morrow, formerly known as Nicole Bright,

brought suit against The Thomas E. Rardin Family Practice Center ("Rardin"). 1 She was

represented by Appellants N. Gerald DiCuccio, Gail Zalimeni, and the Butler Firm. Morrow

alleged that on September 23, 1997 she was potentially negligently exposed to the AIDS virus

' The procedural history of the litigation between Appellant Morrow and Appellee Family Medicine Foundation isset forth in four published decisions. See Family Medicine Foundation, Inc. v. Bright (June 28, 2001), Tenth Dist.App. No. 00-AP-1476, 2001 Ohio App. Lexis 2864; Family Medicine Foundation, Inc. v. Bright (2002), 96 Ohio St.

3d 183; Bright v. Family Medicine Foundatron, Inc•., d/b/a 7homas E. Rardin Family Practice Center, Tenth Dist.App. No. 02-AP-1443, 2003-Ohio-6652; Bright v. Family Medicine Foundation, Ine., d/b/a Thomas E. Rardin

Family Practice Center, Tenth Dist, App. No. 05-AP-835, 2006-Ohio-5037.

-3-

while a patient at Rardin. She sought damages for fear of contracting the disease. Rardin did not

file an answer. Accordingly, on December 21, 1999, the trial court entered a default judgment

against Rardin of $978,840.41.

Thereafter, Morrow attempted to enforce the judgment against Appellee Family Medicine

Foundation ("FMF") although she did not have a judgment against FMF, asserting that Rardin

was a fictitious name of FMF. In February 2000, FMF, represented by Appellee Reminger &

Reminger Co, LPA ("Reminger"), moved to intervene, asserting that FMF was never a party to

the lawsuit and that default judgment was rendered against a non-entity. The trial court denied

FMF's motion.

B. The Family Medicine Action

On February 25, 2000, FMF filed a separate suit (the "Fam-Med" action) against Morrow

seeking an injunction to prohibit Morrow and her attorneys from executing upon FMF's assets to

satisfy the default judgment, unless or until there was an actual judgment against FMF. Morrow

filed an answer and a counterclaim in the Fam-Med action seeking a declaration that Rardin was

a fictitious name for Family Medicine and that the default judgment was valid against Family

Medicine, Counsel for Morrow never attempted or sought their own dismissal as defendants.

The Fam-Med Court held that Rardin was a fictitious name of FMF, and the default judgment

was valid.

C. Appeals of the Family Medicine Action

Family Medicine did not appeal the determination that Rardin was a fictitious name of

FMF, but asserted, on appeal, that the default judgment was void because it was rendered against

a non-entity. The Court of Appeals reversed the Trial Court, holding that a suit cannot be

commenced or maintained against a defendant named only by its fictitious name. This Court,

however, reversed the Court of Appeals.

-4-

D. Denial of Rule 60 (B) Relief in the Bripht Action

After this Court's ruling in the Fam-Med action, FMF sought relief under Rule 60(B)

from the judgment in the original Bright action, which had been stayed pending the outcome of

the Fam-Med action. The trial court denied FMF's Rule 60(B) motion, and FMF paid

$1,620,000 to satisfy the default judgment and accrued interest.

E. The Current Action

On January 14, 2008, Appellants Morrow, DiCuccio, Gail Zalimeni, and the Butler Firm

filed a complaint against Appellees FMF, Reminger, and The Medical Protective Company of

Fort Wayne, Indiana ("MedPro"), FMF's insurer, The Appellants attempted to allege claims of

conspiracy, fraud, intentional infliction of emotional distress, tortuous interference of contractual

relations, malicious prosecution, and abuse of process, arising from Appellees' alleged conduct

in the prior litigation between Morrow and FMF. Specifically, Appellees asserted that

Appellants had conspired to wrongly dispute that FMF was not a fictitious name for Rardin.

All of the Appellants filed motions to dismiss. While these motions were pending, on

Apri128, 2008, Appellants filed a First Amended Complaint which added alleged claims of

falsification in violation of 2921.13 and violation of the OCPA based on alleged perjury in

violation of R.C. 2921.11. All of the Appellees again filed motions to dismiss. On September

15, 2008, the trial court granted the Appellees' motions to dismiss. On June 9, 2009, The Tenth

Circuit Court of Appeals affirmed the trial court in a unanimous 30 page decision.

III. ARGUMENT'S IN OPPOSITION TO PROPOSITIONS OF LAW

A. Response to Proposition of Law No. I: Ohio's Corrupt Practices Act, 2923.31

et seq., does not grant Appellants a private right of action against Appelleesbecause Appellants have not alleged a "pattern" or an "enterprise" asrequired by the Act.

The Court of Appeals correctly affirmed the trial court's dismissal of Appellants claims

under the OCPA. Contrary to Appellants assertions, they failed to state a claim for a violation of

the OCPA commonly known as Ohio's "RICO" statute. It is well established - and undisputed -

that to state such a civil claim a plaintiff must allege facts showing: "(1) that conduct of the

defendant involves the commission of two or more specifically prohibited state or federal

criminal offenses; (2) that the prohibited criminal conduct of the defendant constitutes a pattern

of corrupt activity; and (3) that the defendant has participated in the affairs of an enterprise or

has acquired and maintained an interest in or control of an enterprise that exists separate and

apart from the defendant." Hall v. CFIC Home Mortg., Twelfth App. Dist. No. CA2007-03-054,

2008 Ohio 1016, P42. These elements must be pled with specificity. Wilson v. Marino, (2005),

Sixth App. Dist., 164 Ohio App. 3d 662, 678. Offenses listed as specifically prohibited include

perjury (Ohio R.C. 2921.11), but not falsification (Ohio R.C. 2921.13). See Ohio R.C.

2932.31(I)(2)(a).

1. The Morrow Appcllants Failed to Properly Plead a "Pattern ofCorrupt Activity"

The unanimous Tenth Appellate District decision correctly affirmed the trial court's

decision that the Appellants failed to plead a racketeering "pattern," and the Appellants do not

offer any sound reason to overhxrn its judgment. To survive a motion to dismiss, the Appellants

must have alleged with specificity "that the prohibited criminal conduct of the defendant

constitutes a pattern of corrupt activity." Hall, 2008 Ohio 1016 at P42. The Appellants' First

Amended Complaint alleged that in prior litigation the defendants committed perjury and

-6-

falsification to conceal from them and the court that FMF "did business as" The Thomas Rardin

Family Practice Center. Both the trial court and the Tenth District correctly found that the

allegedly false statements each involve the same substantive testimony - that FMF was not a

fictitious name for Rardin - and that these allegedly false statements were made and repeated for

the sole discrete goal of avoiding liability for the default judgment. See Tenth Circuit Decision

at 17; Trial Court Decision at 15. This alleged falsification and perjury, even if true, which it is

not, does not constitute a pattern under R.C. 2923.34. See Herakovic v. Catholic Diocese, Eighth

App. Dist, No. 85467, 2005 Ohio 5985, P36.

For example, in Herakovic v. Catholic Diocese, the plaintiffs alleged that the Roman

Catholic Church, the Catholic Diocese of Cleveland, two bishops, and their associates, "operated

to conceal and cover-up incidents of child sex abuse within their ranks" Id. at ¶6. They further

alleged "that the operation concealed the abuse in an effort to protect the reputation and

resources of the Roman Catholic Church and appellees, and that the procedures used to deal with

the allegations of child sex abuse developed into a cover-up process." Id. The plaintiffs

identified specific alleged wrongful acts. The court, however, rejected that such allegations,

which all concerned concealment of child sex abuse, could constitute a"pattern" under the

OCPA. It held:

These events, although many in number, emanate from a singleevent, the alleged attempt to conceal the child sex abuse and/or thepredatory priest.... here, the single event alleged by appellants isthe concealment. All of the other alleged acts make up theirclaim for concealment. A single event cannot establish a patternregardless of the number of criminal acts emanating therefrom.

Id. at ¶36 (emphasis added).

Indeed, even federal courts under the federal RICO statute, consistent with Herakovic,

have generally rejected the notion that a single allegedly wrongful episode, such as the one

-7-

complained of by the Morrow Appellants, can constitute a pattern even if allegedly carried out

with multiple wrongful acts. See, e.g., Ritter v. Klisivitch (E.D.N.Y. July 30, 2008), 2008 U.S.

Dist. LEXIS 58818 (finding a single scheme of narrow scope not sufficient to allege a pattern of

racketeering activity despite wide ranging allegations of fraudulent acts); Bowdoin Constr. Corp.

v. Rhode Island Hosp. Trust Nat'1 Bank, N.A. (D. Mass. 1994), 869 F. Supp. 1004, 1010-1011

(citing cases that have rejected a pattern where all of the alleged acts "related to a unitary goal

and a single episode of fraud."); Continental Realty Corp. v. J.C. Penny Co., Inc. (S.D.N.Y.

1990), 729 F. Supp. 1452, 1455 (acts of alleged mail fraud and wire fraud committed for more

than one year did not constitute a pattern because they were all directed toward a single allegedly

fraudulent goal."); Small v. Goldman, (D.N.J. 1986), 637 F. Supp. 1030, 1034 (multiple alleged

acts of mail fraud to "effectuate and conceal" a scheme to defraud do not constitute a pattern of

racketeering activity). No matter how the Appellants attempt to characterize their claims, it all

boils down to a single alleged concealment focused on the narrow issue of whether Rardin was a

fictitious name for Family Medicine. Under Ohio law and federal law, this is simply not enough

to constitute a racketeering pattern.

2. The Morrow Appellants Failed to Properly Plead a RacketeerinE"Enterprise"

The unanimous Tenth Appellate District decision correctly affirmed the trial court's

decision that the Appellants failed to plead a racketeering "enterprise," and the Appellants do not

offer any sound reason to overturn its judgment.

To survive a motion to dismiss an OCPA claim, a party must allege that the defendant

participated in the affairs of an enterprise or has acquired and maintained an interest in or control

of an enterprise that exists separate and apart from the defendant, See Herakovic, 2005 Ohio

5985. As Ohio courts have consistently recognized, an "enterprise" is not a pattern of

-8-

racketeering activity, instead the enterprise must be an entity acting separate and apart from the

pattern of activity in which it engages, and must be pled as such. See, e.g., Patton v. Wilson,

Eighth Dist. App. No. 82079, 2003 Ohio 3379, P20 ("an enterprise must be a separate entity that

acts apart from the pattern of activity in which it engages"); Ramminger v. Archdiocese of

Cincinnati, First Dist. App. No., C-060706, 2007 Ohio 3306, P20; Flanagan v. Eden, Eighth

Dist. App. No 85252, 2005 Ohio 3133, P14; Turchyn v. Nakonachny (2004), Eighth App. Dist.,

No. 83557, 157 Ohio App. 3d 284, 288; United State.s Demolition & Contracting v. O'Rourke

Constr. Co. (Mar. 28, 1994), Cuyahoga App. No. 64372, 94 Ohio App. 3d 75, 85.

The Appellants' First Amended Complaint did not even attempt to meet this requirement

- or even bother to mention the word "enterprise." See Tenth Circuit Decision at 22; Trial Court

Decision at pgs. 15-16. The Appellants' attempt to argue around this glaring deficiency in their

First Amended Complaint, by asserting that the Court should divine from Appellants' First

Amended Complaint that the Appellees joined together as an "association in fact" enterprise -

again a term not even mentioned in their First Amended Complaint. Even granting the

Appellants every reasonable inference, their position is pure fantasy.

As the Appeals Court correctly held, to prove a racketeering "enterprise" based on an

"association-in-fact" theory a plaintiff must plead: "(1) an ongoing organization with a

commonality of purpose or a guiding mechanism to direct the organization; (2) a continuing unit

with an ascertainable structure; or (3) an organizational structure distinct from the pattern of

predicate acts." Tenth Circuit Decision at 21 (quoting Herakovic v. Catholic Diocese, 2005 Ohio

5985, ¶ 20-24 [Footnotes and Citations omitted]); see also Hager v. ABXAir, Inc. (S.D. Ohio

Mar. 25, 2008), 2008 U.S. Dist. LEXIS 23486. The Hager court explained "these elements

imply a degree of hierarchical organization or structure that distinguishes a RICO enterprise

from a simple conspiracy." Hager at *41. See also Pethtel v. Wash. County Sheriffs Office

(S.D. Ohio Aug. 16, 2007), 2007 U.S. Dist. LEXIS 60105 ("there must be evidence of a

structural `chain of command' or decision-making hierarchy to distinguish it from a mere

conspiracy."); Morrison v. Steiman (S.D. Ohio Sept. 5, 2002), 2002 U.S. Dist. LEXIS 21507, 8-9

("In order to successfully plead the enterprise requirement, the Plaintiff must offer facts to

support the existence of a chain of command or hierarchy.")

Despite not disputing any issue of law, the Appellants continue to attempt to get around

the pleading requirements and challenge the Court of Appeals decision by continuing to point to

the alleged pattern of wrongful acts instead of correctly pleading an enterprise separate and apart

from the pattern of activity in which it engages. In sum, the Appellants failed to plead an

enterprise and cannot point to any error in the Court of Appeals decision.

B. Opposition to Propositions of Law No. 2: The Testimonial ImmunityDoctrine is not abrogated by Ohio's Falsification Statute, R.C. 2921.13

T'he Appellants apparently misread the Court of Appeals decision and believe that their

claims of falsification under R.C. 2921.13 were dismissed, in part, because they failed to show

reliance on the allegedly false statements. Appellee MedPro does not believe that this was a

basis for the Court of Appeals decision, which dismissed Appellants claims for alleged violations

of R.C. 2921.13 solely on the basis of the testimonial immunity doctrine.

C. Response To Propositions of Law No. 3: The Testimonial Immunity Doctrineis not abrogated by Ohio's Corrupt Practices Act, R.C. 2923.31 et seq., orOhio's Falsification Statute, RC 2921.13

The Court of Appeals correctly held that the Appellants claim for alleged violations of

Ohio's Falsification Statute, 2921.13, were barred by the doctrine of testimonial immunity. The

Court of Appeals did not find it necessary to reach the question of whether the testimonial

immunity doctrine barred Appellants' alleged cause of action under the OCPA, because it held

that the Appellants did not plead a cause of action under the OCPA. The testimonial immunity

doctrine, however, does bar both claims despite Appellants assertions otherwise.

Ohio follows the well established rule that "giving of false testimony in a judicial

proceeding, even though the allegation is made that the person giving the false testimony knew it

to be false does not give rise to a civil action for damages resulting from the giving of the false

testimony." Schmidt v. Statistics, Inc. (1978), 62 Ohio App.2d 48, 51. As courts have

recognized, "statements of witnesses in a judicial proceeding are privileged and do not form a

basis for a subsequent civil action." McElroy v. Johnson (May 1, 1989), Sixth Dist. App. No. L-

86-335, 1987 Ohio App. LEXIS 6584; see also Kinter v. Kinter, (1949) Summit App., 84 Ohio

App. 399; see also Polivka v. Cox (May 21, 2002), Tenth App. Dist., No. OIAP-1023, 2002 WL

1013057, at * 1, n.1 (stating "there is no civil cause of action in Ohio for perjury").

The rationale is obvious, "[t]o assure that all participants in a judicial proceeding feel free

to testify, question and act, Ohio courts prohibit civil actions based on statements made by

parties and witnesses during the course of and relevant to judicial proceedings." Elling v. Graves

(1994), 94 Ohio App.3d 382, 386. Accordingly, courts do not permit causes of action such as

fraud, conspiracy or misrepresentation based on allegations of false testimony or improper

actions in prior cases. See, e.g., Masek v. Marroulis, Eleventh Dist. App. No. 2007-T-0034,

2007 Ohio 6159, ¶42; Forsyth v. Hall, (March 14, 1997), Second Dist. App. No. 16024, 1997

Ohio App. LEXIS 1396, at *4. For example, recently in Masek, the Eleventh District Court of

Appeals dismissed an action for fraud, which alleged that the defendant had given "false

testimony under oath" in a prior proceeding. The Masek court held the testimonial immunity

doctrine "negates any claim for injuries causally linked to false testimony." Masek at ¶44

(quoting Brawley v. Plough (1995), 75 Ohio Misc.2d 36) (emphasis added).

Further, Ohio courts have uniformly held no cause of action arises for alleged perjury or

false testimony in a prior civil litigation with respect to the witnesses' employers/companies.

For example, in Reasoner v. State Farm Mut. Auto. Ins. Co., Tenth Dist. App. No. 01-AP490,

2002 Ohio 878, a claimant sued an insurer asserting that defense counsel retained by the insurer

committed perjury (exactly what the Morrow Appellants claim here) and the court rejected this

as the basis for a valid claim. It stated: "[i]n Ohio, allegations constituting perjury, subornation

of perjury and conspiracy to commit perjury, all of which, if proved, may be punishable under

criminal statutes, are not recognized for public policy reasons as bases for civil lawsuits." Id.; see

also Schmidt, 62 Ohio App. 2d at 49; Costell v. Toledo Hosp. (Jan 16, 1987), Lucas App., 1987

Ohio App. LEXIS 5517, at *7-8; cf. Epling v. Pacif:c Intermountain Express Co., (Apr. 7, 1976)

Medina App., 1976 Ohio App. LEXIS 6683, at * 10 ("conspiracy to give false testimony in a civil

action does not give rise to a common law action for damages against the conspirators.")

The Appellants attempt to side step the testimonial immunity doctrine by claiming that it

conflicts with the OCPA and the falsification statute, because these statutes create private causes

of action. They are mistaken - there is no conflict. There is no more conflict here than

whenever a common law doctrine limits any cause of action. Common law doctrines such as

waiver, estoppel, laches, and unclean hands apply to statutory causes of action just like they do

common law causes of action. The testimonial immunity doctrine is no different. As the Court

of Appeals noted with respect to falsification, "immunity does not nullify the statutory cause of

action for civil liability based on falsification. Indeed a number of situations could give rise to a

claim for falsification outside of a prior civil action, where the witness immunity would not be

implicated." See Tenth District Decision at 11. And although the Court of Appeals never

reached the question, similarly, with the OCPA there are many other types of predicate acts of

"corrupt activity" listed in the statute, such as money laundering (Ohio R.C. 1315.55),

kidnapping (Ohio R.C. 2905.01), or telecommunications fraud (Ohio R.C. 2913.05), that would

not be barred by the testimonial immunity doctrine. Even violations of OCPA for perjury could

give rise to a civil cause of action where it was not based on prior civil litigation testimony.

Accordingly, despite Appellants attempt to create a false conflict, the application of the

testimonial immunity doctrine is not in conflict with the OCPA or the falsification statute any

more than the application of any other common law defense, such as waiver or estoppel.

IV. CONCLUSION

For the reasons set forth above, Appellee Medical Protective respectfully requests that the

Supreme Court of Ohio decline jurisdiction.

Respectfully submitted

W. Frederick Fifner (#00061 2)FREUND, FREEZE & ARN LDCapitol Square Office Building65 E. State Street, Suite 800Columbus, OH 43215(614) 827-7300; (614) 827-7303 (fax)ffiner@ffalaw.comAttorney for AppelleeThe Medical Protective Company

Of CounselSean M. Hanifin (pro hac vice pending)Steven W. McNutt (pro hac vice pending)TROUTMAN SANDERS, LLP401 9th Street, NWSuite 1000Washington, DC 20004-2134(202) 662-2069 (phone)(202) 654-5833 (facsimile)

-13-

sean.hanifin@troutmansanders.comsteven.mcnutt@troutmansanders.comAttorneys for AppelleeThe Medical Protective Company

CERTIFICATE OF SERVICE

I hereby certify that a tiue and accurate copy of the foregoing was served by e mail and

pre-paid U.S. mail on:

Gary W. Hammond, Esq.HAMMOND, SEWARDS & WILLIAMS556 E. Town St.Columbus, OH 43215ghammondkhswlawyers.comCounsel for Appellants

Thomas Boyle. Esq.Wiles Boyle Burkholder & Bringardner300 Spruce Street, Floor OneColumbus, OH 43215tboyle(a wileslaw.comCounsel for Family Medicine Foundation, Inc.

Steven Janik, Esq.9200 S. Hills Blvd., Ste 300Cleveland, OH 44147Steven.Janik@Janiklaw.comCo-Counsel for Reminger & Reminger Co. LPA

Keith SchneiderMaguire & Schneider, LLP250 Civic Center Drive, Suite 500Columbus, OH 43215kwschneider@maguire-schneider.comCo-Counsel for Reminger & Reminger Co. LPA

this 1/^ 'CY day of August, 2009.

W. Frederick Fifner (#000 162)FREUND, FREEZE & ARNOLDCapitol Square Office Building65 E. State Street, Suite 800Columbus, OH 43215(614) 827-7300; (614) 827-7303 (fax)Counsel for DefendantThe Medical Protective Company