UH Motion To Dismiss

Motion No.
4685189
NAILAH K. BYRD
CUYAHOGA COUNTY CUERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO DISMISS
May 11,2018 15:25
By: RITA A. MAIMBOURG 0013161
Confirmation Nbr. 1382626
JOHN BRICKELAND KRISTINE BRICKEL, ETC., ET CV 18 894332

AL.
vs.
Judge: STUART A. FRIEDMAN
UNIVERSITY HOSPITALS AHUJA MEDICAL CENTER
Pages Filed: 22
Electronically Filed 05/11/2018 15:25 / MOTION / CV 18 894332 / Confirmation Nbr. 1382626 / CLKMG
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
JOHN BRICKEL, et al., ) CONSOLIDATED CASE NO.

) CV-18-894332
Plaintiffs, )
) JUDGE STUART A. FRIEDMAN
v. )
)
UNIVERSITY HOSPITALS OF )
CLEVELAND, et al., )
)
Defendants. )
)
)
CONSOLIDATED WITH: ) CASE NO. CV-18-894396
)
WENDY PENNIMAN and RICK )
PENNIMAN, et al., )
)
Plaintiffs, )
)
v. )
)
UNIVERSITY HOSPITALS HEALTH )
SYSTEM, INC., et al.,
)
)
Defendants.
)
)
CONSOLIDATED WITH: ) CASE NO. CV-18-895503
)
WENDY PENNIMAN and RICK )
PENNIMAN, et al., )
)
Plaintiffs, )
)
v. )
)
UNIVERSITY HOSPITALS HEALTH )
SYSTEM, INC., et al.,
)
)
Defendants.
)
DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
UNDER CIV.R. 12(B)(6) IN CASE NUMBER CV-18-894396
Under Civ.R. 12(B)(6) and 10(D)(2)(d), Defendant University Hospitals Cleveland
Medical Center (UHCMC) moves to dismiss the Complaint filed by Plaintiffs Wendy Penniman
2
and Rick Penniman in Case Number CV-18-894396 (Penniman I).
UHCMC serves more than 1.2 million patients throughout Northeast Ohio. UHCMC’s
healthcare staff members are committed to providing quality services to each patient they serve.
When a lawsuit is filed, Ohio law requires patients to support all medical claims asserted with an
affidavit of merit. Under Ohio law, a “medical claim” is defined the same way in every context:
[A]ny claim that is asserted in any civil action against a physician,

podiatrist, hospital, home, or residential facility * * * and that
arises out of the medical diagnosis, care, or treatment of any
person. (Emphasis added.)
Plaintiffs’ Complaint in Penniman I asserts six different theories of recovery, five of which are
asserted against UHCMC. Regardless of the theory alleged, all five counts in Penniman I
asserted against UHCMC fall under the umbrella of this definition. Rome v. Flower Mem. Hosp.,
70 Ohio St.3d 14 (1994). Yet Plaintiffs did not submit the affidavit of merit required by Civ.R.
3
10(D)(2)(a), nor did they ask for additional time to produce one. Plaintiffs thus fail to state a
1
Incorrectly named in Plaintiffs’ Complaint as “University Hospitals Ahuja Medical Center.” The proper defendant
is University Hospitals Cleveland Medical Center, which operates the UH Fertility Center where the events in
question occurred.
2
The Pennimans have filed two separate lawsuits in this litigation. UHCMC filed a separate motion to dismiss
Plaintiffs’ complaint in Case Number CV-18-895503 (Penniman II). This Court had consolidated Penniman II with
Penniman I, which had been consolidated with Brickel v. University Hospitals, Case Number CV-18-894332. See
4/26/18 Mem. Op. & Order.
3
At least one Plaintiffs’ law firm recognized that the claims asserted in this litigation are medical claims, and
therefore filed with the complaint a motion for extension of time to file an affidavit of merit. See generally Mot. for
Extension of Time, Jane Doe Fertility Patient v. University Hospitals Health Sys., Inc., et al, Cuyahoga C.P. CV-
18-897272 (May 7, 2018).
2
claim for relief and their claims must be dismissed per Fletcher v. University Hospitals of
Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379.
A Brief in Support is attached hereto and incorporated herein.
Respectfully submitted,
s/Rita A. Maimbourg_ _ _ _ _ _
Rita A. Maimbourg (0013161)
Robert R. Tucker (0013098)
Edward E. Taber (0066707)
Tucker Ellis LLP
950 Main Avenue—Suite 1100
Cleveland, OH 44113-7213
Tel: 216.592.5000
Fax: 216.592.5009
rita.maimbourg@tuckerellis.com
robert.tucker@tuckerellis.com
edward.taber@tuckerellis.com
Attorneys for Defendants
3
BRIEF IN SUPPORT
I. STATEMENT OF RELEVANT FACTS
A. UHCMC provides skilled medical services at its Fertility Center.
UHCMC provides a wide range of fertility services at the University Hospitals Fertility
Center. Compl. t 14-15. Those services include not only “[o]vulation inducement induction,
intrauterine insemination, and tubal sterilization reversal,” but in vitro fertilization (IVF). Id. at
t 15. IVF involves “the process of removing an egg, fertilizing it and returning it [to] a woman’s
body to carry,” and “usually involves embryo cryopreservation, where excess embryos from a
single procedure or cycle are frozen for implantation at a later date.” Id. at t 16.
As Plaintiffs recognize, these services require medical expertise. They claim to have
relied on UHCMC’s skill in “protecting, preserving, extracting and storing * * * eggs and
embryos” at its Fertility Center. Id. at t 2. Indeed, the expertise required to extract, preserve, and
store viable human embryos as part of the in vitro fertilization procedure is implicit in Plaintiffs’
description of those services as “cryopreservation” and their recognition that it was intended for
“planned procedures and implantations” in the future. Id. at tt 16, 27.
Individually and collectively, these fertility services support, and are a necessary part of,
assisted reproductive treatment in the form of “implantation at a later date.” Id.; see also id. at
tt 19, 20, 27.
B. Plaintiffs received medical services through the Fertility Center.
Plaintiffs utilized the services of the UH Fertility Center in 2014, resulting in the
development of three embryos that were “frozen under the premise of having them [implanted]
in the future.” Compl. tt 19, 20. Plaintiffs claim those frozen embryos were among the embryos
determined to be no longer fit for implantation following the March 2018 incident at the UH
Fertility Center. Id. at ^ 23, 27.
Plaintiffs claim that these services were provided under a “contract” with UHCMC.
Compl. ^ 46. The contract is a signed medical Informed Consent form entitled “Embryo
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Cryopreservation” (IVF Form). The IVF Form told Plaintiffs that the purpose of freezing
embryos is to increase the likelihood of establishing a normal pregnancy. Id. at 1 (explaining
that the form’s “purpose is to inform you about embryo cryopreservation * * * prior to placing
the embryo into the uterus in order to increase the likelihood of establishing a normal
pregnancy”). The IVF Form also informed Plaintiffs that “the success rate with frozen embryos
is generally lower than with fresh embryos in the human.” Id.
C. All of Plaintiffs’ theories against UHCMC relate to alleged flaws in

the delivery of medical services for assisted reproductive treatment.
Plaintiffs assert six theories of recovery, five of which are asserted against UHCMC:
negligence (Count I); breach of contract (Count II); negligent infliction of emotional distress
(Count III); res ipsa loquitur (Count V); and bailment (Count VI)/ Plaintiffs’ assertions
regarding failures in the delivery of medical services (extracting, preserving, and storing
embryos) - specifically, allegedly failing to properly preserve the eggs and embryos - for
medical treatment (implantation and/or IVF) are at the root of each theory of recovery:
• Compl. ^ 40-42 (negligence claim alleging UHCMC owed Plaintiffs a duty to

“safeguard the storage of eggs and embryos” intended to be used for implantation in
the future (id. at ^ 16, 19);
4
The Plaintiffs’ IVF Form is attached to this Motion as Exhibit A. UHCMC can rely on the form, which Plaintiffs
reference in their Complaint, without converting this motion into one for summary judgment. E.g., NCS Healthcare,
Inc. v. CandlewoodPartners, LLC, 160 Ohio App.3d 421, 2005-Ohio-1669, ^ 20 (8th Dist.).
5
Count V, which is a claim for strict liability against a John Doe Manufacturer, is not asserted against UHCMC and
therefore that claim is not subject to this motion.
2
• Compl. ^ 46, 49 (breach-of-contract claim alleging UHCMC “agreed to collect, store,
maintain, preserve, and deliver [the] eggs and embryos to the patient at a later date”);
• Compl. ^ 52 (negligent-infliction-of-emotional-distress claim alleging that Plaintiffs

sustained emotional distress as a “result of the damage and loss of their eggs and
embryos”);
• Compl. ^ 60 (res ipsa loquitur claim alleging that Plaintiffs’ “injuries and harm”—
i.e., the loss of the eggs and embryos—would not have occurred if “ordinary care had
been observed” by UHCMC); and
• Compl. ^ 63-69 (bailment claim alleging that UHCMC had a duty to safeguard their
eggs and embryos and that they “have been deprived of the opportunity to use their
eggs and embryos” because of UHCMC’s conduct).
II. LAW AND ARGUMENT
A. A “medical claim” does not state a claim for relief if it lacks an

affidavit of merit.
The Ohio General Assembly, long ago, and for important public policy reasons,
established a framework for adjudicating claims such as these, and, accordingly, courts routinely
have dismissed medical claims in the absence of an affidavit of merit. Civ.R. 10(D)(2)(a);
Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, paragraph one of
the syllabus; Woods v. Riverside Methodist Hosp., 10th Dist. Franklin No. 11AP-689, 2012-
Ohio-3139, ^ 8-12. An affidavit of merit contains “several averments that go to the validity of
the medical claim.” Fletcher, 2008-Ohio-5379, ^ 9. Among the required averments is that the
standard of care was breached, causing injury. Civ. R. 10(D)(2)(a)(iii). Without this affidavit, a
court is left with “mere conclusions” that “are not taken as admitted by a [Civ.R. 12(B)(6)]
motion to dismiss and are not sufficient to withstand such a motion.” Fletcher, 2008-Ohio-5379,
| 14, quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193 (1988).
3
B. Every count in the Complaint in Penniman I falls under the
umbrella of a “medical claim” as defined by statute.
Under Ohio law, a “medical claim” is defined the same way in every context:
[A]ny claim that is asserted in any civil action against a physician,

podiatrist, hospital, home, or residential facility * * * and that
arises out of the medical diagnosis, care, or treatment ofany
person. (Emphasis added.)
R.C. 2305.113(E)(3); see also R.C. 2323.43 (incorporating this definition into the noneconomic
damages cap); Civ.R. 10(D)(2)(a) (incorporating this definition into the affidavit-of-merit
requirement).
When the General Assembly defines a class of claims for certain purposes, as it did here,
this classification applies to all claims falling under the definition, regardless of the form (theory
of recovery) adopted. E.g., Andrianos v. Community Traction Co., 155 Ohio St. 47 (1951)
(contract claim for alleged bodily injury subject to two-year statute of limitations). Because the
plain language of the definition controls, id. at 51, it applies across the board unless “the General
Assembly sees fit [to carve out a theory of recovery] by an enactment carrying appropriate
language to accomplish that purpose,” id. at 53.
The General Assembly did not carve out any such theory when defining a medical claim.
Instead, the legislature broadly declared that “any claim” arising out of the medical care,
diagnosis or treatment of “any person” is a medical claim. R.C. 2305.113(E)(3) (emphasis
added). Thus, regardless of the theory of recovery alleged, a claim falls under the umbrella of a
“medical claim” if it:
• Is filed against a statutorily enumerated entity; and
• Arises out of the medical diagnosis, care or treatment of any person.
4
R.C. 2305.113(E)(3); see also Stevic v. Bio-Medical Application of Ohio, Inc., 121 Ohio St.3d
488, 2009-Ohio-1525, | 19.6 Since UHCMC is a hospital, and a hospital is one such covered
entity (R.C. 2305.113(E)(3)), the only issue left is whether the five theories of recovery asserted
against UHCMC arise out of the medical diagnosis, care, or treatment of any person. They do.
Claims arising out of the medical diagnosis, care or treatment of a person include claims
involving the use of hospital equipment, if this use is ancillary to and an inherently necessary
part of that diagnosis, care, or treatment. Rome v. Flower Mem. Hosp., 70 Ohio St.3d 14, 16-17
(1994). One of the cases consolidated for decision in Rome concerned an injury caused by a
wheelchair collapse during transport from a physical therapy treatment. The Ohio Supreme
Court held that this was a medical claim because “the transport of [plaintiff] from physical
therapy was ancillary to and an inherently necessary part of his physical therapy treatment.” Id.
Following Rome, a claim for negligent use of equipment is a medical claim if this use is a
necessary part of medical care or treatment. Taylor v. Meridia Huron Hosp., 8th Dist. Cuyahoga
No. 80121, 2002-Ohio-3449, | 3, 24-26 (negligent use of CT scan machine); Blitz v. Marymount
Hosp., 120 Ohio App.3d 526, 528 (8th Dist.1997) (negligent use of emergency room bed). Since
a medical claim includes “any claim” arising out of medical diagnosis, care, or treatment (R.C.
2305.113(E)(3)), this classification applies no matter the theory of recovery alleged:
• Rodgers v. Genesis Healthcare Sys., Inc., 5th Dist. Muskingum No. CT2015-0030,
2016-Ohio-721, | 5, 27-28 (medical claims include fraud and negligent
understaffing);
Needless to say, classifying a claim for one purpose does not alter the claim for any other purpose. So while a
claim that is a medical claim must meet the threshold requirement of an affidavit of merit and is subject to its own
statute of limitations and noneconomic damages cap (see R.C. 2305.113(E)(3); R.C. 2323.43; Civ.R. 10(D)(2)(a)), it
retains its separate identity for all other purposes and remains subject to the same elements and burden of proof that
apply to that claim generally.
5
• Ratcliffe v. University Hosp. of Cleveland, 8th Dist. Cuyahoga No. 61791, 1993 WL
69553, at * 4 (Mar. 11, 1993) (medical claims include breach of contract and breach
of fiduciary duty);
• Amadasu v. O’Neal, 176 Ohio App.3d 217, 2008-Ohio-1730, |2, 8-9 (1st Dist.)
(medical claims include assault and battery and alleged violations of the Ohio
Consumer Sales Practices Act);
• Am. Dental Ctr. v. Wunderle, 8th Dist. Cuyahoga No. 62548, 1993 WL 372276, at *1,
4 (Sept. 16, 1993) (similar definition of “dental claim” includes claims for breach of
expressed and implied warranties arising out of dental treatment).
Here, Plaintiffs focus on the “freezing,” “maintenance,” “storage,” and “preservation” of
eggs and embryos, including alleged failures to “maintain, inspect and monitor their liquid
nitrogen/storage tanks,” and “to have adequate procedures and security practices to safeguard”
Plaintiffs’ eggs and embryos. See, e.g, Compl. ^ 2, 3, 23, 24, 25, 26, 27, 33, 40, 41, 42, 46, 52,
59, 68, 69. These services require medical expertise, see id. at ^ 2, 3, 15, 16, 17-20, and arise
out of the IVF treatment Plaintiffs sought, see id. at ^ 17-20, 21, 39, 46, 51, 59, 63-69. Since
Plaintiffs’ claims arise out of medical treatment (IVF), they are medical claims that require an
affidavit of merit. See R.C. 2305.113(E)(3); accord Institute for Women’s Health, P.L.L.C. v.
Imad, Tex. Ct. App. No. 04-05-00555-CV, 2006 WL 334013, at *3 (Feb. 15, 2006) (handling of
embryos “necessarily involves the health care provided to” plaintiff and fertility center’s embryo
storage policies “are an inseparable part of the rendition of health care”).
It does not matter that these allegations concern, in part, the operation of a storage tank.
The eggs and embryos were stored there for later implantation and IVF treatment. Compl. ^ 18,
19, 20; IVF Form at 1, Ex. A (purpose of embryo cryopreservation is to “increase the likelihood
of establishing a normal pregnancy”). Use of the storage tank is ancillary to implantation and
IVF treatment because this treatment cannot be accomplished without storage of the eggs and
embryos. And it is inherently necessary because if the eggs and embryos were not frozen and
6
stored, there would be nothing to implant or fertilize. Any claim asserting fault in the
maintenance and operation of the storage tank is thus a medical claim. Rome, 70 Ohio St.3d at
16-17.
Similarly, Plaintiffs cannot avoid the affidavit of merit requirement by asserting contract-
based theories of recovery. As discussed, “any claim” arising out of the medical treatment of
any person is a medical claim. R.C. 2305.113(E)(3). All of Plaintiffs’ theories of recovery
against UHCMC stem from the common allegation that UHCMC failed to properly “safeguard
the storage of eggs and embryos” while stored in a tank for use in medical treatment. Compl.
^ 40-42, 46, 51-52, 59-60, 63-68. Because that alleged failure is ancillary to and an inherently
necessary part of Plaintiffs’ assisted reproductive treatment, every theory of recovery falls under
the umbrella of a medical claim. See, e.g., Rodgers, 2016-Ohio-721, | 5, 27-28; Ratcliffe, 1993
WL 69553, at *4; Amadasu, 2008-Ohio-1730, ^ 2, 8-9; cf. Am. Dental Ctr., 1993 WL 372276, at
*1, 4 (Sept. 16, 1993).
C. The Penniman I Complaint lacks an affidavit of merit and

should be dismissed.
Since Plaintiffs’ theories of recovery in Penniman I fall under the umbrella of a medical
claim, they had to attach an affidavit of merit to the Complaint. See Fletcher, 2008-Ohio-5379,
paragraph one of the syllabus; Civ.R. 10(D)(2)(d). They failed to do so and, as a result, the
Penniman I Complaint does not state a claim for relief as to the claims asserted against UHCMC
and should be dismissed.
III. CONCLUSION
Plaintiffs’ Complaint against UHCMC in Penniman I presents medical claims that fail to
comply with Civ.R. 10(D)(2) because they lack an affidavit of merit. Plaintiffs thus fail to state a
7
claim upon which relief should be granted and this Court should dismiss the claims asserted
against UHCMC under Civ.R. 12(B)(6).
Respectfully submitted,
s/Rita A. Maimbourg_ _ _ _ _ _
Rita A. Maimbourg (0013161)
Robert R. Tucker (0013098)
Edward E. Taber (0066707)
Tucker Ellis LLP
950 Main Avenue—Suite 1100
Cleveland, OH 44113-7213
Tel: 216.592.5000
Fax: 216.592.5009
rita.maimbourg@tuckerellis.com
robert.tucker@tuckerellis.com
edward.taber@tuckerellis.com
Attorneys for Defendant
8
CERTIFICATE OF SERVICE
A true copy of the foregoing has been filed with the Court and sent via electronic mail on
May 11, 2018 to the following:
Stuart E. Scott, Esq. sscott@spanglaw.com

Brendan L. Heil, Esq. bheil@spanglaw.com
Spangenberg, Shibley & Liber LLP
Attorneys for Plaintiffs John and Kristine Brickel (Case No. CV 18 894332)
Bruce D. Taubman, Esq. brucetaubman@taubmanlaw.net

Brian M. Taubman, Esq. briantaubman@taubmanlaw.net
Taubman Law
Attorneys for Plaintiffs Siddhi & Gajanan Agre (Case No. CV 18 896700)
Mark A. DiCello, Esq. madicello@dlcfirm.com

Robert F. DiCello, Esq. rfdicello@dlcfirm.com
Mark M. Abramowitz, Esq. mabramowitz@dlcfirm.com
Adam J. Levitt, Esq. alevitt@dlcfirm.com
Amy E. Keller, Esq. akeller@dlcfirm.com
Adam M. Prom, Esq. aprom@dlcfirm.com
DiCello Law Firm
Attorneys for Plaintiffs Amber and Elliott Ash (Case No. CV 18 894343)
Justin F. Madden, Esq. j madden@j ustinmaddenlaw.com

Justin Madden Law
Attorney for PlaintiffMarvianne Barrett (Case No. CV 18 895207)
Stephen E. Imm, Esq. stephen@finneylawfirm.com

Matthew S. Okiishi, Esq. matt@finneylawfirm.com
Finney Law Firm, LLC
Attorneys for Plaintiffs Carl Rikard Brobeck and Marius Proitz (Case No. CV 18 895680)

Taubman Law
Attorneys for PlaintiffKathryn Brown (Case No. CV 18 895170)
Leslie O. Murray, Esq. leslie@murrayandmurray. com

John T. Murray, Esq. j otm@murrayandmurray. com
Murray & Murray Co., LPA
Attorneys for Kurt and Amanda Castillo (Case No. CV 18 896574)
9
Leslie O. Murray, Esq. leslie@murrayandmurray.com
John T. Murray, Esq. j otm@murrayandmurray. com
Murray & Murray Co., L.P.A.
Attorneys for Brent and Heather Christman (Case No. CV 18 897208)
Lydia M. Floyd, Esq. lfloyd@prwlegal.com

James P. Booker, Esq. ibooker@prwlegal.com
Joseph C. Peiffer, Esq. ipeiffer@prwlegal.com
Adam B. Wolf, Esq. awolf@prwlegal.com
Peiffer Rosca Wolf Abdullah Carr & Kane
Attorneys for Plaintiffs Laurel and Dustin Clark (Case No. CV 18 894339)
Megan J. Frantz Oldham, Esq. mfrantzoldham@lawlion.com

Lee E. Plakas, Esq. lplakas@lawlion.com
Edmond J. Mack, Esq. emack@lawlion.com
Maria C. Klutinoty Edwards, Esq. mklutinotyedwards@lawlion.com
Christopher L. Parker, Esq. cparker@rlbllp.com
Tzangas Plakas Mannos Ltd.; Roderick, Linton, Belfance, LLP
Attorneys for Plaintiffs Jessica and William Crissman (Case No. CV 18 894473)
Eric H. Zagrans, Esq. eric@zagrans.com

Steven M Goldberg, Esq. steven@smgle gal. com
Jeffrey R. Wahl, Esq. i effwahl@mindspring. com
Daniel R. Karon, Esq. dkaron@karonllc. com
Beau D. Hollowell, Esq. bhollowell@karonllc.com
Zagrans Law Firm LLC; The Goldberg Law Firm; Karon LLC
Attorneys for Plaintiffs Danielle and Kevin Cross (Case No. CV 18 894335)
Susan E. Petersen, Esq. sep@petersenlegal.com

Todd Petersen, Esq. tp@petersenlegal.com
Petersen & Petersen
Attorneys for Plaintiffs Tara and Douglas Debevec (Case No. CV 18 895881)

Jim Casey, Esq. icasev@dlcfirm.com
Kenneth P. Abbarno, Esq. kabbarno@dlcfirm.com
DiCello Law Firm
Attorneys for Plaintiffs Jane and John Doe (Case No. CV 18 895259)
10
Jim Casey, Esq. jcasey@dlcfirm.com
Kenneth P. Abbarno, Esq. kabbamo@dlcfirm.com
DiCello Law Firm
Attorneys for Plaintiffs Jane & John Doe (Case No. CV 18 896709)
Stephen Imm, Esq. stephen@finneylaw.com

Matthew Okiishi, Esq. matt@finneylaw.com
Attorneys for Plaintiffs John and Jane Doe (Case No. CV 18 896367)
James M. Kelly III, Esq. jkelley@elkandelk.com

Kimberly C. Young, Esq. kyoung@elkandelk.com
A. Steven Dever, Esq. astevendever@aol.com
Elk & Elk Co., Ltd.; A. Steven Dever Co., LPA
Attorneys for PlaintiffJane Doe Fertility Patient (Case No. CV 18 897272)

Steven M Goldberg, Esq. steven@smglegal.com
Jeffrey R. Wahl, Esq. j effwahl@mindspring. com
Zagrans Law Firm LLC; The Goldberg Law Firm; Karon LLC
Attorneys for Plaintiffs Shannon and Charles Eddy (Case No. CV 18 894910)
David M. Paris, Esq. dparis@nphm.com

Pamela E. Pantages, Esq. ppantages@nphm.com
David A. Herman, Esq. dherman@nphm.com
Nurenberg Paris Heller & McCarthy Co. LPA
Attorneys for Plaintiffs Christina and Marc Ellis (Case No. CV 18 894480)
W. Scott Ramsey, Esq. wsresq@aol.com

Law Office of W. Scott Ramsey, Esq.
Attorneyfor Plaintiffs Frances and Christopher Evans (Case No. CV 18 895166)
Frank E. Piscitelli, Jr., Esq. frank@feplaw.com

Eric W. Henry, Esq. eric@feplaw.com
Piscitelli Law Firm
Attorneys for Plaintiffs Sara and Thomas Fink (Case No. CV 18 895250)
11
Andrew J. Thompson, Esq. athompson@shaperoroloff. com
Neal E. Shapero, Esq. nshapero@shaperoroloff.com
Abby L. Botnick, Esq. abotnick@shaperoroloff.com
Shapero | Roloff Co., LPA
Attorneys for PlaintiffKatelynn Gurbach (Case No. CV 18 895150)

Steven M Goldberg, Esq. steven@smgle gal. com
Jeffrey R. Wahl, Esq. j effwahl@mindspring. com
Zagrans Law Firm LLC; Karon LLC
Attorneys for Plaintiffs Vicki and Kevin Hatch (Case No. CV 18 895554)
Leif B. Christman, Esq. lbchristman@hotmail.com

Leif B Christman Law Offices
Attorney for Plaintiffs Kimberly and Jickie Hayes (Case No. CV 18 895408)
Peter A. Hessler, Esq. pahessler@wegmanlaw.com

Rachel E. Lyons, Esq. relyons@wegmanlaw.com
Peter A. Holdsworth, Esq. paholdsworth@wegmanlaw.com
Wegman, Hessler & Vanderburg
Attorneys for PlaintiffAshlee and Benjamin Hietanen (Case No. CV 18 895047)
Jeffrey C. Miller, Esq. jcmiller@bmdllc.com

Victoria L. Ferrise, Esq. vlferrise@bmdllc.com
Sherrie R. Savett, Esq. ssavett@bm.net
Lawrence J. Lederer, Esq. llederer@bm.net
Barbara A. Podell, Esq. bpodell@bm.net
Brennan Manna & Diamond, LLC
Attorneys for Plaintiffs Tatyana Hower and Peter Constantino (Case No. CV 18 895243)
Paul V. Wolf, Esq. paulvwolf@hotmail.com

Dubyak Goldense & Wolf
Attorney for Plaintiffs Ashley and Mark Ison (Case No. CV 18 895186)
Stephen E. Imm, Esq. stephen@finneylawfirm.com

Matthew S. Okiishi, Esq. matt@finneylawfirm.com
Attorneys for Plaintiffs Stephen and Alison Jackson (Case No. CV 18 895734)
12
Attorneys for Plaintiffs Nicole M. and Ryan Johnson (Case No. CV 18 897507)
R. Eric Kennedy, Esq. ekennedy@weismanlaw.com

Daniel P. Goetz, Esq. dgoetz@weismanlaw.com
Weisman Kennedy & Berris Co., L.P.A.
Attorneys for Plaintiffs Gina and George Latcheran (Case No. CV 18 894626)
Susan E. Petersen, Esq. sep@petersenlegal.com

Todd Petersen, Esq. tp@petersenlegal.com
Petersen & Petersen
Attorneys for Plaintiffs Leah and Ashley Manino (Case No. CV 18 895720)
Dennis R. Lansdowne, Esq. dlansdowne@spanglaw.com

Samantha M. Weaver, Esq. sweaver@spanglaw.com
Spangenberg Shibley & Liber LLP
Attorneys for Plaintiffs Rachel Mehl and Sarah Deer (Case No. 18 895524)
Michael D. Goldstein, Esq. michael@gnglawyers.com

Kyle L. Crane, Esq. kyle@gnglawyers. com
Joseph N. Cindric, Esq. joseph@gnglawyers.com
Goldstein & Goldstein Co., L.P.A.
Attorney for Plaintiffs Lakesha and Czerny Miller (Case No. CV 18 895141)
W. Craig Bashein, Esq. cbashein@basheinlaw.com

John P. Hurst, Esq. jhurst@basheinlaw.com
Bashein & Bashein Co., LPA
Attorneys for Plaintiffs Sandra Alexa and Jasen Miller (Case No. CV 18 894392)
Thomas D. Robenalt, Esq. trobenalt@robenaltlaw.com

John P. Colan, Esq. j colan@robenaltlaw.com
The Robenalt Law Firm, Inc.
Attorneys for Plaintiffs Jessica Paul and Brian Rockas (Case No. CV 18 895567)

Taubman Law
Attorneys for Plaintiffs Wendy Penniman and Rick Penniman (Case No. CV 18 894396)
13
Jack Landskroner, Esq. jack@lgmlegal.com
Paul Grieco, Esq. paul@lgmlegal.com
Thomas Merriman, Esq. tom@lgmlegal.com
Christian R. Patno, Esq. crp@mccarthylebit.com
Colin R. Ray, Esq. crr@mccarthylebit.com
Landskroner Grieco Merriman, LLC; McCarthy Lebit
Attorneys for Kate and Jeremy Plants (Case No. CV 18 894569)
Joshua R. Cohen, Esq. j cohen@crklaw.com

Ellen M. Kramer emk@crklaw.com
Cohen Rosenthal & Kramer LLP
Attorneys for Plaintiffs Kelley and Becki Reynolds (Case No. CV 18 896587)
David J. Michalski, Esq. david@michalski-law.com

The Michalski Law Firm, LLC
Attorney for Plaintiffs Michelle and Bryan Roman (Case No. CV 18 895862)
Matthew A. Dooley, Esq. mdooley@omdplaw.com

Ryan M. Gembala, Esq. rgembala@omdplaw.com
O'Toole, McLaughlin, Dooley & Pecora Co., LPA
Attorneys for Plaintiffs Ryan and Mia Rose (Case No. CV 18 894712)

Attorneys for Plaintiffs Shannon and Joseph Roufail (Case No. CV 18 894948)
Brian K. Balser, Esq. brian@balserlaw.com

Brian K. Balser Co., LPA
Attorney for Plaintiffs Jennifer and Matthew Sears (Case No. CV 18 896263)
Michael Shroge, Esq. mshroge@pglawyer.com

Plevin & Gallucci, LPA
Attorney for Plaintiffs Carlee and Charles Seelbach (Case No. CV 18 894628)
Frank E. Piscitelli, Jr., Esq. frank@feplaw.com

Eric W. Henry, Esq. eric@feplaw.com
Piscitelli Law Firm
Attorneys for Plaintiffs Junelynn and Stanley Smolic (Case No. CV 18 895252)
14
Pamela Pantages, Esq. ppantages@nphm.com
Nurenberg Paris
Attorneys for Plaintiffs Tiffany and David Sulak (Case No. CV 18 896053)
Dennis R. Lansdowne, Esq. dlansdowne@spanglaw.com

Samantha M. Weaver, Esq. sweaver@spanglaw.com
Spangenberg Shibley & Liber LLP
Attorneys for PlaintiffDanelle Yerkey (Case No. CV 18 895789)
Hector G. Marinez, Jr., Esq. hector@martinezlawfirm.com

Leslie S. Johns, Esq. leslie@martinezlawfirm.com
The Martinez Firm
Attorneys for Plaintiffs Alyscia Zabukovec and Robert Wilce (Case No. CV 18 895594)
R. Eric Kennedy, Esq. ekennedy@weismanlaw.com

Daniel P. Goetz, Esq. dgoetz@weismanlaw.com
Andrew A. Kabat, Esq. akabat@haberpolk.com
Weisman Kennedy & Berris Co., L.P.A.; Haber Polk Kabat LLP
Attorneys for PlaintiffMarla Zarlenga (Case No. CV 18 894456)
/s/Rita A. Maimbourg_ _ _ _ _ _ _ _
One of the Attorneys for Defendants
3747217
15
madicello@dlcfirm.com; rfdicello@dlcfirm.com; mabramowitz@dlcfirm.com;
jmadden@iustinmaddenlaw.com; sscott@spanglaw.com; bheil@spanglaw.com;
Stephen@finneylawfirm.com; matt@finneylawfirm.com; brucetaubman@taubmanlaw.net;
briantaubman@taubmanlaw.net; j otm@murrayandmurray.com; leslie@murrayandmurray. com;
lfloyd@prwlegal.com; jbooker@prwlegal.com; mfrantzoldham@lawlion.com;
lplakas@lawlion.com; emack@lawlion.com; mklutinotyedwards@lawlion.com;
cparker@rlbllp.com; eric@zagrans.com; steven@smglegal.com; jeffwahl@mindspring.com;
dkaron@karonllc.com; bhollowell@karonllc.com; sep@petersenlegal.com;
tp@petersenlegal.com; jcasey@dlcfirm.com; kabbarno@dlcfirm.com; Dparis@nphm.com;
Ppantages@nphm.com; Dherman@nphm.com; wsresq@aol.com; frank@feplaw.com;
eric@feplaw.com; athompson@shaperoroloff.com; nshapero@shaperoroloff.com;
abotnick@shaperoroloff.com; lbchristman@hotmail.com; pahessler@wegmanlaw.com;
relyons@wegmanlaw.com; paholdsworth@wegmanlaw.com; jcmiller@bmdllc.com;
vlferrise@bmdllc.com; paulvwolf@hotmail.com; ekennedy@weismanlaw.com;
dgoetz@weismanlaw.com; dlansdowne@spanglaw.com; sweaver@spanglaw.com;
michael@gnglawyers.com; kyle@gnglawyers.com; kcrane@kcranelaw.com;
joseph@gnglawyers.com; cbashein@basheinlaw.com; trobenalt@robenaltlaw.com;
jcolan@robenaltlaw.com; tnelson@robenaltlaw.com; jack@lgmlegal.com; paul@lgmlegal.com;
tom@lgmlegal.com; crp@mccarthylebit.com; crr@mccarthylebit.com; jcohen@crklaw.com;
emk@crklaw.com; david@michalski-law.com; mdooley@omdplaw.com;
rgembala@omdplaw.com; brian@balserlaw.com; mshroge@pglawyer.com;
Hector@martinezlawfirm.com; leslie@martinezlawfirm.com; akabat@haberpolk.com;
awolf@prwlegal.com; jpeiffer@prwlegal.com; jhurst@basheinlaw.com; alevitt@dlcfirm.com;
akeller@dlcfirm.com; aprom@dlcfirm.com; ssavett@bm.net; llederer@bm.net;
bpodell@bm.net; jkelley@elkandelk.com; kyoung@elkandelk.com; astevendever@aol.com
16
EXHIBIT A
INFORMED CONSENT - EMBRYO CRYOPRESERVATION
This informed Consent Form is being signed in conjunction with the “Consent to in Vitro Fertilization
(IVF)”, attached. Its purpose is to inform you about embryo cryopreservation (freezing an embryo
which results from IVF) prior to placing the embryo into the uterus in order to increase the likelihood
of establishing a normal pregnancy.
The cryopreservation procedure can be considered if the number of embryos formed exceeds the
number to be transferred during the recipient's IVF treatment cycle. The freezing procedure can be
performed only if the extra embryos are suitable for freezing. Therefore, it is not to be assumed that
having extra embryos indicates that there will be embryos frozen. If embryos are frozen the embryos
will be stored in the in vitro fertilization laboratory in the frozen condition until such time as the
physician responsible for your care determines appropriate conditions exist in the Recipient's body for
transfer of the embryo to the Recipient's uterus and the Recipient desires placement of the embryos in
her uterus. At that time, some or all of the embryos will be thawed. Each embryo will be examined to
determine whether it is medically appropriate to transfer it to the uterus and, if so, the transfer of
embryos will occur. If, after thawing, the embryo does not grow, that embryo will not be transferred.
The success rate with frozen embryos is generally lower than with fresh embryos in the human.
However, this procedure may allow an increased chance of pregnancy without the necessity of surgical
intervention for oocyte recovery.
Embryo freezing has been successfully used in humans since the mid 1980's and the experience with
human embryos indicates no adverse results. It is believed that embryos may be frozen indefinitely,
although the success rate with frozen embryos may decrease with time. At this time, it appears that
offspring resulting from frozen embryos do not have any increased chance for any significant problems
but embryo cryopreservation is still relatively new and there is a possibility of problems that are not yet
apparent.
As with any technique that requires mechanical support systems, equipment failure can occur.
However, back-up freezer systems and/or liquid nitrogen holding facilities are available to decrease the
likelihood of any malfunction; but unforeseen situations could occur which are out of the control of the
IVF Team. In vitro fertilization and embryo cryopreservation and transfer are new areas in which legal
principles and requirements, including those relating to ownership, control, and custody of frozen
embryos, have not been established. Because of the uncertainty in the law, the Recipient and Partner
express, as follows, their directions regarding rights to the frozen embryo(s) in the event of the death of
either both the recipient or partner or the termination of the parties’ marriage or relationship.
In the event that, prior to implantation of the frozen embryo(s), we terminate our marriage
through divorce, dissolution, or annulment, we hereby' agree that
that^qheck
Rebeck oone):
x/" 'mnduRnwOny\&/V
The frozen embryos are the sole property of I ViQffMA H , (Partner
or Recipient), who may dispose of them as she/he see^it.
We relinquish all rights to the embryo(s), and the embryo(s) may be donated to another
person.
The frozen embryos will be destroyed.
The frozen embryos will be donated to research.

MRN;304 4151 ATN: 5924 421 DOB: 01/11/1977
PENNIMAN, WENDY S F
Page 19 of 23
the event .that, prior to implantation of the frozen embryo(s),
1 n(\jA !rvu/\ (Recipient) dtesNwe hereby agree that the embryo(s) shall be
(specify)
IiV-—jthe '~eyent that, prior to implantation of the frozen embryo(s),

\ -tLntM (Partner) dies, -we hereby agree that the embryo(s) shall be
(specify) Scte W\\\[ man ._ _ _ _ _ _ _ _ _ ■
In the event that, prior to implantation of the frozen embryos, both Recipient and Partner die,
they hereby agree that (check one):
The embryo(s) may be donated to research.
_ _ _ _ The embryo(s) may be donated to another person.
_ _ _ The frozen embryo(s) will be destroyed.
IF YOU DECIDE TO CHANGE YOUR DIRECTIONS ON RIGHTS TO FROZEN EMBRYO(S),

PLEASE LET US KNOW AS SOON AS POSSIBLE.
PLEASE BE SURE TO TELL US WHEN YOU HAVE A NEW TELEPHONE NUMBER OR

ADDRESS.
IF WE ARE UNABLE TO CONTACT YOU AT YOUR LAST ADDRESS, WE WILL KEEP THE
FROZEN EMBRYO(S) FOR AT LEAST THREE YEARS. AFTER THAT, A DECISION
ON DISPOSAL MAY BE MADE IN ACCORDANCE WITH STANDARDS OF THE
AMERICAN ASSOCIATION OF TISSUE BANKS, AS WELL AS ANY APPLICABLE
LOCAL, STATE, AND FEDERAL LAWS. We also understand that after 3 years University
Hospitals has the right to transfer our frozen embryos to an off-sight facility not associated with
the University Hospitals at our expense. We are free to choose an alternate facility to which to
transfer our frozen embryos.
YOU ARE MAKING A DECISION WHETHER OR NOT TO PARTICIPATE IN EMBRYO

CRYOPRESERVATION. YOUR SIGNATURE ON THIS INFORMED CONSENT FORM
INDICATES THAT YOU READ AND UNDERSTOOD THE INFORMATION PROVIDED IN
THIS FORM ABOUT THE PROCEDURE, THAT YOU HAVE BEEN VERBALLY INFORMED
ABOUT THE PROCEDURE, THAT YOU HAVE HAD A CHANCE TO ASK QUESTIONS, AND
THAT/Y0D CONSENT TO THE PROCEDURE DESCRIBED ABOVE.
IGNATUREpF RECIPIENT
inn itnM[ TIME
6 * ^
SIGNATURE OF PARTNER DATE TIME
_ _ _ _ y/7/yy
WITNESS y DATE TIME
MRN:3044151 ATH:5924421 DOB: 01/11/1977

PENNIMAN. WENDY S F
Electronically Filed 05/11/2018 15:25 / MOTION / CV 18 894332 / Confirmation Nfer. 1382626 / CLKMG
Page 20 of 23

UH Motion To Dismiss

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UH Motion To Dismiss

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Motion No.

Court of Common Pleas

By: RITA A. MAIMBOURG 0013161

Confirmation Nbr. 1382626

JOHN BRICKELAND KRISTINE BRICKEL, ETC., ET CV 18 894332

JOHN BRICKEL, et al., ) CONSOLIDATED CASE NO.

Under Civ.R. 12(B)(6) and 10(D)(2)(d), Defendant University Hospitals Cleveland

[A]ny claim that is asserted in any civil action against a physician,

Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379.

A Brief in Support is attached hereto and incorporated herein.

Attorneys for Defendants

I. STATEMENT OF RELEVANT FACTS

A. UHCMC provides skilled medical services at its Fertility Center.

“planned procedures and implantations” in the future. Id. at tt 16, 27.

tt 19, 20, 27.

B. Plaintiffs received medical services through the Fertility Center.

Fertility Center. Id. at ^ 23, 27.

embryos is to increase the likelihood of establishing a normal pregnancy. Id. at 1 (explaining

is generally lower than with fresh embryos in the human.” Id.

C. All of Plaintiffs’ theories against UHCMC relate to alleged flaws in

• Compl. ^ 40-42 (negligence claim alleging UHCMC owed Plaintiffs a duty to

• Compl. ^ 52 (negligent-infliction-of-emotional-distress claim alleging that Plaintiffs

II. LAW AND ARGUMENT

A. A “medical claim” does not state a claim for relief if it lacks an

[A]ny claim that is asserted in any civil action against a physician,

language to accomplish that purpose,” id. at 53.

diagnosis or treatment of “any person” is a medical claim. R.C. 2305.113(E)(3) (emphasis

“medical claim” if it:

• Is filed against a statutorily enumerated entity; and

• Arises out of the medical diagnosis, care or treatment of any person.

2305.113(E)(3)), this classification applies no matter the theory of recovery alleged:

Here, Plaintiffs focus on the “freezing,” “maintenance,” “storage,” and “preservation” of

storage policies “are an inseparable part of the rendition of health care”).

*1, 4 (Sept. 16, 1993).

C. The Penniman I Complaint lacks an affidavit of merit and

and should be dismissed.

against UHCMC under Civ.R. 12(B)(6).

Attorneys for Defendant

May 11, 2018 to the following:

Stuart E. Scott, Esq. sscott@spanglaw.com

Bruce D. Taubman, Esq. brucetaubman@taubmanlaw.net

Mark A. DiCello, Esq. madicello@dlcfirm.com

Justin F. Madden, Esq. j madden@j ustinmaddenlaw.com

Stephen E. Imm, Esq. stephen@finneylawfirm.com

Bruce D. Taubman, Esq. brucetaubman@taubmanlaw.net

Leslie O. Murray, Esq. leslie@murrayandmurray. com

Lydia M. Floyd, Esq. lfloyd@prwlegal.com

Megan J. Frantz Oldham, Esq. mfrantzoldham@lawlion.com

Eric H. Zagrans, Esq. eric@zagrans.com

Susan E. Petersen, Esq. sep@petersenlegal.com

Mark A. DiCello, Esq. madicello@dlcfirm.com

Stephen Imm, Esq. stephen@finneylaw.com

James M. Kelly III, Esq. jkelley@elkandelk.com

Eric H. Zagrans, Esq. eric@zagrans.com

David M. Paris, Esq. dparis@nphm.com

W. Scott Ramsey, Esq. wsresq@aol.com

Frank E. Piscitelli, Jr., Esq. frank@feplaw.com

Eric H. Zagrans, Esq. eric@zagrans.com