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Civil Procedure

Civil Procedure

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(A) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or
the authority of a party to sue or be sued in a representative capacity or the legal existence of an
organized association of persons that is made a party. When a party desires to raise an issue as to
the legal existence of any party or the capacity of any party to sue or be sued or the authority of a
party to sue or be sued in a representative capacity, he shall do so by specific negative averment,
which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

(B) Fraud, mistake, condition of the mind. In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent,
knowledge, and other condition of mind of a person may be averred generally.

(C) Conditions precedent. In pleading the performance or occurrence of conditions
precedent, it is sufficient to aver generally that all conditions precedent have been performed or
have occurred. A denial of performance or occurrence shall be made specifically and with
particularity.

(D) Official document or act. In pleading an official document or official act it is
sufficient to aver that the document was issued or the act done in compliance with law.

(E) Judgment. In pleading a judgment or decision of a court of this state or a foreign
court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the
judgment or decision without setting forth matter showing jurisdiction to render it.

(F) Time and place. For the purpose of testing the sufficiency of a pleading,
averments of time and place are material and shall be considered like all other averments of
material matter.

(G) Special damage. When items of special damage are claimed, they shall be

specifically stated.

[Effective: July 1, 1970.]

RULE 10. Form of Pleadings

(A) Caption; names of parties. Every pleading shall contain a caption setting forth
the name of the court, the title of the action, the case number, and a designation as in Rule 7(A).
In the complaint the title of the action shall include the names and addresses of all the parties, but
in other pleadings it is sufficient to state the name of the first party on each side with an
appropriate indication of other parties.

(B) Paragraphs; separate statements. All averments of claim or defense shall be
made in numbered paragraphs, the contents of each of which shall be limited as far as practicable
to a statement of a single set of circumstances; and a paragraph may be referred to by number in
all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each
defense other than denials shall be stated in a separate count or defense whenever a separation
facilitates the clear presentation of the matters set forth.

(C) Adoption by reference; exhibits. Statements in a pleading may be adopted by
reference in a different part of the same pleading or in another pleading or in any motion. A copy
of any written instrument attached to a pleading is a part of the pleading for all purposes.

(D) Attachments to pleadings.

(1) Account or written instrument. When any claim or defense is founded on an
account or other written instrument, a copy of the account or written instrument must be attached
to the pleading. If the account or written instrument is not attached, the reason for the omission
must be stated in the pleading.

(2) Affidavit of merit; medical liability claim.

(a) Except as provided in division (D)(2)(b) of this rule, a complaint that contains a medical
claim, dental claim, optometric claim, or chiropractic claim, as defined in section 2305.113 of the
Revised Code, shall include one or more affidavits of merit relative to each defendant named in
the complaint for whom expert testimony is necessary to establish liability. Affidavits of merit
shall be provided by an expert witness pursuant to Rules 601(D) and 702 of the Ohio Rules of
Evidence. Affidavits of merit shall include all of the following:

(i)

A statement that the affiant has reviewed all medical records reasonably
available to the plaintiff concerning the allegations contained in the complaint;

(ii) A statement that the affiant is familiar with the applicable standard of care;

(iii) The opinion of the affiant that the standard of care was breached by one or
more of the defendants to the action and that the breach caused injury to the
plaintiff.

(b) The plaintiff may file a motion to extend the period of time to file an affidavit of merit.
The motion shall be filed by the plaintiff with the complaint. For good cause shown and in
accordance with division (c) of this rule, the court shall grant the plaintiff a reasonable period of
time to file an affidavit of merit, not to exceed ninety days, except the time may be extended
beyond ninety days if the court determines that a defendant or non-party has failed to cooperate
with discovery or that other circumstances warrant extension.

(c) In determining whether good cause exists to extend the period of time to file an affidavit
of merit, the court shall consider the following:

(i) A description of any information necessary in order to obtain an affidavit of merit;

(ii) Whether the information is in the possession or control of a defendant or third
party;

(iii) The scope and type of discovery necessary to obtain the information;

(iv) What efforts, if any, were taken to obtain the information;

(v) Any other facts or circumstances relevant to the ability of the plaintiff to obtain an
affidavit of merit.

(d) An affidavit of merit is required to establish the adequacy of the complaint and shall not
otherwise be admissible as evidence or used for purposes of impeachment. Any dismissal for the
failure to comply with this rule shall operate as a failure otherwise than on the merits.

(e) If an affidavit of merit as required by this rule has been filed as to any defendant along
with the complaint or amended complaint in which claims are first asserted against that
defendant, and the affidavit of merit is determined by the court to be defective pursuant to the
provisions of division (D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time,
not to exceed sixty days, to file an affidavit of merit intended to cure the defect.

(E) Size of paper filed. All pleadings, motions, briefs, and other papers filed with the
clerk, including those filed by electronic means, shall be on paper not exceeding 8 1/2 x 11
inches in size without backing or cover.

[Effective: July 1, 1970; amended effective July 1, 1985; July 1, 1991; July 1, 2005; July
1, 2007.]

Staff Note (July 1, 2007 Amendments)

Rule 10(D).

Attachment to pleadings

Civ. R. 10 is amended to clarify what constitutes “good cause” to permit the plaintiff an extension of
time to file an affidavit of merit and to define the effect of dismissal for failure to comply with the affidavit of
merit requirement.

Rule 10(D)

Attachments to pleadings

The language of division (D)(2)(a) is amended in recognition of the fact that more than one affidavit
may be required as to a particular defendant due to the number of defendants or other circumstances.

Because there may be circumstances in which the plaintiff is unable to provide an affidavit of merit
when the complaint is filed, division (D)(2)(b) of the rule requires the trial court, when good cause is shown, to
provide a reasonable period of time for the plaintiff to obtain and file the affidavit. Division (D)(2)(c) details the
circumstances and factors which the Court should consider in determining whether good cause exists to
grant the plaintiff an extension of time to file the affidavit of merit. For example, “good cause” may exist in a
circumstance where the plaintiff obtains counsel near the expiration of the statute of limitations, and counsel
does not have sufficient time to identify a qualified health care provider to conduct the necessary review of
applicable medical records and prepare an affidavit. Similarly, the relevant medical records may not have
been provided to the plaintiff in a timely fashion by the defendant or a nonparty to the litigation who
possesses the records. Further, there may be situations where the medical records do not reveal the
names of all of the potential defendants and so until discovery reveals those names, it may be necessary
to name a “John Doe” defendant. Once discovery has revealed the name of a defendant previously
designated as John Doe and that person is added as a party, the affidavit of merit is required as to that
newly named defendant. The medical records might also fail to reveal how or whether medical providers
who are identified in the records were involved in the care that led to the malpractice. Under these and
other circumstances not described here, the court must afford the plaintiff a reasonable period of time to
submit an affidavit that satisfies the requirements set forth in the rule.

It is intended that the granting of an extension of time to file an affidavit of merit should be liberally
applied, but within the parameters of the “good cause” requirement. The court should also exercise its
discretion to aid plaintiff in obtaining the requisite information. To accomplish these goals, the plaintiff must
specifically inform the Court of the nature of the information needed as opposed to a general averment that
more information is needed. The plaintiff should apprise the court, to the extent that it is known, the identity
of the person who has the information and the means necessary to obtain the information, to allow the court
to grant an appropriate extension of time. If medical records in the possession of a defendant or non-party
must be obtained, the court may issue an order compelling the production of the records. If medical records
are non-existent, incomplete, or otherwise inadequate to permit an expert to evaluate the care, the court may,
in appropriate circumstances, permit a plaintiff to conduct depositions of parties or non-parties to obtain the
information necessary for an expert to complete such a review and provide an affidavit.

Division (D)(2)(b) of the rule sets an outside limit of 90 days to extend the time for the filing of an
affidavit of merit, unless the court determines that the defendant or a nonparty in possession of the records
has failed to cooperate with discovery, and in that circumstance the court may grant an extension beyond 90
days. This division also vests the trial court with the discretion to determine whether any other circumstances
justify granting an extension beyond the 90 days.

The rule is intended to make clear that the affidavit is necessary to establish the sufficiency of the
complaint. The failure to comply with the rule can result in the dismissal of the complaint, and this dismissal is
considered to be a dismissal otherwise than upon the merits pursuant to Civ. R. 10(D)(2)(d).

Finally, new Civ. R. 10(D)(2)(e) allows a plaintiff a reasonable time, not to exceed sixty days, to
cure any defects identified by the court in any affidavit filed with a complaint.

Staff Note (July 1, 2005 Amendment)

Civ. R. 10 is amended in response to a request from the General Assembly contained in Section 3 of

Sub. H.B. 215 of the 125th

General Assembly, effective September 13, 2004. The act amends and enacts
provisions relative to medical, dental, optometric, and chiropractic malpractice actions, and Section 3
contains a request that the Supreme Court adopt a rule that “require[s] a plaintiff filing a medical liability claim
to include a certificate of expert review as to each defendant.”

Rule 10(D)

Attachments to pleadings

Civ. R. 10(D) is retitled and reorganized to reflect the inclusion of a requirement in division (D)(2) that
a medical liability complaint include an affidavit of merit concerning the alleged breach of the standard of care
by each defendant to the action. Division (D)(2)(a) specifies three items that must be included in the affidavit
and sets forth the qualifications of the person providing the affidavit of merit.

There may be instances in which multiple affidavits of merit are required as to a particular plaintiff.
For example, the plaintiff may find it necessary to provide one affidavit that addresses only the issue of
“standard of care” and a separate affidavit that addresses only the issue of injury caused by the breach of
the standard of care.

Because there may be circumstances in which the plaintiff is unable to provide an affidavit of merit
when the complaint is filed, division (D)(2)(b) of the rule requires the trial court, when good cause is shown, to
provide a reasonable period of time for the plaintiff to obtain and file the affidavit. For example, “good cause”
may exist in a circumstance where the plaintiff obtains counsel near the expiration of the statute of limitations,
and counsel does not have sufficient time to identify a qualified health care provider to conduct the necessary
review of applicable medical records and prepare an affidavit. Similarly, the relevant medical records may
not have been provided to the plaintiff in a timely fashion. Further, there may be situations where the
medical records do not reveal the names of all of the potential defendants and so until discovery reveals
those names, it may be necessary to name a “John Doe” defendant. Once discovery has revealed the
name of a previously unknown defendant and that person is added as a party, the affidavit of merit would
then be required as to that newly named defendant. Under these or similar circumstances, the court must
afford the plaintiff a reasonable period of time, once a qualified health care provider is identified, to have the
records reviewed and submit an affidavit that satisfies the requirements set forth in the rule.

Division (D)(2)(c) provides that an affidavit of merit is intended to establish the sufficiency of the
complaint filed in a medical liability action and specifies that an affidavit of merit is not otherwise admissible
as evidence or for purposes of impeachment.

The amendments to Rule 10 also include nonsubstantive changes.

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