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Judicial restraint spurs legislative action: Ohio Supreme Court declines to close Civil Rules “loophole”

8/27/24

By: Spencer M. Sukel

Last week, the Supreme Court of Ohio issued its much-anticipated ruling in Ackman v. Mercy Health W. Hosp., L.L.C., Slip Opinion No. 2024-Ohio-3159. The case presented for the Court’s consideration a sole proposition of law: whether a party waives its Civil Rule 12(b)(4) and (5) service defenses through sufficient participation in the litigation.  

On February 21, 2020, the administrator of a deceased woman’s estate (“Ackman”) filed a complaint alleging medical malpractice and wrongful death against multiple parties, including a doctor and his employer (hereinafter “doctor” and “employer”). Ackman attempted to serve a copy of the complaint on doctor and employer by certified mail. Service on employer was successful, but service on doctor was not, because Ackman had used the wrong address. On March 13, 2020, doctor and employer filed an answer that included the affirmative defenses of insufficiency of process and insufficiency of service of process. Over the next two years, doctor and employer participated in the case. Throughout this time, Ackman did not perfect service of the complaint on doctor. 

In June 2022, more than two years after the complaint was filed, doctor and employer filed a motion for summary judgment arguing that the case had not timely commenced because doctor had not been served with a copy of the complaint. Ackman opposed summary judgment contending that doctor had waived his failure-of-process defense by actively participating in the litigation for over two years. The trial court disagreed and granted the motion for summary judgment. Ackman appealed to the First District Court of Appeals, which affirmed. Ackman again appealed, urging the Supreme Court to overrule its decision in Gliozzo v. Univ. Urologists of Cleveland, Inc., where the Court held that “[w]hen the affirmative defense of insufficiency of service of process is properly raised and properly preserved, a party’s active participation in the litigation of a case does not constitute waiver of that defense.” 2007-Ohio-3762, syllabus. Justice Deters, authoring the majority opinion of the Court, declined to do so. The Court therefore answered appellant’s proposition in the negative and reaffirmed it’s holding in Gliozzo finding: (1) that appellee properly raised and preserved his affirmative defense of insufficiency of service of process; and, (2) that appellee’s active participation in the litigation of the case did not constitute waiver of that defense.  

In doing so, the Court declined to adopt the approach used by Federal Courts, such as the Sixth Circuit under Fed. R. Civ. P. 12(h), which have held that defendants may forfeit a preserved service defense through conduct that gives plaintiffs a reasonable expectation that the defendant will defend the suit on the merits. Rather, the Court reemphasized that, excluding express waiver pursuant to Civ.R. 4.7, Civ.R. 12(H) is the only way the service of process defense can be waived. The Court’s holding therefore declined to introduce uncertainty by adding additional means of waiving one’s defenses, and inclined to introduce certainty by reiterating that the burden of perfecting service falls squarely on the plaintiff’s shoulders. A defendant has no duty to assist them in this obligation.  

The Court’s holding represents a favorable decision for care providers across the state of Ohio. The decision, however, is sure to invite detractors. Justice Donnelly, writing in concurrence and joined by Justice Stewart, points out that although the plain language of the Civil Rules cannot be ignored, they do presently provide a loophole by which canny litigants may ensure a substantive disposition based solely on technical or procedural errors, as opposed to on the merits. Ergo, the Rules promote gamesmanship contrary to the goals and values of the civil-justice system. While judicial action is not the proper means for closing that loophole, Justice Donnelly’s concurrence expresses a need for legislative revision. Until that revision occurs, however, the Court will permit litigants to exercise their right to use the Civil Rules – whether for ignoble ends, or not.  

Please contact Kevin M. Norchi at kevin.norchi@fmglaw.com or Spencer M. Sukel at spencer.sukel@fmglaw.com, healthcare lawyers in Freeman Mathis & Gary, LLP’s Cleveland office, for assistance defending claims for medical negligence.