[Cite as Gerace v. Cleveland Clinic Found., 2024-Ohio-2708.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JAMES GERACE, :

Plaintiff-Appellant, :

No. 113231

v. :

CLEVELAND CLINIC :

FOUNDATION, ET AL.,

:

Defendants-Appellees.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: July 18, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-19-926516

Appearances:

Polk Kabat, LLP, Daniel M. Connell, and Shannon J. Polk, 

for appellant. 

Frantz Ward LLP, Michael N. Chesney, Christopher G. 

Keim, and Megan E. Bennett, for appellees. 
MICHAEL JOHN RYAN, J.:

Plaintiff-appellant, James Gerace, appeals the trial court’s decision to 

grant summary judgment in favor of the defendants-appellees Cleveland Clinic 

Foundation (“CCF”) and Jame Abraham, M.D. For the reasons that follow, we 

affirm.

At all times relevant to this appeal, Abraham was a doctor practicing at 

CCF specializing in breast oncology. Gerace was formerly employed by 

Biotheranostics as a sales employee. Biotheranostics is a medical testing company; 

one of the company’s products is the Breast Cancer Index (“BCI”). As a sales 

employee, Gerace was responsible for promoting and selling BCI to breast oncology 

medical providers within his service area.

During Gerace’s employment, BCI was a “growth product” for 

Biotheranostics. As part of his position, Gerace, an at-will employee, was

responsible for developing relationships with key opinion leaders in his sales 

territory; Abraham was a key opinion leader in Gerace’s sales territory.

In August 2019, CCF hosted a breast cancer summit (“summit”) for 

health care providers focused on treatment options for breast cancer. 

Biotheranostics was a sponsor of the summit, and Gerace attended as a company 

representative.

Abraham gave a presentation at the summit titled “2019 Breast Cancer 

NCCN Guidelines Update” to update attendees on the National Comprehensive 

Cancer Network’s (“NCCN”) guidelines for cancer care. Doctors and insurers 
routinely relied on NCCN guidelines when making treatment and coverage 

decisions.

1

 Abraham was member of the NCCN Breast Cancer Panel (“panel”) and 

routinely involved in confidential discussions regarding guidelines for the treatment 

of breast cancer. Pharmaceutical and medical device companies like 

Biotheranostics worked to have their products included in the NCCN Guidelines 

and, understandably, wanted their products to be ranked as high as possible in those 

guidelines.

2

Biotheranostics’ BCI was included in the 2019 Breast Cancer NCCN 

Guidelines with “Category 2A evidence for ‘Consideration of Addition of Adjuvant 

Systemic Chemotherapy to Adjuvant Endocrine Therapy.’” The guidelines noted 

that it had “not [been] determined” whether the BCI was “predictive” of a future 

recurrence of breast cancer. 

Sometime in 2019, Biotheranostics submitted additional data to the 

NCCN, with the hopes that it would elevate the BCI’s category. In August 2019, a 

week prior to the summit, the panel convened but results of the panel meeting were 

not slated to be disclosed for months. Biotheranostics’ salespeople were instructed 

not to discuss a product’s positioning in the NCCN guidelines with panel members.

1 The National Comprehensive Cancer Network (“NCCN”) is a nonprofit 

organization focusing on patient care, research, and education.

2 The NCCN ranks products as Category 1, Category 2A, Category 2B, or

Category 3.
During his presentation at the summit, Abraham stated that there was 

data supporting the use of the BCI as an appropriate test for certain patients, but 

current NCCN guidelines did not endorse using the index to determine the use of 

extended endocrine therapy.

Gerace approached Abraham after his presentation. Gerace was aware 

that the panel had recently met and admitted that he was “anxiously” hoping for 

positive news about the BCI’s positioning in the guidelines. 

According to Abraham, Gerace’s demeanor during the encounter was 

“red-faced” and Gerace was in his personal space and pointing his finger at him. 

Abraham felt pressured regarding confidential panel deliberations because of his 

conversation with Gerace. A fellow breast cancer oncologist who witnessed the 

encounter described Gerace as “chasing Abraham as he was trying to leave, putting 

the doctor into a ‘fight-or-flight’ mode.”

After their encounter, Gerace left a note on Abraham’s chair. In the 

note, Gerace apologized to Abraham stating, in part, “I understand that the [NCCN] 

review is proprietary and confidential — as it should be and am sorry if my lack of 

clarity caused any concern.”

Following the interaction with Gerace, Abraham reached out to 

Biotheranostics and spoke with the vice president of marketing, Lisa Whitmyer. 

This was not the first time Abraham had contacted Biotheranostics to discuss 

Gerace’s concerning behavior. On a prior occasion, Abraham contacted 
Biotheranostics to complain about Gerace’s aggressive sales tactics with CCF’s 

cancer doctors. 

Abraham told Whitmyer he was worried about “his personal safety” 

and therefore was “done with Biotheranostics.” Whitmyer concluded that Gerace’s 

behavior towards Abraham left the doctor “very upset” and “fearful.” Nevertheless, 

Abraham told Whitmyer that he did not want the company to take any action against 

Gerace — Abraham specifically asked Whitmyer to not take punitive action against 

Gerace. Whitmyer testified that Abraham “was adamant that we take no action” and 

that Abraham “went so far as to say, ‘I do not want him fired.’” Abraham was 

described by a coworker several days after the encounter as “still very rattled” and 

“visibly scared.”

Biotheranostics subsequently terminated Gerace’s employment. The 

company concluded that Gerace had had previous issues at CCF, had improperly 

attempted to speak with a NCCN panel member about the NCCN Guidelines, and 

the salesman’s actions had left Abraham shaken.

Gerace subsequently filed suit against his former employer in 

California and against CCF and Abraham in Cuyahoga County Common Pleas Court. 

The California court determined that it was not the proper forum and dismissed 

Gerace’s complaint against Biotheranostics. Gerace refiled against Biotheranostics 

in Cuyahoga County Common Pleas Court, alleging violations of California law and 

wrongful discharge in violation of Ohio public policy. Biotheranostics filed a motion 

to dismiss Gerace’s complaint, which the trial court granted. Gerace appealed. This 
court affirmed the trial court’s decision, agreeing that Gerace could not set forth 

claims under California law in Ohio and was unable to establish a claim for wrongful 

discharge in violation of public policy. Gerace v. Biotheranostics, Inc., 2022-Ohio302 (8th Dist.).

In the instant case, Gerace’s complaint alleged tortious interference

with a business or employment relationship. CCF and Abraham moved for 

summary judgment. The trial court granted the motion, finding that no genuine 

issue of material fact remained and reasonable minds could only come to one 

conclusion, which was adverse to Gerace.

Gerace filed the instant appeal.

I. The trial court erred by granting summary judgment in favor of 

CCF/Abraham with no factual or legal analysis, thus impermissibly 

overlooking, failing to credit, and/or weighing evidence in a manner 

adverse to Plaintiff-Appellant James Gerace at the summary judgment 

stage. 

II. The trial court erred by finding that communications between 

counsel for CCF/Abraham and counsel for Biotheranostics (BTX) were 

shielded from disclosure by the common-interest privilege. 

III. The trial court erred by failing to conduct an evidentiary hearing or 

in camera review before finding that communications between counsel 

for CCF/Abraham and counsel for BTX were protected from disclosure 

by the common-interest privilege. 

IV. The trial court erred by failing to require CCF/Abraham to provide 

a privilege log detailing documents withheld during discovery as 

privileged.

We first consider the second, third, and fourth assignments of error 

and combine them for review. In these assigned errors, Gerace argues that the trial 
court erred in failing to enforce disclosure of communications between 

Biotheranostics, CCF, and respective counsel during discovery.

During discovery, Gerace subpoenaed Biotheranostics, requesting 

the following: 

For the time period August 1, 2019, through the present, please produce 

any and all communications between Biotheranostics, Inc. and the 

Cleveland Clinic that relate to this lawsuit or James Gerace. This 

request specifically includes, but is not limited to, documents and/or 

communications exchanged between counsel for Biotheranostics and 

counsel for the Cleveland Clinic.

Gerace also requested:

For the time period August 23, 2019, through the present, please 

produce any and all communications between The Cleveland Clinic 

Foundation and any agent or representative of Biotheranostics that 

relates to Jim Gerace, his employment with Biotheranostics, and/or 

any litigation he brought against the Cleveland Clinic or 

Biotheranostics. This request specifically includes, but is not limited 

to, communications between counsel for Cleveland Clinic Foundation 

and counsel for Biotheranostics (including any successor entity).

CCF did not turn over the requested documents, and Gerace moved 

to compel discovery. The trial court denied Gerace’s motion to compel finding that 

“the common-interest doctrine precludes discovery of communication between 

counsel for the Clinic and counsel for Biotheranostics.”

Ohio law recognizes the common-interest doctrine as a corollary to 

the attorney-client privilege and work-product doctrine. Condos at Stonebridge 

Owners’ Assn v. K&D Group, Inc., 2014-Ohio-503, ¶ 15 (8th Dist.). The commoninterest doctrine is designed to “encourage the parties to make full and adequate 

disclosure to the attorneys who, jointly, have been tasked with accomplishing the 
legal interests of their respective clients.” Fresenius Med. Care Holdings v. Roxane 

Labs. Inc., 2007 U.S. Dist. LEXIS 98216, 5-7 (S.D. Ohio Mar. 21, 2007) (finding that 

the common-interest doctrine permits “persons with similar legal interests, but 

represented by different counsel, to enjoy the same ability to communicate 

confidentially about their common-interests with multiple attorneys that each client 

enjoys separately”). 

The common-interest doctrine is an extension of the attorney-client

privilege and work-product doctrine. It is not an independent source of privilege or

confidentiality. Bitler Invest. Venture II, LLC v. Marathon Ashland Petro. LLC,

2007 U.S. Dist. LEXIS 9231 (N.D. Ind. Feb. 7, 2007). If a communication or

document is not otherwise protected by the attorney-client privilege or workproduct doctrine, the common-interest doctrine has no application. Stonebridge

Owners’ Assn. at ¶ 15.

Thus, the common-interest doctrine protects documents and 

communications from discovery if two conditions are satisfied: (1) the documents 

or communications were shared between parties with a common legal interest or 

who are represented by the same attorney and (2) the documents or 

communications are protected by the attorney-client privilege and/or work-product 

doctrine. 

Gerace argues that CCF was required to expressly invoke the 

common-interest privilege in response to his subpoena to Biotheranostics or his 

discovery request and failed to do so. We disagree. The common-interest doctrine 
is not a standalone privilege. “The common-interest doctrine operates as an 

exception to the general rule that disclosure of privileged materials to a third party 

waives the privilege. This exception typically arises when parties ‘are either 

represented by the same attorney or are individually represented but have the same 

goal in litigation.’” Stonebridge Owners’ Assn. at id. Here, Gerace requested 

communications between counsel for CCF and Biotheranostics. Attorneys for CCF 

responded with both a general objection to the production of any privileged 

materials, as well as a specific objection to the request at issue, stating that the 

request impermissibly sought “documents or communications protected by 

attorney-client privilege and/or the work-product doctrine.” 

Gerace relies on cases from other states, which require that the parties 

to the lawsuits be identical. In Ohio, there is no such requirement. Here, both CCF 

and Biotheranostics are defending claims Gerace brought in litigation involving the 

same operative facts, that being Gerace’s termination from Biotheranostics. There 

is no requirement that the parties be in the same lawsuit for the doctrine to apply —

the question is whether they share a common-interest. “It is not necessary that a 

common legal interest be derived from legal action; it is possible for two or more 

parties to share a common-interest without becoming parties to the same litigation.” 

Cooey v. Strickland, 269 F.R.D. 643, 652-53 (S.D. Ohio 2010) (common-interest 

doctrine applied where “the attorneys * * * communicated among themselves with 

a common-interest and were proceeding jointly to analyze Ohio’s existing and 
proposed execution protocols”). Gerace filed suit against both Biotheranostics and 

CCF/Abraham and both cases involved common witnesses and evidence. 

We next consider whether the requested documents fall under the 

work-product exception. “The purpose of the work-product rule is (1) to preserve 

the right of attorneys to prepare cases for trial with that degree of privacy necessary 

to encourage them to prepare their cases thoroughly and to investigate not only the 

favorable but the unfavorable aspects of such cases and (2) to prevent an attorney 

from taking undue advantage of his [or hers] adversary’s industry or efforts.” 

Decuzzi v. Westlake, 2010-Ohio-6169 (8th Dist.). The work-product privilege 

“protects the attorney’s mental processes in preparation of litigation, so that the 

attorney can analyze and prepare their client’s case free from scrutiny or 

interference by an adversary.” Watson v. Cuyahoga Metro. Hous. Auth., 2014-

Ohio-1617, ¶ 29 (8th Dist.). It is intended to create “‘a zone of privacy in which 

lawyers can analyze and prepare their client’s case free from scrutiny or interference 

by an adversary.’” Squire, Sanders & Dempsey, LLP v. Givaudan Flavors Corp., 

2010-Ohio-4469 (8th Dist.), quoting Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 

2006).

The work-product privilege is “broader than the attorney-client 

privilege” and “protects from disclosure documents prepared by or for an attorney 

in anticipation of litigation.” Galati v. Pettorini, 2015-Ohio-1305, ¶ 24 (8th Dist.).

“The test should be whether, in light of the nature of the document and the factual 

situation in the particular case, the document can fairly be said to have been 
prepared or obtained because of the prospect of litigation.” Estate of Hohler v. 

Hohler, 2009-Ohio-7013 (7th Dist.). We find that Gerace’s discovery requests were 

communications between attorneys who shared a common legal interest and are 

covered by the work-product doctrine.

Next, Gerace claims that the trial court erred by failing to conduct an 

in camera review of the communications between counsel for CCF and 

Biotheranostics. A trial court is not required to conduct an in camera review; it is 

within the trial court’s discretion whether to hold the review. See State v. Hoop, 134 

Ohio App.3d 627, 639 (12th Dist. 1999); see also Marcum v. Miami Valley Hosp., 

2015-Ohio-1582 (2d Dist.) (noting that an in camera review “is not always required, 

and the trial court does have discretion to consider and order alternative options”). 

This court has recognized that “the discovery process should be kept as simple as 

possible and [] a trial court does not need to conduct an in camera review in every 

instance that a privilege is asserted. . . . An in camera inspection is not necessary 

when there is no ‘factual basis’ justifying the trial court’s in camera review.” Pinnix 

v. Marc Glassman, Inc., 2012-Ohio-3263, ¶ 11 (8th Dist.).

In Yoe v. Cleveland Clinic Found., 2003-Ohio-875 (8th Dist.), the 

plaintiff sued CCF for medical malpractice in connection with two bladder surgeries. 

After a jury found in favor of CCF, the plaintiff appealed and argued the trial court 

erred by failing to conduct an in camera inspection of surgical records that the 

plaintiff alleged he needed to challenge the credibility of the surgeon. This court 

disagreed, explaining that a party is not entitled, as a matter of right, to an in camera 
hearing when privilege is asserted. “Before engaging in an in camera review to 

determine whether privilege is applicable, ‘the judge should require a showing of a 

factual basis adequate to support a good faith belief by a reasonable person’ that in

camera review of the materials is outweighed by other rights.’” Id. at ¶ 2, quoting 

Hoop.

Here, Gerace failed to demonstrate that his alleged need for the 

communications between counsel outweighed the interest in preserving the 

attorney-client privilege and work-product protection. Given the trial court’s 

inherent discretion, it was not required to conduct an in camera review of the 

privileged communications to determine if there was merit to Gerace’s claims.

We further find that counsel for CCF was not required, as Gerace 

argues, to create a privilege log reflecting communications with counsel for 

Biotheranostics. The communications at issue were generated after litigation was 

filed and presumably would not exist but for the litigation against both entities. As 

such, the communications are presumptively privileged and Gerace was not entitled 

to a privilege log identifying every communication. See Cleveland Botanical Garden 

v. Drewien, 2020-Ohio-1278 (8th Dist.) (upholding the trial court’s finding that 

there was no need to log communications between counsel for two parties that 

shared a common legal interest because the “basis of the parties’ privilege claims 

was made clear” to the opposing party). CCF informed Gerace of the basis for its 

objections to production in its discovery responses; therefore, there was no need to 

create a log involving all communications between counsel. 
Accordingly, the second, third, and fourth assignments of error are 

overruled.

In the first assignment of error, Gerace claims that the trial court 

erred in granting summary judgment in favor of CCF and Abraham. 

Appellate review of an award of summary judgment is de novo. 

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (9th Dist. 1996). Summary 

judgment is appropriate under Civ.R. 56 when (1) no genuine issue as to any 

material fact remains to be litigated; (2) the moving party is entitled to judgment as 

a matter of law; and (3) viewing the evidence most strongly in favor of the 

nonmoving party, reasonable minds can come to but one conclusion and that 

conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc., 50 

Ohio St.2d 317, 327 (3d Dist. 1977), citing Civ.R. 56(C). A court must view the facts 

in the light most favorable to the nonmoving party and must resolve any doubt in 

favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-

359 (10th Dist. 1992).

Gerace claims that CCF and Abraham caused his termination by 

tortiously interfering in his relationship with his employer. Tortious interference 

with an employment relationship “occurs when one party to the relationship is 

induced to terminate the relationship by the malicious acts of a third person who is 

not a party to the relationship at issue.” Tessmer v. Nationwide Life Ins. Co., 1999 

Ohio App. LEXIS 4633, *6 (10th Dist. Sept. 30, 1999). To establish the claim, a 

plaintiff must demonstrate (1) the existence of an employment relationship between 
plaintiff and the employer; (2) that the defendant was aware of this relationship; (3) 

that the defendant intentionally interfered with this relationship; and (4) that the 

plaintiff was injured as a proximate result of the defendant’s acts. Lennon v.

Cuyahoga Cty. Juvenile Court, 2006-Ohio-2587, ¶ 19 (8th Dist.), citing Costaras v.

Dunnerstick, 2004-Ohio-6266 (9th Dist.). 

To succeed on his claim, Gerace was required to establish that 

Abraham affirmatively intended to cause his termination. The interference must be 

intentional because “Ohio does not recognize negligent interference with a business 

relationship.” MedCorp, Inc. v. Mercy Health Partners, 2009-Ohio-988, ¶ 17 (6th 

Dist.), citing Smith v. Ameriflora, 96 Ohio App.3d 179, 186 (10th Dist. 1994). 

Gerace argues that there was ample evidence from which a jury could 

find that Abraham intended for Gerace to be terminated. Gerace alleges that it was 

Abraham’s, not his own, conduct that got him fired. According to Gerace, Abraham 

escalated his complaints about Gerace until Biotheranostics fired Gerace. A review 

of the record does not support Gerace’s claim.

Abraham contacted Whitmyer after the encounter to inform her that 

he would no longer work with Biotheranostics. By all accounts, Abraham was very 

upset about the encounter and fearful of Gerace. But Abraham specifically told 

Whitmyer that he did not want Gerace fired. Whitmyer testified at deposition that 

Abraham “was adamant we take no action” and told her “I do not want him fired.”

Second, Gerace claims Abraham lied in his communications with 

Whitmyer. Abraham told Whitmyer that he had not said anything at the summit
about NCCN approval of the BCI. But, at deposition, Abraham admitted that he had 

stated at the summit that the BCI was not endorsed by NCCN. Thus, according to 

Gerace, Abraham was trying to secure Gerace’s termination by providing false 

information to Biotheranostics.

As mentioned, during Abraham’s presentation at the summit, he 

stated that there was data supporting the use of the BCI as an appropriate test for 

certain patients, but current NCCN guidelines did not endorse using the index to 

determine the use of extended endocrine therapy. 

Shortly before the summit, Abraham and other NCCN members met 

to discuss updates to the deadlines, which would be released in the fall of 2023. 

There is no evidence that Abraham told a falsehood or was trying to get Gerace fired 

by providing false information; as of the date of the summit, NCCN Guidelines did 

not endorse the use of the BCI as a predictor of recurrence. 

Gerace also argues that Abraham’s claim that the doctor feared for his 

personal safety is not to be believed because the doctor never claimed that Gerace 

verbally threatened him and did not report the altercation to the police. We 

recognize that one can feel fear for his or her personal safety even if the person he or 

she fears does not issue a verbal threat. Abraham testified that Gerace invaded his 

personal space, pointed at him, and was “red-faced.” A coworker described 

Abraham as “still very rattled” and “visibly scared” several days after the encounter.

In Sawyer v. Devore, 1994 Ohio App. LEXIS 4954 (8th Dist. Nov. 3, 

1994), defendant Wal-Mart conducted an audit of the work performed by the 
plaintiff, who was a claims officer of the company CSI that processed Wal-Mart’s 

workers’ compensation claims. Following the audit, Wal-Mart recommended that a 

different CSI claims officer be given exclusive responsibility for handling Wal-Mart’s 

accounts and plaintiff be moved into a supporting role. Id. at 4. Despite 14 years of 

praiseworthy performance evaluations, CSI terminated the plaintiff’s employment, 

allegedly because the claims manager at Wal-Mart did not like the plaintiff. Id. at 

4-5. 

This court affirmed summary judgment for both Wal-Mart and the 

claims manager, finding that the plaintiff failed to establish prima facie intent on the 

part of the claims manager or Wal-Mart to injure the plaintiff, i.e., intent on the part 

of the claims manager or Wal-Mart to cause CSI to terminate the plaintiff’s business 

relationship with CSI. Id. at 34. In reaching this conclusion, this court considered 

that neither Wal-Mart nor the claims manager requested or recommended CSI 

terminate the plaintiff; therefore, summary judgment was appropriate. Id. at 35-36. 

Here, neither Abraham nor CCF requested that Biotheranostics 

terminate Gerace; Abraham specifically told Biotheranostics not to fire Gerace. 

To support his claim that threats to discontinue doing business with 

an employer are sufficient to support a claim for tortious interference, Gerace cites 

an out-of-state case, Riley v. Prescott, 2014 LEXIS 20511, *42 (D. Ariz. Feb. 18, 

2014), where the plaintiff claimed she was terminated after the mayor threated 

economic harm against her employer based on the plaintiff’s public protests against 
the mayor. The court found facts in dispute and denied summary judgment. The 

case, from Arizona, is neither binding nor persuasive. 

Considering the above, Gerace has failed to show a genuine issue of 

material fact remains to withstand CCF and Abraham’s motion for summary 

judgment.

The first assignment of error is overruled.

Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure.

MICHAEL JOHN RYAN, JUDGE

SEAN C. GALLAGHER, J., CONCURS;

MICHELLE J. SHEEHAN, P.J., DISSENTS (WITH SEPARATE OPINION)

MICHELLE J. SHEEHAN, P.J., DISSENTING:

With respect, I dissent from the majority’s resolution of the first 

assignment of error. The de novo standard of review for summary judgment 

requires us to fully consider the evidence presented by the parties. My review of the 

evidence in this case reveals a closer question than reflected in the majority opinion 
regarding whether there exists a genuine issue of material fact for jury 

consideration.

“Civ.R. 56(C) provides that summary judgment shall be granted when 

the filings in the action, including depositions and affidavits, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law.” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 2002-

Ohio-2220, ¶ 24. A genuine issue of material fact exists to prevent summary 

judgment only if “a reasonable jury could find that the evidence satisfies the 

evidentiary standards required at trial.” Myocare Nursing Home, Inc. v. Fifth Third 

Bank, 2003-Ohio-2287, ¶ 33. 

To establish a claim of tortious interference with an employment 

relationship, a plaintiff must prove “(1) the existence of an employment relationship 

between plaintiff and the employer; (2) the defendant was aware of this relationship; 

(3) the defendant intentionally interfered with this relationship; and (4) the plaintiff 

was injured as a proximate result of the defendant’s acts.” Hester v. Case W. Res. 

Univ., 2017-Ohio-103, ¶ 37 (8th Dist.). Tortious interference with an employment 

relationship occurs when a party to the employment relationship is induced to 

terminate the relationship by the malicious acts of a third person (who is not a party 

to the employment relationship). Morris v. Broska, 2019-Ohio-2510, ¶ 19 

(11th Dist.), citing Tessmer v. Nationwide Life Ins. Co., 1999 Ohio App. LEXIS 4633,

*21 (10th Dist. Sept. 30, 1999). See also Hetmanski v. Doe, 2017-Ohio-7220, ¶ 29 

(11th Dist.) (tortious interference with employment requires evidence of wanton or 
malicious conduct); Slyman v. Shipman, Dixon & Livingston, Co., L.P.A., 2009-

Ohio-4126, ¶ 11 (2d Dist). 

The factual issues in the instant summary judgment proceeding 

concern whether Dr. Abraham intentionally interfered with Gerace’s employment 

with Biotheranostics and whether Dr. Abraham acted in a malicious manner. 

On appeal, we are to determine whether the evidence before the trial court creates a 

genuine issue of material fact regarding these elements of Gerace’s tortious 

interference claim. In making that determination, we are to bear in mind that “[i]n 

reviewing a motion for summary judgment, the evidence must be construed most 

strongly in favor of the nonmoving party.” Bliss v. Manville, 2022-Ohio-4366, ¶ 13, 

quoting Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66-67 (1978). 

Furthermore, “[i]t is axiomatic that in construing evidence most strongly in favor of 

the nonmoving party, a court may not ignore evidence in that party’s favor.” Id. 

Gerace was considered a successful and respected salesperson in his 

company and in the oncology community. When he was hired by Biotheranostics in 

2016, he brought with him strong relationships he had developed with the local and 

national oncology community. He was described by various oncologists as a sales 

representative who “showed the highest integrity,” always “honest and 

straightforward,” gave “excellent customer service,” and was “respected in the 

academic physician community.” His supervisors at Biotheranostics considered 

him “very professional” and “a top performer.” Merely three months before the 

breast cancer summit, he received a glowing job review from Whitmyer, who 
described him as “a pleasure to manage and work with” and stated that she would 

not want to work with anyone else managing the Northeast Ohio market. Gerace 

received a pay raise and was told to “keep up the good work.” A month before the 

summit, another supervisor wrote that he had the “utmost confidence” in Gerace 

and that the company was “lucky” to have him. 

However, within months of receiving the positive feedback from 

Biotheranostics, Gerace was summarily terminated hours after Dr. Abraham 

complained to his supervisors about his behavior during a break at the summit. 

During his presentation at the summit, Dr. Abraham stated there was 

data supporting the use of the BCI as a test for certain patients, but the current 

NCCN guidelines did not endorse the use of the test to determine whether to extend 

endocrine therapy for a breast cancer patient. 

Gerace testified at his deposition that, after Dr. Abraham’s 

presentation, as the attendees were leaving the conference room for a break, 

Dr. Abraham caught his eye and Gerace took the opportunity to “thank him for the 

presentation and the positive comments that he made about the BCI.” To Gerace’s 

surprise, Dr. Abraham was highly agitated at his remark, sputtering to Gerace 

something to the effect of “you are upset with me” and “you are twisting my words.” 

According to Gerace, he was shocked and baffled by Dr. Abraham’s 

strong reaction to his innocuous comments. To reassure him, he said to 

Dr. Abraham, “I am not asking for specifics about [NCCN’s] deliberations. 

I understand the sanctity and the proprietary nature of that and I would never put 
you in that position.” According to Gerace, the two of them were separated by a table 

and stood five to eight feet apart. The encounter lasted no more than two to three 

minutes. Afterwards, he wrote a note to Dr. Abraham and left it on Dr. Abraham’s 

chair at the lecture hall. The note states, “I was sincerely attempting to thank you 

for your positive comments about the [BCI]. . . . I also appreciated your comments 

relative to it not being approved by NCCN. I understand that the review is 

proprietary and confidential — as it should be, and I am sorry if my lack of clarity 

caused any confusion.”

Dr. Abraham described the encounter differently. While he 

acknowledged that Gerace did not make a verbal threat, Dr. Abraham testified that 

he was “scared” by Gerace’s demeanor — Gerace was “visibility upset, and his face 

was red, and he was angry.” He testified that Gerace came within two feet of him 

and pointed his finger at him. Gerace kept asking him if NCCN endorsed the new 

data about the BCI Biotheranostics sent to NCCN, and he responded that he could 

not talk about it. When asked at the deposition why he no longer wished to engage 

in projects with Biotheranostics, Dr. Abraham stated that “Jim Gerace threatened 

me, and for my personal safety, I don’t want to work with him.” 

Within hours of that short encounter, Biotheranostics decided to 

terminate Gerace. When Dr. Abraham saw the note left by Gerace, he took a picture 

of it and sent it to Whitmyer at 1:05 p.m.; the message accompanying the picture 

reads: “I am scared of him. I mean it. He is twisting my words. I didn’t say anything 

about NCCN approval or not. I am really scared of him.” At 1:22 p.m., Dr. Abraham 
emailed another Biotheranostics employee and copied Whitmyer, stating, “I am not 

interested in working with Biotheranostics in the future, in any manner. So no need 

to contract [sic] me or make appointments with me in the future. Sorry about it. I 

am done with Biotheranostics.” 

Soon after, at 2:04 p.m., Whitmyer text messaged Dr. Abraham, 

assuring him that Gerace “will never interact with [him] again” and asking him to 

call her at the end of day or the next day regarding the matter. At 2:27 p.m., 

Dr. Abraham text messaged her, saying “I will call you. But I am done with 

Biotheranostics. Sorry I will tell my group too.” At 2:29 p.m., Whitmyer responded: 

“I can ensure you never and I mean never deal with him.” At 2:33 p.m., Dr. Abraham 

wrote to Whitmyer: “I am worried about my personal safety. I mean it.” At 

2:30 p.m., Whitmyer wrote to tell Dr. Abraham that “we [the executive team] are 

discussing how we handle this situation as we speak.” 

Whitmyer testified that a decision was made at the executive meeting 

to terminate Gerace. Shortly after the meeting, around 5 p.m., Dr. Abraham and 

Whitmyer talked over the phone. He told her he did not want Gerace fired, saying,

“He is a bully, and I don’t want any backlash.” According to Whitmyer, she did not 

reveal to him that the company had decided to terminate Gerace.

The majority concludes that summary judgment was properly 

granted because Dr. Abraham specifically told Whitmyer not to terminate Gerace 

during the phone call and, therefore, there is no genuine issue of material fact for 

trial regarding the element of intent. I disagree. 
The courts have held that circumstantial evidence can be used to show 

intent. Seitz v. Harvey, 2015-Ohio-122, ¶ 33 (2d Dist.), citing Doyle v. Fairfield 

Machine Co., Inc., 120 Ohio App.3d 192, 208 (11th Dist. 1997). Circumstantial 

evidence is evidence that can be “‘inferred from reasonably and justifiably connected 

facts’” Hinerman v. Grill on Twenty First, L.L.C., 2021-Ohio-859, ¶ 88 (5th Dist.), 

quoting State v. Fairbanks, 32 Ohio St.2d 34 (1972), paragraph five of syllabus. 

Intent is not always “subject to direct evidence ‘because it is seldom possible to 

determine the exact condition of someone’s mind. Intent must be determined from 

inferences drawn from direct fact.’” Cuyahoga Falls v. Ellenberger, 2003-Ohio6578, ¶ 16 (9th Dist.), quoting Dayton v. Davidson 1985 Ohio App. LEXIS 9592 (2d 

Dist. Dec. 9. 1985). “‘Intent can be established by circumstantial evidence. Intent 

must be ascertained from the surrounding facts and circumstances in the case.’” Id.,

quoting State v. Wilson, 1988 Ohio App. LEXIS 555 (8thDist. Feb. 25, 1988). 

The evidence produced by Gerace shows that Dr. Abraham began to 

contact employees of Biotheranostics’ sales division around 2 p.m., soon after their 

encounter. In a span of approximately 90 minutes, he sent one email and three text 

messages to Gerace’s supervisors, using strong language such as “I am really scared 

of him,” “I am not interested in working with Biotheranostics in the future, in any 

manner,” and “I am done with Biotheranostics.” The text messages did not stop 

after Whitmyer assured him that he would never have to interact with Gerace again. 

Even with that assurance, Dr. Abrahm reiterated that he was “done with 

Biotheranostics” and that he would “tell my group.” The persistent text messages to 
the Biotheranostics executives only ceased when Dr. Abraham was told by Whitmyer 

that the executives were currently meeting to address the situation. Notably, in none 

of those messages did Dr. Abraham express a request or wish that Gerace was not to 

be terminated.

Construing the evidence most strongly in favor of the nonmoving 

party, I find the foregoing evidence, albeit circumstantial, creates a genuine issue of 

material fact regarding intent, because the evidence could permit a reasonable jury 

to infer that Dr. Abraham exerted influence and pressure on Gerace’s supervisors 

and intentionally interfered with the employment relationship between Gerace and 

his employer. 

I also find the evidence presented creates a genuine issue of material 

fact regarding whether Dr. Abraham acted with malice. Malice can either be 

“behavior characterized by hatred, ill will, or a spirit of revenge” or “extremely 

reckless behavior revealing a conscious disregard for a great and obvious harm.” 

Preston v. Murty, 32 Ohio St.3d 334, 335 (1987). As with intent, “‘malice may be 

inferred from conduct and surrounding circumstances.’” Hetmanski, 2017-Ohio7220, at ¶ 29 (11th Dist.), quoting Columbus Fin., Inc. v. Howard, 42 Ohio St.2d 

178, 183 (1975). 

The evidence reflects that Dr. Abraham felt threatened by Gerace and 

his conduct appears to be motivated by fear rather than by “hatred, ill will, or a spirit 

of revenge.” However, after Dr. Abraham was reassured twice by Whitmyer that he 

would never have to interact or deal with Gerace again, Dr. Abraham continued to 
complain about Gerace, telling Whitmyer he feared for his personal safety. 

The evidence, likewise circumstantial, is sufficient to create a genuine issue of 

material fact regarding whether Dr. Abraham’s conduct constituted “extremely 

reckless behavior revealing a conscious disregard for a great and obvious harm” to 

Gerace. 

My review of the evidence presented by both parties therefore 

indicates there exists a jury question regarding whether Dr. Abraham intentionally 

interfered with Gerace’s employment with Biotheranostics and whether he acted 

with malice. Accordingly, I would sustain the first assignment of error and reverse 

the trial court’s decision granting summary judgment in favor of appellees. 

For the foregoing reasons, I dissent.