[Cite as Pinnix v. Marc Glassman, Inc., 2012-Ohio-3263.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 97998 and 97999

DLYDIA PINNIX

PLAINTIFF-APPELLANT 

vs. 

MARC GLASSMAN, INC., D.B.A. MARC’S, ETC.

DEFENDANT-APPELLEE 

JUDGMENT: 

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Common Pleas Court 

Case No. CV-761163 

BEFORE: S. Gallagher, J., Stewart, P.J., and Cooney, J. 

RELEASED AND JOURNALIZED: July 19, 2012 
ATTORNEYS FOR APPELLANT 

Gregory S. Costabile 

Nicholas E. Phillips 

Phillips, Mille & Costabile Co., L.P.A. 

7530 Lucerne Drive 

Suite 200 

Middleburg Heights, OH 44130 

ATTORNEY FOR APPELLEE 

Lisa S. Friedman 

Schulman, Schulman & Meros 

23240 Chagrin Blvd., Suite 180 

Beachwood, OH 44122 
SEAN C. GALLAGHER, J.: 

{¶1} In this consolidated appeal, plaintiff-appellant, Dlydia Pinnix, appeals the 

decisions of the Cuyahoga County Court of Common Pleas that (1) granted 

defendant-appellee Marc Glassman, Inc.’s (“Marc’s”) motion to compel, and (2) denied 

Pinnix’s motion for an in camera inspection. These motions pertained to the discovery 

of Pinnix’s medical records, which she alleges include privileged information. For the 

reasons stated herein, we reverse the rulings of the trial court and remand the matter for 

an in camera review of the subject medical records. 

{¶2} On August 3, 2011, Pinnix filed a personal-injury complaint against Marc’s. 

She alleges that on or about August 5, 2009, she was shopping at a Marc’s grocery store 

when an employee negligently struck her from behind with a cart carrying merchandise. 

She claims she suffered injuries to her back and other parts of her body and that she 

incurred medical expenses as a result of the incident. 

{¶3} During her deposition, Pinnix testified about a 2007 automobile accident in 

which she sustained injuries to her back. Marc’s counsel then sent a letter to Pinnix’s 

counsel requesting that Pinnix sign a medical authorization for the release of her medical 

records from 2006 to the present. The authorization was unrestricted and encompassed 

information “relating to a) sexually transmitted disease b) acquired immunodeficiency 

syndrome (AIDS) c) human immunodeficiency virus (HIV) d) behavioral or mental health 

services and e) treatment for alcohol and drug abuse.” 
{¶4} Pinnix’s counsel responded that the request was too broad and encompassed 

unrelated and privileged records. He indicated that he had requested records for 

treatment of injuries related to the instant claim as well as the 2007 accident and that he 

would provide copies of the causally and historically related records once received. He 

further requested that Marc’s sign a qualified protective order. Marc’s counsel 

responded by providing a modified medical authorization, which requested Pinnix’s 

records from January 2007 to the present, but still contained the broad request for 

information. Pinnix did not sign the authorization. 

{¶5} Marc’s filed a motion to compel discovery and for sanctions. Pinnix 

opposed the motion and included an affidavit attesting to the fact that from January 2007 

to the present she had received medical care and treatment for multiple conditions, 

including gynecological care, and that a substantial portion of her records were not 

causally or historically related to the injuries at issue in the case. 

{¶6} The trial court granted the motion to compel and ordered Pinnix to provide 

executed medical releases to Marc’s counsel, without any restriction to the broad scope of 

information requested. The court denied the request for sanctions. Pinnix then filed a 

motion for an in camera inspection of the medical records. The trial court denied the 

motion. Pinnix separately appealed each of these rulings. The appeals have been 

consolidated for review. 

{¶7} Pinnix raises four assignments of error for our review. Her first three 

assignments of error claim the trial court erred by (1) granting the motion to compel 
discovery of her complete medical records for the past five years, (2) ordering her to sign 

medical releases that permit Marc’s to obtain medical records that are privileged, and (3) 

ordering the release of medical records with no mechanism for determining which records 

are privileged. Her fourth assignment of error claims the trial court erred in denying her 

motion for an in camera inspection to determine which records are privileged. We find 

merit to her arguments. 

{¶8} An order compelling the production of allegedly privileged documents to an 

opposing party is a final appealable order. Cobb v. Shipman, 11th Dist. No. 

2011–T–0049, 2012-Ohio-1676, ¶ 34-35; R.C. 2505.02(A)(3) and 2505.02(B)(4). 

Furthermore, when a discovery issue involves an alleged privilege, it is a question of law 

that we review de novo. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 

2010-Ohio-6275, 943 N.E.2d 514, ¶ 13. 

{¶9} Pursuant to Civ.R. 26, parties are permitted to obtain discovery regarding any 

matter, not privileged, which is relevant to the subject matter involved in the pending 

action. The party opposing a discovery request has the burden to establish that the 

requested information would not reasonably lead to discovery of admissible evidence. 

State ex rel. Fisher v. Rose Chevrolet, Inc., 82 Ohio App.3d 520, 523, 612 N.E.2d 782 

(12th Dist.1992). 

{¶10} Communications between a doctor and a patient are generally privileged. 

R.C. 2317.02(B). However, the privilege is waived when the person wishing to assert 

the privilege has filed a civil action and the records are “related causally or historically to 
physical or mental injuries that are relevant to issues in the * * * civil action.” R.C. 

2317.02(B)(3)(a). Most Ohio appellate courts have concluded that, where there is a 

factual basis for a dispute over whether medical records are causally and historically 

related to injuries at issue, the trial court should conduct an in camera review to determine 

which records are discoverable. Cargile v. Barrow, 182 Ohio App.3d 55, 

2009-Ohio-371, 911 N.E.2d 911, ¶ 8-12 (1st Dist.); Mason v. Booker, 185 Ohio App.3d 

19, 2009-Ohio-6198, 922 N.E.2d 1036 (10th Dist.); Wooten v. Westfield Ins. Co., 181 

Ohio App.3d 59, 2009-Ohio-494, 907 N.E.2d 1219 (8th Dist.); Sweet v. Sweet, 11th Dist. 

No. 2004-A-0062, 2005-Ohio-7060, ¶ 14-16. The in camera inspection serves two 

important purposes: 

First, it allows the trial court to make an informed decision as to the 

evidentiary nature of the material in question rather than depending on the 

representations of counsel. Secondly, the in camera inspection allows the 

trial court to discern that aspect of the evidence, which has evidentiary 

value from that which does not, as well as to allow the trial court to restrict 

the availability of that evidence, which has limited evidentiary value. 

State v. Geis, 2 Ohio App.3d 258, 260, 441 N.E.2d 803 (10th Dist.1981). 

{¶11} We recognize that the discovery process should be kept as simple as 

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

instance that a privilege is asserted. Moreover, the party claiming the privilege has the 

burden to show that the records are not causally or historically related. Thus, an in 

camera inspection is not necessary when there is no “factual basis” justifying the trial 

court’s in camera review. 
{¶12} In this case, Marc’s sought the disclosure of all of Pinnix’s medical records 

from January 2006 to the present. As Pinnix argues, the authorization form was 

overbroad and encompassed records relating to sexually transmitted diseases, AIDS and 

HIV, mental health services, and alcohol and drug abuse treatment. Pinnix, through 

counsel, offered to obtain and provide copies of the causally and historically related 

records on the condition that Marc’s stipulate to a qualified protective order, but Marc’s 

was not receptive to this resolution to the discovery dispute. Instead, Marc’s provided 

Pinnix with another overly broad medical authorization, requesting Pinnix’s records from 

January 2007 to the present. Pursuant to Civ.R. 37(E), Marc’s was required, before 

filing a motion to compel, to make a reasonable effort to resolve any discovery issues 

with appellee. 

{¶13} Pinnix submitted an affidavit to the court in which she stated she received 

medical care and treatment for multiple conditions, including gynecological care, which 

were unrelated to her back injury. As such, Pinnix set forth a reasonable factual basis to 

establish that the medical records include privileged information that are not causally or 

historically related to the injuries at issue in this case. While the more prudent course of 

action would have been for Pinnix to have filed a privilege log in conformance with 

Civ.R. 26(B)(6)(a), a trial court may not simply ignore the requirements of R.C. 

2317.02(B). Mason, 185 Ohio App.3d 19, 2009-Ohio-6198, 922 N.E.2d 1036, ¶ 22. 

{¶14} We find the trial court erred by essentially ordering full disclosure and in 

denying Pinnix’s request for an in camera review to determine which records are 
discoverable. See Cargile, 182 Ohio App.3d 55, 2009-Ohio-371, 911 N.E.2d 911, at ¶ 

13 (finding an in camera review was warranted where the trial court had no way of 

knowing whether every medical record for the past five years was historically or causally 

related to the case). 

{¶15} We reiterate that the scope of discovery is broad. A party may be entitled 

to the discovery of information that would be inadmissible at trial as long as “the 

information sought appears reasonably calculated to lead to the discovery of admissible 

evidence.” Civ.R. 26(B)(1). It is not unusual to find evidence of other causes for 

injuries the plaintiff claims are related to the defendant’s negligence in seemingly 

unrelated medical records. Nonetheless, in this matter, the trial court erred in granting an 

overly broad discovery request when there was a reasonable dispute as to whether some 

of the medical records are causally and historically related to the personal-injury action. 

{¶16} Upon remand, we direct the trial court to conduct an in camera review of the 

requested medical records to determine which records are discoverable. Pinnix shall 

submit the medical records under seal. Further, Pinnix shall construct a privilege log in 

conformance with Civ.R. 26(B)(6)(a), which instructs as follows: 

When information subject to discovery is withheld on a claim that it is 

privileged * * *, the claim shall be made expressly and shall be supported 

by a description of the nature of the documents, communications, or things 

not produced that is sufficient to enable the demanding party to contest the 

claim. 

{¶17} Judgment reversed, and case remanded with instructions for an in camera 

review. 
It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas 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. 

SEAN C. GALLAGHER, JUDGE 

MELODY J. STEWART, P.J., and 

COLLEEN CONWAY COONEY, J., CONCUR