UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NCMIC Insurance Company :

:

Plaintiff : Case No. 18-cv-533

:

v. : Judge Sargus

:

Ryan D. Smith, D.C., et al., :

:

Defendants :

DEFENDANT JANE DOE’S MOTION TO DISMISS PLAINTIFF’S

COMPLAINT, OR, IN THE ALTERNATIVE, STAY PROCEEDINGS

Now comes Defendant, Jane Doe, by and through the undersigned counsel, and hereby 

movesthis Honorable Court for an order dismissing Plaintiff’s Complaint, or, alternatively, staying 

the proceedings until the conclusion of the underlying state court litigation. A Memorandum in 

Support is attached hereto and incorporated herein by reference.

Respectfully submitted,

/s/ Alexander J. Durst_______________

Alexander J. Durst 0089819

Attorney for Defendant Jane Doe 

The Durst Law Firm

810 Sycamore St., 2nd Floor

Cincinnati, OH 45202

Tel: (513) 621-4999

Fax: (513) 621-0200

Email: alex@durstlawfirm.com

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MEMORANDUM IN SUPPORT

I. INTRODUCTION & STATEMENT OF FACTS

This case is a declaratory judgment action filed by Plaintiff, NCMIC Insurance Company. 

NCMIC seeks a declaration that it has no duty to defend or indemnify its insured, chiropractor 

Ryan D. Smith, in two underlying state court lawsuits filed against him in state court well before 

NCMIC initiated the instant case. There are no claims or issues of federal law in either this 

declaratory judgment action or the underlying state law litigation – the state cases allege Ohio 

common law claims against Smith, and the insurance coverage question posed in this action 

requires application of Ohio law to the insurance contract between NCMIC and Smith. 

Furthermore, the insurance coverage question is already being litigated in one of the state cases. 

Pursuant to a plethora of longstanding Sixth Circuit and United States Supreme Court case law, 

this court should, respectfully, decline to extend federal jurisdiction. As noted by the Sixth Circuit:

[I]ssues of “insurance contract interpretation are questions of state 

law with which the Kentucky state courts are more familiar and, 

therefore, better able to resolve.” Bituminous, 373 F.3d at 815. We 

have often observed that “ ‘[s]tates regulate insurance companies for 

the protection of their residents, and state courts are best situated to 

identify and enforce the public policies that form the foundation of 

such regulation.’ ” Id. (quoting Mercier, 913 F.2d at 279). This 

concern has been frequently applied in cases of insurance contract 

interpretation and we have held on a number of occasions that a 

district court should stay or dismiss complaints filed by insurance 

companies seeking a declaratory judgment as to their underlying 

state court lawsuits. See, e.g., Bituminous, 373 F.3d at 812–

13; Scottsdale, 211 F.3d at 968–69; Employers' Fire Ins. Co. v. 

Danis Bldg. Constr. Co., No. 99–3982, 2000 WL 1234321 (6th Cir. 

Aug. 22, 2000) (unpublished); Omaha Prop. & Cas. Ins. Co. v. 

Johnson, 923 F.2d 446, 448 (6th Cir.1991); Mercier, 913 F.2d at 

277; Am. Home Ass. Co. v. Evans, 791 F.2d 61, 63 (6th 

Cir.1986); Manley, Bennett, McDonald & Co. v. St. Paul Fire & 

Marine Ins. Co., 791 F.2d 460, 462 (6th Cir.1986).

Travelers Indem. Co. v. Bowling Green Professional Assoc., PLC, 495 F.3d 266, 272-73 (6th 

Cir.2007) (emphasis added).

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A. The Underlying Cases in State Court

The first case against Smith is a putative class action captioned as Jane Doe, on behalf of 

herself and all others similarly situated v. Ryan D. Smith, et al., Case No. 18CV003487, which 

was filed on April 25, 2018.1 The second is Susanne Horner v. Ryan D. Smith, Case No. 

18CV003645, filed on May 1, 2018.2 Both of these cases were filed in the Franklin County Court 

of Common Pleas and solely allege state law causes of action. The Jane Doe case includes the 

following factual allegations:

• Smith was, at all times relevant to this case, a chiropractor licensed to practice chiropractic 

medicine in the State of Ohio.3

• [Jane Doe] sought chiropractic treatment from [Ryan D. Smith] for a medical condition 

and was treated by Defendant on four occasions in May and June of 2017.

• In the middle of [Jane Doe]’s second session with Smith, Smith touched [Jane Doe]’s 

breasts while he was performing a chiropractic procedure on [Jane Doe].

• There was no therapeutic reason for Smith to touch [Jane Doe]’s breasts.

• Prior to Smith touching [Jane Doe]’s breasts, [Ryan D. Smith] failed to disclose to [Jane 

Doe] beforehand that the chiropractic procedure would entail exposure or contact with her 

breasts, or that it entailed a risk of exposure or contact with her breasts.

• [Ryan D. Smith] further failed to explain to [Jane Doe] the medical necessity of the 

procedure that involved exposure or contact with her breasts, offer [Jane Doe] the presence 

of a third party, or provide a signed consent.

• During the same visit, Smith positioned [Jane Doe]’s hand behind her back at waist level 

in order to perform a chiropractic procedure (manipulation of [Jane Doe]’s shoulder) and, 

while leaning forward to apply the necessary pressure to complete the procedure and 

holding [Jane Doe]’s arm firmly in place, pressed his genitals into [Jane Doe]’s hand.

• Prior to performing this procedure, [Ryan D. Smith] failed to disclose to [Jane Doe] that it 

would entail Smith’s genitals pressing into [Jane Doe]’s hand, or that it entailed a risk of 

 

1 A copy of the Second Amended Complaint Jane Doe is seeking leave to file against Smith is attached as Exhibit A.

2 A copy of Susanne Horner’s Complaint against Smith is attached as Exhibit B.

3 Ryan D. Smith’s limited liability company and d/b/a, Synergy Chiropractic Wellness Clinic, LLC, is also a 

Defendant in both the Jane Doe case and the Horner case. For simplicity, Smith and Synergy Chiropractic Wellness 

Clinic, LLC are simply referred to as “Smith” herein.

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such, nor did he explain the medical necessity, offer [Jane Doe] the presence of a third 

party, or provide a signed consent.

• During [Jane Doe]’s next session, Smith touched [Jane Doe]’s breasts in the same manner 

as he did during the second visit and pressed his genitals into her hand in the same manner 

as he did during the second visit, both as explained above in detail, and again failed to 

make the disclosures noted above. Both of these things also occurred at [Jane Doe]’s last 

session.

• Upon information and belief, in addition to Plaintiff, Smith perpetrated the exact same acts 

against at least 46 other women, in the exact same manner. Smith touched these women’s 

breasts, insisted they remove their bras, manipulated their gowns to expose their breasts, 

and used the guise of performing a shoulder manipulation to press his genitals into their 

hands.

Exh. A, at 4-7. On these facts, Jane Doe alleges state law causes of action against Smith, including 

alternative claims for negligence/chiropractic malpractice, including a separate and distinct 

malpractice claim for failure to obtain informed consent, and intentional torts. Id., at 10-15. The 

Jane Doe case is filed as a class action because Smith perpetrated the exact same acts against 

numerous other women.4Id. The Horner case alleges virtually identical facts and essentially the 

same state law causes of action. See Exh. B. Neither case alleges any federal claims or implicates 

any issue of federal law – all the claims in both cases arise under Ohio law.

While not mentioned in NCMIC’s Complaint, there is actually a third case pending against 

Smith in the Franklin County Court of Common Pleas, which is captioned as Christianna M. 

Duncan v. Ryan D. Smith, D.C., et al., Case No. 18CV004082, filed on May 15, 2018.

5 The

allegations and claims asserted in this case mirror those of the Jane Doe and Horner cases. 

NCMIC, however, did not name Duncan as a party to this case. 

 

4 As a result of 47 women coming forward as of April 12, 2018, Smith has been criminally charged with 66 counts 

of gross sexual imposition. See The Columbus Dispatch, Chiropractor Faces New Charges as More Women Allege 

Sexual Contact, http://www.dispatch.com/news/20180412/chiropractor-faces-new-charges-as-more-women-allegesexual-contact, (last visited July 30, 2018).

5 A copy of the Complaint in the third underlying case is attached as Exhibit C.

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Rather than intervene in the Jane Doe, Horner, or Duncan cases in state court, NCMIC 

chose to file a separate declaratory judgment action in this court, thereby creating parallel, 

duplicative litigation with the strong potential for conflicting judgments and other unnecessary 

legal and procedural convolutions.

B. Jane Doe’s Second Amended Complaint

Doe has requested leave of Court in the Franklin County case to file a Second Amended 

Complaint adding NCMIC as a Defendant, along with Nationwide Mutual Insurance Company 

and Nationwide Property and Casualty Insurance Company (“Nationwide”).6 Doe’s Second

Amended Complaint notes that NCMIC insured Smith under a professional liability insurance 

policy, and that Nationwide insured Smith under a homeowners insurance policy, and seeks a 

declaratory judgment that both are obligated, under their respective policies, to indemnify Smith 

for the damages Jane Doe is seeking in the Franklin County case.

C. Legal and Factual Issues in this Case

While the instant federal case is premised upon 28 USC § 2201, the questions it poses are 

all unsettled issues of Ohio law. NCMIC contends that it is not required to defend or indemnify 

Smith in either underlying case due to policy exclusions for, inter alia, sexual assault and 

intentional injuries. Jane Doe vehemently disputes NCMIC’s contention that it is not required to 

indemnify Smith based on its myopic interpretation of the policy and misleading citation and 

selective omission of select facts and allegations in her underlying suit against Smith.

In addition to the application of Ohio law, extensive understanding of the facts in the 

underlying cases would be necessary in order to resolve the question of the whether or not coverage 

is due. As acknowledged in NCMIC’s Complaint, coverage under the policy extends to claims for 

 

6 Doe also seeks to add NCMIC Insurance Services, the NCMIC entity that appears to be authorized by the Ohio 

Department of Insurance to conduct business in Ohio.

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“bodily injury, sickness, disease or death” arising out of negligent omissions, acts and errors 

arising out of “professional services,” which in turn is defined to mean “services which are within 

the scope of practice of a chiropractor.” Id.

In addition, and in the alternative to their intentional tort theories, both Doe and Horner 

allege that Smith was negligent in touching them and in failing to disclose to them the material 

risks and dangers inherent in the procedures he proposed to perform (i.e., failure to provide 

informed consent). Jane Doe further sets forth a claim for negligent invasion of privacy under Ohio 

common law. Additionally, these cases against Smith are unique in that even if the alleged 

improper touching is proven to be intentional (which Smith denies), it not only occurred within 

the course and scope of his treatment of Doe and Horner, but was inextricably related to the 

medical procedures he performed on them; all of the touching occurred while he was performing 

specific chiropractic procedures, by virtue of the position their bodies had to be in for those 

procedures to be performed. This makes it an issue of first impression under Ohio law, particularly 

because the applicable law must be applied to NCMIC’s individual insurance contract.

A survey of the rather scant case law on the applicability of professional liability insurance 

policies to cases where physicians have engaged in sexual conduct with patients reveals that there 

is no Ohio case where the inappropriate sexual contact was related to or necessary for the actual 

medical service the physician was providing. See, e.g., Nye v. Ellis, 5th Dist. Licking No. 09-CA0080, 2010-Ohio-1462 (no coverage for lawsuit alleging consensual sexual relationship between 

chiropractor and patient, where the sexual activity occurred outside of the treatment setting). Of 

note, the Court in Nye left open the possibility that a consensual sexual relationship between 

chiropractor and patient could constitute malpractice if an expert were to testify that such a 

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relationship deviates from the standard of care, such testimony not having been presented in that 

case. Id., at ¶ 35.

II. LAW & ARGUMENT

A. Standard for Abstention in a Declaratory Judgment Action

Federal courts are not obligated to allow for federal jurisdiction in a declaratory judgment 

action. The Declaratory Judgment Act provides that a district court “may declare the rights and 

other legal relations of any interested party seeking such declaration....” 28 U.S.C. § 2201(a) 

(emphasis added). This language affords the district court “discretion in determining whether and 

when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise 

satisfies subject matter jurisdictional prerequisites.” Adrian Energy Assocs. v. Michigan Pub. Serv. 

Comm'n, 481 F.3d 414, 421 (6th Cir.2007) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 282, 

115 S.Ct. 2137, 132 L.Ed.2d 214 (1995)).

Following the United States Supreme Court’s decision in Wilton, the Sixth Circuit has 

enumerated five factors that must be considered when determining whether to exercise jurisdiction 

in a declaratory judgment action: 

(1) whether the declaratory action would settle the controversy;

(2) whether the declaratory action would serve a useful purpose in clarifying the legal 

relations in issue;

(3) whether the declaratory remedy is being used merely for the purpose of “procedural 

fencing” or “to provide an arena for a race for res judicata”;

(4) whether the use of a declaratory action would increase friction between our federal and 

state courts and improperly encroach on state jurisdiction; and

(5) whether there is an alternative remedy which is better or more effective.

Travelers, 495 F.3d at 271 (6th Cir.2007) (citing Grand Trunk W. R.R. Co. v. Consol. Rail Co., 

746 F.2d 323, 326 (6th Cir.1984)). Three additional sub-factors must, in turn, be considered to 

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determine whether a declaratory action would increase friction between federal and state courts 

(the fourth factor):

(1) whether the underlying factual issues are important to an informed resolution of the 

case;

(2) whether the state trial court is in a better position to evaluate those factual issues than 

is the federal court; and

(3) whether there is a close nexus between the underlying factual and legal issues and state 

law and/or public policy, or whether federal common law or statutory law dictates a 

resolution of the declaratory judgment action.

Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 968 (6th Cir.2000) (citing Wilton, 515 U.S. at 277, 

115 S.Ct. 2137).

B. The Relevant Factors Weigh Overwhelmingly Against Federal Jurisdiction

i. Whether the declaratory action would settle the controversy, and whether it 

would serve a useful purpose in clarifying the legal relations in issue

This case would not settle the controversy between the parties. First, even if it settled the 

controversy between NCMIC and Smith (or between NCMIC and Doe), it would not settle the 

underlying controversy between Doe (or Horner) and Smith because it would not determine Doe’s 

and Horner’s legal claims against Smith. Those claims would remain pending in state court. See 

Travelers, 495 F.3d at 272 (“[A]lthough a declaratory judgment would ‘clarify the legal 

relationship between [the insurer and the insured] pursuant to the insurance contracts, the judgment 

would not clarify the legal relationship between [the parties] in the underlying state action.’”) 

(citing Bituminous Cas. Corp. v. J & L Lumber Co., Inc., 373 F.3d 807, 814 (6th Cir.2004)). 

In this case, there is the added complication that NCMIC will be a party in the Jane Doe 

case in state court (in addition to Nationwide, and the other NCMIC entities, which are not parties 

to this case). Thus, regardless of any utility in clarifying a small fraction of the “legal relations at 

issue,” allowing this action to proceed would not even settle the underlying controversy between 

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Doe and NCMIC (or the potential controversy between Doe, NCMIC, the second NCMIC entity, 

and Nationwide). See Travelers, 495 F.3d at 272. Also unique to this case is the fact that the 

additional Jane Does on whose behalf Doe brings suit have not been identified, and it is not yet 

clear whether the Franklin County court will certify the matter as a class action, or whether any 

potential class members will seek to opt out, in which case they would not be bound by the District 

Court’s ultimate decision in this declaratory judgment action. Id. (“Significantly, parties who may 

be potentially affected by the judgment...were not joined in the federal district court action and 

are not parties now. As non-parties, [they] are not bound by the entry of a declaratory judgment.”) 

As such, the first two factors weigh heavily against federal jurisdiction. Likewise, great 

complications may well result from the fact that Duncan, who makes the same legal and factual 

allegations, is not a party to this case, so the declaration would not apply to her.

ii. Whether the declaratory remedy is being used merely for the purpose of 

“procedural fencing” or “to provide an arena for a race for res judicata”

The court in Travelers found this factor to be neutral. In this case, however, an exercise of 

concurrent federal jurisdiction would constitute “gratuitous interference with the orderly and 

comprehensive disposition of [the] state court litigation.” See Grand Trunk, 746 F.2d at 326 

(citing Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942)). 

NCMIC is essentially forum shopping. Rather than intervene in the cases already filed in state 

court, NCMIC has sought to achieve complete diversity in this action by suing Doe, Horner, and 

Smith, all of whom are residents of this District. In doing so, NCMIC has initiated unnecessary, 

duplicative proceedings in two different courts, increasing the burden on both the parties and the 

courts. Furthermore, it creates a “rush to judgment” since the insurance coverage issue is now 

being litigated in the state court as well, a factor not present in Travelers. As such, the third factor 

weighs against federal jurisdiction.

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iii. Whether the use of a declaratory action would increase friction between our 

federal and state courts and improperly encroach on state jurisdiction

As in the highly analogous Travelers case, this factor militates heavily against federal 

jurisdiction. In Travelers, the Sixth District held that “because Kentucky law is controlling, we 

conclude that Kentucky courts are in the better position to apply and interpret its law on these 

issues.” Travelers, 495 F.3d at 272. In reaching its decision to overturn the district court’s decision 

to exercise federal jurisdiction as an abuse of discretion, the court engaged in the following 

analysis:

First, the issue raised—whether any negligence on the part of 

Bowling Green in allowing Wampler to leave the facility and 

drive his car was part of its medical treatment of Wampler, and 

is therefore “medical” negligence, or whether such action was a 

separate act of ordinary negligence—involves purely questions 

of Kentucky law. Negligence questions are largely reserved to 

the states. Here, it appears that the issue has not been squarely 

resolved under Kentucky law. The district court relied on the case 

of Ratliff v. The Employers' Liab. Assur. Corp., 515 S.W.2d 225 

(Ky.1974), to hold that “[t]he alleged negligent act of permitting 

Wampler to leave the facility after treatment was not independent 

and mutually exclusive of the administration of the methadone, but 

was instead related to [Bowling Green's] medical treatment of 

Wampler.” However, in Ratliff, Kentucky's highest court (at the 

time, the Court of Appeals was Kentucky's highest court) 

determined that the general liability insurer was not responsible for 

a judgment for personal injury suffered by a man who fell while 

treating as an in-patient at a hospital. The court concluded that the 

hospital's nurses were required to exercise their “expert professional 

ability” in determining whether Ratliff was capable of 

returning safely from the nurse's station to his bed. Ratliff, 515 

S.W.2d at 230. Significant differences exist between a fall by a 

patient confined to the continuing care of hospital staff and one who 

causes injury to another in a distant location after receiving 

treatment and leaving the medical facility.

Id., at 272-273 (bold emphasis added). The court further held that “issues of insurance contract 

interpretation are questions of state law with which the Kentucky state courts are more familiar 

and, therefore, better able to resolve,” observing that “ ‘[s]tates regulate insurance companies for 

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the protection of their residents, and state courts are best situated to identify and enforce the public 

policies that form the foundation of such regulation.’ ” Id., at 273, citing Bituminous, 373 F.3d at 

815. The court further noted that “[t]his concern has been frequently applied in cases of insurance 

contract interpretation.” Citing to Bituminous and six other Sixth Circuit cases, the court ultimately 

decreed that “a district court should stay or dismiss complaints filed by insurance companies 

seeking a declaratory judgment as to their underlying state court lawsuits.” NCMIC’s Complaint 

falls squarely into this category. The Sixth Circuit could not have been any more clear that federal

court jurisdiction should be denied.

As in Travelers, a court will ultimately have to decide the unsettled Ohio law issue of 

whether Smith’s acts and omissions constituted medical treatment and medical negligence. Ohio 

state courts have both a greater interest in resolving this question of insurance contract 

interpretation and are in a better position to do so.

The three additional factors identified in Scottsdale and applied as subsections of the fourth 

factor also weigh in favor of dismissal of the federal court action. See Bituminous, 373 F.3d at 814. 

A detailed understanding of the underlying factual issues in the state court litigation will 

undoubtedly be crucial in establishing whether Smith’s acts and omissions constituted medical 

treatment under NCMIC’s insurance policy, whether they constitute medical malpractice, etc. As 

in Travelers, the “close nexus” between the underlying factual issues and state law and public 

policy favors a decision by the state court instead of the federal court. See Travelers, 495 F.3d at 

273. “This is not a case where federal law will come into play, and, therefore, a state court forum 

is preferable.” Id. Without question, the fourth factor weighs heavily in favor of abstention.

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iv. Whether there is an alternative remedy which is better or more effective

Here, an alternative remedy exists because Ohio has its own Declaratory Judgment Act. 

See RC 2721.01 et seq.; Travelers, 495 F.3d at 273 (holding that Kentucky’s Declaratory Judgment 

Act provided an alternative to federal court jurisdiction). In fact, in the Doe case, Doe is seeking a 

declaratory judgment that NCMIC is required to indemnify Smith. Furthermore, NCMIC could 

intervene in the state court litigation, or could file an indemnity action at the conclusion of the state 

court litigation. Id. As such, the fifth factor weighs in favor of abstention as well.

C. The Court Should Dismiss or Stay this Action

Analysis of each of the relevant factors makes it abundantly clear that federal court 

jurisdiction over NCMIC’s declaratory judgment action would be improper. Given the policies 

favoring abstention, the inherent risks of having parallel state and federal cases in which identical 

relief is sought proceeding at the same time, and the Sixth Circuit case law favoring abstention in 

this very scenario, this case presents a textbook case for abstention.

III. CONCLUSION

For the reasons explained above, this Court should dismiss Plaintiff’s Complaint. Because 

the relevant factors overwhelmingly disfavor federal jurisdiction, and because the applicability of 

Smith’s insurance policy will be litigated in the underlying state court litigation, dismissal, as 

opposed to a stay of the proceedings, is the proper remedy. Alternatively, the Court should stay 

the proceedings until the conclusion of the state court litigation.

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Respectfully submitted,

/s/ Alexander J. Durst_______________

Alexander J. Durst 0089819

Attorney for Defendant Jane Doe

The Durst Law Firm

810 Sycamore St., 2nd Floor

Cincinnati, OH 45202

Tel: (513) 621-4999

Fax: (513) 621-0200

Email: alex@durstlawfirm.com

CERTIFICATE OF SERVICE

I hereby certify that on July 31, 2018, I electronically filed the foregoing with the Clerk of 

Court using the Electronic Filing System, which will send notification of such filing to all counsel 

of record.

/s/ Alexander J. Durst_______________

Alexander J. Durst 0089819

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