Thomas et al v. Nationwide Children's Hospital, Inc. et al
OPINION AND ORDER granting 120 MOTION to Compel; denying 121 MOTION to Strike; granting 111 MOTION to Vacate as outlined. Signed by Magistrate Judge Terence P. Kemp on 1/19/2017. (agm) Modified text on 1/19/2017 (agm).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Daniel Thomas, et al.,
Case No. 2:14-cv-1236
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
Nationwide Children’s Hospital,
Inc., et al.,
OPINION AND ORDER
This case is before the Court to resolve Plaintiffs’ motion
to compel discovery as well as Defendants’ motion to strike that
Both motions are fully briefed.
For the following
reasons, the Court will deny the motion to strike and grant the
motion to compel.
Because, as this Opinion and Order will reveal, the precise
nature of Plaintiffs’ claims is something about which the
briefing on the motion to compel disagrees, the Court will lay
out those claims in some detail.
Some of this background can be
found in prior orders in this case, such as Thomas v. Nationwide
Children’s Hospital, 2015 WL 7829139 (S.D. Ohio Dec. 4, 2015),
but the Court will elaborate on that background as needed.
In that prior order, the Court explained that
[i]n their second amended complaint, the three sets of
Plaintiffs – Anna and Daniel Thomas, Chad and Lori
Burley, and Jessica Rose and Russell Moore, together
with their children - allege that the Defendants,
including Nationwide Children's Hospital and its
employees, conspired to violate the rights of parents
and children who sought medical treatment at the
hospital. More specifically, they claim that, in their
respective cases, after they sought treatment for their
children, hospital employees ordered additional medical
tests not for the purpose of diagnosis and treatment,
but in order to gather evidence for possible criminal
prosecution for child abuse. In some instances, that
involved bringing other children into the hospital for
testing. All of the parents assert that they did not
give informed consent to these procedures, and that
medical information was provided to third parties, such
as the Columbus Division of Police or Franklin County
Children's Services, without their consent as well. The
complaint includes claims sounding in assault, false
imprisonment, violation of the physician-patient
privilege, negligent or reckless infliction of
emotional distress (asserted only by Anna Thomas), and
violations of the First, Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution.
Id. at *1.
More specifically, the Plaintiffs pleaded that the
some of their children were “subjected to high doses of ionizing
radiation and insertion of needles into their bodies,” Doc. 17,
¶1-3, and that they were inordinately detained in the emergency
room of the Hospital or as an inpatient.
All of this occurred,
according to Plaintiffs, because the Hospital had decided to
“engage in evidence collection directed to establishing child
abuse for purposes of juvenile and criminal proceedings” even
though it was “aware that parents and children seeking medical
treatment ... enjoyed constitutional protections against
unreasonable search and seizure, constitutional privileges of
family association, and individual protections of confidential
Plaintiffs assert that this was
part of a concerted effort to “obtain and share confidential
medical information without affording parents and children ...
constitutional protections and without probable cause that any
child abuse had occurred.”
The other players in this scheme
were, according to the complaint, the City of Columbus and
Franklin County Children’s Services.
Plaintiffs allege that in
order to make all of this happen, the Hospital decided not to
inform the parents whose children would be subject to these
procedures either of the reason for the examinations or the right
to object or to refuse.
The nine claims in the complaint, which are summarized
One - assault (Ohio law)
Two - false imprisonment (Ohio law)
Three - violation of the physician-patient privilege
Four - Infliction of emotional distress (Ohio law)
Five - Unlawful search and seizure (Federal law)
Six - Privacy violation (Federal law)
Seven - Privacy violation (Federal law)
Eight - Due process violation (Federal law)
Nine - Declaratory relief (Federal law)
None of the claims allege that any of the medical procedures
which the children were forced to undergo were performed in a
negligent or incompetent fashion, and there is no state law claim
which specifically alleges medical malpractice.
of the absence of such a claim is discussed below.
The Discovery Issue
The issue addressed by the motion to compel apparently arose
for the first time in 2015 when the Hospital, in response to some
written discovery requests, objected to providing information or
documents on grounds of privilege.
Plaintiffs filed a motion to
compel (Doc. 51) and in response, the Hospital suggested, among
other things, that Plaintiffs had asked for “internal peer-review
assessments of every patient complaint it has ever received about
child abuse diagnosis” - something that the Hospital said had
“nothing to do with this case.”
Doc. 57, at 1.
Hospital also argued that any internal assessments of medical
care were protected by the peer-review and self-critical
Id. at 10.
The parties agreed, at a status conference, to forego a
ruling on that motion pending other discovery, and the Court
terminated it in an internal docket notation dated February 29,
The peer review privilege issue did not resurface again
until Plaintiffs took the deposition of hospital employee Cheryl
Hiatt on November 16, 2016.
The transcript of that deposition has now been filed.
The Court finds it helpful to provide a fairly
complete summary of her testimony in order to give some context
to the parties’ dispute.
According to Ms. Hiatt’s testimony, she is currently
employed as a nurse at the Hospital.
At the time of the events
described in the complaint, she was working in the Emergency
Department as a Performance Improvement Coordinator.
Chambers, another employee, did the same job.
Ms. Hiatt reported
to the Emergency Department manager, Randy Smith, and to the
Emergency Services vice president, Duane Kusler.
Twice a month, the clinical leaders in the Emergency
Department met to discuss events or developments in that
Ms. Hiatt routinely attended those meetings.
did not actually perform nursing duties during those years, but
dealt with customer satisfaction, reviewing written customer
satisfaction surveys, taking phone calls or emails, and, at
times, speaking directly to a customer.
With respect to some,
but not all, of these encounters (especially if the resolution of
the matter involved writing a letter), she made an entry into a
database system called CS STARS.
Ms. Hiatt then began to testify about her interaction with
the Thomas family.
After she explained what she recalled about
that interaction, she was asked if the information she provided
was included in the CS STARS summary.
At that point, Hospital
counsel objected, noting that “the CS STARS database is a quality
improvement program, peer review program database that is
maintained by the hospital as a part of its quality improvement
and peer review process” and that “we’re not going to let Cheryl
talk about the contents of the CS STARS database.”
Plaintiffs’ counsel pointed out that he had never been made aware
that there was information in this document that related to the
Thomases, nor was it listed on a privilege log, an assertion
which Hospital counsel disputed.
After some further dialogue
among counsel, Ms. Hiatt was asked to confirm that she sent a
letter to Anna Thomas on December 6, 2013, which addressed Ms.
Thomas’s concerns about what had happened to her children in the
Those concerns were contained in a letter
Ms. Thomas had written and which Ms. Hiatt saw in the CS STARS
Both letters are exhibits to the deposition.
Hiatt’s letter said that the Emergency Department Leadership Team
and the Director Physician for the Child Abuse team had
thoroughly reviewed the situation and had concluded that the
tests or procedures performed on one of the children were
appropriate and followed both hospital procedures and procedures
which were State-mandated.
Ms. Hiatt was then questioned about how she came to the
conclusions stated in her letter.
She said that after seeing Ms.
Thomas’s letter, Ms. Hiatt called and spoke to Ms. Thomas on a
She was then asked what else she did in response
to the letter, focusing particularly on how she investigated Ms.
Thomas’s concerns before responding in writing.
counsel objected, saying “She may testify to those discussions
she had with Mrs. Thomas .... Otherwise, we are going to instruct
her not to answer in accordance with the peer review statute.”
He then specifically instructed Ms. Hiatt not to
answer this question: “Tell me what process this investigation
was,” (Tr. 48), stating that he would not permit her to testify
about “even the fact of the steps that she would have taken.”
Ms. Hiatt was again instructed by counsel not to discuss any
aspect of the review process that was referred to in her letter
other than what she may have told Ms. Thomas at the time.
Additionally, she was not permitted to answer questions about who
else may have had input into the content of the letter she wrote.
It appears that the same instructions would have been
given at the deposition of Shawn Chambers, but Plaintiffs ostensibly for that reason - chose to cancel his deposition,
which had been noticed for the following day.
It should be
obvious from this recital of the dispute that the parties do not
agree about whether the peer review privilege was properly
invoked at Ms. Hiatt’s deposition and whether it supported each
instruction not to answer.
The Procedural History
Because the Hospital has raised, both in its motion to
strike and in its response to the motion to compel, an issue
about the timeliness of the latter motion, it is also necessary
to go into some detail about the procedural history of the
The Court will start with the Hospital’s version of the
relevant procedural facts, and will then set out Plaintiff’s
As mentioned briefly above, the Hospital first identified
the peer review privilege issue in May, 2015, in response to
written discovery requests.
In July of that year, it served on
Plaintiffs a privilege log which described some emails between
Shawn Chambers and Dr. Thackeray (which the Hospital declined to
produce) as “regarding peer review investigation of complaint.”
See Doc. 117.
Other documents which were withheld from
production also were labeled as relating in some way to peer
review or quality assurance.
the privilege log.
Ms. Hiatt’s name did not appear on
Although the motion to compel which was filed
on July 7, 2015 did not directly address the peer review
privilege (the log post-dated that motion by three days), the
Hospital’s response did, as did the reply (Doc. 59).
noted above, that motion (which dealt primarily, but not
exclusively, with requests for information about child abuse
complaints and investigations involving persons other than the
Plaintiffs) was withdrawn pending the outcome of other discovery.
Ms. Hiatt was deposed on November 16, 2016, only a few weeks
before the discovery cutoff date of December 2, 2016.
current motion to compel was filed on December 9, 2016.
the Court’s initial pretrial order (Doc. 33), discovery was to
have been completed by April 1, 2016.
That order said nothing
about when discovery motions had to be filed.
Neither did the
two subsequent orders extending the discovery cutoff date (Docs.
83 and 100).
The Hospital, however, argues that the motion was
untimely because it could have been, but was not, filed during
the discovery period.
Plaintiffs point out the following additional facts.
they say that peer review privilege had not been asserted as a
bar to discovery at other depositions, and they had no reason to
believe it would become an issue at Ms. Hiatt’s.
point out that they did move during the discovery period for an
extension of the cutoff date specifically in order to permit the
peer review issue to be decided and, if necessary, to complete
Ms. Hiatt’s deposition and to depose Mr. Chambers.
See Doc. 111.
Counsel also attempted to reach agreement on that extension and
the parties discussed a possible resolution as late as November
Lastly, they note that the motion was filed only a
week after the existing discovery cutoff date.
The Court will
discuss the significance of all of these facts when it rules on
the motion to strike, which it will do so immediately below.
The Motion to Strike
The Hospital makes a lengthy argument that the motion to
compel is untimely, based on cases like FedEx Corp. v. United
States, 2011 WL 2023297 (W.D. Tenn. March 28, 2011), and cases
cited therein, which have denied motions to compel discovery
filed after the discovery cutoff date.
It contends that this
issue could have been (and, in fact, was) raised much earlier;
that the Plaintiffs have only themselves to blame for its late
re-emergence because they voluntarily withdrew the earlier motion
to compel and did not schedule the crucial depositions until
weeks before the close of discovery; and because there are no
special circumstances justifying the untimely filing.
The Court noted above that none of the pretrial scheduling
orders provided that discovery motions had to be filed within the
That language is in this Magistrate Judge’s
standard Rule 16 order, but that is not who issued the initial
scheduling order in this case.
Even if that language had been
used (which contains an exception based on impracticality) or if
the Court accepted the Hospital’s reading of the case law, the
Court believes that striking the motion is not appropriate.
If, in fact, no issue about peer review privilege arose
following Plaintiffs’ withdrawal of their earlier motion to
compel, it may well have been reasonable for them to assume that
the issue would not come up in the final few depositions.
Further, even if the log should have alerted them that it might
be an issue in Mr. Chambers’ deposition, Ms. Hiatt’s name
appeared nowhere on the log.
Additionally, it is not at all
evident to the Court that an employee who dealt in customer
satisfaction might be considered part of a peer review process.
Finally, the Court agrees with Plaintiffs that in the context of
attempting to work out a solution to the problem and moving to
extend discovery, Plaintiffs acted promptly enough to undercut
any argument that they were dilatory to the point of forfeiting
their right to seek a ruling on this issue.
For all of those
reasons, the Court will deny the motion to strike.
Peer Review or Quality Assurance Privilege
The fundamental disagreement between Plaintiffs and the
Hospital is over whether this particular privilege applies to
claims brought under federal law.
The Hospital argues that it
should, notwithstanding prior decisions from this Court (and this
Magistrate Judge) to the contrary, and that even if it is
inapplicable to some types of federal claims, it applies to the
claims presented here.
Plaintiffs take issue with both these
Before resolving that issue, the Court will
summarize the factual basis for the Hospital’s claim of privilege
- something which, as Plaintiffs point out, they were prevented
from delving into at Ms. Hiatt’s deposition because she was
instructed not to answer any questions about the process by which
she was ultimately told how to respond to Ms. Thomas’s letter.
The Hospital’s Peer Review Process
The only factual submission the Hospital makes on this issue
is a declaration from Dr. Richard J. Brilli.
an Exhibit to Doc. 128.
It is attached as
Dr. Brilli, who is the chief medical
officer at the Hospital, states in his declaration that the
Hospital has several peer-review committees which have, as their
mission, “improving quality of care or competency of care
provided and monitoring improvements in overall safety and
One of those committees reviews quality
of care issues reported by patients.
The evaluation of patient
grievances and complaints occurs within the CS STARS system, and
access to that system is limited.
He explains in this way how the system works.
If a patient
makes a complaint or submits a grievance, that complaint is
logged into the CS STARS database and forwarded to someone in the
Quality Improvement Services Department.
That person then
forwards the complaint to the “departmental or physician
leadership within the involved department....”
may be solicited as well from persons like Performance
Improvement Coordinators or Family Relations Coordinators.
Dr. Brill then states that Ms. Hiatt was, at the relevant
time, a Performance Improvement Coordinator in the Emergency
Department, and that she worked on behalf of a peer review
committee which reviews patient grievances.
Shawn Chambers held
a different job title, Family Relations Coordinator, but he did
the same type of work.
All of the discussions with either Ms.
Hiatt or Mr. Chambers about a patient grievance would take place
within the CS STARS system and would involve a particular quality
All of the physicians who are asked to
provide input into resolving a patient grievance are assured that
their input will be kept confidential.
Dr. Brilli states that
these assurances are “necessary for honest feedback” and that if
they were not given, people would not be as forthcoming in the
That effect would occur if information were disclosed
in a federal court, and it would diminish the Hospital’s ability
to “identify and implement potentially life-saving changes,
putting overall safety and patient care at risk.”
Finally, he confirms that the letter written by Ms. Thomas, and
responded to by Ms. Hiatt, went through this process.
The Relevant Correspondence
At this point, it is helpful to explain just what the
concerns were which Ms. Thomas expressed in her letter and which
Ms. Hiatt addressed in her response.
Ms. Thomas (and her husband
Daniel) wrote the letter in question on August 14, 2013.
Doc. 114, Ex. 1.
The letter referred to the Emergency Room visit
of May 23, 2013, and said that the child had been brought in for
x-rays of his hip and leg at the suggestion of his primary care
Ms. Thomas pointed out that a number of additional
tests, which she viewed as unnecessary, were run and done without
her consent, and that she was also told to bring a different
child in for tests.
She asserted that the tests were described
inaccurately when her insurance company was billed for them and
she disputed her or her insurer’s obligation to pay for them.
Finally, she asked for an “honest explanation” of why these tests
As noted above, Ms. Hiatt responded on December
6, 2013, that the treatment given was “clinically appropriate”
and that it “followed our hospital procedures as well as those
mandated by the State of Ohio.”
Doc. 114, Ex. 2.
Thomas letter nor the response made any mention of the quality of
the care provided or the competency of the physicians involved.
Ohio’s Peer Review Privilege
The next step in the analysis is to determine the scope of
the peer review privilege which the Hospital asserts.
if the privilege is not broad enough to cover the subjects raised
in the Thomas letter, there is no need to reach the issue of
whether the Court should apply it in this case.
The privilege in question is codified at O.R.C. §2305.252.
This is the most relevant language in the statute:
Proceedings and records within the scope of a peer
review committee of a health care entity shall be held
in confidence and shall not be subject to discovery or
introduction in evidence in any civil action against a
health care entity or health care provider, including
both individuals who provide health care and entities
that provide health care, arising out of matters that
are the subject of evaluation and review by the peer
review committee. No individual who attends a meeting
of a peer review committee, serves as a member of a
peer review committee, works for or on behalf of a peer
review committee, or provides information to a peer
review committee shall be permitted or required to
testify in any civil action as to any evidence or other
matters produced or presented during the proceedings of
the peer review committee or as to any finding,
recommendation, evaluation, opinion, or other action of
the committee or a member thereof.
The term “peer review committee” is defined in O.R.C.
a utilization review committee, quality assessment
committee, performance improvement committee, tissue
committee, credentialing committee, or other committee
that does either of the following:
(a) Conducts professional credentialing or quality
review activities involving the competence of,
professional conduct of, or quality of care provided by
health care providers, including both individuals who
provide health care and entities that provide health
(b) Conducts any other attendant hearing process
initiated as a result of a peer review committee's
recommendations or actions.
As this statutes plainly states, such a committee, in order to
qualify, must conduct proceedings which involve one of three
things: (1) the competence of a health care provider; (2) the
professional conduct of such a provider; or (3) the quality of
care given by a provider.
As the Ohio courts have said,“[t]he
purpose of the statute is to protect the integrity of the
peer-review process in order to improve the quality of health
See Smith v. Cleveland Clinic, 197 Ohio App.3d 524, 529
(Cuyahoga Co. App. 2011).
That case also notes that this
privilege, being in derogation of the common law, “must be
strictly construed against the party seeking to assert it and may
be applied only to those circumstances specifically named in the
Id. at 528.
The Court also notes that a reasonable
construction of the statute is that it applies only to activities
that are actually peer review proceedings (which, in the words of
the statute’s consist either of credentialing or “quality review
activities”), and not to every activity that a hospital might
label as “peer review.”
As the Supreme Court of Connecticut has
said, construing a very similar statute, “[s]imply because a
hospital committee is a medical review committee does not suggest
that all of its activities are considered peer review
Babcock v. Bridgeport Hosp., 251 Conn. 790, 822
See also Lee Medical, Inc. v. Beecher, 312 S.W.3d 515,
536 (Tenn. 2010)(the purpose of the peer review privilege is not
“to shield essentially every decision made by a hospital from
appropriately managed discovery in a civil case”).
It is apparent from the Thomas letter that the Thomases were
not questioning either the competence of any of the health care
providers who performed the procedures in question or the quality
of those procedures.
Rather, the clear thrust of the letter was
to question why the procedures were performed in the first place
and why the billing descriptions were, in the Thomases’ view,
inaccurate and deceptive.
If these subjects are covered by the
statute, they must be both construed as questions about the
“professional conduct” of a health care provider and have become
part of a “quality review” activity.
There is a substantial argument to be made that the letter
did not bring into question the quality of the “professional
conduct” of any individual health care provider.
questioned the Hospital’s procedures (as opposed to health care
decisions made by any individual provider) which led to the tests
being performed and the way in which the Hospital represented
those services on the bill sent to the Thomases’ insurer.
Surely, an administrative decision made by a hospital about how
to describe medical procedures to an insurer cannot reasonably be
characterized as part of a quality review process.
And, in the
Court’s view, asking why particular procedures were ordered,
absent any allegation they were performed less than competently and being told that the procedures were mandated by state law -13-
does not call into question the professional competence of any of
the doctors or nurses, because it appears that they did not make
the decision to perform those procedures.
That is especially so
with respect to the Thomases’ question about why their other
child was called in for tests; that could not have been a medical
decision made by an individual provider, but an administrative
decision made by the Hospital either because it believed that the
tests were mandated by state law or because, as Plaintiffs
allege, the Hospital had made an agreement with other
governmental agencies to request and perform such tests whenever
there was a suspicion about abuse of another child in the same
In short, there appears to the Court to be much in the
processing of the Thomases’ complaint which had nothing to do
with traditional peer review activities or with reviewing the
quality of the work of a health care provider.
The letter really
was asking how the Hospital made administrative decisions about
what to do when confronted with suspicions of child abuse and how
to describe such procedures, and why it made the decision to bill
those procedures to the affected families and their insurers.
Such matters cannot be shielded from discovery simply because the
Hospital decided to entrust the processing of such matters to a
committee which also performs peer review.
Were that not the
case, a health care facility could simply delegate all of its
functions to “peer review” committees and then invoke the
privilege to shield the details of even its administrative or
financial operations from discovery.
But that appears to be what
occurred here, and Ms. Hiatt should have been permitted to answer
not only the foundational questions which counsel sought to ask
about the process itself - which were proper in order to
determine if the activity she engaged in was actually peer review
in any sense - but also questions about any part of the process
which did not involve determining if any provider had acted
professionally or competently.
Rather than rest the entire decision on the fact that, for
the most part, the peer review privilege does not cover a process
which answers questions about either billing practices or
mandated investigatory procedures, the Court will also briefly
address the issue of whether the privilege should be applied at
all in this case.
This Court has already decided the privilege
does not exist in federal law and that there are no compelling
reasons to apply it when information otherwise protected by the
privilege is needed in order to support a valid claim asserted
under federal law.
See, e.g., Guinn v. Mount Carmel Health
Systems, 2010 WL 2927254 (S.D. Ohio July 23, 2010)(Kemp, M.J.),
citing, inter alia, Nilavar v. Mercy Health System–Western Ohio,
210 F.R.D. 597 (S.D. Ohio 2002).
The Hospital argues that
although that may be an appropriate ruling in cases where the
allegations do not sound in medical malpractice, such as
antitrust or employment discrimination cases, this case is
The Court disagrees.
As the Court’s review of the complaint shows, there is no
state law medical malpractice claim asserted against either the
Hospital or any individual health care provider.
constitutional claims are not predicated on any inadequacy in the
treatment provided, but rather on the performance of procedures
which were ordered not based on the medical conditions of the
children involved, but rather carried out under an agreement that
the Hospital would collect information which might be used by law
enforcement agencies without protecting the patients’
Simply put, this is neither a malpractice
case nor a case where the constitutional deprivations are
predicated upon malpractice - as, for example, would be true of a
prison inmate’s claim for the denial of adequate medical
treatment under the Eighth Amendment.
Consequently, the Court
need not decide if the peer review privilege should be recognized
in a case where the federal claims are based on malpractice,
because this is not such a case.
A final observation is in order.
The Court understands
fully the concern that if a health care provider believes that
his or her input into a peer review process may not be kept in
confidence, the provider may well be reluctant to participate
fully in the process, and that can impact the quality of health
care given to patients.
When the subject of a hospital inquiry
is not, however, whether a doctor or nurse failed to provide
adequate care or made some type of error, but rather what
administrative decisions led the hospital to conduct (or ask to
have a child brought in so it can conduct) specific procedures or
to decide to bill them to the patient or describe them in a
certain way on the bill, it is hard to see how any individual’s
reluctance to answer such questions would impact the quality of
the care provided to patients in a similar situation.
why the peer review privilege, when it applies, covers only
quality review proceedings and not other types of hospital
Consequently, entirely apart from the fact that
federal courts generally do not recognize this privilege, the
Court believes that not applying it to this particular situation
will not undermine the Hospital’s ability to provide quality care
to its patients.
For the reasons set forth above, the Court makes the
First, the motion to compel (Doc. 120) is
granted and the motion to strike (Doc. 121) is denied.
the motion to vacate deadlines (Doc. 111) is granted to this
Notwithstanding the existing discovery cutoff date,
Plaintiffs may conduct additional discovery to include a resumed
deposition of Ms. Hiatt and a deposition of Mr. Chambers.
Hospital shall, within 14 days, produce any documents previously
withheld on grounds of peer review privilege as they relate to
either Ms. Hiatt’s or Mr. Chambers’ investigation of any
inquiries, complaints, or grievances submitted by the Plaintiffs.
All discovery about this matter shall be completed within 30 days
of the date of this order.
All costs (but not attorneys’ fees)
associated with the reconvening of Ms. Hiatt’s deposition shall
be borne by the Hospital, but the Court does not otherwise make
any fee award in connection with the motion to compel.
Motion for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
The motion must specifically designate the
order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
The District Judge, upon consideration of the
motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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