Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 05 2:40 PM-19CV000405 OE517 D39 IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO David Austin, Individually and as Administrator of the Estate of Bonnie Jean Austin, Deceased, Case No. 19 CV 0405 Plaintiff, Judge David C. Young vs. Mount Carmel Health System d/b/a Mount Carmel West, et al., Defendants. DEFENDANT WILLIAM S. HUSEL, MOTION FOR PROTECTIVE ORDER AND MOTION TO STAY PROCEEDINGS PENDING CRIMINAL PROSECUTION Defendant William S. Husel, D.O. Husel?), by and through counsel, hereby moves this Honorable Court for the entry of an order staying discovery and all proceedings in the above-captioned civil proceeding pending the final adjudication of the ongoing criminal investigation of potential criminal charges against Dr. Husel. Defendant also requests a protective order precluding Dr. Husel?s deposition from taking place at this time. The legal grounds for entry of the stay and protective order are fully detailed in the Memorandum in Support, which is attached hereto and incorporated herein. Respectfully submitted, ARNOLD TODARO WELCH FOLIANO CO., L.P.A. LAWOFFICESOF By: Gregory B. Foliano Gregory B. Foliano (0047239) WELCH 2075 Marble Cliff Office Park 77777777 Columbus, Ohio 43215 gfolianoi?iarnoid law. net (614)485-1800 Phone: (614) 485-1800 Fax: (614) 485-1944 Counsel for Defendant William S. Husel, D.O. ra OE517 - D40 LAW OFFICES OF ARNOLD TODARO WELCH FOLIANO 2075 MARBLE CLIFF OFFICE PARK COLUMBUS, OHIO 43215-1053 (6 1 4) 485- 1800 :lin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 05 2:40 PM-19CV000405 MEMORANDUM IN SUPPORT I. INTRODUCTION AND FACTS On January 15, 2019, Plaintiff filed the above-captioned civil proceeding against Dr. Husel and other parties. Plaintiff asserted multiple claims against Defendants. As part of the claims against Dr. Husel, Plaintiff alleges Bonnie Jean Austin received a lethal dose of medication. As represented in various media accounts, Dr. Husel is currently under criminal investigation by the Columbus Police and Franklin County Prosecutor?s Office for actions stemming from the allegations asserted by the Plaintiff. Consequently, on advice of his counsel assisting him in that matter, Richard H. Blake, Dr. Husel will exercise his Fifth Amendment privilege against self-incrimination during the pendency of this criminal investigation in response to all questions posed by Plaintiff and other parties. On January 25, 2019, before Defendants had an opportunity to file an Answer or even conduct any initial investigation in the claims, Plaintiff?s counsel David Shroyer unilaterally noticed the deposition of Defendant Husel. Undersigned counsel explained that Dr. Husel will be asserting his constitutional rights in the civil cases and could not be made available for a deposition at this time. Instead of withdrawing the notice, Mr. Shroyer simply resent it to defense counsel. Mr. Shroyer, as a practicing attorney and officer of the court, should know that Dr. Husel has constitutional rights. He should know that having Dr. Husel sit for a deposition at this time could violate those rights. Any decent practicing attorney would know the law. Any decent practicing attorney would know there is no good legal reason for noticing the deposition at this time. Mr. Shroyer?s ra OE517 - D41 LAW OFFICES OF ARNOLD TODARO WELCH FOLIANO 2075 MARBLE CLIFF OFFICE PARK COLUMBUS, OHIO 43215-1053 (614) 485-1800 :lin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 05 2:40 PM-19CV000405 reason must be a personal one: his need for attentionl. For these reasons, along with the stay, a protective order is requested. ll. LAW AND ANALYSIS The United States Constitution provides that a person shall not be compelled to be a witness against himself. US. Const. Am. V. This protection applies not just to prevent a person from being called as a witness against himself in his own criminal prosecution; it also protects a person from providing discovery in a civil proceeding which could then be used against him in a criminal proceeding. Baxter v. Palmigiano, 425 US. 308, 316 (1976). The determination of whether to issue a stay of proceedings generally rests within the court's discretion and will not be disturbed absent a showing of an abuse of discretion. State ex rel. Wallace v. Tyack, 13 Ohio St.3d 4, 5?6, 13 OBR 379, 380, 469 844, 846 (1984); State ex rel. Verhovec v. Mascio, 1998-Ohio-431, 81 Ohio St. 3d 334, 336, 691 282, 284. An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable decision. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 200, 202 (1996). A. This Court Should Grant A Stay Because of the Significant Overlap of Issues in This Proceeding With the Ongoing Criminal Investigation The allegations against Dr. Husel in both this proceeding and the police investigation involve the issue of Dr. Husel?s ordering of medication for patients. In answering Plaintiff?s Complaint, Dr. Husel will be required to reveal the principal defenses to the very issues at the heart of the ongoing criminal investigation. In light of 1 Mr. Shroyer was on the television news as late as the date of this filing (February 5, 2019), claiming he was going to depose Dr. Husel on Friday (February 8, 2019), even though he knew, through discussion with counsel a week ago, that the deposition was not going forward. 3 ra OE517 - D42 LAW OFFICES OF ARNOLD TODARO WELCH FOLIANO 2075 MARBLE PARK COLUMBUS, 43215-1053 (614) 485-1800 :lin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 05 2:40 PM-1QCV000405 the substantial overlap between issues in the civil and criminal cases, a stay of this adversary proceeding is appropriate. Refusing to grant a stay might also expand the rights of criminal discovery beyond the limits of Rule 16 of the Ohio Rules of Criminal Procedure, expose the basis of the defense to the prosecution in advance of trial, or otherwise prejudice Dr. Husel in the criminal matter. Based upon that factor alone and the serious risks presented as a result, this Court should stay the civil proceeding. B. This Court Should Grant A Stay Because Plaintiff Will Suffer No Resulting Harm Staying this proceeding will not harm Plaintiff, nor will it result in a miscarriage of justice. To the contrary, any findings resulting from the criminal investigation may be incorporated by Plaintiff. Moreover, should Dr. Husel be charged and convicted of a criminal infraction, such conviction will obviate much of the expenditures in legal fees and other expenses that the Plaintiff would otherwise incur, as well as court resources and time. Dr. Husel?s interest in preserving his Fifth Amendment rights exceeds any delay that may result from a stay. Accordingly, this Court should stay this proceeding. C. This Court Should Grant A Stay Because Dr. Husel Will Otherwise Suffer Harm and Prejudice Because Dr. Husel intends to assert his Fifth Amendment right during the pendency of the government?s criminal inquiry, he will suffer extensive harm if this Court refuses to grant a stay. No citizen should be penalized for asserting his or her constitutional right against self-incrimination. Moreover, as set forth above, Plaintiff will not be harmed by a stay. ra OE517 - D43 LAW OFFICES OF ARNOLD TODARO WELCH FOLIANO 2075 MARBLE PARK COLUMBUS, 43215-1053 (614) 485-1800 :lin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 05 2:40 PM-1QCV000405 The harm to Dr. Husel, and any individual under criminal investigation, by not granting a stay is substantial. By requiring Dr. Husel to testify, knowing that he will assert his right under the Fifth Amendment not to do so at this time, he will be prevented from adequately defending his position and be subject to an adverse inference by a jury. While the Fifth Amendment forbids adverse inferences against parties to criminal actions when they refuse to testify, it does not forbid such inferences in civil actions. Palmigiano, 425 US. at 318. If this Court refuses to grant a stay, Dr. Husel will be faced with the possibility that his silence will result in adverse inferences, or perhaps his testimony will be used to his detriment. Such strong interests of Dr. Husel outweigh any inconvenience to Plaintiff and thus support the staying of this proceeding. D. This Court Should Grant A Stay to Promote Judicial Economy Courts will stay civil proceedings where a stay promotes the efficient disposition of civil actions. Here, a stay of this case will further this interest ofjudicial economy. For example, the availability of transcripts and other evidence from a criminal trial may eliminate altogether the need for certain depositions. The outcome of a criminal case may also encourage settlement due to the high standard of proof required in a criminal prosecution. Moreover, many of the issues in a civil proceeding will likely be disposed of in a parallel criminal proceeding, whereas if a civil proceeding continued first, pertinent information would probably be withheld under the Fifth Amendment. Accordingly, the Court should stay this civil proceeding. E. This Court Should Grant A Stay Because it will Further the Public Interest. A court is justified in granting a stay where delay of the civil proceeding would not seriously injure the public interest. Here, the public interest is under no threat of serious ra OE517 - D44 LAW OFFICES OF ARNOLD TODARO WELCH FOLIANO 2075 MARBLE CLIFF OFFICE PARK COLUMBUS, OHIO 43215-1053 (614) 485-1800 :lin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 05 2:40 PM-19CV000405 injury because it is the prosecutor who purports to act for the public in this case? not the Plaintiff. The prosecution of the parallel criminal matter is already underway. There is thus no public interest threat whatsoever. Accordingly, the Court should stay this civil proceeding. F. This Court Should Grant A Protective Order In the instant action, Plaintiff?s counsel has unilaterally filed a deposition notice for Dr. Husel. This deposition was noticed just 10 days after suit was filed and before Defendant filed an Answer (or was even required to). It was noticed before Plaintiff?s counsel even filed an affidavit of merit of a qualified expert as required by statute. An amended notice was filed even after Defendant?s counsel explained that Dr. Husel was not going to be able to testify at that time. Due to the pending criminal investigation, it is not appropriate to compel Dr. Husel to give testimony in this civil action until the criminal investigation is concluded. As stated above, if Dr. Husel were compelled to give a deposition in this civil case, it could undermine his rights under the Fifth Amendment, expand the rights of criminal discovery beyond the limits of criminal procedure, and expose the basis of the defense to the prosecution in advance of a potential criminal trial. As such, Defendant respectfully moves this Court for a protective order. CONCLUSION In light of the foregoing, Dr. Husel respectfully requests that this Court grant a protective order and stay this proceeding pending completion of the parallel criminal proceeding. Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 05 2:40 PM-1QCV000405 OE517 D45 Respectfully submitted, ARNOLD TODARO WELCH FOLIANO CO., L.P.A. By: Gregory B. Foliano Gregory B. Foliano (0047239) 2075 Marble Cliff Office Park Columbus, Ohio 43215 gfciiaho?amcidiawnat Phone: (614) 485?1800 Fax: (614) 485-1944 Counsel for Defendant William S. Husel, D.O. CERTIFICATE OF SERVICE I hereby certify that on the 5th day of February, electronically filed the foregoing with the Clerk of the Court using the ECF/eFiling system, which will send notification of such filing to all counsel of record. In addition, I certify that a copy of the foregoing has been served on the following: John H. Burtch Talon Schroyer, R.P.H. Baker Hostetler LLP 1017 Creekview Drive 200 Civic Center Drive Marysville, Ohio 43222 Suite 1200 Columbus, Ohio 43215 Yussuf lbrow, R.N. iburtch?zbakeriawcom c/o Mount Carmel West Hospital Counsel for Defendant 793 West State Street Mount Carmel Health System Columbus, Ohio 43222 Isl Gregory B. Foliano Gregory B. Foliano (0047239) LAW OFFICES OF ARNOLD TODARO WELCH FOLIANO 2075 MARBLE CLIFF OFFICE PARK COLUMBUS, OHIO 43215-1053 (614) 485-1800