On January 13, 2020, Welch, on behalf of Martello’s estate and in her individual capacity, filed suit under the FTCA, 28 U.S.C. §§ 2671–2680, 1346(b). The operative Complaint alleged that the VAMC failed to properly treat Martello’s AAA from the time of its discovery and to diagnose and treat the AAA at the emergency department on January 18, 2019. Welch brought claims of wrongful death, medical malpractice, negligence, and negligent infliction of emotional distress.
On July 5, 2021, Welch moved for summary judgment. She relied on the Institutional Disclosure recording and summary to argue that, because the VAMC representatives had expressed condolences and advised her of her right to file an administrative tort claim, the Government had admitted that it violated the standard of care. Therefore, she argued, summary judgment in her favor was warranted.
On March 14, 2022, the magistrate judge issued two separate decisions. First, he granted the motion in limine to bar plaintiff’s expert’s testimony under Rule 601(B) in a final order. Second, he issued a report and recommendation to deny Welch’s motion for summary judgment. In the motion in limine order, the magistrate judge explained that Johansen was not a competent expert because he did not meet the clinical practice requirements at the time of testifying. Thus, under Ohio law, his testimony was inadmissible. In the separate report and recommendation, the magistrate judge recommended denying Welch’s motion for summary judgment because there existed a genuine dispute of material fact as to whether VAMC’s treatment of Martello fell below the standard of care, and Welch was not entitled to judgment as a matter of law because she failed to provide required expert testimony on liability. Over Welch’s objection, the district judge adopted the report and recommendation to deny Welch’s motion for summary judgment on September 28, 2022.
On July 1, 2023, the Ohio legislature revised Rule 601(B)(5) to permit testimony from experts in medical liability suits who devoted half their professional time to practice or instruction “at either the time the negligent act is alleged to have occurred or the date the claim accrued[.]” Ohio Evid. R. 601(B)(5)(b); Frank, 2023 WL 6623635, at *1. Under the revised rule, medical experts are qualified to testify if they met the clinical practice requirements at the time of the
alleged medical liability but not at the time of testifying at trial. Ohio Evidence Rule 1102(Y) provides express instructions regarding retroactive application of the 2023 Rule 601(B) amendment in ongoing litigation. The amended rule would “govern . . . all further proceedings in actions then pending, except to the extent that [its] application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies.” Ohio Evid. R. 1102(Y).
On July 21, 2023, the Government moved for summary judgment on Welch’s claims. The court declined to retroactively apply the 2023 amendment to Rule 601(B) and refused to admit Johansen’s testimony; it also ruled that that Welch could not demonstrate a prima facie case for her medical claims without admissible expert testimony, a dispositive component of medical liability claims under Ohio law. And the court further ruled that Welch could not use remarks made at the Institutional Disclosure meeting to establish liability, because the Apology Statute rendered the remarks inadmissible. The district court granted the motion for summary judgment and entered judgment for the Government. Welch appealed.
The United States Court of Appeals for the Sixth Circuit stated in its February 3, 2025 Opinion: “Application of then existing Rule 601(B)(5) to Welch’s expert, Johansen, when he testified in 2021 shows Johansen was not competent to testify to Welch’s medical claims, because he was not devoting at least half of his professional time to active clinical practice or instruction at an accredited medical school. Then, on July 1, 2023, just 20 days before the district court granted summary judgment to the Government, the Ohio legislature amended Rule 601(B) to deem experts competent to testify if they met the clinical practice requirements at the time the complaint was filed. The parties do not dispute that Johansen was devoting half his time to clinical practice when the complaint in this case was filed, but Johansen had retired in June 2020, before introduction of his expert testimony. Therefore, whether Rule 601(B)(5)’s 2023 amendment applies is outcome determinative as to whether Johansen’s testimony is admissible. Welch argues that the amendment should apply retroactively to render Johansen’s testimony admissible.”
“In this case, when the Government moved for summary judgment, litigation had been ongoing for years. On April 22, 2021, the Government challenged Johansen’s competence under Rule 601(B)(5)’s clinical practice requirement. Welch had opportunities to seek a competent medical expert but did not do so because she “remained cautiously optimistic” that the Ohio legislature would amend Rule 601(B)(5). Reply Br., ECF No. 27, 22. Although the Ohio legislature did eventually amend the rule, by that time, fact discovery in this litigation was almost complete. On this record, the district court did not abuse its discretion when it declined to retroactively apply the Rule 601(B)(5) amendment and admit Johansen’s testimony.”
“To the extent Welch rests her argument on Cmolik and DePompei’s references to her right to file an administrative tort claim regarding liability, the Ohio Supreme Court has spoken: An apology can include an acknowledgment of potential liability. See id. On this record, therefore, the district court did not abuse its discretion in finding the contents of the Institutional Disclosure inadmissible under the Ohio Apology Statute.”
“Because Ohio law requires expert testimony in support of medical claims and Welch showed no applicable exception to that requirement, the district court properly granted summary judgment to the Government.”
Source Welch v. United States of America, No. 24-3367.
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