Appellate Practice
American Bar Association Litigation Section
Fall 2021, Vol. 41 No. 1
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August 27, 2021
Silly Lawyer Tricks XXV
You’re probably not on the winning side of the argument
when the court uses the term “striking legal emptiness.”
By Tom Donlon
This is the latest column in our continuing series on real mistakes and misdeeds by real
lawyers in cases on appeal.
Frank v. Good Samaritan Hosp. of Cincinnati, 848 F. App’x 191 (6th Cir. 2021)
This is an appeal that went bad from the start—and only got worse for the attorney.
The case began as a medical malpractice action, seeking class-action status, claiming the
hospital had a duty to retain medical records for a minor until age 21. The trial court
denied class certification and granted judgment under Federal Rule of Civil Procedure
54(b) against the plaintiff’s claim of negligent destruction of medical records. See Frank v.
Good Samaritan Hosp., 2019 WL 6877647 (S.D. Ohio Dec. 17, 2019). Plaintiff’s counsel took
an immediate appeal.
The appeal was initially dismissed for failure to pay the filing fee. See Frank v. Good
Samaritan Hosp., 2020 WL 1488767 (6th Cir. Jan. 24, 2020). Plaintiff’s counsel moved to
reinstate the appeal, claiming to have paid the fee. However, that motion was denied
because the district clerk had been unable to process the claimed payment. Three months
later, counsel again moved to reinstate the appeal, having finally paid the fee. Over the
hospital’s objection, the appeal was reinstated six months after initially filed. After five
motions for extension of time, plaintiff’s counsel filed his principal (and only) brief in
November 2020.
After canceling oral argument, the Sixth Circuit issued a one-paragraph opinion denying the
appeal because counsel “failed to make any argument that Ohio recognizes such a tort [of
negligent destruction of medical records].” See Frank v. Good Samaritan Hosp., 843 F. App’x
781 (6th Cir. 2020). The court stated the “striking legal emptiness of his brief means he
abandoned the argument and forfeited his appeal.” Id.
