On August 28, 2012, the Court handed down a merit decision in this case.  Read the analysis of the merit decision here.

Read the analysis of the oral argument here.

On July 10, 2012, the Supreme Court of Ohio will hear oral argument in the case of DeVries Dairy v. White Eagle Cooperative Assoc., 2011-1995. The issue in this case is whether, under the applicable circumstances, Ohio recognizes a cause of action for tortious acts in concert under the Restatement (2d) of Torts, § 876. The Court accepted this as a certified question from  Judge James Carr, who sits in the U.S. District Court in Toledo.

DeVries operates a commercial dairy farm in Marion County. In 2003, it became a member of White Eagle, a dairy farming cooperative.  Under the co-op membership agreement, White Eagle was the exclusive marketing and sales agent for all of its members. The co-op commingled proceeds from sales of its members’ milk and distributed proceeds evenly among members. White Eagle hired Jacoby & Co., and its subsidiary company, Dairy Support, Inc. (DSI) to manage its day-to-day operations, including determining buyers, terms of sales, and prices that co-op members would receive for their milk. In 2008 White Eagle reduced the proceeds it paid to DeVries, allegedly because DeVries refused to stop using bovine growth hormone in its cows. DeVries notified White Eagle that it was ending its contract with the co-op.

DeVries brought a suit in diversity in federal court in the Northern District of Ohio against White Eagle, Jacoby, and DSI, alleging various causes of action in tort and contract, including a claim for tortious acts in concert. Its amended complaint alleged that Jacoby and DSI owed a fiduciary duty to DeVries as a member of the co-op, and that White Eagle was aware of the actions Jacoby and DSI had taken in failing to pay DeVries the amount due under the membership agreement. DeVries argued that the defendants were liable in concert for the commission of these torts.  The trial judge granted summary judgment in favor of White Eagle on all claims except one narrow contract issue, but concluded that he could not determine whether the Supreme Court of Ohio has, or would likely, recognize a cause of action for tortious acts in concert, (aiding and abetting liability), and certified that question to the Supreme Court of Ohio. That claim is alleged against all three defendants.

The Restatement (2d) of Torts § 876, Persons Acting in Concert, reads as follows:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

DeVries argues that its amended complaint covers all three types of conduct set forth in § 876 of the Restatement, which it urges the Ohio Supreme Court expressly  to adopt.  The Ohio courts that have considered whether the tortious acts in concert cause of action is recognized have never expressly rejected it, but merely found that the facts of the particular case did not support the claim. The Supreme Court of Ohio considered the issue in Great Central Ins. Co. v. Tobias, 37 Ohio St. 3d 127, 524 N.E.2d 168 (1988), but found that the party making the claim had failed to prove that the principal committed a tort, which is a necessary element of the claim. DeVries points out that the Court’s failure to adopt the tort expressly in Tobias has led to a split among the Ohio Courts of Appeals. It argues that the Court should resolve the uncertainty by adopting § 876 as other states in the 6th Circuit and some neighboring states have done, and to recognize that lower Ohio courts have been treating it as the law already.  DeVries also argues that Ohio has a long tradition of recognizing common law claims from the Second Restatement of Torts, and that public policy favors the adoption of this section in order to hold accountable those who work in conjunction with others to cause harm.

White Eagle argues that DeVries has incorrectly construed the certified question too broadly—the question is not whether Restatement § 876 should be part of the law of Ohio, rather, it is whether a claim of tortious acts in concert exists in the “applicable circumstances of this case.” Thus, the Supreme Court is not being asked to decide whether the cause of action exists hypothetically, but rather whether it should exist based on these facts, which White Eagle assumes is breach of fiduciary duty.  White Eagle points out that every tort claim against it except for the concerted action claim has been dismissed. It argues that where the principal has not committed a tort, there is no concerted action claim. Furthermore, it argues that both it and Jacoby and DSI owed a separate and independent fiduciary duty to co-op members. Therefore, there is no need to recognize aiding and abetting liability where any one of the actors could be directly liable for its own breach. Finally, White Eagle argues that all of DeVries’ claimed damages are purely economic loss, and thus applying § 876 would be inconsistent with the economic loss doctrine, which prevents recovery in tort for purely economic loss.  White Eagle argues that essentially, this is a breach of contract case.

Jacoby and DSI argue that the Supreme Court did not actually recognize or adopt § 876  as the law in Ohio in Tobias, and say that simply disposing of a claim on its facts (as the Court did in Tobias) does not constitute implicit recognition of an aiding and abetting  cause of action. They argues that neither Ohio appellate courts nor out of state courts cited by DeVries have recognized the tort under similar facts.

The Ohio Association For Justice has filed an amicus brief in support of DeVries’ position. It argues that acting in concert, or aiding and abetting, has long been recognized at common law by a large majority of states. Recognizing the tort is consistent with the Ohio Constitution’s grant of a right to seek redress for injuries. Finally, it argues that § 876 codifies a basic moral principle- that citizens should refrain from encouraging others to do harm.

Student Contributor: Greg Kendall

On June 28, 2012, the Supreme Court of Ohio issued a merit decision in State v. Ramey,  2012-Ohio-2904. In a unanimous opinion written by Chief Justice O’Connor, the Court held that the filing of a motion to suppress by one criminal defendant does not automatically toll a co-defendant’s speedy trial time.

On October 7, 2009, Keith Ramey and Jonathan Keeton were arrested and then jointly indicted for aggravated robbery, felonious assault and breaking and entering, stemming from a theft at a tattoo parlor in Springfield Ohio. The robbery and assault charges contained a firearm specification. The state opted to try the two defendants together. After their arrest, Keeton was released on bond, but Ramey remained jailed until the trial.

At a pretrial conference on December 21, 2009, lawyers for both defendants told the trial court they would be filing pretrial motions. The next day Keeton filed a motion to suppress physical evidence seized from his father’s house, and statements he had made when he was arrested.  Ramey never filed any pretrial motions.  The trial court heard and overruled Keeton’s motions on January 5, 2010, and issued a scheduling order the next day, which stated that both lawyers had indicated their availability for trial beginning on February 1.  The trial was continued one extra day because the courtroom was unavailable on February 1.

On February 1, Ramey moved to dismiss the indictments for failure to try him within time.  Because he was jailed, the law requires that he be tried within ninety days. The court denied the motion on the ground that the matter had been continued by agreement of the parties. Ramey was convicted of four counts and sentenced accordingly. In the aspect of the case pertinent to this appeal, (the procedural posture is convoluted, and clearly explained in the opinion) the Second District Court of Appeals affirmed the trial court’s overruling of Ramey’s dismissal motion, on the grounds that Ramey’s speedy trial time was tolled by Keeton’s filing of a motion to suppress.

Some Fundamentals

The Supreme Court began by noting that the right to a speedy trial is a fundamental right for the accused under both the U.S. and Ohio constitutions. It is interesting how much more routinely the Court now cites the state, as well as the federal, constitution on such matters. In Ohio, this is codified at R.C. 2945.71, the speedy trial statute. The Court first found that Ramey was tried 118 days after his arrest, not the ninety days the law requires for a jailed defendant.

Waiver

A criminal defendant can waive speedy trial time. In State v. King, 70 Ohio St.3d 158, 637 N.E.2d 903 (1994),  at the syllabus, the Court held that “To be effective, an accused’s waiver of his or her constitutional and statutory rights to a speedy trial must be expressed in writing or made in open court on the record.”  As in the King case, the Court here found there was no definitive evidence of waiver, because neither Ramey nor his lawyer executed a written waiver of speedy-trial rights or expressly waived Ramey’s rights in open court on the record. The prosecution urged the Court to find an implied speedy trial waiver in this case.  The Court refused, finding that to do so would require it to ignore the unequivocal nature of its holding in King. So, next it turned to tolling.

Tolling

R.C. 2745.72 contains the exclusive list of things that can extend the speedy time requirements. The filing of pretrial motions by a co-defendant is not among them.  And the Court refused to add this reason to the statute—this Court doesn’t do stuff like that. So the holding of the case is that a co-defendant’s filing of pretrial motions does not automatically toll the time in which a defendant must be brought to trial. But wait!  It’s not over.

Continuance Other Than on the  Accused’s Own Motion

R.C. 2945.72(H) permits the speedy-trial clock to be tolled for the “period of any continuance granted on the accused’s own motion, and the period of any reasonable continuance granted other than upon the accused’s own motion.” This is where the messy record in this case comes into play.

The Supreme Court first held that the first part of section (H) was not implicated in Ramey’s case. Mere acquiescence to a trial setting by trial counsel, which the Court found is what had happened here, is not a continuance on the accused’s own motion.  It is significant that the Court made the finding that defense counsel in this case had “merely acquiesced” to the trial date.  At oral argument, the state had argued that the defense counsel had agreed to the trial date.  Defense counsel emphatically disagreed, arguing that indicating availability was not the same thing as agreeing to the trial date.

But the Supreme Court also found that the second part of R.C.2945.72(H) was implicated in Ramey’s case—which allows for a  continuance other than on the accused’s own motion, as long as it is reasonable. The Court held that the trial court had discretion to extend the trial date beyond the statutory time limit, if the continuance was reasonable, as required by the second clause of subsection (H).

State v. Mincey

The syllabus of  State v. Mincey, 2 Ohio St.3d 6, 441 N.E.2d 571 (1982)  holds “When sua sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial.”

That didn’t happen in this case. But, the Supreme Court was forgiving because under the Second District’s then-existing precedent, now reversed, a co-defendant’s motion did toll the speedy trial time of the other defendant.  So the Court found that the trial court ( the case had been re-assigned to a probate judge, apparently unfamiliar with such issues) “acted upon the mistaken belief that the time for trial was automatically extended by both Keeton’s filing of pretrial motions to suppress and Ramey’s counsel’s acquiescence in the trial date.” And, the Chief wrote, “we have recognized that an appellate court may affirm a conviction challenged on speedy-trial grounds even if the trial court did not expressly enumerate any reasons justifying the delay when the reasonableness of the continuance is otherwise affirmatively demonstrated by the record.”

Remand

The case was sent back to the court of appeals to determine, based solely on the existing record, (not on after the fact justifications) that the continuance was reasonable under the second part of R.C. 2945.72(H).

Concluding Observations

Chief Justice O’Connor is really to be complimented here.  The record in this case was such a mess and the oral argument got so wrapped up in what was or wasn’t in the record, that that I didn’t think the Court would even reach the merits of the issue presented.  I was wrong, and I’m glad I was, because as I said at the time, the issue was worth answering.  Not only did the Court answer the question before it, but did so in a clear and unequivocal manner, underscoring a first principle that the statutory extensions of the speedy trial requirements are to be “strictly construed, and not liberalized in favor of the state.” And I think it is good law to hold that the filing of a motion to suppress by one  defendant does not automatically toll a co-defendant’s speedy trial time. I’m a little surprised the Court didn’t turn that into a syllabus (the case has none).  And I did correctly see a remand to the appeals court, to sort out the messy details of the case.

 

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.

On June 20, 2012, the Supreme Court of Ohio heard oral argument in the case of Houdek et al. v. ThyssenKrupp Materials, NA, 2011-1076.

Bruce Houdek worked at ThyssenKrupp’s warehouse. He was assigned to light duty because of a previous injury. He was tagging inventory in a very narrow aisle, when he was crushed against the aisle racks by a side-loader. Houdek had told the side-loader operator he would be working in the aisle, but the operator forgot, and could not see Houdek because of the design of the machine. According to Houdek, a few days before the accident, the side-loader operator had expressed his concerns to ThyssenKrupp management about the dangers of operating the side-loader in a warehouse aisle when another employee was working in the same aisle on foot.

Houdek filed an employer intentional tort claim against ThyssenKrupp, seeking damages for his injuries. The trial court granted summary judgment in favor of ThyssenKrupp, finding that Houdek was unable to prove the requisite intent to injure.

R.C. 2745.01 has three parts pertinent to this appeal. Subsection (A) states that an employer shall not be liable for an intentional tort unless plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur. Subsection (B) defines substantial certainty to mean “that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” Subsection (C) creates a rebuttable presumption of intent to injure by the employer in two circumstances: an employer’s removal of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance.

In reversing the trial court for applying the definition of substantially certain set forth in R.C. 2745.01(B), the Eighth District Court of Appeals, found that “it could not harmonize” the definitions in the two sections because “substantially certain” and “deliberate intent to injure” cannot mean the same thing, and thus must have been the result of “a scrivener’s error”.  The appeals court also held that the requisite intent to injure can be proven by what a reasonable, prudent employer would believe. Read the oral argument preview of this case here.

It’s hard to believe that anything more can be said about the employer intentional tort after Kaminski v. Metal and Wire Co., and Stetter v. R.G. Corman Derailment Services, LLC, which upheld the constitutionality of the latest iteration of the employer intentional tort statute, not to mention all the cases preceding them, starting with Blankenship v. Cincinnati Milacron Chem. Inc. For the complete historical saga, read this post. But the Ohio high court insisted in Stettler that in enacting the newest version of R.C. 2745.01, the General Assembly had not killed off the employer intentional tort.  To which Justice Pfeifer had retorted—“what’s left?” At this point, euthanasia would be kind.

At oral argument absolutely no one advocated for the Eighth District’s “scrivener’s error” analysis.  And Justice O’Donnell asked each of the three lawyers who argued his opinion about that. (no takers). Clearly, that one is off the rails.  So, Houdek’s lawyers (Houdek’s argument was split between Houdek’s lawyer and amicus counsel for OAJ) had to revert to the “right for the wrong reason” approach.

Counsel for ThyssenKrupp argued that the one and only way to prove an employer intentional tort under subsection (A) is to prove specific intent. Subsection (A) does refer both to a direct intent and a substantial certainty intentional tort, since that is how the common law developed. But in enacting the current version of 2745.01, the legislature clearly intended to reign in the substantial certainty intentional tort.  It did so by writing a very narrow definition in subsection (B) of how to prove that tort. In order to establish liability under the substantial certainty prong of R.C. 2745.01(A), an employee must present evidence that the employer acted with deliberate intent. The Court already correctly recognized in Stettler and Kaminski that there is only one way to prove an employer intentional tort under subsection (A), and that is by proof of specific intent. And the Court of Appeals appeared to ignore that holding in this case. He also argued  that there is no subsection (C) claim in in this case, as there was no evidence raised at the trial court to support the specific requirements of that subsection. Finally, he asked the Court to reject the “reasonable employer” test adopted by the court of appeals, as totally inconsistent with the statutory intent.

Counsel for Houdek reminded the Court (as if that were necessary) that it had held in Kaminsi and Stetter that although the statute had curtailed the common law, it hadn’t killed it. The statute clearly provides two ways, not one, to prove intent for an employer intentional tort, plus the alternative requirements of subsection (C). Paragraph (A) provides two terms, each of which is further defined. Subsection B further defines substantial certainty. No one ever admits he or she deliberately intends to harm; that has to be proven by looking at all the surrounding objective facts and circumstances. In this case, the combination of the warnings to the employer combined with the employer’s directives to go do the job anyway was enough to get past summary judgment. And Houdek absolutely  did present a subsection (C) claim in this case.

Amicus counsel argued that the Court of Appeals was not defying Stetter and Kaminski­- the appeals court was just taking the Supreme Court at its word, trying to figure out exactly what was left of the employer intentional tort. Subsection A preserves the two part test –direct intent and substantial certainty—while Subsection B provides a new definition of substantial certainty, which now means deliberate intent. But it is still a two part test.  The fact finder must be allowed to infer the intent to injure from the surrounding circumstances. The Court of Appeals did the best it could with a confusing statute and came up with a sensible solution.

A Scrivener’s Error?  You’ve Got to Be Kidding????

Justice O’Donnell asked everyone.  No takers. Not even the appellees.

Haven’t we Already Decided the issues in this case with Kaminski?

Asked Justice Lanzinger.

And if we have, added Justice O’Donnell, what is left for the Court to write in this case? Are we dealing with an errant court of appeals which is refusing to follow our mandates? ( professor’s note. Justice O’Donnell always seems  especially aggressive about cases from the Eighth District, on which he once served).  How could the Court of Appeals decision be squared with Kaminski?

Justice Stratton commented that the court of appeals decision sounded like a dissenting brief in Kaminski. The appeals court clearly doesn’t like Kaminski and clearly tried to find a way around it and to get back to some version of substantial certainty.  What should the Supreme Court do about that errant child?

 Proving an Employer Intentional Tort.  Let Us Count the Ways.

Justice Lanzinger noted there were two different definitions within the statute—what did that mean? Was it just to encompass all that the Court has done with its prior cases? And what exactly is the difference between specific intent and deliberate intent?

The Ghost of Justice Andy Douglas.

Justice Pfeifer, who made it clear in Kaminski and Stetter that he thought the current statute was exactly the same as the one previously declared unconstitutional, asked ThyssenKrupp’s lawyer for an example of any employer intentional tort that would get past summary judgment that wouldn’t be a felony.  Justice Douglas used to have a lot to say on that subject. Take a look at  Johnson v. BP Chemicals Inc.

Does this Tort Still Exist?

Asked Justice Pfeifer again, who made clear in Kaminski and Stetter  that he thinks if it does, it is on life support.

Was there a Subsection C violation in this case?

Justice Lanzinger asked if such a violation would be co-terminus with a VSSR violation.

Justice O’Donnell and Justice McGee Brown both asked if failing to provide safety equipment was the same as removing it.

Isn’t What Happened in this Case Just Negligence?

Asked Justices Cupp and McGee Brown.  What moves this up to the level of intentional conduct? And Justice Lanzinger added that the legislature intended to keep anything sounding in negligence within the workers’ compensation regime.

How do you factor in the fact that the side-loader operator just forgot Houdek was working in the aisles. Did he deliberately forget?  Was that the theory? Asked Justice Stratton.

Where is the Evidence of Deliberate Intent in this Case?

Chief Justice O’Connor asked if there were enough facts to get past summary judgment on this issue.

Justice Cupp, who is seldom hostile, was so in this case to Houdek’s counsel.  He of course authored Kaminski and Stetter. Is deliberate intent the same thing as an employer wanting an employee to be injured? If not, why not? Was Houdek’s counsel saying that in this case the employer wanted the employee to be injured? What combination of factors showed that?

Is it just the fact they were in close proximity to one another, asked the Chief.  Is that what Houdek is basing his case on?

Justice Stratton, clearly buying none of this, asked, if the plaintiff’s theory of intent was,  “I warned my operator but I shouldn’t expect my operators to heed my warnings. My employees might forget to heed my warnings and therefore I intended this act.”

How it Looks from the Bleachers

Fuhgettaboutit. This tort case is deader than a mackerel, and the tort itself may be, too.  Other than subsection (C), which still has traction, (although not in this case), the Court might as well take it off the life support it left it hanging on after Kaminski  and Stetter,  and kill it for good. It’s hard to imagine any set of facts, as Justice Pfeifer asked, that now state a claim for an employer intentional tort. As far as the Eighth District Court of Appeals decision,  I think there may be some harsh language in the offing for pretty much ignoring Kaminski  and Stetter.  Courts of Appeals can’t do that.

Here’s Student Contributor Elizabeth Chesnut’s take:

Because the Justices focused their questions on the Kaminski decision, it seems that the Court will likely review the case in light of the plain language of Kaminski and the statute and reverse the Eighth District’s reversal of summary judgment.

 

 

 

Update: On November 21, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On June 20, 2012 the Supreme Court of Ohio heard oral argument in the case of Branch et al. v. Cleveland Clinic Foundation, 2011-1634.

Margaret Branch suffered a stroke during brain surgery performed by Dr. Andre Machado at the Cleveland Clinic. Branch claims this happened because the surgeon pierced the ventricle wall during the procedure; the Clinic disputes this. After a two week trial, the jury returned a unanimous defense verdict. The Eighth District Court of Appeals reversed, in a split decision.

Read the oral argument preview of the case here.

The issues raised by the Clinic in its Supreme Court brief were that the appeals court erred in finding (1) that the trial court abused its discretion in allowing the defense to present a computer re-creation of the surgery plan, (2) that the trial court erred in giving the “different methods” instruction and (3) that the trial court did not let Branch’s counsel argue the adverse inference theory to the jury.  But the oral argument centered almost entirely around the first issue.

Crucial to this surgical procedure is target planning done before the surgery to reflect the entry point, target point, and trajectory for the surgery. A complex computer software program fuses the patient’s head magnetic resonance imaging (MRI) and computer tomographic (CT) scans into a single image. From this fused image, the surgeon obtains a “probe’s eye view” of the brain to develop the target plan. This fused image is placed on a disc. The actual target plan data in this case is contained in Branch’s medical records.  But the fused image was missing. At trial, Dr. Machado, as the final defense witness, was allowed to re-create the target plan using a 3-D software system, to demonstrate to the jury how he had performed the surgery.

Each side in this case argued it was sandbagged.

Defense counsel argued the Clinic had to do the demonstration to refute Branch’s 11th hour trial tactic of making the “missing data” the keystone of her case. This demonstration did not go to the defense of the case of medical negligence; it was only done to refute the charge of missing data.  There was ample additional evidence to defend the case on the medicine. The reason there was no pretrial disclosure of the demonstration is that there was no allegation of any missing data then. The first time the defense learned of this was when plaintiff’s counsel submitted proposed supplemental jury instructions before trial. Defense counsel urged the Court to reinstate the jury’s defense verdict.

Plaintiff’s counsel contends Branch was blindsided by Dr. Machado’s 11th hour re-creation of his target planning for her surgery on a three-dimensional software system for the jury, disclosed to plaintiff’s trial counsel only minutes before Dr. Machado took the stand as the final defense witness.  He suggested the defense was playing “fast and loose” with its terms—the target data in the case, namely the co-ordinates, have never been missing.  That data is in the operative note, and is part of the medical record, and no one challenges its accuracy.  It is the fused image on the disc that is missing. And given that the surgeon knew he had a patient who had a stroke on the operating table, why would he not retain the disc that showed exactly how he performed the surgery? It is just not true for the defense to claim the demonstration had nothing to do with the defense of the case on the merits.  What the jury saw in the demonstration was that Dr. Machado cleanly missed the ventricle. The jury must have believed that what it saw in the demonstration was exactly what happened during the surgery. By contrast, the plaintiff’s own demonstration was just a hypothetical example of how the procedure was done. The case isn’t about demonstrative versus trial evidence.  It is about disclosure and fairness, and not applying the same rules to both sides. Branch should be allowed to try her case fairly.

Explain the Demonstration to Us Please

There were many questions showing that the justices were trying to understand the medicine and how the demonstration actually worked. Justice O’Donnell, as is his wont, led off with many specific questions.  What exactly did the demonstration consist of? What exactly did the doctor do with the probe? Was all of this projected onto a large screen?  Did any of it go back to the jury room? Chief Justice O’Connor asked for an explanation of when the surgeon looked at all of this in real time.

Justice Cupp asked exactly what it was the jury saw. An on-screen animation of the head and brain? Was this ever marked as an exhibit?

Motions, Anyone?

Justice Stratton asked if the Clinic made any motions to exclude reference to its missing data.

Justice Cupp asked if the plaintiff moved for a continuance when it claimed unfair surprise.

Playing Offense or Defense?

Justice McGee Brown asked what the plaintiff used for her demonstration. Did she have access to the same information as the defense did?

Both Justice Lanzinger and Justice Stratton asked whether the defense was only using the demonstration to refute the allegations of missing data.

Justice Stratton, who appeared overtly hostile to the plaintiff’s position, asked plaintiff’s counsel if there was any evidence the missing data claim was raised any sooner than in the proposed supplemental jury instruction a week before the trial.  Didn’t the trial court let the plaintiff and her expert talk about the missing data?  Wasn’t the defense trying to show the fused image wasn’t necessary because when using the coordinates you get the same result? She also noted in one of her questions an error in the appellate decision on missing  fused image and target data. The target data wasn’t missing, so that part of the opinion was wrong. If data is the core and key to this case, surely the defense is entitled to argue you can get the same result based on a demonstration based on data already in evidence—

What exactly did the defense say in opening statement about a demonstration, Justice O’Donnell wanted to know.

But it’s Only Demonstrative Evidence

Noted Chief Justice O’Connor. It wasn’t being offered for what actually happened. If that were the only piece of evidence to be presented, the plaintiff’s position would be stronger, but the demonstration just supplemented other evidence.

How was the defense demonstration prejudicial asked Justice McGee Brown. Plaintiff always argued Dr. Muchado pierced the ventricle wall, the defense said no he didn’t—isn’t this just a demonstration of the defense position? And didn’t the jury see the plaintiff’s demonstration also? Did the defense ever try to keep the medical record with the co-ordinates away from the plaintiff? (answer: no).

Justice O’Donnell asked whether there was a jury instruction that this was only demonstrative evidence and was not the actual procedure. Did the jury think this was what actually happened? Justice Lanzinger also asked if there was a separate jury instruction on how to evaluate demonstrative evidence.

So, Rose Mary Woods, What Happened to the Disc?

Chief Justice O’Connor seemed particularly intrigued by what happened to the disc. (no one knows, apparently). Was it saved and then erased? (does history repeat itself?) Why not adjust the co-ordinates? Otherwise isn’t there a trail for re-creation? (plaintiff’s counsel made it clear that no one disputed the accuracy of the co-ordinate data in the medical record)

Justice Stratton then immediately jumped in, noting that plaintiff’s expert testified that he rarely keeps his. (counsel disagreed). And wasn’t it up to the jury to evaluate the credibility of a re-creation?

Justice Cupp asked what plaintiff’s theory was on why the disc was “tossed”.

What Rule Would You Have Us Write?

Chief Justice Moyer always used to ask this question.  In this case, Justice McGee Brown asked it, in the key exchange of the day, noting that the entire argument had been entirely case-specific. Defense counsel answered, that actual evidence and demonstrative evidence should be treated differently, and that demonstrative evidence was flexible during trial.  Justice Pfeifer, seemingly incredulous, asked how that would possibly help any trial lawyer.  Justice Lanzinger suggested demonstrative evidence is not substantive evidence but is merely used to illustrate a principle.

How it Looks from the Bleachers

The Court never should have accepted this case.  It looks like error correction, pure and simple. As Justice McGee Brown asked in the key exchange of the day, what law could the Court possibly write in this case?  That demonstrative evidence is different from trial evidence?  Every trial lawyer and trial judge on earth already know that.

This looks like a split decision, probably in favor of the Clinic on the ground that this was just demonstrative evidence and the jury was told how to evaluate it. I can’t imagine a syllabus.  Justice Stratton’s questions sounded like she was sitting as second chair for the defense. Example of a question to the defense—“they claimed you had missing data, you took the data that existed, and plugged it into a computer model to show that all the data that was needed was still there—you did this in response to their claim they were missing pieces.” (query—what was that question, your honor?)

But the Chief and Justices Pfeifer and McGee Brown seemed to follow the plaintiff’s fairness argument.

Here is what student contributor Greg Kendall thought.

The court spent most of appellant’s time trying to understand the intricate facts and the nature of the demonstrative animation, until Justice McGee Brown’s question on rebuttal regarding what the Court’s holding should be. The Court made very little mention of the Court of Appeals’ decision and its questioning made it sound like this case will be about error correction. The justices were also clearly uncertain about how to handle the issue of the alleged missing evidence and what that means for both parties.

Final Update:

On March 15, 2016 the Supreme Court of Ohio finally dismissed this case as improvidently accepted for review. Slip Opinion No. 2016-Ohio-985. GMAC mortgage had filed for bankruptcy in 2012, none of the remaining plaintiffs in this case filed a proof of claim in the bankruptcy proceeding, and therefore cannot further pursue their claims in the federal proceedings. The issues raised in this case have now been fully resolved by the Supreme Court of Ohio in Anderson v. Barclay’s Capital Real Estate, Inc., 2013-Ohio-1933, which had been held for decision in the GMAC case, but was allowed to go forward once the bankruptcy petition was filed.

Further Update:

Because of the bankruptcy stay in this case, the Court allowed the case of Sondra Anderson v. Barclays Capital Real Estate Inc., d.b.a. Home
EqServicing, 2011-0908 to proceed.  This case raised similar issues to the GMAC case.  The Court heard oral argument in the case February 27, 2013.  Read the analysis of the HomeEq case here.

On Feb 8, 2012, the Supreme Court of Ohio heard oral argument in State of Ohio ex rel. Michael DeWine, Attorney General of Ohio, et al. v. GMAC Mortgage, LLC, et al. # 2011-0890.

The issue in the case is whether mortgage servicers are covered under the Ohio Consumer Sales Practices Act so as to be held liable for civil penalties under the Act for engaging in unfair or deceptive practices in the litigation of foreclosure actions. The case got to the Supreme Court by certified questions from federal court.  Read the posts about this case here and here.

Two days before the oral argument in the case, Attorney General DeWine filed a notice informing the Court of a potential settlement. According to the notice, several of the large mortgage servicing companies proposed settlement offers to the attorneys general of all 50 States. Under the terms of the proposed settlement, the state attorneys general would agree to dismiss certain civil claims against the servicers, including the claims raised in this case.

On April 25, DeWine filed a notice of settlement in the case, and advised the Court of the dismissal of his federal lawsuit against GMAC Mortgage. He informed the Supreme Court of Ohio that because he had dismissed his complaint against GMAC, he should no longer be listed as a party in this certified-question case. But he also combined the notice with a motion asking  the Supreme Court of Ohio not to dismiss this case, and to answer the certified questions sent from federal court, because a group of private homeowners who are still parties to this case have the same issues against GMAC Mortgage as he had raised. He asked the Court to change his status from “Petitioner” to “Amicus Curiae” in the case at bar,  in support of the homeowners, and to re-caption the case as Lois Blank, et al. v. GMAC Mortgage, LLC, et al.

On May 14, 2012 GMAC Mortgage, LLC filed for bankruptcy in the Southern District of New York.  On June 20, 2012, the Supreme Court of Ohio granted an automatic stay of further proceedings in this case, pending resolution of the bankruptcy case.

 

 

 

 

Update: On November 20, 2012, the Court handed down a merit decision in this case.  Read the analysis here.

On June 19, 2012, the Supreme Court of Ohio heard oral argument in the case of Michael L. Hawsman v. City of Cuyahoga Falls, 2011-1588.  Hawsman, a minor, injured his knee while using the diving board at the City of Cuyahoga Falls Natatorium and Wellness Center.  The Center is owned by the City of Cuyahoga Falls and includes an indoor swimming pool with a diving board.

Hawsman and his parents sued the City, claiming the diving board was negligently maintained, and that Michael was injured  because of a physical defect in the diving board. The trial court granted summary judgment in favor of the City, concluding that it was entitled to political subdivision immunity provided by R.C. 2744.02(A)(1). The Ninth District Court of Appeals reversed. Read the oral argument preview of the case here.

The parties in the case agree that the operation of a municipal swimming pool is a governmental function. The issue before the high court is whether the exception to immunity codified at R.C. 2744.02(B)(4) applies. That exception imposes liability for injuries caused by the negligence of city employees that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility.

The fundamental difference between the parties in this case is over the interpretation of the (B)(4) statutory exception language.

The City’s lawyer argued that the (B)(4) exception to immunity only applies to office buildings and courthouses, and an indoor swimming pool is neither. An indoor swimming pool may exist in a building, but it is not a building, in the sense that triggers an exception to immunity. The General Assembly simply did not intend for pools to be viewed the same way as office buildings or courthouses. One is recreactional, the other governmental.

Hawsman’s counsel argued that in Moore v. Lorain Metro. Hous. Auth. the Supreme Court rejected the argument that the (B)(4) exception applies only to buildings like courthouses and government buildings.  She argued that the City is asking the Court to rewrite the entire statute, changing the words “including, but not limited to” to “similar to”.  And the City is asking the Court to ignore the fact that the statute contains specific exclusions.

Amicus counsel for the Ohio Association for Justice, sharing time with Hawsman, argued that the only way the Court could side with the City is to interpret the words “including, but not limited to” to mean “limited to”—a reach clearly beyond what the legislature intended.  The plain meaning of the statute is to read “office buildings and courthouses” as examples, not as all the possibilities. What matters is whether there is a building being used in connection with a governmental function. He urged the Court to clarify the confusing plurality opinion in Cater v. Cleveland, and to adopt Chief Justice Moyer’s separate concurrence in that case. His position is that the purpose of the (B)(4) exception is to allow premises liability claims against political subdivisions in the same fashion as is permitted against all property owners, including the state.

Both sides agreed that if Hawsman prevails in this appeal, he would still need to prove that his injuries were caused by the negligence of a city employee and was due to a physical defect on the premises (the diving board in this case).  Those are contested issues of fact that were not resolved when the trial court granted summary judgment solely on the immunity issues.

Cater v. Cleveland

This 1998 unanimous, but totally fractured opinion, involved a 12 year old boy who died as a result of a near-drowning in a city-owned indoor swimming pool. The syllabus of this case holds that the operation of a municipal swimming pool, although defined as a governmental function in R.C. 2744.01(C)(2)(u), is subject to the exceptions to immunity set forth in former R.C. 2744.02(B) and to the available defenses enumerated in R.C. 2744.03. But the justices disagreed about which of the 2744.02 (B) exceptions applied in the case. Lead opinion author Francis Sweeney, who found that the (B)(3) exception applied, alone found that then-applicable (B)(4) exception would not apply to an indoor swimming pool. He wrote that “unlike a courthouse or office building where government business is conducted, a city recreation center houses recreational activities.” To him, applying the (B)(4) exception would unacceptably create liability for an indoor, but not for an outdoor pool, because the latter did not occur in a building. No other justice joined in that reasoning. Chief Justice Moyer wrote a separate concurrence, joined by two justices, arguing that the (B)(4) exception to immunity should apply in the case. He disagreed with the lead opinion that the application of the (B)(4) exception to this case would result in an artificial distinction between indoor and outdoor pools. He would find that both indoor and outdoor pools exist “within or on the grounds’ of buildings used in connection with the performance of the governmental function of operating a

What is a Building?

Justice Lanzinger asked if the real question is whether an indoor swimming pool is a building?

To Be Immune, or Not to Be  Immune. That is the Question. (Oy Vey, What Does this Statute Mean?)

Well, what about an escalator, asked Justice Stratton.  It isn’t listed in the statute, but it is clearly in a building. Or what about a pool in a separate section of an office building used for governmental functions?

But aren’t the purposes very different in operating a courthouse or office building than in operating a recreational facility where there is some recognition of assumption of risk, asked Chief Justice O’Connor. Not all buildings used in the performance of a governmental function have liability, she mused.  She also asked if the city was arguing that there is a blanket immunity for swimming pools owned and operated by a municipality, no matter where the pool is (answer: yes—it is a governmental function, regardless).

Even if someone drowns because the water is murky and there is no life guard on duty, asked Justice Pfeifer, a notorious sovereign-immunity hater.

Why doesn’t the exception apply in this case, asked Justice O’Donnell (answer from the city—because a swimming pool is not an office building).

Well, the pool is inside a building, noted Justice Cupp. Why aren’t the only exceptions to immunity the detention facilities listed at the end of the statute?

Justice McGee Brown asked the City’s lawyer if she contended that “including but not limited to” means “limited to” (yes)

So,  Justice Lanzinger asked the City’s lawyer, you are limiting the (B)(4) exception just to office buildings and courthouses (yes)

But the list of  specific exclusions that includes jails and places of detention doesn’t include natatoriums, said Justice O’Donnell.

Ahh, Precedent…

How on earth is the case like Moore Chief Justice O’Connor asked plaintiff’s counsel.  Isn’t an apartment building where children lost their lives in a fire inherently different from a natatorium where folks go for recreational activity? Where’s any assumption of the risk in a housing complex?

Should the Court just adopt Chief Justice Moyer’s concurrence in Cater asked Justice McGee Brown.

Swimming Away from the Issue at Hand…

Justice O’Donnell got into a lot of questions about the evidence of the physical defects on the premises.  Was there any? What was defective about the diving board? Was expert testimony needed to prove that? Was that evidence in this record? Does the City contest the defect issue? Are there factual disputes on the defect question?

Indoor Pool, Outdoor Pool—Does it Matter?

Is there a distinction between and indoor pool and an outdoor pool, asked Chief Justice O’Connor. If the same diving board was on an outdoor pool would the plaintiff be making the same argument? If there are buildings near an outdoor pool, how close would the buildings have to be to the pool to be considered part of it? Does it matter if the pool is enclosed within a building for the purpose of the plain meaning of the statute? What difference does that make when the focus is on the diving board?  Or whether there is a concession stand a few feet away?

How it Looks from the Bleachers

I’m not sure I see unanimity here, although a majority seems to be leaning toward interpreting the statute in a manner that does not limit the (B)(4) exception just to office buildings and courthouses, especially given the specific exclusions for detention facilities at the end of the statute.  A majority also seem inclined to  adopt then-Chief Justice Moyer’s position in Cater.  Chief Justice O’Connor and Justice Lanzinger seemed the most sympathetic to the City’s position recognizing a distinction between recreational and government use.  Justice Pfeifer, of course, legendarily disapproves of sovereign immunity, and is unlikely to interpret the statute in any way to add more immunity.  Ironically, the case in which he made his opposition to sovereign immunity so clear, Garrett v. Sandusky, 68 Ohio St.3d 139 (1994), involved a child drowning in a city-owned wave action pool. In that case, the Court held that a wave pool was not a swimming pool.

The case of  Houdek et al. v. ThyssenKrupp Materials, NA, 2011-1076   is all about the employer intentional tort, as if any more could be said about this topic.  To paraphrase President Ronald Reagan, here we go again.

Let’s start with some very basic fundamentals, probably known to all (but as a law professor I can’t resist)

Employees cannot sue their employers for negligent workplace injuries or occupational diseases. In return for giving up these rights, employees get compensation for these injuries and illnesses without having to prove fault, but accept lower benefits for the certainty of recovery. Employers give up their defenses, but don’t have to pay any damages and are protected from unlimited liability

This trade-off was Constitutionalized, initially in 1912, into Article II Section 35 of the Ohio Constitution. In January of 1924, Article II Section 35, was amended to make the workers’ compensation laws the exclusive remedy for workplace injuries and diseases.

The legislature also passed R.C. 4123.74 codifying the exclusivity of remedies provision. Complying employers couldn’t be sued for workplace injuries.

And so it seemed this was a very settled principle of law.

In 1982 came the bombshell. In Blankenship v. Cincinnati Milacron Chemicals, Inc., the Ohio Supreme Court created an exception to this fundamental principle of law.  It created a common law employer intentional tort cause of action.

The Court held that an employee is not precluded either by Article II Section 35 or by R.C. 4123.74 from bringing an intentional tort claim against his or her employer because injuries received by intentional conduct are not incurred in the course of employment .

No justice who participated in this case is still alive.

What happened next might be described as the Workers’ Compensation equivalent of the Thirty Years’ War.

First, the Court struggled with defining the contours of the employer intentional tort.  Then the legislature reacted by trying to limit the tort statutorily.  And the Court responded, quite angrily at times, striking down these legislative attempts.

Two years after Blankenship was decided, in Jones v. VIP Development Co., a 4-3 Court held in the syllabus that an intentional tort is an “act committed with the intent to injure another or committed with the belief that such injury is substantially certain to occur”. 

For purposes of simplicity and clarity, think of this as two brands of the employer intentional tort– direct intent and substantial certainty. The “substantially certain to occur” definition is what became particularly problematic over time.

In Jones, the Court explicitly rejected the proposition that an employer’s specific intent to injure is a necessary element of an employer intentional tort. Keep your eye on this ball!

The substantial certainty intentional tort grew very elastic. Many trial courts began accepting negligence and recklessness actions as substantial certainty intentional tort claims.

The legislature fought back.  It passed RC 4121.80, which took effect in August of 1986, defining “substantially certain” as requiring that an employer act with deliberate intent to cause an employee to suffer injury, disease, condition, or death.

RC 4121.80 was challenged in Van Fossen v. Babcock and Wilcox Co. At this point Justices Craig Wright and Andy Douglas had joined the court, and Justice Douglas took up the cause of the employer intentional tort with a vengeance. 

But in Van Fossen, authored by Justice Holmes, the Court did not consider the constitutionality of the new statute because the Court decided it could not be applied retroactively to the case because it was substantive, not procedural, even though the statute expressly states that it was to be applied retroactively. Because the Court found that R.C. 4121.80 could not be applied retroactively to this case, the Court did NOT deal with the constitutionality of that statute. That took three more years. Instead, the Court tried to clarify what was necessary to prove a common law intentional tort. In Van Fossen the Court adopted Section 8(A) of the Second Restatement of Torts and Section 8 of Prosser and Keaton on Torts as the definition of a common law intentional tort in Ohio.

Next came Fyffe v. Jeno’s Inc. in 1991, also written by Justice Holmes.  The Court slightly tweaked the Van Fossen syllabus to clarify the definition of the substantial certainty intentional tort.  At this point the elements and proof necessary for a common-law employer intentional tort were those set forth in Van Fossen, as modified slightly in Fyffe. 

The Court finally considered the constitutionality of R.C. 4121.80, with its very strict definition of employer intentional tort, in 1991, in Brady v. Safety Clean.  This is when the Court’s hostility toward the legislative effort really began to intensify. In Brady, the Court declared R.C. 4120.80 unconstitutional en toto because it exceeded the scope of legislative authority granted to the General Assembly under the Ohio Constitution.

Brady was a 3-1-3 plurality opinion, written by Justice Asher Sweeny.

Three justices—Douglas, Sweeney, and Resnick– believed that sections 34 and 35 of Article II of the Ohio Constitution were a restriction or limitation on the legislature’s authority to legislate in this field.  They believed that Section 34, the General Welfare Clause, only allows laws that further the comfort, health, safety, and general welfare of employees.  Since R.C. 4121.80 burdens an employee’s right to bring a common law employer intentional tort claim, it conflicts with section 34.  They also believed that Section 35 only authorizes the enactment of laws for injuries and occupational diseases that occur within the employment relationship, and intentional torts will always take place outside that relationship.

In a separate concurrence, Justice Herbert Brown disagreed that the General Assembly had no power to legislate in the area of employer intentional torts. He found that it did, in the exercise of its police power. But Brown found that R.C. 4121.80 violated provisions other than section 34 and 35, particularly the right to trial by jury by requiring that the Industrial Commission, rather than a civil jury, determine damages in an intentional tort action.

The legislature tried again.  It enacted R.C. 2745.01, effective November 1 1995. This statute again recognized both a direct intent and a substantial certainty intentional tort.  But it defined substantial certainty as “an act committed by an employer in which the employer deliberately and intentionally injures, causes an occupational disease of, or causes the death of an employee.” In this bill, the legislature also declared its intent to supersede almost all the high court’s decisions in this area from Blankenship forward.

The constitutionality of R.C. 2745.01 came before the Court in Johnson v. BP Chemicals Inc. in 1999.  The wrath of the Court in striking down this law was intense.  In a very confrontational 4-3 decision authored by Justice Douglas, joined by the liberal block of Justices Resnick, Francis Sweeney and Pfeifer, the Court found R.C. 2745.01 unconstitutional en toto, mostly because it violated Article II Section 34. Justice Douglas used some very harsh language in this decision:

“In Brady, the court invalidated former R.C. 4121.80 in its entirety, and, in doing so, we thought that we had made it abundantly clear that any statute created to provide employers with immunity from liability for their intentional tortious conduct cannot withstand constitutional scrutiny. * * * Notwithstanding, the General Assembly has enacted R.C.2745.01, and, again, seeks to cloak employers with immunity. In this regard, we can only assume that the General Assembly has either failed to grasp the import of our holdings in Brady or that the General Assembly has simply elected to willfully disregard that decision. In any event, we will state again our holdings in Brady and hopefully put to rest any confusion that seems to exist with the General Assembly in this area… RC 2745.01 created a cause of action that is simply illusory…The statutory requirements are so unreasonable and excessive that the chance of recovery of damages by employees for intentional torts committed by employers in the workplace is virtually zero.”

And yet, in Johnson, in the dissents, we begin to see the germ of what is going to become the majority position in Kaminski v. Metal & Wire Prods. Co. —that Sections 34 and 35 of Article II are both grants of authority and cannot be read as limiting the General Assembly’s power to enact legislation in the area of employer intentional torts.

As all the justices in the Johnson majority except Pfeifer begin to retire because of age, things began to change.  So the legislature tried again.  It enacted a new version of R.C. 2745.01, which became effective April 7 2005.  This is the statute challenged in Kaminski and its companion case, Stetter et al. v. Corman Derailment Services, LLC, et al.

 The statute again recognizes both a direct intent and a substantial certainty employer intentional tort.  It then defines substantial certainty to mean that an employer acts with “deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” That this is virtually exactly the same definition as in R.C. 4121.80, which was struck down in 1991 in Brady v. Safety Clean.

In R.C. 2745.01, both the direct intent and substantial certainty employer intentional torts required the employee to prove the employer acted with specific intent or deliberate intent to cause injury.  For this reason the Seventh District Court of Appeals struck it down.  A 6-1 Supreme Court, in a decision written by Justice Cupp, reversed this decision in Kaminski.

In Brady and in Johnson, the Court had held that Article II Section 34 placed substantive limits on the General Assembly’s authority to enact employer intentional tort legislation.  A majority of the court now completely disagrees with this, believing that Article II Section 34 is a broad grant of authority to the General Assembly, not a limitation on legislative power.

So in Kaminski, the Court upheld the constitutionality of RC 2745.01, but didn’t overrule Johnson. Justice Lanzinger wrote a separate concurrence to express her disagreement with this facet of the opinion.

Applying the statute to the case before it in Kaminski, the Supreme Court held that nothing in the record demonstrated that the plaintiff could prove that her employer acted with the specific or deliberate intent to injure her.

Justice Pfeifer, the sole remaining member of the Johnson majority, strongly dissented, writing that “in all pertinent regards, the statute this court addresses today is the same as the one it addressed in Johnson. Only the result in this case is different. “

In Stetter, the companion case to Kaminski, the Court also held that while R.C. 2745.01 significantly limited the common law employer intentional tort, it did not abolish it altogether. To which lone dissenting Justice Pfeifer suggested that there was really nothing left of it.

This is the backdrop to understanding the issues in the Houdek case.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The main issue in this case was whether the Dayton Civil Service Board had to follow the Ohio Rules of Evidence in its hearings.  In this particular case, Ronald Royse, a Dayton firefighter, was terminated for failing a drug test. He challenged the admission of the test results at the administrative hearing before the Dayton Civil Service Board, which admitted the evidence and upheld the firing.  The trial court upheld the decision of the Board , but the Second District Court of Appeals reversed, finding both that the Board had agreed to be governed by the Ohio Rules of Evidence and that the test was inadmissible hearsay.   Read an analysis of the arguments here. During the pendency of the appeal, however, Dayton changed its rule to make it explicit that the Board was not bound by the Ohio Rules of Evidence.  In my post, I wrote, “because of this change, there appeared to be strong sentiment among the justices to dismiss the case as moot or as improvidently allowed,”, and predicted it would be kicked.  On June 13, it was unanimously dismissed as improvidently accepted.  2012-Ohio-2574.

 

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument of this case here.

On June 20, the Supreme Court of Ohio will hear oral argument in the case of Houdek et al. v. ThyssenKrupp Materials, NA, 2011-1076.  The first issue on appeal is whether an employer intentional tort claim under R.C. 2745.01 is limited to those situations where an employer acts with specific intent to injure the employee.  The second issue is whether a plaintiff may establish an employer’s specific intent to injure by proof of what a reasonable employer may believe. For background on the employer intentional tort, read this post.

Bruce Houdek was employed at ThyssenKrupp’s warehouse, working under a temporary light-duty restriction as a consequence of a prior injury. ThyssenKrupp nevertheless ordered Houdek to tag inventory on a scissor lift. ThyssenKrupp also allegedly ordered the warehouse’s sideloader operator to travel at the machine’s maximum speed when retrieving materials from the narrow warehouse aisles. Houdek told the sideloader operator where he would be working, but the operator forgot Houdek was working in the aisle, and could not see him because of the design of the machine.  The sideloader operator crushed Houdek against the aisle racks. Houdek lost a leg due to the injury. According to Houdek, a few days before the accident, the sideloader operator had  expressed his concerns to ThyssenKrupp management about the dangers of operating the sideloader in a warehouse aisle when another employee was working in the same aisle on foot.

Houdek instituted this action against ThyssenKrupp, seeking damages for his injuries. The trial court granted summary judgment in favor of ThyssenKrupp, finding that Houdek was unable to prove the requisite intent to injure.

Subsection (A) of R.C. 2745.01 states that liability of an employer for an intentional tort requires that the plaintiff prove that the employer “committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.” Subsection (B) further explains that “substantially certain” for the purposes of the statute means “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.”

In reversing the trial court for applying the definition of substantially certain set forth in R.C. 2745.01(B), the Eighth District Court of Appeals, found that “it could not harmonize” the definitions in the two sections because “substantially certain” and “deliberate intent to injure” cannot mean the same thing, and thus must have been the result of “a scrivener’s error”.  The appeals court also held that the requisite intent to injure can be proven by what a reasonable, prudent employer would believe.

ThyssenKrupp first argues that the Court of Appeals erred in ignoring the statutory definition of “substantially certain”,  which was no mere “scrivener’s error”, and improperly ignored the Ohio Supreme Court’s key holdings in Stettler v. R.G. Corman Derailment Services, LLC, and Kaminski v. Metal and Wire Co., which upheld the constitutionality of R.C. 2745.01.   In those two key cases, ThyssenKrupp argues, the high court found that the legislatative intent was to limit recovery for the common law “substantial certainty” intentional tort, not to codify the common law cause of action first established in Blankenship v. Cincinnati Milacron Chem. Inc. There is absolutely no basis for the “scrivener’s error” holding. The Court of Appeals view that the General Assembly meant to establish different burdens of proof under subsections (A) and (B) is incorrect.  Both require specific intent to cause injury.  To hold otherwise is to ignore the express language of the statute, the historical development of the legislation, to oppose established principles of statutory construction, and to break from Supreme Court precedent.

ThyssenKrupp next argues that the Court of Appeals failed to follow the appropriate test to establish whether an employer acts with the intent to injure an employee. By applying a “reasonable, prudent employer” standard, the Court of Appeals applies a lesser standard than that which has existed under the Supreme Court of Ohio’s previous decisions. The law in Ohio, according to ThyssenKrupp, is well-settled that where a statute requires proof of a party’s specific intent, the application of an objective “reasonable person” test is inappropriate. Rather than focusing on the mindset of the alleged employer/ tortfeasor as the statute has been interpreted to mandate, the Court of Appeals shifted the focus to the mindset of a reasonably prudent employer.  Use of this lesser objective standard is incorrect.

Finally, ThyssenKrupp argues that the facts of the case depict nothing more than a simple accident caused by an employee’s forgetfulness, not an employer’s intent to injure an employee, and should not be construed to raise an issue of fact under the specific intent standard necessary to bring an intentional tort claim. As such, the Court of Appeals’ decision should be reversed and summary judgment reinstated.

Houdek concedes that his position before the high court isn’t aligned with the reasoning of the court of appeals, but that regardless of its reasoning, the appeals court reached the correct result and should be affirmed. He agrees that the legislature intended to restrict the common law employer intentional tort, but argues that it is now clear from the statute that there is more than one way to prove it.

Houdek first argues that his  intentional tort claim was never limited to the deliberate intent requirements of subsections (A) and (B) of the statute, but  always included a claim under subsection (C) for removal of a safety device (specifically the failure to use warning safety cones) to establish the requisite intent to injure. He argues subsection (C) applies to his case.

As for the interpretation of the statute, Houdek argues for a reading of the plain language of the statute over the “scrivener’s error” approach the Court of Appeals took. Houdek suggests that the legislature’s use of “or” in Subsection (A) requires no interpretation.  R.C. 2745.01 contains two separate legal standards: either the employer acted with the intent to injure or with the belief that the injury was substantially certain to occur/deliberate intent. The statute does not require proof of both, does not contain the word “specific”, and contains two separate and distinct levels of intent—not just specific intent to injure– to establish an employer intentional tort.

Houdek also concedes that use of a “reasonable employer” test is contrary to what the statute requires.  He argues that in an employer intentional tort case, intent can be proven by circumstantial evidence, gathered from all the facts and circumstances.  But he argues that the court of appeals conclusion reversing summary judgment was correct, regardless of its reasoning, because he presented sufficient factual evidence, including the deliberate removal of its safety cones, for the jury to infer ThyssenKrupp’s subjective intent to injure him.

Both the Ohio Association for Justice (“OAJ”) and the Ohio Association of Civil Trial Attorneys (OACTA)  have filed amicus briefs on behalf of their respective constituencies—OAJ in support of Houdek, OACTA in support of ThyssenKrupp.

Student Contributor: Elizabeth Chesnut

Update: On November 21, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument in this case here.

On June 20, the Supreme Court of Ohio will hear oral argument in the case of Branch et al. v. Cleveland Clinic Foundation, 2011-1634. This case challenges a number of alleged errors at the trial stage.

Margaret Branch suffered from a severe neurological condition in her neck called cervical dystonia.  In February of 2007 she underwent a relatively new form of brain surgery called Deep Brain Stimulation (DBS) at the Cleveland Clinic for that condition.   The procedure involved lacing electrodes in a particular region of the brain to prevent irregular nerve impulses. Branch signed a consent form acknowledging the potential risks of the surgery, which included paralysis, coma, stroke, and death.

The procedure required the surgeon, using imaging data, to develop a detailed “stereotactic target plan” before surgery to reflect the entry point, target point, and trajectory for the surgery. The surgeon had to avoid a critical region of the brain while inserting the devices. During the surgery, Branch suffered a stroke when the doctor breached that critical region with a cannula. Branch was left with significant and permanent injuries.The Clinic’s failure to keep the fused image of Branch’s brain and the original target planning data was a key aspect of Branch’s case.

At trial, Branch’s expert used a 2-D computer animation to demonstrate how the surgeon could have prevented Branch’s injuries had he properly planned the surgery beforehand. The surgeon had conceded earlier in the trial that the Clinic had not retained the images and data used to plan the surgery.  However, just before the surgeon returned to the stand as the final defense witness, the defense disclosed that the surgeon would re-create the plan using a 3-D software system. The trial court initially sustained Branch’s objection to this demonstration but later reversed the ruling and allowed the demonstration to proceed.

Second, the Clinic proposed, and the trial court permitted, the “different methods” jury instructions, where the jury is instructed that the fact that another surgeon would have used different methods does not by itself mean that the defendant surgeon was negligent.

Third, throughout the trial, Branch’s counsel asserted that because the images and data used to create the surgery plan were missing, the jury was entitled to draw inferences unfavorable to the Clinic. During closing arguments, Branch’s counsel mentioned the “coincidence that the best piece of evidence as to what happened [the images and data] is missing” and compared the case to the alleged cover up in the BP Oil Disaster. The trial court sustained defense counsel’s objection, admonishing plaintiff’s counsel in front of the jury that “there’s no suggestion that there’s anything willful about the destruction of any documents…and you will avoid that topic because there is no evidence to support it.”

After a two week trial, the jury returned a unanimous verdict in favor of the Clinic, which was reversed by the Eighth District Court of Appeals in a split decision.  On the assignments of error relevant to this appeal, the appeals court found that (1) the trial court abused its discretion in allowing the defense to present its computer re-creation of the surgery plan given the eleventh-hour disclosure, (2) the trial court erred in giving the “different methods” instruction and (3) Branch’s counsel was entitled to argue the adverse inference to the jury, and the trial court was wrong to prohibit counsel from discussing the missing image and target data plan.

On appeal to the Supreme Court of Ohio, the Clinic’s three propositions of law deal with the use of demonstrative evidence, the use of an adverse inference argument to the jury, and  the “different methods” jury instruction.

The Clinic first argues that the trial court properly allowed defense counsel to present an in-court demonstration of the re-created surgery plan, in spite of the eleventh-hour disclosure, because the plan was demonstrative evidence, which is very different from a trial exhibit that goes to a jury. The demonstration was done in an attempt to rebut plaintiff counsel’s repeated arguments regarding the adverse inference from the missing data. The Clinic argues that it had no notice until the last minute that Branch intended to make an issue of any allegedly missing data.

In response, Branch argues that demonstrative evidence needs to comply with the same standards as trial exhibits. The trial court’s allowing the demonstration was not “inconsequential” to the overall defense, because the demonstration was sold to the jury as a precise reconstruction of the operation procedures and ended up being one of the most important parts of the defense. Thus, Branch argues that the defense’s failure to disclose the demonstration was inexcusable and the trial court abused its discretion by not requiring disclosure.

Second, the Clinic argues that the Court of Appeals was incorrect when it held that Branch was precluded from arguing  an adverse inference of negligence to the jury.  The Eighth District confused the elements of a spoliation claim with the requirements for an adverse inference instruction—the latter not requiring evidence of intentional destruction.  The trial court properly sustained defense counsel’s objection to Branch’s counsel’s comparison of the case to the BP Oil Disaster (which it sustained because there was no evidence of intentional or willful destruction of evidence). But according to the Clinic, the trial court did not disallow adverse inference comments on the allegedly missing data plan. Thus, it argues that the Eighth District’s opinion creates a confusing and contradictory precedent that the Supreme Court should reverse.

In response, Branch argues that the trial court’s admonishment of plaintiff’s counsel during closing arguments undermined the plaintiff’s entire adverse inference theory which the jury had been instructed on up to that point in trial. Branch argues that the standards in Ohio for adverse inference and spoliation are not uncertain or inconsistent, and the Eighth District properly concluded that the trial court’s admonishment regarding the viability of the adverse inference claim was improper.

Third, the Clinic argues that the “different methods” instruction was proper. The Eighth District held that “different methods” evidence was irrelevant because Branch’s theory of negligence was based on the surgeon’s deviation from his own standard of care established by his own plan for the surgery, and was not based on any testimony recognizing alternative methods of treatment. The Eighth District explained that the instruction misled the jury into thinking that violating the standard of care that the surgeon himself had established did not necessarily mean that negligence had occurred.  The Clinic argues that the instruction was relevant because there was ample evidence adduced at trial that there were multiple possible ways to perform the same surgery and evidence of different methods popped up throughout the case.

In response, Branch argues that Ohio case law permits “different methods” instruction only if there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition. No such testimony was offered in this case, because the performing surgeon acknowledge that he had decided on a particular trajectory for the surgical device he was using in order to avoid a critical region of the brain; had he hit that region of the brain, he would have been off course. Branch says no other proof was offered to the contrary. Because the issue was whether the surgeon deviated from his own surgery plan, and not whether he had deviated from the standard methods used by other surgeons for the same surgery, there was no evidence of “different methods” offered at trial that would justify a jury instruction on the issue.

Student Contributor: Greg Kendall