Update: On September 27 2018, the Supreme Court of Ohio dismissed this appeal as improvidently accepted.  Read more about that here.

Read an analysis of the oral argument here.

On April 24, 2018, the Supreme Court of Ohio will hear oral argument in Wells Fargo Bank, N.A. v. A. Christopher M. Burd f.k.a. Christopher M. Burd et al., 2017-0279.  The issue in this case is whether a lender’s failure to satisfy the timing requirements of 24 C.F.R. 203.604, which requires it to have a face-to-face meeting with a delinquent borrower or make reasonable efforts to do so before “three full monthly installments” are unpaid, bars an action to foreclose the mortgage if the lender has the meeting after the three month time period, but prior to filing the foreclosure action.  Justices O’Donnell and DeGenaro have recused themselves from the case.  Sitting for them respectively are Judge Robin N. Piper III of the Twelfth District Court of Appeals and Judge Charles Miller of the First District Court of Appeals.

Case Background

In September 2006, Appellee A. Christopher Burd obtained an FHA insured mortgage loan from Centennial Home Mortgage to buy a house in Columbus. He signed a note secured by the mortgage, and Centennial later endorsed that note and assigned the mortgage to Appellant Wells Fargo Bank. The mortgage contained a provision stating that foreclosure on such a loan is not authorized unless also authorized by Housing and Urban Development (“HUD”) mandatory regulations governing FHA loans. Both the note and the mortgage contain a statement that the lender’s right to foreclose is conditioned on compliance with the HUD regulations.

Burd missed payments under the loan, and on April 22, 2009, Wells Fargo filed its first complaint against Burd, seeking judgment on the note and foreclosure on the mortgage. On December 1, 2010, the parties entered a loan modification agreement, and Wells Fargo dismissed the initial complaint.

On February 10, 2012, Wells Fargo filed a second complaint, seeking  judgment on the note and foreclosure on the mortgage, and interest from September 1, 2011. As part of the second lawsuit, on August 1, 2012, the parties participated in court-sponsored mediation but were unable to resolve the case. Franklin County Common Pleas Court Judge Colleen O’Donnell (daughter of Justice O’Donnell, which is why he recused himself from the case) then granted summary judgment in favor of Burd on the second foreclosure claim, holding Wells Fargo had failed to comply with 24 C.F.R. 203.604 because it had not conducted or attempted to conduct a face-to-face meeting with Burd within three months of Burd’s first missed payment.

On August 18, 2014, Wells Fargo filed a third complaint, again seeking judgment on the note, foreclosure on the mortgage, and interest from September 1, 2011. Wells Fargo argued that the mediation from the second litigation counted as the “face-to-face” meeting for purposes of 24 C.F.R. 203.604, despite the fact that the meeting fell outside the three month requirement of the statute. Judge O’Donnell again granted summary judgment to Burd, holding the failure of Wells Fargo to timely comply with the face-to-face meeting requirement of the regulation resulted in a complete bar to recovery under the note and the mortgage. Wells Fargo appealed.

Court of Appeals Decision

The Tenth Appellate District unanimously affirmed the decision of the trial court as to the mortgage, but not the note, on the third foreclosure complaint, both in an original decision, and in a  decision upon reconsideration, finding that the mediation had taken place after the second foreclosure action had been filed, was based on the same default as alleged in the second complaint, and failed to comply with the face-to-face meeting requirement in the regulation (Both the trial court and the appeals court assumed, without deciding, that the court-ordered mediation could count as a face-to-face meeting). The appeals court held that, in essence, Wells Fargo attempted to revive the second complaint in the third one by using the unsuccessful mediation as compliance with 24 C.F.R. 203.604 and, in doing so failed to comply with “the letter or the spirit of the regulation.” The appeals court noted that, because the third case arose from the same default date as the second, Burd had no opportunity to avoid foreclosure, which is the main purpose of the HUD face-to-face meeting requirement.

Votes to Accept the Case

Yes: Justices O’Neill, Kennedy, French, and DeWine

No: Chief Justice O’Connor and Justice Fischer

Not Participating: Justice O’Donnell.

Key Precedent

24 C.F.R. 203.500 (“It is the intent of the Department that no mortgagee shall commence foreclosure or acquire title to a property until the requirements of this subpart have been followed.”)

24 C.F.R. 203.604(b) (“The mortgagee must have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid.  If default occurs in a repayment plan arranged other than during a personal interview, the mortgagee must have a face-to-face meeting with the mortgagor, or make a reasonable attempt to arrange such a meeting within 30 days after such default and at least 30 days before foreclosure is commenced…”)

12 U.S.C. 1715 u(a) (Loss Mitigation)(“Upon default or imminent default…mortgagees shall engage in loss  mitigation actions for the purpose of providing an alternative to foreclosure…as provided in regulations by the Secretary.”)

Wash. Mut. Bank v. Mahaffey, 2003-Ohio-4422 (2nd Dist.) (lender’s failure to meet the timelines in 24 CFR 203.604 mandates dismissal of foreclosure without prejudice until the lender complies.)

Freedom Mtge. Corp. v. Vitale, 2014-Ohio-1549 (5th Dist.)(Lender permitted to proceed with foreclosure despite not attempting to hold face-to-face meeting until two years after first missed payment, since lender held the meeting prior to foreclosure.)

(7th Dist.) (requirement of face to face meeting is not mandatory, but is merely “aspirational.”)

Bank of Am. v. Bobovyik 2014-Ohio-5499 (7th Dist.) (Timing of the letter offering the face-to-face meeting in relation to the timing of the notice of intent to accelerate is immaterial, since Bank of America attempted to hold the meeting prior to filing for foreclosure and therefore complied with the condition precedent to foreclosure. Thus, the meeting itself, but not the timing requirement, is a condition precedent to foreclosure.)

Wells Fargo Bank v. Isaacs, 2010-Ohio-5811 (1st Dist.); Washington Mutual Bank v. Mahaffy, 2003-Ohio-4422 (2nd Dist.) Huntington Natl. Bank v. Filippi, 2015-Ohio-3096, (3d Dist.) (all holding borrower can raise non-compliance with FHA regulations as a means of preventing judgment of foreclosure.)

Wells Fargo Bank v. Awadallah, 2015-Ohio-3753 (9th Dist.) (lender must satisfy both requirements of “reasonable effort” to meet face-to-face, both the invitation by mail and sending person to the borrower’s house.)

Lakeview Loan Servicing, LLC v. Dancy, 2016-Ohio-7106 (9th Dist.) (Ohio courts require specific, not general, compliance with HUD regulations; held a lender cannot rely on notice that did not meet HUD specifications.)

Wells Fargo’s Argument

Noncompliance with 24 C.F.R. 203.604 does not bar foreclosure so long as the mortgagee meets with the borrower some time prior to initiating a foreclosure action. The obligation to hold the meeting or attempt to hold the meeting is mandatory, but the timing is “aspirational,” as held by the Second, Fifth, and Seventh Districts. Here, because Wells Fargo complied with the face-to-face requirement prior to filing the third foreclosure action, it should be allowed to proceed with mortgage foreclosure.

The Tenth District rewrote 24 C.F.R. 203.604 by reading into the regulation penalties for non-compliance with the timeline (forfeiture of the foreclosure action) which are not contained in the regulation itself. Although the regulation at issue requires a face-to-face meeting, it, unlike other portions of the regulation, is silent on the penalty for failing to meet the specified timeline. In keeping with other portions of the regulatory scheme, the penalty for non-compliance with the timeline is that the lender must cure the error (and hold the meeting) before foreclosure, and may suffer a monetary penalty, to be assessed by HUD. This reading is consistent with the common law, which holds that failure to comply with a condition precedent is grounds for dismissal without prejudice, and allows for the offending party to re-file once the condition has been satisfied. If HUD intended a forfeiture of the foreclosure action, a result abhorred at common law, it would have said so.

Burd’s “interest curtailment” theory is not supported by the regulations, as it is not contained in the law or in case law addressing the regulations. No court has held that if a lender fails to have a meeting within 90 days, it must forfeit all interest. Further, under other sections of the regulations, a mortgagee is only required to “self-curtail” in applying for insurance reimbursement from HUD, after the occurrence of certain events. This indicates that HUD would specifically require curtailment in this situation, if that was its intent. Finally, HUD already has regulations which detail the express consequence for a mortgagee’s failure to comply with the timing provisions of 24 C.F.R. 203.604, and these are potential administrative penalties.

The “interest curtailment” argument also ignores Burd’s liability under the note, as “curtailing interest” would excuse Burd’s liability. If the court were to adopt Burd’s interest curtailment theory, a mortgagee would be precluded from collecting monies under a note for not holding a face-to-face meeting, even though nothing in 24 C.F.R. 203.604 (or any other regulation) provides for that result.

Finally, as to Burd’s contention that the mediation meeting was “not proper,” he did not raise the issue below and this court should not address a question not ruled on below. Furthermore, both the lower court and the appeals court assumed without deciding that the face-to-face mediation meeting met the regulatory requirement.

Burd’s Argument

24 C.F.R.203.604’s three month timing regulation is mandatory, as evidenced by the directive “must,” and Wells Fargo failed to comply with it by failing to hold or make a reasonable effort to hold a face-to-face meeting with Burd within three months of Burd’s first missed payment. Wells Fargo’s interpretation of the timeline as “aspirational” strips the clause of meaning and asks the court to rewrite the unambiguous, mandatory provision. The unambiguous consequence of missing the three-month deadline is that the lender cannot initiate the foreclosure action.

Further, Wells Fargo’s interpretation is inconsistent with the meaning and spirit of the HUD regulations, which are designed to benefit both homeowners and lenders, because its interpretation would give lenders the benefits of the risk sharing insurance plan without requiring them to abide by the features that differentiate the program from traditional mortgages.

Contrary to Wells Fargo’s interpretation, just because the three month requirement is mandatory, does not mean Wells Fargo will be forever barred from foreclosing on the mortgage. Instead, Wells Fargo can bring the case within the timeline by declaring the loan current or curtailing interest, holding the meeting, and then suing for foreclosure.

Wells Fargo failed to hold a face-to-face meeting with Burd at any point. The mediation session participated in as part of the second litigation does not count for purposes of the regulation, which is designed to allow the borrower to evaluate the options the borrower has in order to try to avoid foreclosure. In the litigation context, after the suit has progressed and parties are required to mediate, that purpose becomes impossible to achieve.

Wells Fargo’s Proposed  Proposition of Law No. 1

In interpreting an administrative regulation, a court should adopt an interpretation that is consistent with the overall regulatory scheme in which the individual regulation is included.

Wells Fargo’s Proposed  Proposition of Law No. 2

A mortgagee’s failure to comply with the timelines provided in 24 C.F.R. § 203.604 does not bar an action to foreclose a mortgage insured by the Federal Housing Administration as long as the mortgagee holds or makes a reasonable effort to hold a face-to-face meeting prior to initiating foreclosure.

Amici in Support of Burd

The following organizations jointly filed an amicus brief in support of Burd: Legal Aid Society of Southwest Ohio, LLC, The Legal Aid Society of Cleveland, Advocates for Basic Legal Equality, Inc. Community Legal Aid Services, Inc. and Pro Seniors, Inc.

The organizations that contributed to this amicus curiae provide low-income clients with legal services and work to secure justice and resolve problems for the low income and vulnerable. They argue that the HUD/FHA (the FHA is now a subdivision of HUD) regulatory framework is designed to get at early loss mitigation and is aimed at minimizing defaults and lenders’ claims on the insurance fund. The brief sets forth in detail the HUD/FHA regulatory scheme.

The amici argue that the regulation’s use of the word “must” applies both to the face-to-face meeting itself and to the three month deadline to have the meeting, and calling the timeline “aspirational” contradicts basic statutory interpretation, as “aspirational” applies only to terms with no clear meaning.  They argue that Wells Fargo was noncompliant with the mandatory deadline of the regulation, and that the court should affirm the decision of the Tenth District. Further, they argue that the rulings below do not preclude Wells Fargo from ever bringing a foreclosure action. Wells Fargo can cure the noncompliance through interest curtailment, by resetting the loan before three missed payments and conducting the meeting prior to filing another action.

The amici submit this proposed proposition of law:

An FHA-insured lender cannot initiate foreclosure without complying with the plain language of 24 C.F.R. § 203.604(b) and that includes the three-month deadline contained within the regulation.

Student Contributor: Kristen Elia

 

Update: Read about the disposition of this case here.

Read an analysis of the argument here.

On April 24, 2018, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. James L. Dunson, 2017-0186. At issue in this case is whether, in a post-conviction motion to waive or modify court costs after they have been imposed, a trial judge must consider an indigent defendant’s present or future ability to pay in assessing such costs.

Case Background

On March 15, 2013, James Dunson was convicted of two counts of murder and a number of lesser offenses. After merging various offenses and merging the two murder counts,  Montgomery County Court of Common Pleas Judge Dennis J. Adkins sentenced Dunson to fifteen years to life for murder, plus three years on a firearms specification. After his conviction, Dunson was ordered to pay restitution in the amount of $3869.10 and court costs in the amount of $6,199.10. No fines were imposed. Dunson appealed his conviction, which was upheld.

On December 28, 2015, Dunson filed a post-conviction motion to vacate or stay court costs, fines, mandatory fines and/or restitution. Dunson filed an affidavit of indigency along with the motion, which included a proposed payment plan. The state filed no reply. Judge Adkins denied Dunson’s motion, without a hearing. Dunson appealed.

In a split decision written by Judge Mike Fain and joined by Judge Jeffery E. Froelich, the Second District Court of Appeals held, after ordering additional briefing, that the trial court had erred in failing to consider Duncan’s indigency and ability to pay the court costs and in failing to determine whether garnishment of his prison account was prohibited by any exemption statutes. The restitution order was upheld. Judge Michael T. Hall concurred as to the restitution order, but dissented over the court costs.

The State brings this appeal.

Votes to Accept the Case

Yes: Justices Kennedy, French, Fischer, and DeWine.

No: Chief Justice O’Connor, and Justices O’Donnell and O’Neill

Key Precedent

R.C. 2947.23 (costs of prosecution shall be assessed against the defendant in all criminal cases; court retains jurisdiction to waive, suspend, or modify the payment of these costs, at the time of sentencing or thereafter.)

R.C. 2329.66 (Setting forth list of exemptions from garnishment to satisfy a judgment or order.)

R.C. 2949.14 (provides for collection of court costs from non-indigent felons.)

Ohio Adm. Code 5120-5-03 (Court order for payment of funds from inmate’s account.)

Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…and to have the assistance of counsel for his defense.”)

James v. Strange, 407 U.S. 128 (1972) (“State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect.”)

United States v. Glover, 588 F.2d 876 (2d Cir.1978) (“If the statute directed that costs of prosecution be assessed against all convicted defendants, there would be some basis for concern that it served to ‘chill the assertion of constitutional rights by penalizing those who choose to exercise them.’”)

Bearden v. Georgia, 461 U.S. 660 (1983) (“This Court has long been sensitive to the treatment of indigents in our criminal justice system.”)

State ex rel. Pless v. McMonagle, 139 Ohio App.3d 503 (8th Dist. 2000) (“A declaration of indigency for purposes of a criminal proceeding,  cannot be used to avoid the collection of court-imposed costs.”)

State v. White, 2004-Ohio-5989 (A trial court may assess court costs against an indigent defendant convicted of a felony as part of the sentence. (Syllabus Paragraph 1) Waiver of the costs is permitted but not required if the defendant is indigent.)

State v. Threatt, 2006-Ohio-905 (Court costs imposed at sentencing “are not punishment, but are more akin to a civil judgment for money.”)

State v. Clevenger, 2007-Ohio-4006 (“R.C. 2947.23 requires a trial court to assess costs against all criminal defendants, and to do so even if the defendant is indigent.”)

State. v. Fuller, 2013-Ohio-3274 (2nd Dist.)(“A trial court has no duty to waive court costs; it has discretion whether to do so, and R.C. 2949.092 does not provide standards for the exercise of that discretion.”)

State v. Copeland, 2016-Ohio-7797 (2nd Dist.) (“Although a trial court need not consider whether a defendant has a present or future ability to pay court costs when court costs are assessed, the trial court should consider the defendant’s ability to pay when a defendant subsequently moves for a waiver, modification, or stay of the payment of court costs. The collection provisions of the Ohio Administrative Code, while perhaps relevant, are not dispositive.”)

State’s Argument

As Judge Hall noted in his dissent in Copeland, “there is no case law, there is no statute, there is no regulation, and there is no exercise of discretion that requires a trial judge to explicitly consider an incarcerated defendant’s ability to pay court costs when ruling on a post-judgment motion to waive or stay payment of court costs.” The state fully agrees with this position.

Under R.C. 2947.23, a trial court may waive the costs assessed to convicted defendants. It creates no requirement to do so, even in cases of indigency. The statute is unambiguous and clear. Furthermore, R.C. 2949.092 does not establish any standards for trial courts in exercising discretion to waive or not waive costs. The Second District Court of Appeals ignored the plain meaning of R.C. 2947.23(C), effectively supplanting the legislature through its holding.

If the Court determines that R.C. 2947.23(C) is ambiguous, statutory interpretation prevents the Second District’s holding. The legislature made no requirement for the trial judge to consider a defendant’s present and future ability to pay fines or sanctions under R.C. 2947.23. In contrast, the legislature has required such considerations under other statutes, such as with the imposition of financial sanctions.  R.C. 2947.23 lacks the exact type of consideration that other statutes require. If the legislature had intended for the trial court to consider the defendant’s ability to pay court costs, the legislature would have required its consideration.

Dunson’s claim that monies in his prison account are exempt from garnishment to satisfy the order of costs is a civil matter. The last resort for Duncan if he has exhausted all other civil remedies, is to seek an action in mandamus against the prison. But he has not exhausted his administrative remedies, such as the inmate grievance procedure or objection to the removal of the funds from his account.

The Second District’s holding ignores the administrative process and requires trial courts to determine matters already within the purview of the prison system.

Requiring the trial court to consider an inmate’s ability to pay court costs at any time during the inmate’s incarceration is unworkable. Likewise, such a requirement would allow inmates to simply go around the prison’s administrative rules by going directly to the trial court. And what would happen if an inmate filed objections with both the prison and the trial court at the same time? If the trial court were to consider the inmate’s ability to pay, what evidence would be required? The determination should remain with the prison.

Dunson’s Argument

While it is completely appropriate for the trial court to impose punishment for the criminal conduct that led to Dunson’s conviction, the conduct that caused the accrual of court costs was Dunson exercising his constitutional right to a trial by jury. By refusing to waive court costs on this basis, the trial court impermissibly burdened this fundamental right.

This Court should construe R.C. 2947.23 as requiring trial courts to consider a defendant’s present and future ability to pay court costs when ruling on a motion to waive, suspend, or modify the payment of these costs. The State’s proposition of law offers no guarantee of an indigent defendant’s ability to petition for relief from costs on the grounds of extreme financial hardship. Just as the Court in Fuller determined that the Sixth Amendment protected a defendant from being charged fees for exercising his right to counsel, this Court should determine that the Sixth Amendment protects Dunson from being charged fees for exercising his right to a jury trial.

For indigent defendants who can foreseeably pay costs, imposing costs is not unconstitutional. For those who cannot foreseeably pay costs, imposing costs is unconstitutional under Fuller.

R.C. 2949.14’s requirement that clerks collect costs only from nonindigent defendants demonstrates the legislature’s intention to consider a person’s financial situation before costs are collected. R.C. 2303.23’s grant to trial judges of the ability to waive collection further demonstrates this intention.

There is a distinction between financial sanctions, like those in a civil case, and court costs. While financial sanctions have a punitive intention, court costs do not. Court costs are intended to lighten the burden on taxpayers.

The State’s proposition of law provides no guide to trial courts and creates the risk of insulating such decisions from appellate review, a denial of constitutional Due Process. This Court should hold that trial courts must consider an indigent defendant’s current and future ability to pay when ruling on a motion to vacate, stay, or remit court costs. The trial court in this case did not do so.

State’s Proposed Proposition of Law

A trial court need not consider an inmate’s present or future ability to pay court costs, or determine whether any exemption statutes prohibit collection from an inmate’s account, when ruling on a post-conviction motion to vacate, stay, or remit court costs.

Dunson’s Proposed Counter Proposition of Law

When a defendant files a motion to waive, suspend, or modify the payment of the costs of prosecution in accordance with R.C. 2947.23(C), and establishes his indigence, the trial court must consider present or future ability to pay those costs when ruling on the motion.

Amici in support of Dunson

The following civil rights organizations submitted a joint amicus brief in support of Dunson: The American Civil Liberties Union of Ohio Foundation, The American Civil Liberties Union Foundation, The Southern Poverty Law Center, and The Lawyers’ Committee for Civil Rights Under Law.

A substantial majority of jurisdictions require an ability-to-pay determination at some point before collection of court costs, as should the Supreme Court of Ohio.

The purpose of assigning court costs to a defendant is to mitigate the burden on taxpayers. This purpose falls short when attempting to assess funds from defendants who are, and will almost certainly remain, indigent. Court costs may not be punitive measures, so courts must consider a defendant’s ability to pay any assigned costs. Failing to make such a consideration is unreasonable, arbitrary, and capricious. And the burden of court costs upon an indigent defendant effectively becomes punitive.

The trial court’s denial of Dunson’s motion to waive court costs establishes the trial court’s punitive intent: “Defendant made the choices which led to the accrual of the fees at issue, and he must take responsibility for his conduct, as well as the resulting consequences.”

The ambiguity of R.C. 2947.23(C)’s “continuing jurisdiction” requires the Court to consider the legislative intent of the statute, which calls for consideration of present and future ability to pay.

The administrative grievance process does not waive a court’s requirement to consider ability to pay.  Such administrative relief would be temporary in nature. The relief under R.C. 2947.23(C) would be permanent.

Compelling indigent defendants to pay court costs burdens their ability to exercise their constitutional right to trial by jury and is, thus, unconstitutional. States cannot act to chill the exercise of constitutional rights—here specifically the Sixth Amendment. The Supreme Court of the United States is especially concerned with protecting indigent defendants’ access to justice.

The Supreme Court of the United States has determined that recoupment laws must afford indigent defendants the same exemptions as civil debtors and that, even when those exemptions are the same, the Sixth Amendment may be violated when financial pressures compel defendants to waive the right to counsel.

Garnishment from an indigent convict’s account exacerbates the convict’s poverty and creates a barrier to reentry into society. Garnishment has a ripple effect which also imposes a burden on the families of indigent convicts. Families’ attempts to contribute to prisoner accounts furthers the families’ poverty. Thus, the state’s burden of costs adds to an already vicious cycle of poverty.

Draining an indigent convict’s commissary account through garnishment creates inhumane conditions of confinement which implicate the Eighth Amendment. Garnishments deny Dunson, and prisoners like him, the ability to access medical care and purchase basic necessities.  Also, continued indebtedness is likely to produce or worsen long-term mental health issues. The totality of these circumstances creates cruel and inhumane conditions of confinement.

Amici’s Proposed Proposition of Law

Trial courts must consider ability to pay on a post-conviction motion to modify costs, as a matter of statutory and constitutional law and public policy.

Student Contributor: Mark Tassone

Update: On  October 31, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On April 11, 2018, the Supreme Court of Ohio will hear oral argument in the case Steven Schmitz et al v. National Collegiate Athletic Ass’n et al, 2017-0098. At issue in this case is whether a diagnosis of a latent brain disease sufficiently tolls Ohio’s statute of limitations under the discovery rule, and whether the fraudulent concealment and constructive fraud claims should be subject to the two year or four year statute of limitations. The case will be argued at Ottawa-Glandorf High School in Putnam County as part of the court’s off-site program.

Case Background

Steven Schmitz was a running back and receiver for the University of Notre Dame du Lac (“Notre Dame”) football program from 1974 to 1978. During this period, the university was a member institution of the National Collegiate Athletic Association (“NCAA”) (collectively, the “Defendants”).

Almost forty years later, in December of 2012, Schmitz was diagnosed at the Cleveland Clinic with chronic traumatic encephalopathy (“CTE”). CTE is a latent disease of the brain, which is purported to be the result of repetitive head impacts. At fifty-seven, Schmitz suffered from memory loss, early onset Alzheimer’s disease, traumatic encephalopathy, and dementia.

Less than two years after his diagnosis, in October of 2014, Schmitz and his wife Yvette filed suit against Notre Dame and the NCAA for negligence, fraud by concealment, constructive fraud, breach of express and implied contract, and loss of consortium. In sum, Schmitz alleged that the Defendants knew, or should have known, about the increased risks of brain injury football posed to players during and after their collegiate careers, but the Defendants ignored these risks. Schmitz died on February 13, 2015, and his estate was substituted as plaintiff with Yvette acting as the fiduciary. Yvette remained a plaintiff in her individual capacity.

On September 1, 2015, Cuyahoga County Court of Common Pleas Judge Deena R. Calabrese granted the Defendants’ motion dismissing Schmitz’s complaint as time-barred.

The Appeal

In a unanimous decision authored by Judge Mary J. Boyle, joined by Judges Larry Jones, Sr. and Frank Celebrezze, Jr., the Eighth District Court of Appeals reversed the trial court’s dismissal on statute of limitations grounds of Schmitz’s claims of negligence, fraudulent concealment, constructive fraud and loss of consortium, affirmed the dismissal of the contract claims as time-barred, and not subject to the discovery rule, and affirmed the dismissal of the constructive fraud claim against NCAA on non-statute of limitations grounds. Following other courts addressing similar issues around the country, the Eighth District found that the discovery rule applied to Schmitz’s latent brain injury because it was unknown until he received his formal diagnosis in 2012. The court also found a prior toxic-tort case, Liddell v. SCA Servc., to be particularly instructive.

The Eighth District also held that the claims of fraudulent concealment and constructive fraud were separate and distinct from the claims for bodily injury, and therefore, were subject to the four year statute of limitations in R.C. 2309.09(C).

Votes to Accept the Case

Yes: Justices O’Donnell, O’Neill, French, and Fischer.

No: Chief Justice O’Connor, and Justices Kennedy and DeWine.

Key Statutes and Precedent

R.C. 2305.10(A) (“an action for bodily injury . . . shall be brought within two years after the cause of action accrues.”)

R.C. 2305.09(C) (An action on the ground of fraud “shall be brought within four years after the cause thereof accrued.”)

Andrianos v. Cmty. Traction Co., 155 Ohio St. 47 (1951) (Holding that Ohio’s prior iteration of R.C. 2305.10(A) “govern[ed] all actions the real purpose of which [was] to recover damages for injury to the person.”)

Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982) (“A motion to dismiss a complaint under Civ. R. 12(B) which is based upon the statute of limitations is erroneously granted where the complaint does not conclusively show on its face the action is barred by the statute of limitations.”)

O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84 (1983) (“When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant.”) (syllabus)

Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179 (1984) (per curiam) (The statute of limitations begins to accrue when a claimant “possessed knowledge sufficient to lead a reasonably prudent person to make inquiry and had such inquiry been made with reasonable care and diligence.”)

Gaines v. Preterm-Cleveland, Inc., 33 Ohio St. 3d 54 (1987) (“[A] cause of action in fraud, is separate and independent from malpractice.”)

Allenius v. Thomas, 42 Ohio St. 3d 131, 133, 538 N.E.2d 93 (1989) (Under the cognizable event doctrine, a claimant does not need to “be aware of the full extent of the injury.”)

Erickson v. Scotsman, Inc., 456 N.W.2d 535, 539 (N.D. 1990) (“[W]hen a plaintiff is aware of his or her injury, but not the full extent of those injuries, a ‘discovery rule’ should not be applied to toll the statute of limitations.”)

Liddell v. SCA Serv. of Ohio, Inc., 70 Ohio St. 3d 6 (1994) (Extending O’Stricker’s rule of accrual to an individual exposure to toxic gas, which manifested itself six years later.)

Pingue v. Pingue, 2004-Ohio-4173 (5th Dist.) (In order for the discovery rule to apply, there must be (1) discovery of the injury and (2) discovery of the wrongful conduct. Since this plaintiff knew the perpetrator and that he had been injured, his claims were time-barred.)

Flagstar Bank, F.S.B. v. Airline Union’s Mortgage Co., 2011-Ohio-1961 (A cause of action for professional negligence exists from the time the wrongful act is committed.)

MacDonald v. Cleveland Income Tax Bd. of Review, 2017-Ohio-7798 (“When there is a conflict between a general provision and a more specific provision in a statute, the specific provision controls.”)

Defendants’ Argument

The Eighth District erred by applying the discovery rule to an injury that manifested itself immediately, but even if the rule did apply, Schmitz had actual or constructive knowledge of the injury at issue and who caused it prior to the 2012 diagnosis.

Generally, a claim exists and begins to accrue when the tortfeaser commits the “wrongful act” underlying the claim. The exception to this—the judge-made discovery rule—does not apply when the injury manifested itself immediately. Therefore, the claims at issue began to accrue when the injuries actually occurred, in the 1970s. Even though Schmitz may not have been aware of the “full extent” of his injury, that alone does not prevent the statute of limitations from accruing. The Defendants argue that “limiting the discovery rule to latent injuries, as opposed to the latent effects of already-known injuries, is consistent with the rule’s purposes.”

The Eighth District was wrong in finding CTE to be separate and distinct from the concussions Schmitz suffered while playing. And the appeals court mistakenly relied on Liddell, which involved a latent injury, not a latent effect of an already known injury. CTE as alleged in the complaint would be better characterized as the latter. However, if this Court finds Liddell applicable to cases involving long-term effects, then it should limit it to contexts like toxic tort claims where liability relies on documentary evidence, which does not lose reliability over time, rather than on individual memories. Plus, any plaintiff, within the statutory period, can recover damages for future harms.

This unwarranted expansion of the discovery rule frustrates the purpose of Ohio’s statutes of limitations – protecting defendants from stale and fraudulent claims. These policy matters should be left to the General Assembly. This Court should reverse the Eighth District, enforce the statutes created by Ohio’s legislature, and find that all of Schmitz’s claims are time-barred.

Also, this Court should clarify that Andrianos v. Cmty. Traction Co. remains good law and precludes plaintiffs from circumventing the statute of limitations for claims of bodily injury by disguising them as actions for fraud. The Eighth District failed to address this binding precedent, and in its stead, rejected traditional rules of statutory construction by failing to apply the more specific two year statute of limitations in R.C. 2305.10(A) to all of Schmitz’s claims.

Schmitz’s Argument

This Court should affirm the Eighth District, which correctly held that Schmitz’s claims were timely filed, only eighteen months after his diagnosis of CTE. The appeals court properly applied the discovery rule, and did not expand it at all.

Defendants effectively seek to have this court prevent anyone afflicted with CTE (likely former football players similar to Schmitz) from ever having a claim proceed to the merits of the case. Contrary to the Defendants’ mischaracterization, CTE is a latent neurological disease and is fundamentally different from the concussions and head trauma Schmitz suffered while participating in Notre Dame’s football program. More importantly, Schmitz was unaware of any injuries—especially his latent brain disease—until his diagnosis. That was when his injury manifested itself for the purposes of the discovery rule.

The Pingue case is not as instructive as the Defendants contend. Pingue involved a plaintiff who knew his perpetrator and was completely aware of that perpetrator’s criminal and tortious conduct for almost three decades. That is why the Eighth District correctly distinguished the case, and instead adopted the rationale discussed by this Court in Liddell.  Like the plaintiff in Liddell, Schmitz could not, and did not discover his injury until his physician diagnosed him. It would be inherently inequitable to bar his claim.

Although the Eighth District did not discuss Andrianos by name, it acknowledged that plaintiffs “cannot couch a claim for bodily injury as a fraud claim.” The claims of fraud as alleged were sufficiently “separate and distinct” to support the application of the four-year limit on claims. But even if the appeals court is wrong, and the two year statute in R.C. 2305.10(A) applies, it makes no difference since all of Schmitz’s claims were filed within two years of discovery of his injury.

Defendants’ Proposed Proposition of Law No. 1

A diagnosis for the long-term effects of an injury a plaintiff already knew about does not revive a time‐barred claim.

Defendants’ Proposed Proposition of Law No. 2

Plaintiffs’ fraudulent‐concealment and constructive fraud claims are subject to R.C. 2305.10(A)’s two‐year statute of limitations.

Amicus in Support of Defendants

The Ohio Association of a Civil Trial Attorneys (“OACTA”) filed an amicus brief in support of the Defendants. This organization and its constituents are primarily concerned with the defense of civil lawsuits, as well as the fair and efficient administration of justice in Ohio.

OACTA expressed concern regarding the Eighth District’s expansion of Ohio’s discovery rule beyond the intended framework established by the General Assembly. Echoing the Defendants’ arguments above, the injury underlying the claim was known to Schmitz for purposes of the statute of limitations, even if he was not aware of the “full extent” of the injury. Although Schmitz was diagnosed in 2012, he should have known of his condition through reasonable diligence prior to that formality, since the injury manifested itself in the 1970’s. However, under the Eighth District’s rationale, the reasonable diligence requirement has in effect been abrogated. This means that “[a] litigant whose prior injuries worsen over time has an open-ended time period to bring claims.” The Eighth District’s application of the discovery rule to newly discovered effects of already known injuries is wrong, and must be corrected.

Amicus in Support of Schmitz

The Ohio Association for Justice (“OAJ”) filed an amicus brief in support of Schmitz. The OAJ includes member-attorneys who specialize in tort litigation  and consumer protection on behalf of injured persons within Ohio.

OAJ believes that the adoption of Defendants’ first proposition of law could be devastating to all potential claimants suffering from latent injuries. Despite assertions to the contrary by Defendants and OACTA, “the mere presence of some physical symptom alone would not constitute an ‘injury’ for purposes of the discovery rule.” Although knowledge of the “full extent” of an injury is not necessary, that does not negate the requirement of a “cognizable event” or “alerting event” regarding the injury. Furthermore, it is important that this Court avoid unconscionable results where individuals suffering from latent injuries would be deprived of a remedy. The settled law of Ohio and public policy considerations support the Eighth District’s decision, and it should be affirmed by this Court.

Student Contributor: Jefferson Kisor

 

 

On October 29, 2017, then-Justice Bill O’Neill announced his intent to run in the Democratic gubernatorial primary May 8, 2018. He also announced a platform which included “legalization of recreational marijuana, a higher minimum wage, a decrease in in-state tuition, and the funding of mental health institutions across the state.”

Rule 4.5 of the Ohio Code of Judicial Conduct mandates that “upon becoming a candidate in a primary or general election for a nonjudicial elective office, a judge shall resign from judicial office.”

O’Neill interpreted the rule to mean that he didn’t need to resign his judicial seat until the primary filing deadline of February 7, 2018. Almost no one else saw it that way, but to be fair, it isn’t totally clear.  So, to make it clearer, on March 28, 2018, the Supreme Court of Ohio proposed this new definition of candidate for nonjudicial elective office in Ohio:

“‘Candidate’ means a person who has made a public announcement of candidacy for nonjudicial elective office and has taken or engaged in any public action in furtherance of that candidacy, declared or filed as a candidate for non-judicial elective office with the election authority, or authorized the solicitation or receipt of contributions or support for non-judicial elective office, whichever occurred first.”

Guess who? I immediately assumed this will be known as the Bill O’Neill Rule.  I was congratulating myself on my cleverness until I saw that Randy Ludlow called it the same thing in his Columbus Dispatch article this morning.

Public comments are being accepted on this proposal until April 25.

Joshua Polk, then a student at Whetstone High in Columbus, left his book bag on the school bus. An initial search of the bag pursuant to an unwritten school policy didn’t turn up anything but papers identifying Polk as the owner of the bag, but a later, more thorough search in the principal’s office turned up bullets. This caused school officials and a police officer to find Polk, and search the bag he was carrying at the time, which contained a hand gun. Polk was charged with a felony count of possessing a firearm in a school safety zone.

Polk filed a motion to suppress the bullets and the gun, which the trial court granted and the appeals court upheld in a split decision.  But in a unanimous opinion written by Justice Kennedy, on May 11, 2017, the Supreme Court of Ohio upheld the propriety of both searches of the book bag. The court of appeals decision was reversed, and the matter remanded. Read an analysis of the merit decision here.

On March 8, 2018, Polk, who had served ten days in jail for this offense, pled guilty to the stipulated lesser included offense of attempted illegal conveyance or possession of a deadly weapon in a school safety zone, a first degree misdemeanor.

Franklin County Court of Common Pleas Judge Chris Brown sentenced Polk to ten days, credited Polk with time served, ordered the weapon confiscated and destroyed, and closed the case.

 

Update: On August 15, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On February 27, 2018, the Supreme Court of Ohio heard oral argument in State of Ohio v. Anthony Carnes, 2017-0087. At issue in this case is whether a juvenile adjudication can be used to prove an element of the offense of having a weapon while under disability as an adult. Justices Fischer, DeWine, and Kennedy have all recused themselves from the case. Sitting for them, respectively, are Judge William Klatt of the Tenth District Court of Appeals, Judge Lisa Sadler of the Tenth District Court of Appeals, and Judge Lynne Callahan of the Ninth District Court of Appeals.

Case Background

In 1994, sixteen-year-old Anthony Carnes got into a fight with another teenager in Hamilton County. He was subsequently adjudicated as delinquent for what was essentially felonious assault. During this juvenile proceeding, Carnes and his mother waived his right to counsel.

Twenty years later, in 2014, Carnes was found to be in possession of a firearm and was subsequently charged with having a weapon while under disability under R.C. 2923.13(A)(2). This was a felony offense. The 1994 juvenile adjudication was the basis for the “disability” in this case. Carnes moved to dismiss the indictment, arguing that his waiver of counsel had been invalid. The trial judge denied this motion, finding a valid waiver of counsel.

Carnes was convicted of having a weapon while under disability and received a thirty-month prison sentence. Carnes appealed. In a split decision authored by Judge Stautberg, with then-Judge DeWine concurring in judgment only, the First District Court of Appeals affirmed the conviction. Judge Cunningham dissented.

Read the oral argument preview of the case here.

Key Statutes and Precedent

R.C. 2923.13 (Having weapons while under disability)

(A) (Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:

(2) (The person . . . has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.)

R.C. 2923.14 (Relief from weapons disability)

18 U.S.C. 922(g) (The federal law regarding having a weapon while under disability)

State v. Hand, 2016-Ohio-5504 (“A juvenile adjudication is not a conviction of a crime and should not be treated as one.” A juvenile adjudication may not be used to enhance the sentence for a subsequent adult criminal offense.)

State v. Bode, 2015-Ohio-1519 (“[A]n adjudication of delinquency may not be used to enhance the penalty for a later offense under R.C. 4511.19(G)(1)(d) when the adjudication carried the possibility of confinement, the adjudication was uncounseled, and there was no effective waiver of the right to counsel.”)

Lewis v. United States, 445 U.S. 55 (1980) (“Congress’ judgment that a convicted felon, even one whose conviction was allegedly uncounseled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational.”)

Apprendi New Jersey, 530 U.S. 466 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt.”)

Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151 (2013) (“The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense.”)

State v. Taniguchi, 1995-Ohio-163 (“It is basic hornbook law that the state under its police powers may impose restrictions on who may possess firearms.”)

At Oral Argument

Arguing Counsel

Peter Galyardt, Assistant Ohio Public Defender, Columbus, for Appellant Anthony Carnes

Scott M. Heenan, Assistant Prosecuting Attorney, Hamilton County, for Appellee State of Ohio

Carnes’ Argument

Elements of an offense are more consequential than sentencing enhancements. Anthony Carnes is serving two and a half years in prison as an adult because 20 years earlier as a teenager he was in a fist fight. But for that 20 year old juvenile adjudication, his possession of a gun as an adult was legal. It is unfair to use a childhood transgression to terminate the fundamental right to bear arms as an adult. But for the juvenile adjudication, there is no crime here.

A juvenile adjudication should not be used to establish an element of an offense charged against an adult. While the legislature could and should fix this problem, this court should inform the legislature by holding that the attachment of the disability to the juvenile adjudication is unconstitutional because a juvenile adjudication is not a conviction.

Ohio’s juvenile system winnows out the most egregious criminal conduct through mandatory and discretionary bindover, and to a lesser extent, through serious youthful offender prosecutions. Those who remain in the juvenile system are those who have been deemed amenable to rehabilitation. Therefore, they should get the benefit of a clean slate, and not have stigmatization carried into adulthood.

The state’s reliance on Lewis v. United States, is misplaced. Lewis was decided in 1980, before Apprendi, Alleyne, Heller and Macdonald. Lewis most likely is not still good law. If it is good law, it does not apply to this case. There was no juvenile conduct in Lewis. The system from which Lewis’ conviction-attachment arose included the right to a jury trial.  The U.S. Supreme Court in Alleyne ruled that the touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an element of the charged offense. The earlier decision in Lewis did not have that language to analyze. The reliance on Lewis falls apart because Lewis had the right to a jury trial.

The state’s focus on the other disability-attaching events in the statute is a false equivalent. They all involve current adult conduct. And many can be factually defended to a weapon under disability jury.

This court has said that Ohio’s juvenile justice system aims to avoid treating youngsters as criminals, and to shield children from stigmatization based upon the bad acts of their youth. Accordingly, the court should hold that a juvenile adjudication cannot be used to satisfy an element of an offense charged against an adult.

State’s Argument

What the U.S. Supreme Court held was wrong in Apprendi, and this court held was wrong in Bode and Hand was enhancing a sentence without jury findings.  But in Lewis the U.S. Supreme Court said that enforcement of that essential civil disability –not being able to have a firearm—through criminal sanctions does not “support guilt or enhance punishment.” If the U.S. Supreme Court were listening to this case today, it would be looking at Apprendi and Lewis and would say there is nothing wrong here. The main factor that drove these decisions was that things not proven as facts to a jury cannot be used to tinker with a sentence.

Lewis involved an individual who had a completely uncounseled plea, unquestionably in violation of the 14th and 6th amendments, who could have successfully raised some kind of postconviction petition at any time, and had that conviction vacated completely.  And yet, the U.S. Supreme Court said that was still good enough for a disability. Even though it could not be used to enhance a sentence, it could be used to create a disability, because that was a policy decision by the legislature. It was up to the legislature to say whether that conviction was reliable or not; it was its policy decision to make. And it was a rational decision to say that creates a disability which prevents a person from having a firearm. There is nothing different between that and using a juvenile adjudication.

There are many examples of non-jury determinations of not being able to possess a firearm, such as people under indictment, fugitives from justice, people with mental illness, those who have been civilly committed, those who are drug-dependent, or chronic alcoholics– the legislature has said all these people are too dangerous to possess firearms, but none of them had a jury to decide if that factor existed. None of this is unconstitutional, including Carnes’ disability-attachment.

What Was On Their Minds

Controlling Precedent

Hand involved the definition of what was a conviction and equated a criminal conviction with a juvenile adjudication, commented Judge Klatt, adding that this statute doesn’t do that.

Both the U.S. Supreme Court and this court have held that there is no due process violation with the lack of a jury trial in the juvenile court, commented Judge Callahan. But under the defense scenario, there could never be a “reliable situation” because you never have a jury trial in juvenile court.

The discussion of the purposes of juvenile dispositions is all well and good for a juvenile committing a delinquency and then being adjudicated while they are a juvenile, commented Chief Justice O’Connor. But what is involved here is an adult activity and it’s not on the same plane as far as an analysis goes. I know the defense is talking about what the intent is, in juvenile proceedings, but we are dealing with an adult allegedly committing an adult crime, she added.

Legislative Choice or Constitutional Matter?

Why isn’t all of this a policy issue for the legislature, since they created the juvenile system in the first place and obviously passed the statute which makes the prior juvenile adjudication an element of the offense, asked Judge Klatt? Later, he commented that much of what defense counsel was arguing was challenging policy, but was not much in the way of a constitutional argument.

Waiver

Was the Second Amendment challenge raised below, asked Justice DeGenaro?

Weapons Under Disability Statute

Doesn’t this matter only if not relieved of the disability, asked Judge Sadler?

Does it matter that this case focuses narrowly on the weapons under disability offense, as opposed to a broader examination of the issue, asked Justice DeGenaro?

How It Looks From The Bleachers

To Professor Emerita Bettman

In Hand, the court, before Justices DeWine and Fischer came on board, held that a statute which allows a previous juvenile adjudication to count as a prior conviction to enhance a later adult sentence run afoul of Apprendi v. New Jersey and violates due process.

I expected this case to be a major debate over whether Hand should be extended to include elements of offenses, because I agree with Mr. Galyardt that elements are more consequential than enhancements, and I agree with dissenting Judge Penny Cunningham of the First District that “[i]f juvenile adjudications are not reliable enough to enhance a criminal sentence, surely they are not sufficiently reliable to alone sustain proof beyond a reasonable doubt of an element of a crime.” But instead, the argument seemed a bit of a fizzle, not because of an ineffective argument, because I think Mr. Galyardt gave a very nice one.  But he was greeted with a cold bench (for example Justice O’Donnell, who is always a very active questioner, said absolutely nothing, nor did Justice French) and palpable skepticism. Also, there were three subs on the bench for recused Justices Fischer, DeWine, and Kennedy, which might have put an asterisk by the decision if Hand were extended to include elements of an offense.  But I don’t think that is going to happen. One thing seems certain—the court is not going to get into any Second Amendment challenge, despite the impassioned amicus brief of the Buckeye Firearms Association.  That just was not developed below.

Why Mr. Galyardt’s argument did not seem to have more traction is puzzling. The Chief, who is always very protective of juveniles, suggested at the end of his rebuttal that the analysis in Hand was somehow different. She said, “what we are talking about here is an adult activity and it’s not on the same plane as far as an analysis goes.” I’m not sure what she meant. Hand was also an adult, charged with adult felonies, whose sentence was enhanced by a juvenile adjudication. And absent the juvenile adjudication, what Carnes did as an adult was not even criminal. On the other hand, I’m happy to applaud legislative policy choices limiting possession of guns.  In the end I think a majority will consider this a valid legislative policy decision, as Judge Klatt mentioned a couple of times in the otherwise sparse questioning.

To Student Contributor Jefferson Kisor

Besides the questions posed by the substitute judges, this was a relatively cold bench. Frankly, this surprised me, given that Carnes’ case is predicated on recent Ohio precedent from this court. This made it very difficult to try and gauge the case. Counsel for both parties presented their cases well, and although the State gave one of the shortest arguments I have ever seen (at approximately five minutes), Mr. Heenan was effective in distinguishing sentence enhancement from the present issue. Luckily, in the final moments of the argument the Chief Justice offered some much-needed clarity on the difference between an element compared to sentencing enhancements; “its not on the same plane as far as the analysis goes.” Much to the chagrin of Carnes and his attorney, I do not believe the court will be sympathetic to his argument, and extend the protections made to juvenile sentence enhancements to adult criminal conduct that happens to be predicated on a juvenile adjudication. Therefore, I predict that the First District’s decision will be affirmed.

 

Remember Alva Campbell? He was a decrepit 69-year-old inmate on death row, who was supposed to be executed on November 15, 2017. Campbell committed heinous crimes, no question about it.  But he had also been in miserable health, using a walker to get around, apparently suffering from lung cancer, COPD, respiratory failure, and prostate cancer. He had to use a colostomy bag. He had been a two-pack-a-day smoker. He had to take oxygen treatments four times a day. Note the past tense.

When execution day came for Campbell, the execution team couldn’t find a suitable vein in which to put the lethal injection. They tried for about half an hour, sticking him a number of times.  Then the execution was called off. At one point, Campbell went to federal court asking to be executed by firing squad instead, but Ohio law doesn’t allow for that.

Campbell’s execution was re-set to June 5, 2019.  But on March 3, 2018, Campbell was found dead, from natural causes, in his cell at the Chillicothe Correctional Institution.  I doubt any tears were shed. But as Adam Liptak wrote in an excellent column on March 6 in the New York Times, can a person be too old to be executed? The U.S. Supreme Court has just agreed to hear an Eighth Amendment challenge in the case of Madison v. Alabama, in which a convicted cop-killer is now so demented he has absolutely no memory of the crime he committed or the surrounding circumstances. Can the state still execute him? Stay tuned.

Update: On September 27, 2018, the Supreme Court of Ohio handed down a merit decision in Turner v. CertainTeed Corp., 2018-Ohio-3869. In an opinion written by Justice Fischer, joined in full only by Justices French and DeGenaro, the court set forth the requirements in an asbestos case for a plaintiff who is also a smoker, with the key issue being which side has to prove the plaintiff’s smoking status, and when.  Chief Justice O’Connor concurred in judgment only. Justice Kennedy concurred in judgment only with an opinion joined by Justice O’Donnell. Justice DeWine concurred in judgment only, with his own opinion.  The case was argued February 13, 2018.

This case is hyper technical, and probably of use only to those practicing in this very specialized area of law, so this is just a short summary of the positon of the justices. Those interested are encouraged to read the entire 39 page opinion.

All seven justices agree that the Eighth District, which held that the determination of whether a person is a smoker is a question of fact and not a medical issue, must be reversed. But that is the end of the agreement.

Lead Opinion (Justices Fischer, French and DeGenaro)

The lead opinion, authored by Justice Fischer, holds that the plaintiff does not have to prove he or she is a non-smoker, and only has to make the additional prima facie requirements of R.C. 2307.92(C)(1)if the defendant provides a written report from competent medical authority, as defined in R.C. 2307.91 Z(1), (3) and (4), but not (2), that the plaintiff is a smoker (presumably having learned this through discovery.) And the lead opinion sets out a four step process for how this determination is ultimately made. Only Justices French and DeGenaro signed on to the lead opinion. Chief Justice O’Connor concurred in judgment only.

The Kennedy Position

It is the plaintiff who bears the burden of proving he or she is not a smoker. R.C. 2307.92(C)(1) prohibits anyone from bringing an asbestos claim for lung cancer unless the plaintiff is not a smoker, or within 30 days after the filing of the complaint, the plaintiff submits prima facie evidence showing that the exposure to asbestos was a substantial contributing factor to the lung cancer. When the plaintiff hasn’t done that, the only way to avoid an administrative dismissal of the complaint is to submit a written report of a competent medical authority that plaintiff is not a smoker, as that term is defined by statute. Turner did not do that, and his case should have been administratively dismissed, without prejudice.  Justice O’Donnell signed on to this separate concurrence in judgment only.

The DeWine Position

The issue in this case is how to determine whether a plaintiff who alleges he has lung cancer because of asbestos exposure is a smoker or a nonsmoker. Justice DeWine would find the answer in the statutory definition of smoker in R.C. 2307.91(D)(D). DeWine is sharply critical of the lead opinion for rewriting the definition of “competent medical authority” and for inventing its four step process “only tenuously tethered to the statutes” and suggested by no party or lower court in this case. To him, the most reasonable reading of the statute is “that the starting point must be determining a person’s smoking status.” And the burden of establishing nonsmoking status is on the plaintiff, who is in the best position to get a report from his treating physician.

For the record, I think Justices Kennedy and DeWine have the more persuasive position here. And only three justices signed on to the four-step process outlined in the lead opinion, so it is unclear where that will stand on remand.

Analysis of  Oral Argument

“I feel like we kind of have a chicken and the egg problem here. Do you have to determine first that you’re a non-smoker, and then you go through the prima facie process, or is it at some point along the way?”

Justice French

On February 13, 2018, the Supreme Court of Ohio heard oral argument in Bobby Turner, et al. v. CertainTeed Corporation, et al., 2017-0004. At issue in the case is whether Ohio law requires any plaintiff who has been exposed to asbestos and who has lung cancer, to submit a written report by a competent medical authority to prove he or she has not smoked enough to be deemed a smoker, as that term is defined by R.C. 2307.91 (D)(D).

Case Background

In 2013, Appellee Bobby Turner was diagnosed with lung cancer.  In January 2014, Turner and his wife filed suit against Appellant Union Carbide Corporation and other named defendants not party to the present appeal. Turner alleged that his lung cancer was caused by his occupational exposure to asbestos as a drywall finisher from approximately 1962 until 1978.

In 2014, Union Carbide moved for administrative dismissal of Turner’s complaint pursuant to R.C. 2307.92 and R.C. 2307.93.  Union Carbide contended that Turner failed to timely submit prima facie evidence about his smoking status as required by R.C. 2307. Turner responded by filing an affidavit stating that he had smoked a monthly cigar in 1956, but quit thereafter. Turner also submitted various medical records supporting his contention that he was a non-smoker. Based on these documents, Union Carbide withdrew its motion.

However, in 2015, Union Carbide renewed its motion for administrative dismissal, challenging the adequacy of Turner’s prima facie evidence. Specifically, Union Carbide claimed, based on newly obtained medical records and deposition testimony, that Turner qualifies as a smoker as defined under R.C. 2307.91(DD). Therefore, Turner failed to meet the prima facie requirements to bring a tort action alleging asbestos exposure. Turner opposed Union Carbide’s motion and contends that the totality of the evidence supports Turner’s proposition that he is not a smoker. The trial judge found that Turner was not a smoker.

On appeal, the Eighth District, in a unanimous opinion, affirmed the decision of the trial court and denied Union Carbide’s motion for administrative dismissal pursuant to R.C. 2307.92 and 2307.93.  The Eighth District found that a plaintiff need not establish that he or she is not a smoker with a written report of a competent medical authority. Whether or not a person is a smoker is a factual, not a medical, determination. Written reports by a competent medical authority are only required after it is determined that the exposed person is a smoker, to establish that the plaintiff’s diagnosis of lung cancer was a result of asbestos exposure, and not from smoking. Here, the decision of the trial court that Turner was not a smoker was supported by competent credible evidence.

Read the oral argument preview in the case here.

Key Statutes and Precedent

R.C. 2307.91(DD)(Asbestos claims—definitions:

(Z) “Competent medical authority” means a medical doctor who is providing a diagnosis for purposes of constituting prima-facie evidence of an exposed person’s physical impairment that meets the requirements specified in section 2307.92.

(DD) “Smoker” means a person who has smoked the equivalent of one-pack year, as specified in the written report of a competent medical authority pursuant to sections 2307.92 and 2307.93 of the Revised Code, during the last fifteen years

R.C. 2307.92 (Prima facie showing)

  1. “bodily injury caused by exposure to asbestos” means physical impairment of an exposed person, to which the person’s exposure to asbestos is a substantial contributing factor.

(C)(1)(a-c) No person shall bring or maintain a tort action alleging an asbestos claim based upon lung cancer of an exposed person who is a smoker, in the absence of a prima-facie showing, in the manner described in division (A) of section 2307.93 of the Revised Code, that the exposed person has a physical impairment, that the physical impairment is a result of a medical condition, and that the person’s exposure to asbestos is a substantial contributing factor to the medical condition. That prima-facie showing shall include all of the following minimum requirements: A diagnosis by a competent medical authority that the exposed person has primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer; at least ten years have passed from the date of the person’s exposure to the eventual diagnosis; and either evidence of the exposed person’s substantial exposure to asbestos, or  evidence of the exposed person’s exposure to asbestos at least equal to 25 fiber per cc years as determined to a reasonable degree of scientific probability by a scientifically valid retrospective exposure reconstruction by a qualified professional.)

R.C. 2307.93 (Any plaintiff alleging an asbestos claim shall file, within thirty days of filing the initial complaint, a written report supporting the plaintiff’s physical impairments described in R.C. 2307.92. If a defendant challenges the adequacy of such prima facie evidence the court shall determine whether the evidence meets the minimum requirements of R.C. 2307.92 by the standard for resolving a motion for summary judgment. The court shall dismiss the plaintiff’s claim without prejudice if it finds the plaintiff failed to make an adequate prima facie showing.)

Penn v. A-Best Prods. Co., 2007-Ohio-7145 (10th Dist.)(Neither R.C. 2307.92 nor R.C. 2307.93 place any burden on a party to submit a written report and supporting test results to demonstrate that he or she is a non-smoker.)

Farnsworth v. Allied Glove Corp., 2009-Ohio-3890 (8th Dist.) (The determination as to whether a person is a smoker is a threshold question that must be decided before requiring a plaintiff to submit a report of competent medical authority as prima facie evidence that meets the necessary elements of the statute.)

Renfrow v. Norfolk S. Ry. Co., 2014-Ohio-3666 (One of the statutory prerequisites necessary to establish a prima facie tort action alleging an asbestos claim based upon lung cancer requires a person who is a smoker to demonstrate a diagnosis by a competent medical authority that the exposure to asbestos is a substantial contributing factor.)(First paragraph of syllabus)

At Oral Argument

Arguing Counsel

Richard D. Schuster, Vorys Sater Seymour and Pease LLP, Columbus, for Appellant Union Carbide Corporation

Kevin E. McDermott, McDermott & Hickey LLC, Rocky River, for Appellee Bobby Turner

Union Carbide’s Argument

RC 2307.91(D)(D) requires that the status of a smoker be determined through a report of a competent medical authority as the language in that statute states. The court cannot eliminate that specific statutory language as the 8th District did, and simply let judges decide who is or is not a smoker.

The asbestos statutes set up a two-stage system. The first stage sets forth some preliminary prima facie requirements in some cases such as lung cancer cases like this one where there is reason to believe that the lung cancer is really related to smoking. If the plaintiff in the first stage cannot satisfy those preliminary prima facie requirements, then the case is administratively dismissed. However, a plaintiff can skip this preliminary first stage if he did not smoke or can show he did not smoke the equivalent of one-pack year, and proceed to the second stage, which is discovery and trial. The intent of the General Assembly is clear–it is to make those who have smoked more than a pack year over the past 15 years go forward with the prima facie case.

Turner failed to satisfy the prima facie requirements by providing a report of competent medical authority that he was not a smoker as statutorily defined, and his case should have been administratively dismissed. Turner’s records are replete with information that he smoked cigars occasionally over a long period. And he was being treated for chronic pulmonary obstructive disease and emphysema—both diseases associated with smoking. Both of Turner’s treating physicians found that he was a smoker, and they had treated him as a smoker.

Had Turner made his prima facie showing, which he failed to do, Turner would have been required to provide another report connecting his asbestos exposure to his lung cancer. The first medical report focuses on smoking, the second to the cause of the lung cancer.

Turner’s Argument

Bobby Turner is a lifelong paperer, drywaller, and plasterer. He was occupationally exposed to asbestos for almost 20 years. He developed lung cancer in 2013. In 2014 he filed this case. The case went on until two weeks before trial, when Union Carbide renewed its motion for administrative dismissal, claiming that somehow Turner had failed to comply with the statute when he has never smoked a cigarette. And the statutory definition of smoker references cigarettes only.  Pack year refers to cigarettes.

Whether or not someone is a smoker is a fact question, which the trial judge can make by looking at all the medical records and the testimony of witnesses. That is exactly what Judge Hanna did in this case, and determined Turner was not a smoker. And contrary to what opposing counsel said, Turner’s treating physicians testified they did not treat him as a smoker.

As for the statutory language, “as determined by competent medical authority,” those words only have relevance if a person is a smoker, to prove causation, as set forth in R.C. 2307.92 and R.C. 2307.93. They do not have relevance for a non-smoker.

There are not two required competent medical authority reports. There is only one.  Whether or not a person is a smoker must be determined first. If not, there is no need for a prima facie report. You don’t diagnose whether a person is a smoker or not. You diagnose whether a person has a disease, and whether that disease was related to asbestos, or smoking, or something else. And you need competent medical authority in order to do that.  The reference in section DD to competent medical authority only applies after a person has been found to be a smoker.

What Was On Their Minds

Definition of Smoker in R.C. 2307.91(DD)

Didn’t the legislature have the opportunity to define non-smoker—that was in at least one of the bills–but in the end they decided not to define non-smoker, asked Justice French?

Couldn’t the legislature just as easily have written (D)(D) to define non-smoker instead of smoker, asked Justice DeWine? Why does it define smoker? Why the reference to the prima facie case requirements? What is the basis of the contention that only people with some indication of smoking need meet the prima facie requirement? How does that come from the statutory language? Why wouldn’t that apply to everyone? If the plaintiff’s interpretation is correct, why doesn’t this section just say a smoker means a person who has smoked the equivalent of one pack a year during the last 15 years, without reference to competent medical authority?

The Reports, Prima Facie Requirements, and Competent Medical Authority: How Does This All Work?

Is the defense saying there must be a second medical report to connect the cause of the cancer, asked Chief Justice O’Connor? (yes, the defense was saying that.)

In which of those two reports is the prima facie showing required, asked Justice DeGenaro? Does a non-smoker not have to provide either one of these reports? What is it in the first report that would require a plaintiff to have to produce a second report?

How does the definition of smoker as specified in the written report of competent medical authority allow a non-smoker to skip the prima facie case requirements, asked Justice DeWine? Are there two different reports? The prima facie report and the report to determine whether they are a smoker? He commented that it was hard to reconcile the language in the various provisions at issue. Later, he asked whether the plaintiff was asking the court to write the words “written report of competent medical authority” out of the statute. Isn’t that what the lower court did, he asked? Why is that language in the statute?

Turner’s Smoking Status

Do Turner’s medical records suggest he is or is not a smoker, asked Justice O’Donnell? Why are Turner’s medical records, from which the trial judge concluded he was not a smoker, not competent medical authority? Must a physician write a report to be competent medical authority? Wasn’t there testimony from Turner’s treating pulmonologist confirming that he was not a smoker, and medical records to support that?

Why wouldn’t Turner’s status as a smoker be a question of fact that has to go to the jury, asked Justice French?

Can Union Carbide’s contention that Turner is a smoker be rebutted by family and friends, asked Chief Justice O’Connor? Isn’t it true that COPD and emphysema have causes other than smoking? Is it enough to say that Turner’s got the type of cancer that tobacco smoking causes, or must the opinion of a medical expert be set forth that says this is not caused by asbestos exposure, this is caused by smoking? Is all evidence of Turner’s tobacco use, no matter how long ago, admissible at trial?

Skipping the Prima Facie Requirement As a Non-Smoker

How does a plaintiff show he has not smoked the equivalent of a pack year in the last 15 years asked Chief Justice O’Connor? With a medical report that is going to attest to the fact that in the last 15 years, this person has not smoked? Must the plaintiff have a doctor’s report, competent medical authority, to say he has not in the last 15 years smoked the equivalent of one pack year? (yes, says defense counsel.) Can a medical doctor do that?

Pack Years and Other Tobacco

Is one pack year a pack of cigarettes, asked Chief Justice O’Connor? Are all cigarettes equal in their tobacco? Is the aim of the statute a measurement of tobacco, not necessarily how many cigarettes?

Isn’t the point of the statute to determine how much tobacco has medical significance for this type of case, asked Justice French, commenting that lay persons wouldn’t know whether the amount someone has smoked over a period of time has any medical significance or not.

How It Looks From The Bleachers

To Professor Emerita Bettman

Like an Excedrin headache, whether diagnosed by competent medical authority or not. The justices seemed to struggle mightily, as did I right along with them, to get a handle on how this whole thing works, and I don’t think either argument particularly helped. I think Justice French put her finger on it—this does seem like a chicken/egg problem.

Even after listening to both arguments, I still didn’t understand at what point the plaintiff’s smoking status comes into play, how, and by whom, so I went and read Farnsworth v. Allied Glove Corp. (which was reaffirmed by the 8th District in the appellate decision in this case) which I found very illuminating, and, to me, persuasive. Let me quote the pertinent parts of that decision:

{¶ 25} “We conclude then that the phrase in R.C. 2307.91(DD), “as specified in the written report of a competent medical authority pursuant to [R.C. 2307.92 and 2307.93],” cannot mean that competent medical authority is required to establish who is or is not a smoker. The smoker must come first — meaning that it must first be determined whether the exposed person is a smoker. If so, then the plaintiff must meet the requirements under H.B. 292 by filing the written report establishing a prima facie case through competent medical authority and the other evidence that is required. See R.C. 2307.92 and 2307.93.

{¶ 30} “Thus, it is our view that at this preliminary stage of the litigation, when courts are simply attempting to prioritize its asbestos docket, neither plaintiffs nor defendants are required to use a competent medical authority — which again is a medical doctor who provides a diagnosis for purposes of establishing prima facie evidence of an exposed person’s physical impairment — to prove that an exposed person is or is not a smoker.

{¶ 31} “Thus, when there is a dispute as to whether a person is or is not a smoker, we conclude that the parties must submit evidence (that would be admissible under the rules of evidence) to prove their contention. This evidence may very well include the exposed person’s medical history, if indeed there is one. Whether a person is a smoker may be very clear. It may be equally as clear that a person is not a smoker. But when there is a question as to whether the person is or is not a smoker, as in the case sub judice, the trial court must review the evidence submitted by both parties to resolve the issue.”

That’s how Judge Hanna proceeded in this case, and found that Turner was not a smoker.  And Judge Hanna certainly has a ton of experience with these cases.

If the Court follows Farnsworth, and also the 10th District in Penn v. A-Best Prods. Co. it would mean that Turner is correct, that the phrase “competent medical authority” is part of the causation requirement only if the court finds the plaintiff is a smoker, and that Turner did not need to meet the prima facie requirements or prove that he was a non-smoker. I find that more persuasive than Union Carbide’s more tortured statutory interpretation of “competent medical authority.”

Whether that’s where the justices come out is impossible to say until they sort out this most confusing argument.  But I couldn’t help but wonder–wouldn’t it make more sense to know the smoking status of every lung cancer patient at the outset of every case instead of arguing about it after months of discovery, shortly before trial?

To Student Contributor Paul Taske

I am hesitant to make a definitive assertion regarding the outcome of this case. The court was none too pleasant during Union Carbide’s argument. Yet, the justices also seemed hostile to several points made by Turner. The court seemed to wrestle with each aspect of the case and parsed various phrases within the statutory sections at issue. At no point did there appear to be a broad consensus among the justices about the proper approach to take with this particular case.

If I were forced to guess at which way the court will rule, I would tentatively guess they will rule in favor of Turner. Chief Justice O’Connor seemed to remark somewhat favorably about the opinion of the Eighth District. Justices DeWine and Fischer, however, seemed to be more critical of Turner’s position—especially regarding how the statute should be read. Justice DeGenaro was somewhat harder to gauge during the argument. However, when she did ask questions they were of Turner’s propositions.

Ultimately, even if Turner is successful, I think the court will be split on this issue. If the split doesn’t manifest in actual dissents from the judgment it will manifest in different approaches to reasoning and approach to statutory interpretation.

 

 

Update: On June 7, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.  

“Your argument is if the police pay an informant, they control him. Isn’t the parallel if the state pays an employee they control him, also?”

Justice Fischer, to the Assistant Prosecutor

On February 13, 2018, the Supreme Court of Ohio heard oral argument in State of Ohio v. Demetrius Jackson, 2017-0145. At issue in this case is whether a suspect’s rights have been violated when he is questioned, without being informed of his Miranda rights, by a children’s services social worker who must report her findings to a law enforcement agency.

Case Background

Jackson was arrested for raping a fourteen-year-old girl. After his arrest, Jackson was advised of his Miranda rights by a Cleveland Police detective. While being held in the Cuyahoga County Jail, Jackson was interviewed by a social worker from the Cuyahoga County Division of Children and Family Services. The social worker did not advise Jackson of his Miranda rights. Jackson admitted to having what he claimed was consensual sex with the minor girl, who he thought was an adult.

At a bench trial, over Jackson’s objection, the judge allowed the social worker to testify as to Jackson’s statements from the interview. Jackson was convicted of rape and related offenses, and sentenced to eleven years in prison.

In a split decision, the Eighth District Court of Appeals reversed Jackson’s conviction, holding that the social worker was acting as an agent of law enforcement, had conducted a custodial interrogation, and should have advised Jackson of his Miranda rights.

Read the oral argument preview of the case here. 

Key Precedent

Fifth Amendment of the United States Constitution (“No person shall… be compelled in any criminal case to be a witness against himself…”)

Sixth Amendment of the United States Constitution (“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…and to have the Assistance of Counsel for his defense.”)

R.C. 2901(A)(11) (Definition of “law enforcement officer”)

R.C. 2151.421 Reporting Child Abuse or Neglect

(G) (“the public children services agency shall investigate . . . each report of child abuse or child neglect . . . . The investigation shall be made in cooperation with the law enforcement agency . . . . A representative of the public children services agency shall, at the time of initial contact with the person subject to the investigation, inform the person of the specific complaints or allegations made against the person. The information shall be given in a manner that is consistent with division (I)(1) of this section and protects the rights of the person making the report under this section. . . . The public children services agency shall submit a report of its investigation, in writing, to the law enforcement agency.”)

Mathis v. United States, 391 U.S. 1(1968) (Defendant was convicted through the testimony of an IRS agent, attained while the defendant was incarcerated for another crime. The Court held that despite the IRS agent questioning the defendant on a matter unrelated to his being in custody, the obligations of Miranda still remained.)

Miranda v. Arizona, 384 U.S. 436 (1966) (“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”)

State v. Bolan, 27 Ohio St.2d 15 (1971) (“[T]he duty of giving ‘Miranda warnings’ is limited to employees of government agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies.”)

State v. Watson, 28 Ohio St.2d 15 (1971) (Defendant challenged the trial court’s refusal to suppress in-custody statements to a newspaper reporter. “The Miranda requirements do not apply when admissions otherwise admissible are given to persons who are not officers of the law or their agents. . . . Although defendant was in custody, the statement in question was not the result of ‘questioning initiated by law enforcement officers.’ Therefore, it is of no consequence that the statement might have been influenced by earlier statements made by defendant to the police.”)

Estelle v. Smith, 101 S.Ct. 1866 (1981) (Defendant held in custody was compelled by the court to submit to a ‘mental status examination’ performed by a court-appointed psychiatrist. The Court concluded that, “when faced while in custody with a court-ordered psychiatric inquiry, [defendant]’s statements . . . were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used . . . only if [defendant] had been apprised of his rights and had knowingly decided to waive them.”)

State v. Roberts, 32 Ohio St.3d 225 (1987) (“[S]tatements by an in-custody probationer to his probation officer are inadmissible in a subsequent criminal trial, where prior to questioning, the probation officer failed to advise the probationer of his Miranda rights as required by Section 10, Article I of the Ohio Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution.”)

Ohio v. Clark, 135 S.Ct. 2173 (2015) (“[M]andatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.”)

At Oral Argument

The New Seating Chart

Every time a new justice joins the court, the seating arrangement changes. This is the first blog post on a case in which Justice DeGenaro participated.  So, as she has the least seniority, she now sits on the end where Justice DeWine had been sitting. Facing the bench, as if arguing, the configuration is now Justice DeWine, French, O’Donnell, the Chief, then Justices Kennedy, Fischer, and DeGenaro.

Arguing Counsel

Anthony T. Miranda, Assistant Prosecutor, Cuyahoga County, for Appellant State of Ohio

Jonathan N. Garver, Cleveland, for Appellee Demetrius Jackson

State’s Argument

A social worker’s statutory duty to share information with law enforcement does not transform her into an agent of law enforcement. The test, as previously articulated by this court, is whether the social worker is being controlled or directed by law enforcement. In this case, she was not.

The appellate decision finding no legitimate purpose for the social worker’s interview, other than to directly assist law enforcement in its investigation, was incorrect. It ignores the separate function that social workers serve, which is to substantiate abuse and neglect allegations. In this case, for example, the social worker learned after interviewing the defendant that he had contracted a sexually transmitted disease—at sentencing it was revealed that the 14 year old victim in this case had also contracted that disease.

The state asks the court to reject a bright-line rule and instead to adopt a test that considers all the facts surrounding a social worker’s interview of the defendant, which is a sounder approach than a bright-line rule.  Did the police set up the interview between the social worker and the defendant? Were the police present during the interview? Were they providing the questions to be asked?

The U.S. Supreme Court decision in Ohio v. Clark, while dealing with Sixth Amendment issues, is persuasive on these issues as well. There, the Court rejected the bright line rule that a teacher, because of a teacher’s mandatory reporting obligation, is an agent of law enforcement for purposes of the Confrontation Clause.  That is strong evidence to reject a bright-line rule in this case.

The concerns about coercion present in Miranda are not present in this situation.  The social worker did not have the power to arrest the defendant, there is no evidence in the record that she had the power to detain him beyond his wishes, or keep him in the room. Here, the social worker informed Jackson of the allegations, and asked him if he had anything to say, which suggests nothing more than a voluntary exchange of information.

Nor are the informant line of cases from the U.S. Supreme Court dispositive of these issues. They differ from this case in two important ways. First, an informant is paid by police, which is a level of direction and control between informant and police not found here. And second is the surreptitious nature of the conversations in those cases, not found in this case.

The state asks the court to adopt the test that considers all of the facts surrounding the social worker’s interview, and find there is no evidence of direction or control by police in this case.

Jackson’s Argument

Miranda both meets the legitimate needs of law enforcement and protects the interests of the accused. So, requiring children’s services investigators—who are, after all, state actors–to advise an accused of his Miranda rights will not prevent them from performing their job any more than requiring police officers to give those warnings has prevented them from doing theirs.

The court of appeals should be affirmed for two reasons. The first involves the existence of a mutual agency relationship between the children’s services agencies and law enforcement. The second deals with other considerations that were deemed important by the U.S. Supreme Court under Miranda.

Even under Ohio v. Clark, albeit in a Sixth Amendment context, the U.S. Supreme Court did not hold that private citizens are not agents of law enforcement under any and all circumstances. In Clark, what the Court held was that in determining whether an out-of-court statement is testimonial for purposes of the Confrontation Clause, Ohio’s mandatory reporting statute does not convert a private citizen, like the pre-school teacher in that case, into an agent of law enforcement. Here, however, in this context we are dealing with a state actor, not a private citizen.

A number of statutes affecting children’s service agencies other than the mandatory reporting statute come into play here, including those requiring the starting of an investigation within 24 hours, sharing the reports of its investigation with the police, and requiring children’s service agencies to enter into a memorandum with law enforcement and the local prosecutor setting forth the normal operating procedure to be employed by all concerned officials. Other statutes address the creation of a child’s advocacy center, use of a multi-disciplinary team, and establishing protocols and procedures for any and all referrals and investigations, and coordinating all these activities. So in this situation a mutual agency relationship has been established, much like the agency relationship that exists in a partnership. That mutual agency relationship is created by statutorily-mandated institutional relationships. So, there is no need to ask whether a police officer made a specific request of the agency to conduct this investigation, because the law requires it.

The other concern addressed in Miranda was the coercive nature of police questioning in a custodial interrogation. Here, the only function of the children’s service investigator is to interrogate alleged perpetrators. Since that is her only function, presumably she is just as trained and capable of interrogating a suspect as a police officer. Thus, the social worker in this case is an agent of law enforcement under the ambit of Miranda.

Finally, the possibility that exculpatory information might be revealed during an interrogation like this one does not negate the necessity for giving the accused Miranda warnings. In this case, it is likely the revelation of what might be described as exculpatory evidence put pressure on the defendant to testify at trial.

What Was On Their Minds

Ohio v. Clark

Doesn’t Ohio v. Clark tell us that just the fact that there is mandatory reporting doesn’t transform the person who has to report into an agent of law enforcement, asked Justice DeWine? Why would that be any different here?

Social Workers

Is there case law where a social worker in this kind of situation has been found to be an agent of law enforcement, asked Justice O’Donnell? Is there any case that holds that a social worker is an agent of law enforcement?

Isn’t the purpose of the investigation what is at issue here, asked Justice DeWine? Is this the functional equivalent of a police interrogation?

This Social Worker

Was the testimony clear enough about what the social worker in this case actually said to this defendant, asked Justice French, commenting that the trial court seemed to have trouble with what this social worker actually said to this defendant as opposed to what she does as a matter of protocol. Didn’t that have the consequence of forcing the defendant to testify in this case? Would he have testified were it not for the social worker’s testimony?

Isn’t the social worker paid by the state, asked Justice Fischer?

Isn’t questioning by a social worker more concerning for Fifth and Sixth Amendment purposes because it seems so unofficial, asked Justice DeGenaro? Didn’t Mr. Jackson refuse to speak to the detective after he was Mirandized, and then five days later the social worker showed up at the jail to interview him, where she indicated that her primary duty is to interview alleged perpetrators in a jail?

Is it the defense position that this social worker had a duty to advise of the Miranda warnings, asked Justice O’Donnell? (answer: yes)

Doesn’t the social worker need to know what’s going on in the home, and who may have allowed this, and other things the state should be concerned about, asked Justice DeWine? Isn’t this interview required to determine whether to remove the child from the home, and those sorts of things?

Wasn’t some of the information given to the social worker exculpatory, asked Chief Justice O’Connor? But there wasn’t any indication that Mr. Jackson changed his defense?

Law Enforcement

Is the social worker’s obligation to share information with law enforcement based on subpoena, asked Chief Justice O’Connor? (answer: no, it is statutory)

What Should Happen with this Appeal

If the court were to agree with the state that there needs to be some kind of multi-factored test in this situation, can the court apply it and decide it or must it go back to the appeals court, asked Justice Fischer? (answer: this court should apply the factors)

If the court does agree with the state, doesn’t the case have to go back to the appeals court to decide the other issues mooted by its disposition of the case, asked Justice O’Donnell? (state’s answer, yes, but after finding the social worker is not an agent of law enforcement here.)(Professor’s Note-the issues mooted were an evidentiary challenge to allowing the police officer to testify that the victim told him she had been raped, and that the conviction in this case was against the manifest weight of the evidence.)

How It Looks From The Bleachers

To Professor Emerita Bettman

To me this is a much closer question than Clark, because the social worker/child advocate in this case, unlike the teacher in Clark, is a state actor, and I thought Mr. Garver made a very effective argument about the institutional co-ordination and cooperation between the children’s services agency, the police, and the prosecution. Whether that is enough to swing four justices is another matter.

Justice O’Donnell was the author of State v. Clark, 2013-Ohio-4731, in which the Supreme Court of Ohio held, in a Sixth Amendment context, that the primary purpose of  questioning by teachers of a child victim of abuse was to gather evidence for a subsequent criminal prosecution, so statements of the child identifying his abuser could not be admitted through the teachers at trial. Joining O’Donnell were Justices Pfeifer, Kennedy and O’Neill.  That decision was unanimously overruled by the U.S. Supreme Court in  Ohio v. Clark, 135 S.Ct. 2173 (2015).  That might make O’Donnell gun-shy about buying the defense argument in this Fifth Amendment context. He kept pressing Mr. Garver for cases finding a social worker to be an agent of law enforcement. The Chief generally has been very protective of children, so their interests always trump with her. I’m putting her solidly in the state’s corner. Justice DeGenaro’s questions seemed most sympathetic to the defense position, which I think is a strong one, but I’m going to disagree with student contributor Mark Tassone, and call this for the state, even though I wouldn’t vote that way.

Justice O’Donnell’s question to Mr. Garver about cases finding social workers to be agents of law enforcement caused me to go back and review the Court’s 2010 decision in State v. Arnold, another Sixth Amendment case, which involved statements made by a child rape victim to a social worker at a child-advocacy center. The court in that 4-2 decision (then-Chief Justice Eric Brown did not participate in the case) got into a heated disagreement about whether the social worker in that case was an agent of law enforcement. The social worker was operating in a dual capacity as both a forensic interviewer collecting information for use by the police, and a medical interviewer getting information for diagnosis and treatment.

Then-Justice O’Connor, writing the majority opinion, found the statements made by the child about her father’s actions leading up to the rape were primarily forensic, and thus testimonial and inadmissible, but the statements describing the acts performed by her father were necessary to diagnose and medically treat the child. Those statements were nontestimonial, and were admissible. Justices Pfeifer and O’Donnell strongly disagreed in dissent, finding the social worker to be an agent of law enforcement the whole time.

To Student Contributor Mark Tassone

I cannot say this was among the more lively oral arguments I’ve witnessed.

The state’s argument seemed stagnant and flat. However, the state did make important points in justifying its interest in having social workers involved during alleged abuses of children (the possibility of sexually transmitted diseases as well as the possibility of the child being returned to a potentially compliant and unsafe guardian).

The Chief Justice’s question right out of the gate whether the reporting was done through subpoena or statute may have tipped her hand in Jackson’s favor.

However, the prosecutor did seem to bounce back by pointing out that there is no evidence that the social worker in question ever spoke to the police. Thus, the state attempted to draw a distinct line between this case and other Sixth Amendment cases.

The string of questions at the close of the state’s arguments demonstrate a likelihood of remand.

Jackson emphasized the relationship between the state agencies. I thought Jackson’s description of an “institutional arrangement” was his best swing for the fences. However, Jackson failed to answer Justice O’Donnell’s question pinning down a case in which a social worker has been found to be an agent of law enforcement. And I believe Jackson missed a real opportunity for a home-run.

On the whole, this was certainly not the warmest bench I’ve seen. However, my sense is that the court is very concerned by the state’s reporting requirement. And I foresee the court finding in Jackson’s favor with a remand to determine the unaddressed issues in the Eighth District’s decision.

 

 

 

 

 

 

“It is impossible to reconcile a statutory scheme that requires an individualized finding of substantial causation for each defendant with a theory that says every defendant that contributed to the overall exposure is a substantial cause.”

Justice DeWine, Majority Opinion

On February 8, 2018, the Supreme Court of Ohio handed down a merit decision in Schwartz v. Honeywell Internatl., Inc., 2018-Ohio-474 (According to the Reporter’s Note, the case was actually decided on January 24, 2018, while Justice O’Neill was still on the Court, but released on February 8, 2018, after O’Neill had left the Court.) In a 6-1 opinion written by Justice DeWine, in which Justice Fischer concurred in judgment only with an opinion, and Justice O’Neill dissented, the Court found that the evidence presented to the jury in this mesothelioma death case was not sufficient to show that exposure from Honeywell’s product was a substantial factor in causing Kathleen Schwartz’s mesothelioma. The case was argued October 17, 2017.

Case Background

Kathleen Schwartz died from mesothelioma, a disease that is almost always caused by breathing asbestos fibers. Kathleen’s exposure was mostly from the asbestos fibers from her father’s work clothes, which she helped wash.  Her father was an electrician.  He testified that he was exposed to asbestos dust every day at work, and that after work he would pick Kathleen up from school and play with his children without changing his clothes.

In addition to his job as an electrician, Kathleen’s father changed the brakes on the family cars, using Bendix products.  He did this in the family garage, five to ten times during the 18 years Kathleen lived there.  Kathleen and her siblings went through the garage to the backyard where they would play.  And her father would play with them after changing the brakes without changing his clothes. While Kathleen helped wash her father’s work clothes, there was no specific evidence that she helped wash these clothes.

After Kathleen’s death her husband Mark Schwartz (“Schwartz”) filed suit against a number of defendants. Eventually, the case went to trial only against Honeywell International, successor-in-interest to Bendix. During the trial, Honeywell twice moved for a directed verdict on the ground that Schwartz failed to establish that Kathleen’s exposure to asbestos from Bendix brakes met the substantial factor test of causation codified at R.C. 2307.96. The court denied Honeywell’s motions. The jury found Honeywell five percent responsible for Kathleen’s injuries. The court entered final judgment consistent with the jury’s verdict for Schwartz in the amount of $1,011,639.92.

On appeal, the Eighth District found the expert testimony that  Kathleen’s cumulative exposure was the cause of her mesothelioma was based on reliable scientific evidence, and that reasonable minds could have found in Schwartz’s favor on the causation issues. The appeals court affirmed the denial of Honeywell’s motions for a directed verdict.

Read the oral argument preview of the case here and the analysis here.

Key Statutes and Precedent

R.C. 2307.96 (Asbestos Claim—Multiple Defendants—Substantial Factor Test; adopting Lohrmann test) (If a plaintiff in a tort action alleges any injury or loss resulting from exposure to asbestos as a result of the tortious acts of one or more defendants, in order to maintain a cause of action against any of the defendants the plaintiff must prove that the conduct of that particular defendant was a substantial factor in causing the injury or loss. This may be shown by the manner, proximity, and frequency of exposure along with any additional mitigating or agitating factors.)

Restatement of the Law 2d Torts, Section 433 (1965) (When determining whether an actor’s conduct is a substantial factor resulting in the alleged harm, courts should consider three factors. These factors include the number of other factors for the harm and the extent or effect they have in producing it; whether an actor’s conduct creates an actively harmful operation or whether such an activity is harmless unless acted upon by other factors not under the control of the actor; and lapse of time.)

Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (The use of frequency, regularity, and proximity as factors in determining whether exposure to particular products constituted a substantial factor was reasonable. To support such reasonable inferences there must be evidence of exposure to a specific product on a regular basis, over some extended period of time, in proximity to where the plaintiff worked [or lived].)

Krik v. Exxon Mobil Corp., 870 F.3d 669, 677 (7th Cir.2017) (Under the cumulative exposure theory and the “each and every exposure” theory, it is impossible to determine which exposure to carcinogens, if any, caused an illness; both theories rely on all exposures to constitute a cumulative dose rather than any particular dose or exposure to asbestos.)

In re New York City Asbestos Litigation, 148 A.D.3d 233 (2017) (Cumulative exposure theory is irreconcilable with the requirements to present some quantitative information to assess the amount, frequency, and duration of exposure to determine whether exposure was sufficient to constitute a contributing factor of the disease.)

Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir.2009) (It is impermissible to consider each and every exposure to asbestos to be a substantial factor causing the disease. To take this approach would render the substantial factor test meaningless.)

Merit Decision

Executive Summary

The Court adopts Honeywell’s proposed proposition of law:

A theory of causation based only upon cumulative exposure to various asbestos-containing products is insufficient to demonstrate that a particular defendant’s product was a ‘substantial factor’ under R.C. 2307.96.

Analysis

Causation in Multiple Exposure Cases

Before R.C. 2307.96 was enacted, a plaintiff had to prove exposure to the defendant’s product for each defendant in a multi-defendant asbestos case, and that the product was a substantial factor in causing the plaintiff’s injury. The case that held that, Horton v. Harwick Chemical Co., also considered, but declined to adopt, the manner-frequency-proximity test developed in Lohrmann v. Pittsburgh Corning Corp., as overly burdensome to plaintiffs.

Nine years later, the Ohio legislature adopted the Lohrmann test. Pursuant to R.C. 2307.96, a plaintiff must now prove that the conduct of a particular defendant was a substantial factor in causing the plaintiff’s injury. In doing so, the trier of fact must consider the manner, proximity, frequency and length of the plaintiff’s exposure to asbestos.  But “substantial factor” is not specifically defined.

Cumulative Exposure

The majority opinion sets forth a number of problems with the cumulative exposure theory, but its death-knell is that it is incompatible with R.C. 2307.96. And it fails to take into account other exposures that might have caused the harm.

Dr. Carlos Bedrossian, Schwartz’s causation expert, testified that Kathleen’s exposure to Bendix products “contributed to her cumulative exposure to asbestos fibers which ultimately was the cause of her mesothelioma.

Not good enough, says the majority. The statute requires an individualized finding of substantial causation for each defendant. The cumulative-exposure theory is incompatible with that. It is also at odds “with the statutory requirement that substantial causation be measured based on the manner, proximity, length, and duration of exposure.” Dr. Bedrossian’s opinion completely disregarded that

“In enacting R.C. 2307.96, the General Assembly demanded a showing greater than an undefined contribution to a total cumulative exposure that resulted in injury,” wrote DeWine.

Applying the Factors to Kathleen Schwartz’s Mesothelioma

The court applied the manner, proximity, frequency and length factors and determined there was insufficient evidence to prove that Kathleen’s exposure to Bendix brakes was a substantial factor in her contracting mesothelioma.

The only evidence of manner of exposure or of proximity was that Kathleen “might” have been exposed to asbestos fibers while walking through the garage while her father was doing a brake job, or through contact with her father’s clothes after one. There was no specific evidence of exposure tied to any specific brake job. As to proximity, there was also no evidence that Kathleen ever helped with any brake job. Finally, the evidence of frequency and length of exposure was quite limited—nothing more than a showing that Kathleen could have been exposed to asbestos from Bendix products on the five to ten occasions when her father  installed Bendix brakes in the family garage.

And finally, of significance to the majority, was the fact that Kathleen’s father came into contact with products containing asbestos at work as an electrician every day for 33 years, and would pick up and play with Kathleen without changing his work clothes—a strong contrast with the limited and irregular exposures Kathleen might have had because of the infrequent brake jobs. So, when considering Kathleen’s exposure from Bendix products, in relation to other factors that contributed to cause harm, Schwartz failed to prove that the exposure to asbestos was a substantial factor in causing her mesothelioma.

Bottom Line

Honeywell’s directed verdict should have been granted. Good-bye jury verdict.

Justice Fischer’s Position

While Justice Fischer agreed with the majority that the trial court should have directed a verdict in favor of Honeywell in this case, he doesn’t think the majority analysis sufficiently clarifies how courts should consider substantial factor causation in the future, so he concurred in judgment only.

Fischer agrees that the substantial factor-requirement is not met just by showing some non-minimal exposure that contributed to the plaintiff’s cumulative asbestos exposure. He also agrees that in this case, Schwartz failed to offer testimony connecting Kathleen’s exposure to asbestos from the Bendix brakes to her mesothelioma. But he doesn’t think the majority clearly differentiates an exposure that is a substantial factor from one that is an insubstantial factor.  He urges the legislature to amend the statute to provide a better definition of “substantial factor” as that term is used in R. C. 2307.96.

Justice O’Neill’s Dissent

Justice O’Neill wrote a solo dissent. He thinks the trial court properly denied Honeywell’s motions for a directed verdict, and that the testimony from Dr. Bedrossian and that of the family about Kathleen’s exposure was good enough to let the jury decide this issue.

Case Syllabus

None, although it certainly could have been Honeywell’s proposition of law which the Court adopted.

Concluding Observations

My notorious plaintiff’s heart reluctantly called this one for Honeywell. I thought the justices seemed more split than they ended up being, although it was clear that then-Justice O’Neill was going to dissent.

I wrote this after argument:

“Justices DeWine and French seemed to lean toward the defense position, very ably articulated by Honeywell’s counsel, that expert testimony is required to provide a link between the asbestos exposure and a particular defendant, Honeywell in this case, and that Schwartz’s expert never provided that, but only testified that cumulative exposure was the substantial factor here, which is not what the statute requires.” And so it went.