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Wednesday, Sept. 19, 2007

State of Ohio v. Roland T. Davis, Case no. 2005-1656
Licking County Court of Common Pleas

Douglas Groch et al. v. General Motors Corporation et al., Case no. 2006-1914
U.S. District Court for the Northern District of Ohio

Disciplinary Counsel v. Eric Kyle Heiland, Case no. 2007-1111
Lorain County

Irene F. Paterek, Individually and Executrix of the Estate of Edward F. Paterek, Deceased v. Peterson & Ibold et al., Case no. 2006-1811
11th District Court of Appeals (Geauga County)


Death Penalty

State of Ohio v. Roland T. Davis, Case no. 2005-1656
Licking County Court of Common Pleas

Roland Davis appeals his convictions and death sentence for the July 2000 aggravated murder of 86-year-old Elizabeth Sheeler in her Newark apartment during the commission of the violent felonies of aggravated robbery and kidnapping. Davis asserts 18 allegations of error during his trial and sentencing as grounds to vacate his convictions or reduce his death sentence to life imprisonment. These include claims that:

Contacts
Kenneth W. Oswalt, 740.349.6195, for the State of Ohio and Licking County prosecutor's office.

David C. Stebbins, 614.224.2999, for Roland Davis.

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Case Challenges Constitutionality of Workers’ Comp, Tort Reform Legislation

Douglas Groch et al. v. General Motors Corporation et al., Case no. 2006-1914
U.S. District Court for the Northern District of Ohio

ISSUE: Do provisions of Ohio's product liability and workers' compensation subrogation statutes enacted by the General Assembly violate the due process, equal protection and private property rights of citizens guaranteed by the Ohio and U.S. constitutions?

BACKGROUND: In March 2005, Douglas Groch was injured while working at a General Motors plant in Toledo when a trim press he was operating came down on his right arm and wrist. Groch filed suit in the Lucas County Court of Common Pleas seeking damages from GM for alleged unsafe working conditions and from the manufacturers of the trim press, Kard Corporation and Racine Federated, Inc. based on alleged product defects. The defendants invoked their right to remove the case to the U.S. District Court for the Northern District of Ohio.

GM subsequently asserted its right under legislation enacted in 2003 to subrogate (recover) amounts the company paid to cover Groch's medical expenses and loss of wages under Ohio's workers' compensation program from the proceeds of any damage award or settlement Groch received from his lawsuit. Kard and Racine asserted that they were immune from liability to Groch for any alleged defect in their product under the terms of S.B. 80, a “tort reform” bill that took effect in April 2005. The bill added a “statute of repose” provision to Ohio's products liability statute stating that no user of a product has a cause of action (legal basis to file suit) against the manufacturer for any product-related injury that occurs more than 10 years after the manufacturer first delivered the product to an end user.

Groch responded to the defendants' legal claims by urging the federal court to find that both the workers' compensation subrogation statute cited by GM and the product liability statute of repose cited by the press manufacturers are void and unenforceable because they violate various fundamental rights guaranteed by the U.S. and Ohio constitutions including the right to pursue a remedy for their injuries through the courts, to due process, and to equal protection of the law.

After reviewing the pleadings of the parties, the federal court held that it could not resolve the dispute without clarification from the Supreme Court of Ohio on state constitutional issues raised by Groch. The Justices have agreed to hear oral argument on nine questions of law. Five of those questions raise constitutional issues regarding the statute of repose for product liability claims; three raise similar issues regarding 2003 amendments to the workers' compensation subrogation statute, and a final question asks the Court to declare whether S.B. 80, the 2004 legislative bill that incorporated dozens of “tort reform” measures, violated the provision of Ohio's state constitution that limits the content of any legislative enactment to a “single subject.”

NOTE: Because the certified questions of law in this case challenge the constitutionality of legislation enacted by the General Assembly and incorporated into the Revised Code, the State of Ohio has been identified as a party respondent by the federal court and will be represented at oral argument by the state attorney general's office.

A wide range of groups have submitted amicus curiae (friend of the court) briefs. Briefs supporting Groch's arguments that the challenged statutes should be voided as unconstitutional include the Ohio AFL-CIO and Ohio Academy of Trial Lawyers. Briefs supporting the respondents' arguments that the challenged statutes should be upheld as constitutional have been filed by organizations including the Ohio Chamber of Commerce, Ohio Manufacturer's Association and Ohio Alliance for Civil Justice.

Contacts
Kevin J. Boissoneault, 419.843.2001, for Douglas Groch.

Kimberly A. Conklin, 419.255.5990, for General Motors Corporation.

Robert H. Eddy, 419.241.4860, for Kard Corp and Racine Federated, Inc.

Stephen P. Carney, 614.466.8980, for the State of Ohio.

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Attorney Discipline

Disciplinary Counsel v. Eric Kyle Heiland, Case no. 2007-1111
Lorain County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Lorain attorney Eric K. Heiland be suspended indefinitely for multiple violations of state attorney discipline rules based on conduct that resulted in his conviction on three criminal counts of defrauding creditors.

The board found that Heiland engaged in conduct involving moral turpitude and conduct involving fraud, deceit, dishonesty or misrepresentation by misusing his law office client trust account to conceal pension payments directed to his wife's mother and father, over whose affairs his wife exercised power of attorney, from three different nursing homes where his in-laws received treatment.

Rather than using approximately $40,000 in pension payments received on behalf of his in-laws between 1998 and 2001 to pay their nursing home bills, the board found that Heiland deposited the checks in his client trust account and then wrote more than 260 checks from that account to “cash” with no other notation, for which he could make no accounting other than to claim that the money was given to his wife to be used for her parents. None of the withdrawals was used to pay nursing home bills. In January 2000, Heiland's father-in-law was discharged from a nursing home where he had been residing for nonpayment of $53,000 in delinquent bills.

The disciplinary board also found that Heiland engaged in conduct that reflected adversely on his fitness to practice by witnessing a document in which his mother-in-law purportedly gave his wife power of attorney over her affairs 29 days after Heiland had entered a sworn affidavit in a court proceeding declaring that his mother-in-law was so disabled by Alzheimer's disease that she did not understand “who or where she is” and was therefore incompetent to sign legal papers or conduct any of her own affairs. The board further found that Heiland failed to cooperate with the disciplinary proceedings against him by agreeing to provide copies of his 1999, 2000 and 2001 tax returns but then failing to do so or to respond to any questions about those returns at his hearing.

Heiland has filed objections to the board's findings and recommended sanction. He argues that the board inaccurately concluded that he had engaged in a “pattern of misconduct” when his admitted improper use of his office trust account should correctly be viewed as one “course of conduct” that extended over a period of time. He also asserts that the board recommended that he receive a disproportionately severe sanction compared to similar cases because of his refusal to produce or testify regarding his tax records. Heiland contends that this refusal was merely the exercise of his constitutional right against self-incrimination, for which he should not be penalized.

Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Eric K. Heiland, pro se: 440.308.0004.

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Is Client’s Recovery from Lawyer for Malpractice Limited to Amount Collectible In Neglected Case?

Irene F. Paterek, Individually and Executrix of the Estate of Edward F. Paterek, Deceased v. Peterson & Ibold et al., Case no. 2006-1811
11th District Court of Appeals (Geauga County)

ISSUE: In a legal malpractice action arising from an attorney's failure to competently prosecute a client's personal injury claim, is the client's malpractice recovery from the attorney limited to the amount of his damages the client would have been able to collect from the tortfeasor (person at fault) in the underlying personal injury case if the client had received competent representation?

BACKGROUND: In May 1997, Edward Paterek was injured in a traffic accident caused by Kristopher Richardson. Within a few weeks after the accident, Paterek and his wife, Irene, retained the law firm of Peterson and Ibold to represent them in a personal injury lawsuit against Richardson. The firm assigned attorney Jonathon Evans to their case. Over the ensuing four years, Evans repeatedly assured the Patereks that he was proceeding with the civil action on their behalf but had encountered various delays. In 2001, Mrs. Paterek learned that Evans had dismissed the case in October 2000 without the clients' knowledge or consent. By the time the law firm attempted to refile the Patereks' complaint, the one-year time limit for doing so had expired, and their claim against Richardson was permanently dismissed for lack of prosecution.

Mr. Paterek died in February 2003. Mrs. Paterek initiated a legal malpractice action against Evans and Peterson & Ibold on behalf of herself and her husband's estate, seeking to recover for her husband's injuries, pain and suffering and her own loss of consortium. A jury awarded the Patereks damages totaling $382,000. The law firm filed a motion asking the trial judge to reduce the jury's damage award. The trial

court agreed that the maximum the Patereks were entitled to recover from the law firm for malpractice was the maximum amount they could have collected from Richardson, and reduced the jury award to the $100,000 limit of liability coverage in Richardson's auto insurance policy.

The Patereks appealed that ruling. The 11th District Court of Appeals overruled the trial court's order and reinstated the jury's original damage award.

Peterson & Ibold sought and were granted Supreme Court review of the 11th District's decision. They argue that the Patereks are entitled only to be “made whole” for the economic loss they suffered as a result of Evans' negligence. Because it is clear from the trial record that Richardson had no assets other than the coverage in his insurance policy, they say, the Court should overrule the 11th District and reinstate the trial court's order reducing the jury award to the maximum of $100,000 the Patereks could have recovered if their lawsuit against Richardson had been competently prosecuted and won.

Attorneys for the Patereks respond that the jury award compensated them not only for the economic and non-economic damages caused by Richardson's negligent driving, but also for the lost time, emotional distress and loss of health and quality of life they suffered as a result of the law firm's inexcusable delay, false assurances and negligent destruction of their right to obtain any recovery from Richardson. They also assert that the trial court order reducing their award ignored the stipulated fact that they had in place at the time of the accident uninsured/underinsured motorist coverage that would have entitled them to recover an additional $150,000 from their own auto insurance policy if Evans had represented them competently and obtained a timely judgment against Richardson.

Contacts
Timothy D. Johnson, 216.241.6602, for Jonathon Evans and Peterson & Ibold.

Paul W. Flowers, 216.344.9393, for Irene Paterek.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.