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Wednesday, April 25, 2012

Tracy Ruther, Individually and Administrator of the Estate of Timothy Ruther v. George Kaiser, D.O., et al., Case no. 2011-0899
Twelfth District Court of Appeals (Warren County)

State of Ohio v. Lindell W. Brunning, Jr., Case no. 2011-1066
Eighth District Court of Appeals (Cuyahoga County)

Angel L. Horvath et al. v. David Ish et al., Case no. 2011-1089
Ninth District Court of Appeals (Summit County)

Ronald Luri v. Republic Services, Inc., et al., Case no. 2011-1120
Eighth District Court of Appeals (Cuyahoga County)


Does Four-Year Time Limit for Bringing Medical Malpractice Claims Violate Patient's Constitutional Right to Legal Remedy?

In Case Where Malpractice Not Discovered Until After Time Limit Had Expired

Tracy Ruther, Individually and Administrator of the Estate of Timothy Ruther v. George Kaiser, D.O., et al., Case no. 2011-0899
Twelfth District Court of Appeals (Warren County)

ISSUE:  Does a “statute of repose” enacted by the General Assembly in 2003 that bars the filing of a medical malpractice lawsuit more than four years after the date of the alleged malpractice violate the constitutional right to a remedy at law of a patient who did not discover his injury until more than four years after the date of the alleged malpractice?

BACKGROUND: Between 1995 and 1998, Timothy Ruther was treated by Dr. George Kaiser and other physicians employed by Warren County Family Practice Physicians Inc. for several different medical issues. In the course of that treatment, Ruther underwent various laboratory tests. The laboratory sent the test results to the treating physicians and those reports were placed in Ruther’s medical file.

In 2008, Ruther began experiencing abdominal symptoms for the first time. He was subsequently diagnosed with advanced liver cancer, which caused his death in June 2009. Prior to  Ruther’s death, it was discovered that three separate laboratory tests conducted in 1995, 1997 and 1998 and placed in his patient file at Warren County Family Practice had shown abnormally high levels of liver enzymes about which Ruther was never advised.

Ruther’s wife, Tracy, filed a medical malpractice action against Dr. Kaiser and Warren County Family Practice in 2009 seeking damages for wrongful death on behalf her husband’s estate and also asserting survivorship claims on her own behalf. The defendants filed a motion for summary judgment, pointing out that the last of the three lab reports was received more than 10 years before suit was filed, and seeking dismissal of all claims because they were not brought within the four-year statute of repose for medical malpractice claims set forth in R.C. 2305.113(C). 

The trial court denied summary judgment, holding that because Ruther did not discover the harm caused by his doctors’ alleged negligence until after the four-year statute of repose had expired, applying that statute to bar his estate and his wife from advancing their claims in this case would effectively deprive them of the right to pursue a legal remedy for their damages in violation of Section 16, Article I of the Ohio Constitution. 

The defendants appealed.  The Twelfth District Court of Appeals affirmed the  trial court’s ruling that R.C. 2305.113(C) was unconstitutional as applied to the facts of Ruther’s case, citing Hardy v. Vermeulen, a 1987 decision in which the Supreme Court of Ohio struck down a prior statute of repose for medical malpractice actions as unconstitutional on similar grounds.

Dr. Kaiser and Warren County Family Practice sought and were granted Supreme Court review of the Twelfth District’s decision.

Attorneys for the defendants urge the court to follow its decisions in Sedar v. Knowlton Construction Co. (1990) and Groch v. General Motors Corp. (2008), cases decided after Hardy in which it upheld as constitutional statutes of repose that set time limits for the filing of lawsuits in product liability and real property cases. In Sedar and Groch, they assert, the Court held that the legislature may set reasonable time limits within which certain types of civil claims must be brought in order to strike a balance between the rights of plaintiffs and the rights of defendants who would otherwise face unlimited exposure to stale lawsuits based on alleged conduct that took place decades in the past. They point to language in those decisions holding that the challenged statutes of repose were not unconstitutional as long as they had a rational basis and the statute did not prevent a claimant from exercising a vested right of recovery that had accrued before the statutory time limit expired.

In this case, they assert, in enacting R.C. 2305.113(C) the legislature set forth a rational basis for limiting the time within which medical malpractice claims must be brought. They argue that Ruther’s cause of action for malpractice did not accrue until symptoms of his cancer were discovered in 2008, which was long after the  four-year statutory time limit for asserting a malpractice claim based on acts or omissions that took place between 1995 and 1998 had expired. They contend that the Ruthers did not have a vested right of recovery before the statutory time limit expired, and therefore applying the statute of repose to bar their claims does not violate the constitutional right to a remedy.

Attorneys for the Ruthers respond that in both the Sedar and Groch decisions, the Supreme Court  specifically distinguished the statutes of repose at issue in those cases from the medical malpractice statute that it held unconstitutional in Hardy. The basis of that distinction, they say, was that the injuries suffered by the plaintiffs in Sedar and Groch did not occur until  after the statutory time limit for asserting claims against the defendants had expired, while the injury suffered by the patient in the Hardy case (and by Ruther in this case) occurred immediately at the time the plaintiff received substandard medical care, but was not discovered until years later.

They urge the Court to follow its holding in Hardy, which they say was reaffirmed in the Sedar and Groch decisions, that applying a statute of repose to extinguish a plaintiff’s claim based on an injury that he or she has already suffered but was not reasonably able to discover until after the statutory time limit had passed violates the plaintiff’s constitutional right to “a remedy by due course of law.”

NOTE:  A joint amicus curiae (friend of the court) brief supporting the position of Dr. Kaiser and Warren County Family Practice Physicians has been submitted by the American Medical Association, American Hospital Association, American Osteopathic Association, Ohio State Medical Association, Ohio Hospital Association, and the Ohio Osteopathic Association. The State of Ohio has also entered a brief defending the constitutionality of R.C. 2305.113(C) and urging reversal of the Twelfth District’s decision. An amicus brief supporting the position of the Ruthers and urging affirmance of the Twelfth  District has been entered by the Ohio Association for Justice.

Contacts
John D. Holschuh Jr., 513.721.4450, for Tracy Ruther and Estate of Timothy Ruther.

John B. Welch, 937.296.1600, for Dr. George Kaiser and Warren County Family Practice Physicians Inc.

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Did Court Err in Vacating Sex Offender's Convictions Based on 'Adam Walsh Act' Provisions Later Held Unconstitutional?

In Case Where Defendant Failed to Report Address Change, Gave Police False Address

State of Ohio v. Lindell W. Brunning, Jr., Case no. 2011-1066
Eighth District Court of Appeals (Cuyahoga County)

ISSUE:  Did the Eighth District Court of Appeals commit reversible error when it vacated the convictions of a Cleveland man for violating sex offender reporting requirements imposed by the Adam Walsh Act (AWA) based on Ohio Supreme Court decisions holding that it was unconstitutional to apply the AWA’s reporting requirements to persons like the defendant?

BACKGROUND: In 1996, the Ohio legislature enacted Megan’s Law, which imposed registration and reporting requirements on persons convicted of sex offenses on or after July 1, 1997. The law also imposed the same requirements on persons who were serving terms in Ohio prisons on July 1, 1997 for sex crimes committed before that date. Lindell Brunning Jr. of Cleveland was subject to the requirements of Megan’s Law because he was in prison serving a 25-year term for rape and other offenses on July 1, 2007.  Pursuant to Megan’s Law, Brunning received a hearing and was classified by a judge as a sexually oriented offender. Based on that classification, he was notified that upon his release from prison he would be required to register with the sheriff in his county of residence once a year for 10 years, and to report any change of address during that period.

Effective January 1, 2008, the General Assembly repealed Megan’s Law and replaced it with the AWA, which imposed more restrictive sex offender registration and community notification requirements than those imposed under Megan’s Law. Prior to the effective date of the AWA, Brunning, who was still in prison, received a notice that his Megan’s Law classification and postrelease registration requirements were no longer in effect, and that the Ohio Attorney General had reclassified him as a “Tier III” (most dangerous) sex offender under the AWA. As a Tier III offender, Brunning was advised that after release from prison he would be required to verify his address with the county sheriff every 90 days for life, and that he would be required to notify law enforcement of any change of address and would be subject to mandatory minimum penalties for failing to comply with those requirements.

Brunning completed his sentence and was released from prison in November 2008. In December 2009 he was indicted on charges of violating the AWA by failing to update his address every 90 days,  failing to report a change of address, and falsifying a government record based on his listing of  a false address on an AWA registration form he filed in August 2009.  [In a separate indictment,  Brunning was also charged with  rape, unlawful sexual conduct with a minor and sexual battery based on new crimes he had committed after his release from prison, however those charges and their disposition are not at issue in this appeal]. In April 2010 Brunning entered guilty pleas to the three AWA-related charges as part of a plea bargain in which the court agreed that those counts would be merged into a single conviction subject to a single sentence. Brunning’s sentencing hearing was scheduled for June 8, 2010. 

On June 3, 2010, the Supreme Court of Ohio released its decision in State v. Bodyke.  In Bodyke, the court voided as unconstitutional the provisions of the AWA authorizing the attorney general to reclassify and impose more restrictive registration requirements against offenders like Brunning who had previously been classified by a judge under Megan’s Law.

Five days later, at his sentencing hearing, Brunning’s attorney entered a motion to dismiss the indictment and vacate his convictions for violating the AWA registration requirements, because the Supreme Court’s ruling in Bodyke had rendered those provisions void and unenforceable as applied to him. The trial court overruled that motion, refused to merge the three charges for sentencing as it had previously indicated, and sentenced Brunning to a separate prison term of seven years on each count, for a total of 21 years.

Brunning appealed, asserting among other assignments of error that the trial court should have granted his motion to dismiss all three AWA-related counts because the provisions of law he was charged with violating in the indictment had been found unconstitutional as applied to him. The Eighth District agreed with Brunning’s argument and vacated his convictions on the failure to update, failure to report a change of address and falsification charges. The court of appeals certified, however, that its judgment  was in conflict with rulings by several other appellate districts regarding the effect of  Bodyke and the Supreme Court’s subsequent decisions in State v. Gingell and State v. Williams on the applicability of AWA and former Megan’s Law registration requirements to offenders like Brunning.

The Supreme Court agreed to review the case to resolve the conflict among appellate districts.

The state, represented by the Cuyahoga County prosecutor’s office, does not dispute the dismissal of Brunning’s conviction for failure to verify his address every 90 days because he was not subject to that requirement under Megan’s Law. The state argues, however, that the court of appeals should not have overturned his conviction for failing to report a change of address because Brunning was subject to exactly the same requirement under Megan’s Law, and the Supreme Court’s ruling in Bodyke had effectively reinstated Brunning’s registration requirements under Megan’s Law.

The state also contends that Brunning’s conviction for falsifying a government record should not have been vacated based on Bodyke, because the falsification statute does not require proof that a defendant falsified a document he was legally required to complete, but simply prohibits the intentional entry of false information in a government record.  In this case, they assert, Brunning pleaded guilty to providing false information on a sex offender reporting document, and that admission was sufficient to uphold his conviction for falsification regardless of whether he was required by law to complete that document.

Attorneys for Brunning urge the court to affirm the decision of the Eighth District vacating all of his AWA-based convictions on the basis that all of his reporting obligations under the AWA were imposed by means of his reclassification by the attorney general, and Bodyke held that the attorney general acted without legal authority when he imposed those requirements on offenders like Brunning who had previously been classified by a judge. They also point out that in enacting the AWA effective January 1, 2008 the legislature specifically repealed the sex offender classifications and registration requirements that had previously been imposed by Megan’s Law. Because Megan’s law was no longer in effect in August 2009, when the conduct for which Brunning was charged took place, they argue that the only sex offender reporting requirements in existence were the AWA provisions that Bodyke held unconstitutional as applied to Brunning.

Even if the court should hold that Brunning’s obligations under Megan’s Law remained in effect in 2009, his attorneys point out that the indictment against him did not charge Brunning with violations of the Megan’s Law registration requirements, but only charged him with violating specific provisions of the AWA that Bodyke subsequently held could not be applied to him. Thus, they contend, the Eighth District’s actions in dismissing Brunning’s indictment as fatally defective and vacating the convictions that were based on that indictment were correct and should be affirmed.

Contacts
Daniel T. Van,  216.443.7800, for the state and the Cuyahoga County prosecutor's office.

Cullen Sweeney, 216.443.3660, for Lindell Brunning Jr.

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Do Skiers 'Assume Risk' of Possible Collisions, Waive Right to Sue Other Skiers Except for Reckless or Intentional Conduct?

Or Does State Law Listing Skier 'Responsibilities' Create Strict Liability Standard?

Angel L. Horvath et al. v. David Ish et al., Case no. 2011-1089
Ninth District Court of Appeals (Summit County)

ISSUE: Do skiers and snowboarders using Ohio’s commercial ski slopes “assume the risk” of a possible collision with another skier or snowboarder as an inherent and ordinary hazard of the sport, and thereby waive the right to sue another skier for an injury arising from  a collision unless they can show it was caused by reckless or intentionally harmful conduct?  Or does a provision of state law that defines responsibilities of recreational skiers create a statutory “duty of care” under which one skier can sue another for conduct that is merely negligent?

BACKGROUND: Skier Angel Horvath was injured in a ski-slope collision with a teenage snowboarder, David Ish, at the Boston Mills Ski Resort in Summit County. 

Horvath and her fiancé (now husband), Eugene Horvath,  filed a civil lawsuit in the Summit County Court of Common Pleas seeking damages from Ish and his parents (because Ish was a minor at the time of the accident), based on claims that David’s collision with Angel and her injuries were the result of  negligent, careless and reckless conduct by David. 

The Ishes filed a pretrial motion for summary judgment dismissing the Horvaths’ claims. They argued that, under Ohio’s common law standard of liability applicable to sports and recreational activities, skiers and snowboarders are presumed to understand that those sports are inherently dangerous, and therefore to “assume the risk” of accidental injuries arising from their voluntary participation. Because Angel had assumed the risk of possible injury by sharing a ski slope with other skiers, they argued, she was not eligible to recover damages from David or his parents absent a showing that David had violated some statutory duty of care, or had acted recklessly or with the intent of causing injury. 

The trial court granted summary judgment in favor of the Ishes, holding that there was no statutory duty in Ohio under which one skier could sue another for mere negligence, and that the evidence produced by the Horvaths did not raise a material question that David was acting recklessly or with intent to injure when he collided with Angel.

The Horvaths appealed.  On review, the Ninth District Court of Appeals reversed the trial court, reinstated the Horvath’s claims, and remanded the case to the trial court for further proceedings.

In a 2-1 majority opinion, the court of appeals held that a provision of state law, R.C. 4169.08(C), sets forth responsibities of skiers using commercial ski slopes, including the responsibility to “refrain from causing collision with any person or object while skiing” and to “refrain from acting in a manner that may cause or contribute to the injury of another person.” The appellate majority held that those provisions imposed a statutory duty on skiers to protect other skiers from injury, and said the trial court erred by granting summary judgment dismissing the Horvath’s claims that David had been negligent for failing to meet that legal duty. The majority also found that the pretrial evidence produced by the parties had raised a material question regarding whether David had acted recklessly, and that question should be resolved by a judge or jury.

The Ishes sought and were granted Supreme Court review of the Ninth District’s decision.

Attorneys for the Ishes argue that the court of appeals majority misinterpreted the language of R.C. 4169.08(C) by failing to read it in context with the rest of that statute and the legislative intent underlying its enactment. They contend that Chapter 4169 and similar statutes in many other northern states were enacted at the urging of ski resorts in reaction to a 1978 decision of the Vermont Supreme Court, Sunday v. Stratton Corp., which affirmed an award of $1.5 million against a ski resort, holding that the owners had been negligent for allowing skiers to use a slope on which some underbrush had poked through the covering snow and caught the ski of a patron. 

They say that a reading of R.C. 4169.08 in its entirety shows the legislature’s  intent was to indemnify ski slope operators against liability for negligence claims like the claim in Sunday by clarifying in Section (A) that “skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken ... (and) that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing...” They assert that the statute then goes on to enumerate in Section (B) the responsibilities of ski slope operators to their customers, and in Section (C) the responsibilities of skiers to resort operators to conduct themselves responsibly and refrain from conduct that could injure other resort guests.

When R.C. 4169.08 is read in context, they argue, it is clear that the Ninth District erred in reading the “responsibilities” set forth in Section (C) to establish a statutory “strict liability” standard for injuries skiers cause to other skiers that is totally inconsistent with the assumption of risk language in Section (A), and with the common law standard of liability Ohio applies to participants in every other type of sport or recreation.

Attorneys for the Horvaths respond that the Ninth District  correctly reversed the trial court’s grant of summary judgment against them  by applying the plain language of R.C. 4169.08(C), which imposes a statutory duty on all skiers to “refrain from causing collision” with other skiers or from engaging in “conduct that causes ...  injury to another person.”

They urge the court to affirm the Ninth District’s holding that they are entitled to pursue a negligence claim against the Ishes for breach of the statutory duties imposed by Section (C) of the statute, and are also entitled to argue to a judge or jury that David’s snowboarding conduct that resulted in his collision with Angel was legally “reckless,” and therefore grounds for a lawsuit whether or not the Horvaths prevail on their negligence claims.

Contacts
Timothy J. Fitzgerald, 216.241.5310, for David Ish and the Ish family.

Paul W. Flowers, 216.344.9393, for Angel and Eugene Horvath.

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Is Punitive Damages 'Cap' the Maximum Amount Recoverable From Each Defendant, or From All Defendants Collectively?

Where Jury Finds Each of Multiple Defendants Subject to Punitive Damages

Ronald Luri v. Republic Services, Inc., et al., Case no. 2011-1120
Eighth District Court of Appeals (Cuyahoga County)

ISSUE:  When a jury awards the plaintiff in a civil lawsuit compensatory damages for which multiple defendants are jointly and severally liable, and also finds  that each defendant is subject to punitive damages, does the state law capping punitive damages at “two times the amount of the compensatory damages awarded to the plaintiff from that defendant,” allow a punitive damage award against each defendant of two times the total compensatory damages, or does the cap limit the  punitive damages recoverable from all the defendants collectively to a total of two times the plaintiff’s compensatory damages?

BACKGROUND: Ron Luri was fired from his position as general manager of three Cleveland-area waste disposal facilities operated by Republic Services of Ohio Hauling (Ohio Hauling) after Luri refused to comply with an order from his immediate superior, James Bowen, to terminate his three oldest employees and replace them with younger workers. Luri declined Bowen’s order on the basis that firing the workers without good cause would constitute age discrimination, and suggested to Bowen that the firings would expose the company to lawsuits.

After he was terminated, Luri filed a wrongful discharge lawsuit naming as defendants Ohio Hauling and two of its corporate “parent” companies, Republic Services Inc. (Republic) and Republic Services of Ohio Inc. (Republic Ohio). He also named Bowen and Bowen’s direct superior, Republic vice president Ron Krall, as individual defendants. At trial, a jury found that Luri had been terminated illegally in retaliation for refusing to engage in unlawful discrimination, and also found that Krall, Bowen and the three defendant companies had acted with actual malice by colluding to manufacture a false “paper trail” of post-dated performance complaints and other falsified reports and work records, and placing those documents in company files as a pretext for firing Luri on non-retaliatory grounds.

The jury awarded Luri compensatory damages of $3.5 million, for which the co-defendants were “jointly and severally” liable (i.e., the defendants were collectively required to pay the specified amount, but each defendant was individually responsible for the full amount if others should prove uncollectible). The jury also awarded punitive damages of $21.5 million against Republic and $10.5 million each against Republic Ohio and Ohio Hauling.

The defendants appealed the trial court’s judgment asserting multiple alleged errors.  These included a claim that the punitive damages exceeded the maximum award permitted under R.C. 2315.21(D),  a law enacted as part of 2005 “tort reform” legislation that limits the amount of punitive damages that can be awarded in a tort lawsuit to “two times the amount of the compensatory damages awarded to the plaintiff from that defendant.”

In a 2-1 majority decision, the Eighth District Court of Appeals upheld the judgment of the trial court and the $3.5 million compensatory damage award, but held that under the facts of the case, the statutory cap permitted a maximum total award of punitive damages against all three defendants of $7 million, which was two times the compensatory damages awarded against them collectively by the jury. In a dissenting opinion, the third member of the appellate panel said that under her reading of the law, the statutory “cap” applied to each defendant separately, and therefore allowed a separate award of $7 million in punitive damages against each of the corporate defendants.

Luri sought and was granted Supreme Court review of the Eighth District’s ruling.

Luri’s attorneys do not dispute that the cap on punitive damages imposed by R.C. 2315.21(B) is applicable to this case.  But they urge the Court to adopt the reasoning of the court of appeals dissent, which found that the plain language of the statue does not impose a “joint” or “collective” cap on punitive damages in cases with multiple defendants, but rather authorizes a separate punitive damage award against each defendant of up to two times the compensatory damages that the plaintiff is awarded “from that defendant.”

They contend that the jury made specific findings that each of the three corporate defendants engaged in malicious conduct, and that each was independently subject to punitive damages. Because the jury’s $3.5 million compensatory damage award was imposed against each defendant “jointly and severally,” which made the full amount of compensatory damages recoverable from each defendant, they argue that the statutory limit must be read to permit recovery of up to $7 million in punitive damages from each of the three corporate defendants.

Attorneys for the defendants urge the Court to affirm the Eighth District’s interpretation of the statutory limit.  They argue that the court of appeals correctly held that, because Luri’s claims against them were based on a “single employer” theory of liability in which the jury was asked to impute the actions of one corporate entity to the other corporate defendants, the statutory limit on punitive damages that may be awarded against those defendants is a collective total of $7 million, which is two times the total compensatory damages awarded by the jury.

Contacts
Irene C. Keyse-Walker, 216.592.5000, for Ronald Luri.

Robin G. Weaver, 216.479.8500, for Republic Services Inc. et al.

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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.