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Wednesday, June 20, 2012

Bruce R. Houdek et al. v. ThyssenKrupp Materials NA, Inc., Case no. 2011-1076
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Lawrence A. Dibble, Case no. 2011-1569
Tenth District Court of Appeals (Franklin County)

Margaret Branch et al. v. Cleveland Clinic Foundation, Case no. 2011-1634
Eighth District Court of Appeals (Cuyahoga County)

To Prove Intentional Workplace Tort Claim, Must Employee Prove That Employer Acted With 'Deliberate Intent to Injure?'

Bruce R. Houdek et al. v. ThyssenKrupp Materials NA, Inc., Case no. 2011-1076
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Did 2004 legislation that requires an injured worker asserting a “workplace intentional tort” claim  against his employer to prove “that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur” establish a single standard of deliberate intent to cause injury?

BACKGROUND: Since Ohio enacted its state worker’s compensation statutes in the early 20th century,  multiple court decisions have held that the General Assembly’s intent in adopting that legislation was to create a “no fault” system through which employees injured in the course of their employment give up the right to sue their employers for damages based on claims of unsafe work conditions in exchange for the creation of a state-administered fund, paid for by employers, from which injured workers may quickly recover lost wages and medical expenses arising from on-the-job injuries without having to prove in court that those injuries were caused by their employer’s negligence.

Beginning in the 1980s, however, a line of Supreme Court decisions held that in certain cases where an injured worker could show that his injuries arose from a workplace hazard or condition that was known to his employer and was so dangerous that it was “substantially certain to cause injury,” the worker could not only recover workers’ compensation benefits, but could also seek civil damages from the employer in court by filing a “workplace intentional tort” lawsuit.

In 2004, as part of a “tort reform” bill (H.B. 498) the legislature amended R.C. 2745.01 to state that: A) an employer cannot be held liable to an employee for an alleged intentional workplace tort “unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.”  The following subsection of the statute,  R.C. 2745.01(B), goes on to state: “As used in this section, ‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition or death.”

In this case, after the enactment of H.B. 498, Bruce Houdek of Cleveland was crushed by a fork lift being operated at high speed as required by company policy while Houdek was working at a warehouse owned by his employer, ThyssenKrupp Materials N.A. Inc.  Based on the circumstances of his injury, Houdek filed a workplace intentional tort action against his employer. ThyssenKrupp moved for summary judgment under R.C. 2745.01, alleging that Houdek had not presented evidence establishing that the company had deliberately intended to injure him. The trial court granted summary judgment on that basis.

On review, the Eighth District Court of Appeals reversed the trial court’s award of summary judgment.

In its decision, the court of appeals wrote that the language of R.C. 2745.01(A) gives plaintiffs two alternative bases on which to establish employer liability: “intent to injure,” or “belief that injury was substantially certain,” but noted that subsection (B) of the statute effectively eliminates the second of those alternatives by defining “substantial certainty” to mean “deliberate intent.”  The appellate panel wrote that because it could find no way to harmonize the two subsections of the law, and it must give effect to the “belief that injury was substantially certain” language in subsection (A), the court would regard the language in subsection (B) of the statute as a “scrivener’s error” (clerical mistake that did not accurately reflect the legislature’s intent) in the drafting of the law. Finding that the facts alleged in Houdek’s complaint raised a material question about whether a reasonable employer would have believed ThyssenKrupp’s policies and actions were “substantially certain” to cause  injury, the Eighth District remanded the case to the trial court for further proceedings on Houdek’s intentional tort claim. 

ThyssenKrupp sought and was granted Supreme Court review of the Eighth District’s decision.

Attorneys for the employer argue that the Eighth District’s decision in this case failed to follow the Supreme Court of Ohio’s  2010 decision in Kaminski v. Metal & Wire Products Co., which held that in enacting 2004 H.B. 498, the legislature intended to limit the scope of workplace intentional tort claims exclusively to cases in which the plaintiff can prove that the employer “intended to cause” a worker’s injury. They urge the court to reverse the court of appeals decision because, by refusing to follow Kaminski, the Eighth District ignored the standard of proof established by the legislature and  violated its duty to interpret statutes and apply precedents in accordance with the decisions of the Supreme Court. 

Attorneys for Houdek urge the court to rule that the Eighth District arrived at a correct outcome (reversal of the trial court’s summary judgment in favor of ThyssenKrupp) even though the court of appeals may have applied an incorrect legal analysis in arriving at that result. They agree that under the Supreme Court’s holding in Kaminski, Houdek must show that his employer acted with an “intent to injure another,” but point out that in his complaint Houdek asserted a claim under a third subsection of the intentional tort statute, R.C. 2745.01(C), that creates a rebuttable presumption of an employer’s “intent to injure another” where the employer removed a safety device and the absence of that device resulted in the plaintiff’s injury. 

Because Houdek’s complaint alleged that ThyssenKrupp had failed to place available safety cones in the aisle where he was working to alert the fork lift driver that Houdek was present, and asserted that the absence of those safety devices resulted in his injury, plaintiff’s counsel urges the court to uphold the Eighth District’s judgment that summary judgment dismissing Houdek’s suit was inappropriate, and affirm the court of appeals’ remand of his case to the trial court for consideration of his arguments under R.C. 2745.01(C).

Gregory G. Guice, 216.430.2227, for ThyssenKrupp Materials N.A. Inc.

Stephen S. Vanek, 216.621.0070, for Bruce Houdek.

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In Reviewing Probable Cause for Search Warrant, May Judge Consider Officer's Unrecorded Oral Statements to Court?

Despite Rule Allowing Consideration of Only Recorded Statements at Suppression Hearing

State of Ohio v. Lawrence A. Dibble, Case no. 2011-1569
Tenth District Court of Appeals (Franklin County)

ISSUE:  When the defendant in a criminal case moves to suppress evidence gained through a search warrant based on a claim that the affidavit though which police obtained that warrant included false statements, may the court hearing the motion to suppress consider sworn but unrecorded oral statements officers made to the judge at the time the warrant was requested, or is the court limited to consideration of only the contents of the written affidavit pursuant to Ohio Criminal Rule 41(C)?

BACKGROUND:  Based on a report filed with Upper Arlington police by a current and a former student at the Wellington School, police filed a criminal complaint alleging one count of  gross sexual imposition against Lawrence Dibble, a teacher at the school, for alleged improper touching of the current student.

On the day the complaint was filed, officers sought a search warrant allowing them to seize and search computers, cameras and media storage devices from Dibble’s home.  In the affidavit they filed in support of the requested warrant, officers described the alleged incident involving the current student, identified as “Victim # 1,” which did not involve photography or a computer. The affidavit also described separate conduct with the former student, identified  as “Victim #2,” in which Dibble had allegedly touched her in a sexual manner and photographed her pubic area with a digital camera. 

Based on the information in the affidavit and an oral discussion between the judge and police that was not recorded, a municipal court judge issued the requested warrant. Police executed the warrant at Dibble’s home and  seized, among other items, computers and media storage devices. 

Dibble moved to suppress any evidence obtained from the items seized from his home. In support of that motion, he asserted that the affidavit underlying the warrant had been false and misleading because the former student identified as “Victim #2” had not told police that she had been the victim of any crime, but rather had told officers that she had engaged in a consensual relationship with Dibble outside of school after she graduated from Wellington and turned 18, and that the sexual touching and intimate photograph mentioned in the affidavit had occurred in the course of that consensual relationship.

During a hearing on the motion to suppress, the police detective who had prepared the affidavit stated on direct examination that at the time the affidavit was prepared there was no basis for a criminal complaint against Dibble based on his conduct with “Victim #2.”  The officer also stated that he didn’t believe the conduct alleged in the gross sexual imposition complaint involving Victim #1, considered alone, would have established probable cause for a warrant to search Dibble’s home and computer.  Under cross examination by prosecutors, the officer stated that in his unrecorded dialogue with the judge prior to obtaining the warrant, he had alluded to statements by both the current and former students that they had allowed Dibble to photograph them at school while wearing only nearly-transparent “unitards,” and that the officer believed Dibble had used his position as a teacher to manipulate them and other minor students for his own sexual gratification.

The court granted Dibble’s motion to suppress, finding that the affidavit underlying the search warrant intentionally or recklessly provided the court with false or misleading information that caused it to allow the requested search.  In making its determination, the trial court held that it was barred from considering the content of any “supplemental testimony taken orally by the court from an affiant” by Ohio Criminal Rule 41(C), which specifies that oral testimony supporting the issuance of a warrant is admissible at a suppression hearing only if that testimony is recorded live by a court reporter or transcribed from audio recordings and “made part of the affidavit.”

The state appealed.  On review, the Tenth District Court of Appeals affirmed the action of the trial court.  The state sought and was granted Supreme Court review of the Tenth District’s holding that the trial court did not err by suppressing the search results without any consideration of the unrecorded discussion between the judge and police about Dibble’s photographing of students.

Attorneys for the state assert that the Fourth Amendment to the U.S. Constitution and court decisions analyzing the right against unreasonable searches and seizures require only that a search warrant must be based on sworn statements by police, but impose no requirement that all statements relied on by a court in issuing a warrant must be recorded. They argue that by applying Ohio Crim.R. 41(C) to bar any consideration of the police’s unrecorded dialogue with the judge who issued the warrant in this case, the trial court and Tenth District have given a mere rule of procedure precedence over established case law that gives law enforcement officers greater leeway in establishing probable cause for a search.  They urge the court to rule that the lower courts’ application of Crim.R. 41(C) in this case was unconstitutional, and to reinstate the evidence obtained through the search of Dibble’s home and computer on that basis.

Attorneys for Dibble respond that the issue in dispute is not the correct standard for suppression of a search warrant under the Fourth Amendment, but rather the admissibility of evidence in a state court proceeding.  They argue that Crim.R. 41(C) does not set a standard for determining whether to allow or suppress the results of a search, but merely requires that all evidence that a court considers in making that determination must be in the written record of the case.  They argue that state courts have an unquestioned right to set procedural requirements for proceedings in those courts, and urge the court to affirm the Tenth District’s holding that the trial court in this case did not err in following Crim.R.41(C) by refusing to consider alleged statements to the court that were not placed in the record.

Steven L. Taylor, 614.525.3555, for the state and Franklin County prosecutor's office.

David H. Thomas, 614.228.4141, for Lawrence Dibble.

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Did Court of Appeals Commit Reversible Error In Remanding Medical Malpractice Case For New Trial?

Based on Findings That Trial Court Erred in Admitting Evidence, Instructing Jury

Margaret Branch et al. v. Cleveland Clinic Foundation, Case no. 2011-1634
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: In reversing a jury verdict in a medical malpractice case and remanding the case for a new trial, did the the Eighth District Court of Appeals fail to properly apply the law with regard to the admissibility of demonstrative evidence, the applicability of a negative inference from a party’s failure to preserve certain evidence, or the propriety of a jury instruction regarding alternative medical procedures?

BACKGROUND:  Margaret Branch suffered significant brain damage while she was undergoing deep brain stimulation (DBS) surgery at the Cleveland Clinic. The operation was performed by Dr. Andre Machado.

Branch filed a malpractice action against Machado and the hospital, alleging that her injuries were the result of negligence by Machado during the surgical insertion of electrodes into her brain. The complaint specifically alleged that in threading a surgical cannula (tube) through small holes drilled in Branch’s head to the targeted area of her deep brain, Machado had diverged from a pre-determined “trajectory” based on sophisticated computer imaging, and that divergence had resulted in the unintended penetration of the cannula into a vein-dense area of the brain called the ventricle, causing Branch to suffer a cerebral hemorrhage and stroke.

In response to pretrial discovery requests by Branch for a copy of the “fused” MRI and CT scan digital images that had been used to chart the correct trajectory of the cannula into her brain during surgery, the hospital responded that those images had not been preserved after the surgery, and therefore could not be provided.

During a trial that lasted ten days, Branch presented testimony by medical experts who used demonstrative video images to illustrate to the jury how they believed Machado had failed to follow the planned path for inserting the cannula and electrodes into her brain and had negligently caused her cerebral hemorrhage and stroke by penetrating the ventricle. Counsel for Branch also noted to the jury on several occasions that because the hospital had failed to preserve the digital images of Branch’s skull and brain that had been used to plan her surgery, the jurors were permitted to infer that those images would reflect unfavorably on the defendants.

Approximately ten minutes before Dr. Machado was due to testify as the final witness in the case, defense counsel advised Branch’s attorneys for the first time that Machado would be showing the jury a “recreation” of the fused CT and MRI video images that had been used to plan Branch’s surgery in support his claim that he had not strayed from the planned path of insertion or penetrated the brain ventricle. Branch’s attorneys objected to the admission of these images, arguing that the defendants had not previously disclosed their plan to present such evidence or provided a copy to plaintiff’s counsel, and Branch had therefore been given no opportunity to have her own experts examine the images to challenge their reliability or to prepare counsel for cross-examination. After initially indicating that the video images would not be admitted, the judge changed his ruling and, over the plaintiff’s continuing objection, allowed Machado to show the images to the jury during his testimony.

The jury returned a verdict in favor of the hospital and Machado.  Branch appealed, asserting multiple errors by the trial court including its last-minute admission of the defendants’ previously undisclosed digital images allegedly recreating the surgery.

The Eighth District Court of Appeals vacated the jury verdict in favor of the defendants and remanded the case for a new trial. In its decision, the Eight District held that the trial court committed reversible error when it allowed Machado’s visual evidence despite the defense’s failure to disclose its plan to present that evidence or allow plaintiff’ experts  to review the evidence prior to Machado’s testimony.  The court of appeals also upheld Branch’s claims that the trial court should not have given a  “different methods” jury instruction and should not have barred Branch from arguing that the jury was allowed to draw a negative inference from the defense’s failure to produce the “fused” photos that were actually used to chart the course of the failed implant.

The hospital sought and was granted Supreme Court review of the Eighth District’s rulings and order that the case be remanded for a new trial.

Attorneys for the defendants assert that the Eighth District departed from established case law and improperly substituted its judgment for that of the trial court by holding that the trial judge should have disallowed the demonstrative video evidence proffered by the defense to illustrate the trajectory that had been planned for Dr. Machado’s insertion of the cannula and electrodes into Branch’s brain.
They argue that, if allowed to stand, this decision threatens to create confusion among the state’s courts of appeals regarding the admissibility of such evidence.

They also argue that the court of appeals’ rulings on the “different methods” jury instruction and the plaintiffs’ urging of a “negative inference” based on the unsaved presurgery images of Branch’s skull and brain are in conflict with decisions of the Supreme Court of Ohio and other Ohio appellate districts, and should be overturned.

Attorneys for Branch respond that the appellants’ assignments of error do not present any generalizable issues of law that require or merit review by the Supreme Court, but merely seek to relitigate fact-specific rulings in this individual case. They argue that the Eighth District correctly applied Ohio law by reversing the trial court’s ruling that improperly allowed the defendants to present “surprise” demonstrative evidence that had not been properly disclosed to the plaintiffs in advance of Dr. Machado’s testimony.

Douglas G. Leak, 216.623.0150, for the Cleveland Clinic Foundation.

Paul W. Flowers, 216.344.9393, for Margaret Branch.

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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.