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Wednesday, April 10, 2013

In the Matter of the Complaint of Cameron Creek Apartments v. Columbia Gas of Ohio, Inc., Case no. 2011-1758
Appeal from order of the Public Utilities Commission

Stark County Bar Association v. Agatha Martin Williams, Case no. 2012-2072
Stark County

Matthew Ries, Admr., et al. v. The Ohio State University Medical Center, Case no. 2012-0954
Tenth District Court of Appeals (Franklin County)

State of Ohio and City of Akron v. Montoya L. Boykin, Case nos. 2012-0808 and 2012-1216
Ninth District Court of Appeals (Summit County)

Gas Company Appeals PUCO Ruling Ordering Continued Gas Service to Apartment Complex Despite Alleged Safety Issues

In the Matter of the Complaint of Cameron Creek Apartments v. Columbia Gas of Ohio, Inc., Case no. 2011-1758
Appeal from order of the Public Utilities Commission

ISSUE: Did the Public Utilities Commission of Ohio (PUCO) act unreasonably or unlawfully when it ordered Columbia Gas of Ohio to continue providing gas service to residents of a Columbus-area apartment complex despite Columbia’s claims that the manner in which furnaces and water heaters were installed and vented when the complex was built in 1997 is unsafe because it does not meet current national safety standards?

BACKGROUND: Cameron Creek, a 240-unit apartment complex on the far west side of Columbus, was constructed in 1997.  Prior to construction, the owners submitted building plans to the city that included the proposed location and outside venting plan for gas furnaces and water heaters to be installed in each apartment. After requiring the owners to pay for a review of the HVAC specifications by a professional engineer, the city ordered that a supplemental four-inch fresh air duct be added in each building to ensure an adequate supply of outside air to the utility closet in each unit.

After construction was completed in 1998, city housing inspectors certified that the location, installation and venting of gas appliances in the complex were in compliance with then-current city code requirements.

In 2006, Columbia Gas of Ohio technicians who made service calls at Cameron Creek began placing “red tag” warning labels on furnaces and water heaters in the complex and refusing to relight the pilot lights of those appliances. The notices advised residents that their appliances exposed them to a safety hazard of carbon monoxide poisoning because the closet enclosures within which the appliances were located and the manner in which they were vented did not meet current safety standards prescribed by the National Fuel Gas Code (NFGC). 

Citing its authority under PUCO-approved rate-and-service tariffs to discontinue gas service to “unsafe” appliances, Columbia subsequently notified Cameron Creek’s owners that it intended to cut off natural gas service to the complex unless significant structural changes were made to all residential units to bring them into compliance with current NFGC standards. The owners disputed Columbia’s authority to demand renovation or reconstruction of the property as a condition for continuing to provide gas service. They requested an inspection by the city, which issued a report stating  that the complex continued to meet the code requirements that were in place when it was constructed, and that residents were not being exposed to a significant threat of carbon monoxide poisoning by virtue of the fact that the combustion air supply and exhaust gas venting specifications to which the complex had been built were less stringent than the newer NFGC standards Columbia was seeking to impose.

In September 2008, Columbia sent Cameron Creek a notice stating that, notwithstanding the city’s inspection report, Columbia regarded the failure of the complex to comply with current NFGC standards for combustion air supply and exhaust gas venting to be serious safety hazards, and Columbia would therefore begin disconnecting the gas service to all units in the complex on Oct. 13, 2008 unless the owners had made the necessary structural modifications to comply with current NFCG standards by that date. 

Cameron Creek filed a complaint with the PUCO, seeking an order by the commission prohibiting Columbia from cutting off gas service to the complex.  After a three-day hearing, the commission issued a decision in favor of Cameron Creek and an order requiring the utility company to continue providing gas service to the complex.  Columbia has exercised its right to appeal the decision of the PUCO to the Supreme Court.

Attorneys for Columbia assert that the commission’s ruling was unreasonable and contrary to law because the commission-approved rate and service tariff under which Columbia provides gas service to Cameron Creek authorizes the utility company to disconnect service to any equipment or appliance which it reasonably finds to constitute a safety hazard, and specifies that the company’s decisions with regard to safety issues will be based on the standards set forth in the NFGC.

They acknowledge that the location and venting of gas appliances in the Cameron Creek apartments  was approved as compliant with Columbus’ city building code at the time the units were constructed in 1997, but point out that the city code at that time did not meet the higher safety standards set by the 1996 version of the NFGC.  Thus, they assert, the complex was never in compliance with the NFGC, and Columbia acted within its tariff powers as the “authority having jurisdiction” over NFGC compliance when it determined in 2006 that the sub-NFGC-standard utility closet enclosures and multi-floor shared venting ducts in the Cameron Creek complex constituted a significant safety hazard that required remediation.

Attorneys for Cameron Creek and the PUCO respond that the City of Columbus, and not Columbia, is the “authority having jurisdiction” to determine whether the gas appliance combustion air and venting arrangements in the Cameron Creek apartments are NFGC compliant. They point to a specific provision of the NFGC that allows local building authorities to approve “alternative engineering” approaches that bring a non-standard structure into constructive compliance with the code, and assert that is precisely what happened when city housing authorities determined that the addition of a four-inch fresh air supply duct to the original building plans and the requirement of a hard-wired carbon monoxide detector  in each unit were sufficient steps to insure the safety of complex residents.

They also point to specific language in the NFGC that they say 1) “grandfathers” buildings that were certified to be local code compliant at the time they were built as presumptively acceptable for as long as they remain compliant with the original code specifications, and 2) bars retroactive enforcement of newer and more stringent standards with regard to previously-approved properties until such time as the property owner makes significant modifications to or replaces the original equipment.

Representing Columbia Gas of Ohio: Eric B. Gallon, 614.227.2190

Representing Public Utilities Commission of Ohio: Thomas W. McNamee, 614.466.4396

Representing Cameron Creek Apartments: Brian M. Zets, 614.221.5216

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Attorney Discipline

Stark County Bar Association v. Agatha Martin Williams, Case no. 2012-2072
Stark County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Canton attorney Agatha Martin Williams be suspended indefinitely for multiple violations of state attorney discipline rules, including the theft between 2007 and 2011 of more than $175,000 from funds that she held in trust for five different clients.

Williams entered guilty pleas to four felony counts of grand theft and a felony count of forgery in February 2012, and is currently serving an 8 ½  year prison term in the Ohio Reformatory for Women at Marysville for those offenses.  Her license has been under an interim suspension since the Supreme Court was notified of her convictions in March 2012.

In its report and recommendation to the court, the disciplinary board acknowledged that the presumptive sanction for an attorney’s theft of client funds is permanent disbarment, but noted that it had been impressed by the testimony of eight witnesses who appeared at Williams’ hearing to attest to her good character and reputation for honesty and community service prior to becoming addicted to gambling, which she and others attested was the underlying cause of her misappropriations and other unethical conduct. 

Indicating its belief that it was possible Williams could achieve and sustain a recovery from her addiction, and eventually return to the ethical practice of law after completing her prison term,  the board recommended that rather than permanently revoking Williams’ license, the court impose an indefinite suspension with any future reinstatement conditioned on completion of all terms of her criminal sentence and post-release control, full restitution to her clients, and evidence of her successful completion of professional treatment for her addiction, total abstention from gambling, and ongoing compliance with a five-year support and recovery program prescribed by the Ohio Lawyers Assistance Program.

The Stark County Bar Association, which prosecuted the charges against Williams before the disciplinary board, has filed objections to the board’s recommendation of an indefinite suspension rather than disbarment as the appropriate sanction for her misconduct. 

In its pleadings, the association argues that the case record shows that Williams did not engage in an  isolated ethical lapse in an otherwise exemplary legal career, but rather stole large sums of money from multiple clients over a period of almost four years to support an apparent fondness for frequent travel and a glamorous lifestyle. Bar counsel also points out that the clients from whom Williams stole lawsuit settlements and insurance policy proceeds were primarily low-income individuals whose family finances and lives were devastated by the loss of the stolen funds. In assessing the sincerity of Williams’ claims to deep contrition for her offenses, the bar association urges the court to consider that, even after she had been formally charged with professional misconduct and criminal offenses in 2011, rather than making an effort to reimburse her clients for any of their losses, Williams made 66 separate out-of-state gambling trips during which she spent at least $40,000 on herself during the 12 months prior to her August 2012 disciplinary hearing.

Representing the Stark County Bar Association: Richard S. Milligan, 330.526.0764

Agatha Martin Williams, pro se: No telephone contact information available

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May Doctors Employed By University Hospitals Be Sued For Malpractice Only in the Ohio Court of Claims?

Or Must Educational Activity Be Shown To Trigger ‘State Worker’ Immunity

Matthew Ries, Admr., et al. v. The Ohio State University Medical Center, Case no. 2012-0954
Tenth District Court of Appeals (Franklin County)

ISSUE: In order to be entitled to “public employee” immunity from civil liability for negligent medical treatment, must a physician who is jointly employed as an instructor at a state university hospital and as a member of a private  medical practice show that he was engaged in education-related activity at the time he rendered the negligent treatment?

BACKGROUND: Pursuant to the immunity conferred by R.C. 9.86, a state employee generally may not be sued in a state trial court for loss or injury he or she causes to another through the negligent performance of his or her official duties. Under the Court of Claims Act (R.C. Chapter 2743), however, a third party who suffers injury or loss as a result of negligence by a state employee in the performance of his or her governmental duties may bring suit against the state in the Ohio Court of Claims. By law, a suit that must be brought against the state in the Court of Claims is not subject to trial by jury, and the damage award obtainable by the plaintiff is subject to more expansive collateral source offsets and a lower cap on non-economic damages than the award the plaintiff could obtain for the same injuries through a civil lawsuit brought in a trial court.

In 2009, Michael McNew was referred by his personal physician to  Dr. Syed Husain, a proctologist and colo-rectal surgeon on staff at The Ohio State University Medical Center, for treatment of symptoms that included nausea, diarrhea and rectal bleeding. Dr. Husain diagnosed McNew’s condition as a bleeding hemorrhoid, and performed surgery at the OSU East Medical Center to remedy that condition. 

Within a few hours after returning home from the surgery,  McNew called Husain’s office twice to report that he was experiencing complications including heavy bleeding, shortness of breath and unusual skin bruising. Husain recommended only additional pain medication. Later that night McNew lost consciousness and was transported to a nearby hospital, where he died the next day from a brain hemorrhage caused by thrombocytopenia, a bleeding disorder that had not been diagnosed or treated by Dr. Husain.

Acting on behalf of McNew’s wife, children, and estate, attorney Matthew Ries filed wrongful death lawsuits in both the Ohio Court of Claims and the Franklin County Court of Common Pleas.  The Court of Claims action sought damages from the OSU Medical Center as a state agency.  The common pleas court action asserted individual and corporate damage claims against Dr. Husain and Ohio State University Physicians, Inc. (OSUP), a corporate medical practice through which Dr. Husain and other OSU-affiliated physicians provide medical services to private patients, and through which Dr. Husain had provided and billed for his treatment of McNew.

The Court of Claims conducted preliminary proceedings to determine whether the alleged negligent care received by McNew had been provided by Dr. Husain in the course of his duties as an instructor at a state-funded medical school, and was therefore subject only to litigation before the Court of Claims, or if Husain’s treatment of McNew took place outside the scope of his duties as a state employee, and was therefore subject to a civil lawsuit in state court the same as any other physician accused of malpractice.

The Court of Claims found that, despite evidence that no students observed his surgery on or doctor-patient interactions with McNew,  Dr. Husain’s contractual duties as a faculty member at the OSU Medical Center included the provision of clinical medical services, and therefore his treatment of McNew was provided “in the course of his public employment” and was immune from private civil liability.  Accordingly, the Court of Claims ruled that the Franklin County trial court had no jurisdiction to hear Ries’ civil suits against Dr. Husain and OSUP, and accepted jurisdiction to consider only Ries’ claims against the state under R.C. Chapter 2743.

Ries appealed. On review, the Tenth District Court of Appeals affirmed the ruling of the Court of Claims.  Ries sought and was granted Supreme Court review of the Tenth District’s decision.

Attorneys for Ries argue that the Tenth District’s holding in this case abandoned a line of prior decisions dating back to the 1980s in which (they say) the Tenth District and the Ohio Supreme Court have held that when a physician employed by a state university is accused of negligent medical care, the crucial factor for determining whether the alleged malpractice occurred within or outside of the scope of the doctor’s public employment is whether the treatment that caused injury was being observed by residents or medical students, or was otherwise part of some education-related activity −  as opposed to simply being a medical procedure performed by the doctor on a private patient outside of any educational context, for which the doctor was paid as a member or employee of a private medical practice.

They point out that Dr. Husain’s contract as an employee of the OSU Medical Center paid him an annual salary of $50,000 for educational activities that included classroom instruction, research, and supervising or performing clinical procedures observed by medical students. They assert that all of Husain’s compensation for treating patients outside of that instructional context, including his treatment of McNew, was paid by means of a separate $140,000 annual salary he received from OSUP, subject to terms and conditions set by a separate employment contract between Husain and what they characterize as a private medical practice.  

In an amicus curiae (friend of the court) brief supporting the position of Ries, the Ohio Association for Justice (OAJ) asserts that, in effect, the lower courts in this case have held that the OSU Medical Center could administratively “create” an immunity from civil liability for non-teaching related medical negligence simply by changing the words in its faculty members’ employment contracts. OAJ asserts that, if the rulings by the Court of Claims and Tenth District in this case are affirmed,  the court will effectively grant every physician employed by any of the state’s university hospitals blanket immunity from personal liability for any act of medical negligence, whether or not that act was related to the educational functions of the university. If that occurs, they say, liability for injuries suffered by those doctors’ private patients will be transferred from the physicians’ private medical practices and malpractice insurers to the state’s taxpayers. (NOTE: Counsel for OAJ will participate in the oral argument of the case, sharing the time allotted to Ries).

Attorneys for Dr. Husain and the OSU Medical Center urge the court to affirm the holdings of the Court of Claims and Tenth District that Dr. Husain’s treatment of McNew was provided in the course and scope of his duties as an employee of a state agency, the OSU Medical Center, and that his actions were therefore immune from civil liability under R.C. 9.86.

Although the Ohio Supreme Court’s 2006 decision in Theobald v. Univ. of Cincinnati, upheld the civil immunity of a university-employed physician for patient injuries suffered during a procedure that was observed by a medical student, they assert that the primary holding in Theobald was that “the question of scope of employment must turn on what the practitioner’s duties are as a state employee.”  In this case, they say, Dr. Husain’s contract with the university required him to provide clinical care to patients at the hospital as an integral part of his job duties, and that contractual obligation was not limited to situations in which he supervised residents or there were medical students present during a procedure.  

They assert that the required use by Dr. Husain and all other faculty physicians of a university-created administrative entity, OSUP, to conduct billing and collection for their clinical services in no way removed or attenuated the direct control of the university over all aspects of Husain’s activities as both an instructor and a practitioner, and did not affect his immunity as a university employee from civil liability claims asserted by patients such as Ries, whose proper recourse for any claims arising from alleged negligent treatment, as determined by the Tenth District, is through actions brought against the state in the Court of Claims.

Representing Matthew Ries: David I. Shroyer, 614.228.6453

Representing the Ohio Association for Justice: Paul Giorgianni, 614.205.5550

Representing the Ohio State University Medical Center: Alexandra T. Schimmer, 614.995.2273

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Does Pardon By Governor Automatically Entitle Offender To Sealing of Records of Pardoned Convictions?

State of Ohio and City of Akron v. Montoya L. Boykin, Case nos. 2012-0808 and 2012-1216
Ninth District Court of Appeals (Summit County)

ISSUE: When the governor grants an unconditional pardon of an offender’s criminal convictions, does that action entitle the offender to have the court records of his or her pardoned convictions sealed?

BACKGROUND:  In November 2009, Governor Ted Strickland granted a full and unconditional pardon to Montoya Boykin of Summit County for one felony and two misdemeanor offenses of which she had been convicted  during the 1990s.

After the pardon was granted, Boykin filed motions in the Akron Municipal Court and Summit County Court of Common Pleas to seal the records of her pardoned convictions.  Both courts denied Boykin’s motions, holding that her pardon relieved her of any further criminal sanctions for the pardoned offenses, but it did not require that the court documents recording those convictions be sealed.

Boykin appealed.  In a 2-1 decision, the Ninth District Court of Appeals held that trial courts have judicial discretion to grant or deny an  application to seal the record of a conviction for which the offender has been pardoned, and rejected Boykin’s assertion that the granting of a pardon imposes a mandatory duty on courts to seal the record of a pardoned conviction. The court of appeals certified that its ruling in this case was in conflict with State v. Cope, a 1996 decision in which the First District Court Appeals held that a trial court must seal the record of a conviction for which an offender has been pardoned.

The Supreme Court agreed to review the Ninth District’s decision to resolve the conflict between appellate districts.

Attorneys for Boykin point out that Section 11, Article III of the Ohio Constitution gives the governor exclusive authority to grant pardons to criminal offenders, and note that  R.C. 2967.04(B) specifies that a full pardon not only relieves the pardoned individual from any remaining portion of his or her criminal sentence, but also “relieves the person of all disabilities arising out of the conviction.”

They argue that, for offenders who have completed whatever term of imprisonment and/or community control was imposed on them by a court, the remaining  “disabilities” arising out of their convictions are the significant barriers that a criminal record places between them and  employment and housing opportunities, participation in public life, and eligibility for numerous types of public benefits. They cite the Ohio Supreme Court’s  1978 holding in State v. Morris that “a full pardon not only results in a remission of the punishment and guilt, but also a remission of the crime itself,” and contend that this legal analysis has been consistently reflected in a line of Ohio court decisions on the effects of a pardon dating back to 1883.

They urge the court to reverse the Ninth District and hold that a gubernatorial pardon returns an offender to his or her legal status before a crime was committed, and thus automatically requires courts to seal all records of a pardoned offense because judges have no “discretion” to second-guess or interfere with the governor’s exercise of his constitutional power to remit all effects of an offender’s crime.

Attorneys for the state argue that the General Assembly has enacted statutes that authorize trial courts to seal or expunge the record of a criminal conviction only under certain, limited circumstances, and none of those statutes addresses the situation presented in this case. Because Boykin asserted no statutory claim for the sealing of her convictions, they say, the motions to seal that she filed in the municipal and common pleas courts were properly dealt with as requests for those courts to exercise their discretionary powers.

In both decisions, the state contends, the trial courts balanced Boykin’s privacy interest in avoiding the future release of information about her pardoned convictions against the interest of the state and the public in maintaining records of criminal proceedings. They urge the justices to affirm the Ninth District’s conclusion that the trial courts acted within their sound discretion in denying the motions to seal based on their determination that the public interest outweighed Boykin’s private interest.

Representing Montoya Boykin: Joann Sahl, 330.972.7189

Representing the Akron city attorney’s office: Michael J. Defibaugh, 330.375.2030

Representing the Summit County prosecutor's office: Heaven DiMartino, 330.643.7459

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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.