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Wednesday, November 20, 2013

Children’s Hospital Medical Center of Akron v. Seth Niles Cromer, Case no. 2012-2134
Ninth District Court of Appeals (Summit County)

Summa Health System Akron City Hospital et al. v. Theresa Hayward, Case no. 2013-0021
Ninth District Court of Appeals (Summit County)

First Resolution Investment Corp., et al. v. Sandra J. Taylor Jarvis, Case no. 2013-0118
Ninth District Court of Appeals (Summit County)

Corrine Codeluppi v. State of Ohio, Case no. 2013-0186
Ninth District Court of Appeals (Lorain County)

Is a Foreseeability Juror Instruction Required in Medical Malpractice Cases?

Children’s Hospital Medical Center of Akron v. Seth Niles Cromer, Case no. 2012-2134
Ninth District Court of Appeals (Summit County)

ISSUE: Should a trial court instruct jurors in medical malpractice cases about foreseeability in order to determine if the medical provider acted in a reasonably prudent manner?

Five-year-old Seth Cromer died on January 14, 2007, at Children’s Hospital Medical Center of Akron five hours after being admitted with an upper respiratory infection. An autopsy found that his weakened heart wasn’t able to pump enough blood to meet his body’s needs due to a viral inflammation and blocked artery.

Seth’s parents sued Children’s for negligence in Summit County Common Pleas Court. The jury found the care and treatment was within the standard of care and not negligent. The Cromers appealed to the Ninth District Court of Appeals, which invalidated the jury’s verdict because the appeals court determined that the trial court erroneously delivered a “foreseeability instruction” regarding the standard of care. A foreseeability instruction directs the jury to decide whether someone standing in the defendant’s shoes could reasonably anticipate that death was likely to result from an act or failure to act. Children’s appealed the Ninth District’s reversal to the Ohio Supreme Court, which accepted the case.

Much of the testimony at trial centered on whether Children’s doctors should have inserted a tube in Seth’s airway earlier to treat his cardiogenic shock and decrease the workload on his heart. Medical experts on both sides testified about the foreseeable risks and benefits of delaying that decision and/or alternative courses of action.

Children’s Hospital’s attorneys call the Ninth District’s decision “legally and logically flawed,” inconsistent with previous decisions from the Ohio Supreme Court, and in conflict with decisions from three other appeals courts.

“The Ninth District Court of Appeals has erroneously created a dangerous and problematic precedent, removing foreseeability from a jury’s consideration in medical malpractice actions,” they write. “Foreseeability is one of the most longstanding and deeply rooted principles in negligence law. By so holding, the Ninth District prohibits trial courts from giving appropriate guidance to jurors on how they are to go about assessing whether a medical defendant has acted negligently – i.e. whether the defendant has failed to act reasonably under the same or similar circumstances.”

Citing previous Ohio Supreme Court rulings, Children’s attorneys assert that instructing a jury about foreseeability “is not only an acceptable consideration for the jury, it is ‘elemental’ and ‘one of the most important’ considerations for determining the issue of negligence.”

They also note that standard Ohio Jury Instructions have included guidance on foreseeability for more than 50 years. “While OJI are not binding law, they are a consensus of Ohio jurists on certain issues commonly presented in certain types of action. Thus, this instruction has been given to juries considering whether a defendant’s actions have been negligent, including medical defendants, in countless negligence actions.”

Cromer’s attorneys claim the trial court wrongly gave the jury an additional general negligence instruction about what is foreseeable to a “reasonably prudent person.” In medical malpractice cases, “the relevant question is what is foreseeable to a reasonably prudent physician.

And they argue that “the question of what is or is not foreseeable to a physician is established by expert standard of care testimony, not by lay jury speculation of what is foreseeable to a reasonable and prudent person,” according to a 1976 Ohio Supreme Court case (Bruni v. Tatsumi).

They also cite two Supreme Court cases from the 1990s that found that general instructions should not be given in addition to the Bruni instructions.

Adding this general instruction, the attorneys assert, “changed the fundamental meaning of the physician’s standard of care instruction” and “changed the burden imposed upon the Cromer Family’s attempt to prove its case.”

The attorneys challenge Children’s “concept that medical malpractice is nothing more than a general negligence claim brought against persons wearing white coats.”

Cromer’s attorneys cite several appeals court cases dealing with the person/physician standard of care question.

“Thus the Cromer decision is not, as alleged by Appellants, a grand departure from existing law – rather, it is the correct application of existing law, as defined by this Court, fellow districts, and the committee that drafts Ohio Jury Instructions.”

An amicus curiae (friend of the court) brief supporting the position of Children’s has been submitted by the Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association. Amicus curiae briefs supporting the position of Cromer have been submitted by the Ohio Association for Justice and the Summit County Association for Justice.

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/#/search and entering the case number, 2012-2134, in the search box.

Representing Seth Niles Cromer: Jack Morrison Jr., 330.762.2411

Representing Children’s Hospital Medical Center of Akron: Gregory T. Rossi, 330.670.7300

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Does an Appellate Decision Finding Reversible Error Regarding Jury Instruction Redefine “Prejudicial Error” in Jury Instructions?

Summa Health System Akron City Hospital et al. v. Theresa Hayward, Case no. 2013-0021
Ninth District Court of Appeals (Summit County)


Appellants Summa Health System/Akron City Hospital, Steven A. Wanek, M.D. and Michael J. Cullado, M.D. (Summa) ask the Ohio Supreme Court to reverse the Ninth District’s decision, which reversed the jury verdict and remanded the case to the Summit County Court of Common Pleas for a new trial. They also maintain that the appellate decision, if left to stand, would affect all Ohio courts by failing to provide the proper guidance on the law governing what constitutes “prejudicial error.” The defendants recommend that the Supreme Court reverse the decision in order to deter other courts from “creating and relying upon legally and factually unsound grounds in order to interfere with the sanctity of the jury system.”

The case originated in the Summit County Court of Common Pleas in March 2009 and stems from patient Theresa Hayward’s femoral nerve damage, which developed following an abdominal surgery in October 2007. The operation was performed by Dr. Cullado and assisted by Dr. Wanek. Prior to the surgery, Hayward was diagnosed with diverticulitis and elected to have part of her sigmoid colon removed to help remedy the problem.

Hayward asserts the doctors were negligent in how they used and monitored a surgical device called a Bookwalter retractor, which may have caused the nerve injury during surgery. The defendants, however, said the use of the Bookwalter retractor to hold open the abdominal wall during surgery is common, but its use has certain risks, including nerve injury, which is why such nerve issues are listed as risk factors in the doctors’ surgical consent form.

During the trial, a Columbus general surgeon, Dr. Peter Muscarella, testified that “Hayward’s femoral nerve injury was a known complication of her surgery that was not caused by any deviation from the standard of care by either Dr. Cullado or Dr. Wanek … The risk of a nerve injury can be decreased with the careful placement of the retractor, but you can never make the risk zero.”

According to Summa, the trial court properly provided jury instructions, including charging the jury on remote cause as part of the proximate cause jury instruction. (A “remote cause” is a distant or indirect cause of something; e.g., an act may be so remote to a result that it cannot be directly responsible for the result. A “proximate cause” would directly or significantly impact a result.) Summa acknowledges that Hayward objected to this instruction prior to the jury instructions, but her counsel failed to object to the remote cause jury instruction when instruction was given. Further, they assert that when the trial court asked the parties whether there were objections for the record, Hayward’s counsel made no objection regarding the jury instructions or the remote cause jury charge.

The jury found in favor of the hospital and doctors. Summa maintains that interrogatories were answered by the jury “specifically stating that Summa did not fall below the accepted standards of care in its care and treatment of Ms. Hayward. Additionally, the jury determined that the conduct of Dr. Cullado and Dr. Wanek did not proximately cause any injury to Ms. Hayward.” Summa also pointed out that Hayward did not object to the manner in which the jury answered the jury interrogatories.

After the trial court rejected Hayward’s motion for judgment notwithstanding the verdict (JNOV) and/or a new trial, she appealed to the Ninth District Court of Appeals, asking the appellate court to address five assignments of error.

The Ninth District held that the trial court did not err in denying Hayward’s motion for JNOV, but did address the last assignment of error in which Hayward argued that the jury was improperly charged on remote cause. (The Ninth District said it did not address the other three assignments of error after its conclusion of “prejudicial error” in the jury instructions.)

Summa argues that there could be no “prejudicial error” in “charging the jury on remote cause because the jury found no negligence on the part of Summa” and that the Ninth District ignored a prior Tenth District decision in Coulter v. Stutzman. Based upon Coulter, Summa maintains, the challenge to the remote cause jury instruction should have been rejected because the jury found no negligence. Instead, the Ninth District decision stated that “the jury considered causation and could have confused the issue of breach of the standard of care with remote causation.”

Summa also points to the Supreme Court’s decision in Hampel v Food Ingredients Specialties, Inc., which ruled that a reviewing court cannot order a new trial “upon a presumptive finding of prejudice where the record actually establishes the contrary.” Instead, Summa maintains, the Ninth District did what the Supreme Court, in Hampel, prohibits.

The Ninth District decision found that Hayward’s expert testimony established that the surgical device used by the doctors likely was the cause of her nerve injury, which effectively established medical negligence. Based upon its review of the case record, the Ninth District said a remote cause jury instruction was not appropriate. It also stated that there is evidence the jury instructions did confuse the jury. Based upon these opinions, the Ninth District concluded a new trial is required.

Following the Ninth District’s decision, Summa appealed the case to the Supreme Court in January 2013. In March 2013, the Supreme Court accepted the case on Summa’s Proposition of Law 1, which claims that the Ninth District’s decision in finding reversible error regarding a remote cause jury instruction when a jury finds no negligence “effectively redefined what constitutes ‘prejudicial error’ in jury instructions.” Summa’s legal argument also proposes that the Ninth District decision “has created a direct conflict with this court and other appellate courts throughout Ohio.”

In its merit brief, Summa asserts, “It is inconceivable how the Ninth District determined that there existed ‘prejudicial error’ with respect to the remote cause jury charge where the jury found no negligence. As a result, the Ninth District has completely redefined what constitutes ‘prejudicial error’ as it pertains to an appellate court’s standard of review of a proximate cause jury charge where a jury determines that there was no negligence in the first place.”

Hayward maintains, however, that the Supreme Court’s decision in Hampel actually affirms the Ninth District’s analysis, stating, “When an instruction is wholly unsupported by evidence, a presumption arises that the instruction was prejudicial. This is a recognition that the jury was effectively given the wrong law to apply, and without such a presumption, the affected party would essentially be unable to demonstrate prejudice in any circumstances.

“Once the presumption of prejudice arises, it is then incumbent upon the reviewing court to examine the record to determine whether there are any circumstances that would allow the reviewing court to conclude that the error was harmless. If the presumption of prejudice is not rebutted from a review of the record, the reviewing court may then give effect to the presumption of prejudice, and remand the matter for a new trial.”

An amicus curiae (friend of the court) brief arguing that Summa’s proposition of law should not be adopted by the Supreme Court was submitted by the Summit County Association for Justice.

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/#/search and entering the case number, 2013-0021, in the search box.

Representing Theresa Hayward: Jack Morrison, 330.762.2411

Representing Summa Health System/Akron City Hospital: Douglas Leak, 216.623.0150

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In a Claim for Credit Card Non-Payment, in What State and on What Date Does the Claim Occur?

First Resolution Investment Corp., et al. v. Sandra J. Taylor Jarvis, Case no. 2013-0118
Ninth District Court of Appeals (Summit County)


Sandra J. Taylor Jarvis of Cuyahoga Falls did not make a $188 minimum monthly payment on her Chase Bank credit card January 1, 2005. After that date, she made no required minimum monthly payments again, though she did make some partial payments on the account. Jarvis indicated that she sent her payments to Delaware.

First Resolution Investment Corporation (FRIC), a consumer debt collection agency, acquired Jarvis’s account and hired Cheek Law Offices and attorney Parri Hockenberry to file suit against Jarvis. On March 9, 2010, a complaint was filed in the Summit County Court of Common Pleas seeking $8,765.37 from Jarvis plus accrued interest in the amount of $7,738.99 and future interest at 24 percent.

Each of the parties in the case filed motions for summary judgment. The trial court granted summary judgment in favor of FRIC, First Resolution Management Corporation (FRMC) – FRIC’s parent company, and the lawyers. Jarvis appealed to the Ninth District Court of Appeals, which reversed the trial court’s decision.

FRIC, FRMC, Cheek Law Offices, and Hockenberry (appellants) were all involved in attempting to collect the credit card debt from Jarvis, and they appealed the Ninth District’s decision to the Ohio Supreme Court. The collection agencies and the attorneys filed separate briefs with the court.

The appellants contend that the lawsuit against Jarvis was filed within the applicable Ohio statutes of limitations – which are 15 years for express contracts and six years for implied contracts. While Jarvis argues that the cause of action arose in August 2006, the attorneys and the collection agencies maintain that the cause of action accrued in January 2005. However, both are within the Ohio limits for filing suit, and Delaware’s three-year statute of limitations does not apply, the appellants assert.

Cheek and Hockenberry also argue that a cause of action against an Ohio consumer for breach of a credit card contract accrues in Ohio. They base this assertion on Ohio Supreme Court cases, recent federal decisions from the Sixth U.S.Circuit Court of Appeals, and several opinions from courts in other states – all of which hold that a cause of action arises in the place where the wrongful conduct occurred.

“The consumer’s residence is the locus of the debt – it is the place at which the consumer has benefited from the use of the credit card and from which the consumer initially and continually thereafter refuses to pay on that card,” the attorneys write in their brief. “It is, therefore, where the cause of action accrues.”

A “place of wrongful conduct” test, they assert, is clear and expected by consumers. They contend that such a test is also consistent with consumer laws and with Ohio’s borrowing statute, which addresses claims that arise in other states and is designed to prevent forum shopping by people or companies trying to find the best statute of limitations for their action.

The collection agencies contend that Jarvis has no evidence of a cardholder agreement to support her assertion that Delaware’s statute of limitations should apply. In addition, they agree with Cheek and Hockenberry that a cause of action for an Ohio consumer’s breach of a credit card contract arises from activities in Ohio. Plus the Fair Debt Collections Practices Act (FDCPA) required that they bring suit in Ohio, they add.

Jarvis counters that this lawsuit was properly governed by Delaware law, where she sent her payments, so the suit was time-barred given Delaware’s three-year statute of limitations.

She also asserts that when a consumer sends credit card payments to another state and the interaction between the consumer and the credit card company establishes that state as the place where payments are made, then any cause of action for credit card breach accrues in that state. She argues that Ohio’s borrowing statute serves many other purposes besides preventing forum shopping and it does apply in this case. She contends there are no cases involving credit cards that have held that a cause of action arises where the consumer lives.

Cheek and Hockenberry assert, and the collection agencies agree, that when a consumer does not make a minimum payment by the date it is due, the damages are immediate to the credit card company so that missed due date is when the breach occurs. In this case, that date was in January 2005. While later partial payments may extend the statute of limitations, those payments do not determine when the cause of action first arises, they argue. All of the appellants additionally contend that the relevant part of Ohio’s borrowing statute was not effective until April 2005, after the missed payment, so it cannot apply in this case.

Jarvis responds that Ohio’s borrowing statute may be applied prospectively to a lawsuit filed in 2010, after the law’s effective date, because it is a procedural law. Given that the complaint was filed after the statute’s effective date, the cause of action arose in Delaware, and the Delaware statute of limitations had expired, Jarvis contends that the collection agencies were prohibited from filing suit against her.

She also asserts that for credit cards allowing installment payments, a missed payment does not breach the entire contract with the company unless there is an acceleration clause that is activated. However, Chase did not accelerate payment of her full balance, she argues.

The appellants contend that the 24 percent interest rate they seek on the past due amount may be legally pursued and awarded even without the original contract that provides for a rate higher than the statutory interest rate. “[T]he fact that FRIC did not have all of the proof in hand at the time it filed its complaint does not support a case under the FDCPA and CSPA,” Cheek and Hockenberry assert.

Jarvis argues that Chase is limited to post-judgment interest at the statutory interest rate unless there is a written contract providing a different rate. Under Ohio law, she asserts, her credit card invoices were not appropriate evidence justifying a 24 percent interest rate on the collection of her outstanding balance. As a result, she contends the appellants were only entitled to the statutory interest rate, which was 4 percent in 2010.

Last, Cheek and Hockenberry explain that the Ohio CSPA “prohibits ‘suppliers’ from committing unfair, deceptive, or unconscionable acts in connection with a ‘consumer transaction’ whether they occur before, during, or after the transaction.” When the transaction involves collection on a credit card account, the appellants assert there is no “supplier” and no “consumer transaction,” as the act defines those terms. Transactions in these situations are between the financial institution and their customers, they contend.

Jarvis counters that the CSPA applies to debt collectors because they are suppliers and debt collection is a consumer transaction.

An amicus curiae (friend of the court) brief supporting the position of FRIC, FRMC, and their attorneys has been submitted by Ohio Creditor’s Attorney’s Association and DBA International. The State of Ohio and the AARP Foundation Litigation have each filed amicus briefs supporting Sandra Jarvis.

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/#/search and entering the case number, 2013-0118, in the search box.

Representing Cheek Law Offices and attorney Parri Hockenberry: Boyd Gentry, 937.839.2881

Representing First Resolution Investment Corporation and First Resolution Management Corporation: Kevin Lantz, 937.222.2333

Representing Sandra J. Taylor Jarvis: James Burke, 216.685.1700

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How Much Factual and Legal Bases Must Be Included in a Motion to Suppress in an OVI Case to Result in a Hearing?

Corrine Codeluppi v. State of Ohio, Case no. 2013-0186
Ninth District Court of Appeals (Lorain County)

ISSUE: To trigger a hearing, is a highly detailed pleading of facts and law required to satisfy the notice requirements as outlined in a 1994 Ohio Supreme Court case when a defendant files a motion to suppress in an OVI case?

In 2011, Corrine Codeluppi was found guilty of operating a vehicle while intoxicated in Elyria Municipal Court after she was pulled over for speeding in North Ridgeville. Codeluppi had filed a motion to suppress evidence from trial. The day before the scheduled hearing to consider the motion, the trial court judge denied the motion to suppress at the state’s request because of a lack of particularity. Codeluppi appealed to the Ninth District Court of Appeals, which affirmed the judgment of the trial court. Codeluppi then appealed to the Ohio Supreme Court, which agreed to hear the case.

Codeluppi’s attorneys argue that the Ninth District misapplied the Ohio Supreme Court’s ruling in State v. Shindler “by requiring a defendant to do more than provide notice of the issues to be resolved at the hearing” and that this misapplication of Shindler “improperly shifted the burden of proof to the defendant.”

“In many cases, much like in the case of Codeluppi, the Ninth District is requiring defendants to prove a negative and to establish facts contained solely within the mind of the arresting officer prior to any opportunity to question the officer under oath.”

They state that the Ninth District’s ruling was “incorrect” as well as “impractical and unjust.”

“Without the opportunity to question the arresting officer at a suppression hearing, there will be no way to determine whether or not a defendant’s constitutional rights were violated,” they assert.

Codeluppi’s attorneys also note that the motion to suppress exceeded the standards contained in Shindler, and motions to suppress with less information in other cases have been found sufficient by other appeals courts in Ohio.

“The Ninth District’s decision in Codeluppi applies much more stringent standards than that which has been applied in other Districts within this State and requires a much higher burden than that which was required by this Honorable Court in Shindler,” the attorneys write.

“This Honorable Court found in Shindler that where a motion to suppress states that an arrest was based upon a minor speeding violation and moderate smell of alcohol, and argues a lack of probable cause to stop or arrest the defendant, the defendant has stated facts and law with enough particularity to place the prosecutor and court on notice, and as such, is entitled to a hearing on those issues.”

They claim that “the burden imposed by Shindler is notice of the issues, nothing more. Once sufficient notice is given, the prosecutor bears the burden of proof, including the burden of going forward with the evidence at the hearing on the motion to suppress.”

The state’s attorneys argue that Codeluppi’s motion “was too general” to warrant a hearing. “This was particularly true regarding field sobriety tests. Her motion contained general case law relative to general legal principles. Her motion contained not a single case-specific allegation.”

“In order to require a hearing on a motion to suppress,” the state’s attorneys write, “Shindler delineated the basic requirements of a sufficiently particular motion: (1) It must refer to specific statutes, regulations and Constitutional amendments, and (2) It must set forth some underlying factual basis to warrant a hearing.”

They assert that “Codeluppi’s motion lacks not only the factual basis but also lacks the legal basis.”

They also note that Shindler and a 1988 Ohio Supreme Court case Xenia v. Wallace state that both a legal basis and factual basis must be established in the motion to suppress.

“This holding does not intend for the legal and factual basis to be one thing,” they claim. “The court very specifically used the plural ‘bases’ to indicate these were two separate requirements. Together those two requirements must impart sufficient particularity to the extent that both the prosecutor and the court are put on notice of the issues to be decided. It is also significant that Shindler did not stop with the words ‘put on notice.’ The court expected more – ‘notice of the issues to be decided.’”

“This is vital because the State must have notice of the issues on which it is expected to present evidence. The State must subpoena necessary witnesses, gather the appropriate documents or exhibits, and prepare to elicit useful testimony and show probable cause or substantial compliance to the satisfaction of the court.”

They also state that “if a motion is general or so lacking in specificity either in its legal basis or its factual basis, as to not shift the burden to the State, it is not entitled to a hearing.”

Amicus curiae (friend of the court) briefs supporting the position of Codeluppi have been submitted by the Ohio Association of Criminal Defense Lawyers and the Cuyahoga Criminal Defense Lawyers Association. An amicus curiae brief supporting the position of the State of Ohio has been submitted by the Ohio Prosecuting Attorneys Association.

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/#/search and entering the case number, 2013-0186, in the search box.

Representing Corrine Codeluppi: Joseph T. Burke, 440.895.1234

Representing the State of Ohio: Toni L. Morgan, 440.353.0848

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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.