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Plaintiff May Not Dismiss Civil Suit 'Without Prejudice' After Mistrial Unless All Parties Consent or Court Orders Dismissal

Rule Allowing Unilateral Dismissal ‘Before Trial’ Does Not Apply After Jury Is Empaneled

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2011-0438.  Schwering v. TRW Vehicle Safety Sys., Inc., Slip Opinion No. 2012-Ohio-1481.
Certified Question of State Law, United States District Court, Southern District of Ohio, Western Division, No. 1:10-CV-679.  Certified question answered in the negative.
O'Connor, C.J., and Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer, J., concurs in judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-1481.pdf

Video clip View oral argument video of this case.

(April 4, 2012) The Supreme Court of Ohio ruled today that a plaintiff may not voluntarily dismiss a civil lawsuit “without prejudice” pursuant Ohio Civil Rule 41(A)(1)(a) when a trial court has declared a mistrial in the case after a jury has been empanelled and the trial has commenced.

The court’s 7-0 decision, authored by Justice Judith Ann Lanzinger, was issued in response to a request for a clarification of state law submitted by the U.S. District Court for the Southern District of Ohio, Western Division.

The case involves a civil lawsuit originally filed in state court but later refiled in federal court by Kenneth Schwering of Cincinnati. Schwering was a passenger in a 2001 Ford Explorer Sport driven by his wife, Beverly Schwering.  On December 28, 2002, the couple was involved in a traffic accident, and the vehicle rolled over. Schwering and his wife were wearing seatbelts at the time of the accident, but she was killed, and he sustained injuries.

On October 17, 2003, Schwering filed a complaint on his own behalf and as personal representative of his wife’s estate in the Hamilton County Court of Common Pleas against Ford Motor Company and TRW Safety Systems, Inc., asserting products-liability and negligence claims. The complaint alleged that the design of the seatbelt system in the Explorer was unreasonably dangerous and that the system was defective, creating an unsafe condition that caused Schwering’s wife’s death and his own injuries.

After five years of discovery and pretrial proceedings, the case proceeded to trial.  A jury was sworn in on May 28, 2009.  Schwering called Steven Meyer as an expert witness on safety-restraint systems.  Meyer testified that he had tested an alternative design of the restraint system, and stated that in his opinion if that design had been used in the couple’s vehicle it would have prevented Beverly Schwering’s death.

Ford objected and moved to strike this testimony, arguing that Schwering had not disclosed that Meyer had tested an alternative design on the same model of car involved in the accident.  Ford also argued that Meyer had deceived it and the court during earlier depositions by denying any recollection of having performed tests on a vehicle like the Schwerings’ Explorer. The trial judge initially granted Ford’s motion to strike and instructed the jury to disregard Meyer’s testimony.  Ford moved for a mistrial contending surprise, undue prejudice, and discovery violations of Civ.R. 26(D) and (E).  Schwering also moved for a mistrial, on the basis that the court’s exclusion of the proffered testimony prevented him from receiving a fair trial. On June 8, 2009, after the trial judge had reversed his ruling granting Ford’s motion to strike, he declared a mistrial and scheduled preliminary proceedings for a retrial of the case.

Before the second trial began, Schwering filed a notice with the court stating that he was voluntarily dismissing his complaint “without prejudice” (i.e. without forfeiting  his right to refile it within one year after the date of dismissal) pursuant to Ohio Civil Rule 41(A)(1)(a). 

In September 2010, Schwering filed a new lawsuit in federal district court asserting the same product liability and negligence claims against TRW and Ford that he had advanced in the dismissed state court action. TRW and Ford filed motions to dismiss the federal suit, arguing that Civ. R. 41(A)  allows a plaintiff to unilaterally dismiss a claim without prejudice only if the notice of dismissal is filed “before the commencement of trial.” Because Schwering’s dismissal of his state court action was not filed until after the trial had commenced, the defendants asserted that it was a dismissal “with prejudice,” meaning that the dismissal acted as a decision on the merits of the case in favor of the defendants, which barred Schwering from pursuing a new lawsuit against them asserting the same claims.

Schwering objected to the motions to dismiss, arguing that the mistrial rendered the first trial a nullity, permitting him to unilaterally dismiss the case without prejudice under Civ.R. 41(A)(1)(a) because trial had not yet “commenced.”

The federal court found no Ohio court decisions addressing whether the declaration of a mistrial reinstated a plaintiff’s right to voluntarily dismiss claims without prejudice pursuant to Civ.R. 41(A)(1)(a). As a result, the court asked the Supreme Court of Ohio to consider and render a decision on that question.

In today’s unanimous decision, Justice Lanzinger noted that while the certified question is a matter of first impression for the Supreme Court, “several Ohio courts of appeals have addressed the definition of ‘commencement of trial’ and have held that ‘a civil trial commences when the jury is empaneled and sworn, or, in a bench trial, at opening statements.’ ... We agree and now hold that a civil trial commences when the jury is empaneled.”

Justice Lanzinger acknowledged that state courts in Minnesota and Illinois have held that a mistrial is a legal nullity, and therefore reinstates a plaintiff’s right to voluntary dismissal of a claim without prejudice. She noted, however, that when evidentiary rulings have been made in a trial that later ends in a mistrial, Ohio courts routinely carry those rulings forward to a second trial rather than revisiting those issues. “We agree that it would be incongruous to recognize evidentiary rulings established during a first trial, while at the same time holding that the first trial never ‘commenced’ for purposes of Civ.R. 41(A),” wrote Justice Lanzinger.

“This court has explained that Civ.R. 41(A)(1)(a)’s ‘commencement of trial’ language was adopted to prevent a situation in which parties could try and retry their causes indefinitely until the most favorable circumstances for submission were finally achieved.  ... Civ.R. 41(A)(1)(a) does not refer to a mistrial, and there is no authority to insert a mistrial exception into the voluntary-dismissal rule. ... The commencement of trial cuts off a plaintiff’s ability to unilaterally dismiss claims without prejudice.  After trial has commenced, a plaintiff may dismiss without prejudice only by stipulation of all parties (Civ.R. 41(A)(1)(b)) or by order of the trial court (Civ.R. 41(A)(2)). Adherence to these rules results in the orderly administration of justice by preventing plaintiffs from dismissing multiple times without prejudice.”

“Once trial begins, the trial court is the gatekeeper, ensuring that dismissal does not prejudice other parties and occurs ‘upon such terms and conditions as the court deems proper.’  Civ.R. 41(A)(2). This rule allows the trial court to determine the conditions to impose to protect the other parties and to ensure that they are not prejudiced upon refiling. ... We, therefore, answer the certified question with a no.  A plaintiff may not voluntarily dismiss a claim without prejudice pursuant to Civ.R. 41(A)(1)(a) when a trial court declares a mistrial after the jury has been empaneled and the trial has commenced.”

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor, and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.

Gary M. Glass, 513.352.6765, for Ford Morot Company.

Damond R. Mace, 216.479.8764, for TRW Safety Systems Inc.

Arthur H. Schlemmer, 513.721.1350, for Kenneth Schwering.