July 18, 2008

On July 18, 2008, the Second District Court of Appeals upheld summary judgment in favor of EZ Lock, Inc. in a products liability action.  Judge Gregory F. Singer of the Montgomery County Court of Common Pleas had granted summary judgment to EZ Lock after excluding Plaintiffs’ products liability expert, John F. Wiechel, Ph.D., a mechanical engineer employed by the SEA firm in Columbus, Ohio.

The case arose from a car accident involving a quadriplegic driver and pedestrian Plaintiffs.  The driver struck Plaintiffs after losing control of his vehicle, killing one woman and severely injuring another.  Following the accident, the driver claimed that he lost control because the docking system, which secured his wheelchair in place, and which was manufactured by EZ Lock Inc., somehow malfunctioned causing him to roll backward in his van upon acceleration. The driver’s testimony was the only evidence linking the EZ Lock system to the accident.  In fact, local police had retained an engineer after the accident in order to investigate and test the system in question.  That engineer found the system to perform perfectly, as did another independent engineer hired by the driver’s insurance company. 

Ultimately, the driver and his insurance company settled with Plaintiffs.  However, during settlement negotiations, the driver’s insurance company destroyed the driver’s van, along with the subject EZ Lock device.  Having failed to preserve evidence necessary to their claims, Plaintiffs sued EZ Lock, Inc. claiming defective design of its docking system. 

Plaintiffs proffered John F. Wiechel, Ph.d., P.E., to opine that the EZ Lock system, which he had never seen and had never tested, was defective because, he claimed, the driver’s EZ Lock system was excessively worn causing a “false lock” of the device.  Dr. Wiechel was highly credentialed, had worked for Plaintiffs’ counsel on nearly 60 cases, and testified to having never been excluded as an expert.

However, following extensive briefing and a lengthy Daubert hearing, the Trial Court found Dr. Wiechel’s testimony to be unreliable.  Dr. Wiechel had offered several theories as to how the accident could have occurred in such a way as to implicate the EZ Lock system.  However, one theory was not testable, one theory had not been tested, and Dr. Wiechel’s attempted demonstration of his theory was not conducted in a way that would yield accurate results.  Moreover, the Court found Dr. Wiechel’s theories to be unsupported by independent evidence.  As such, the Court excluded Dr. Wiechel’s testimony as unreliable.  The Court also found exclusion of Dr. Wiechel’s testimony to be an appropriate sanction for spoliation based on Plaintiffs’ failure to preserve the subject EZ Lock system.

Having excluded Plaintiffs’ expert, and therefore the sole evidence supporting Plaintiffs’ claim for defective design, the Court granted summary judgment to EZ Lock and to its co-Defendant installer.

On appeal by the Plaintiffs, the Second District Court of Appeals affirmed summary judgment in favor of EZ Lock in a thorough and well-reasoned decision.  The Second District used an abuse of discretion standard to evaluate the exclusion of Plaintiffs’ expert, Dr. Wiechel, and, therefore, Plaintiffs’ ability to meet their burden of proving causation where numerous possible causes existed.  The Court of Appeals held that “Dr. Wiechel’s testimony did not comply with Evid. R. 702(C), because his theories were not objectively verifiable and the tests, to the extent any tests were performed, did not reliably implement his theories and were not conducted in a way that would yield an accurate result.” 

--Nicholas E. Subashi & Anne P. Keeton

June 13, 2008

This case bears a long and storied past.  Plaintiff John Blust, a successful Cincinnati businessman, owns a half-interest in a 75-acre farm property along Farmersville-West Carrollton Road in Montgomery County.  He had purchased the half-interest in 1974 from his mother, Lillian Blust, who retained a one-half interest in the property.

In 1998, neither John nor Lillian Blust lived on the farm property.  In fact, neither Plaintiff had ever lived on the property.  Blust rented out the land and farmhouse separately for cash.  The farmhouse itself is located in the southwestern-most corner of the property.  Going east from the farmhouse, the property had originally been divided by several tree lines, which Blust bulldozed.

Along the eastern-most boundary of the property is a fence line overgrown with trees and scrub brush and abutting property owned by Jim Weber.  John Blust claimed that, from 1974, when he first acquired ownership in the property, to mid-December of 1998, he trimmed three volunteer walnut trees located in the northeastern corner of the property, abutting the Weber property. 

In December of 1998, Defendant Lamar Advertising of Mobile, Inc. installed a billboard sign in the northwest corner of the Weber property.  In the process of clearing the fence line area to improve the read of its new sign, Lamar-Mobile cut trees and scrub brush in the northeastern corner of the Blust property.  Blust sued Lamar-Mobile for trespass and sought punitive damages, arguing that Lamar-Mobile acted with a conscious disregard for his property rights.

In August of 2002, a jury awarded Plaintiffs $32,000.00 in compensatory damages and $2.45 million in punitive damages.

Lamar-Mobile appealed the jury’s punitive damages award as being constitutionally excessive, and the Second District Court of Appeals agreed, holding that the jury’s punitive damage award violated Lamar-Mobile’s constitutional right to Due Process.  See Blust v. Lamar Advertising Co., 157 Ohio App.3d 787, 2004-Ohio-2433.  While the dissent found punitive damages to be entirely inappropriate, the majority found that punitive damages were permissible and remanded the case for a new trial on the amount of punitive damages.

On remand, Lamar-Mobile retained Subashi, Wildermuth & Dinkler as defense counsel.  The case proceeded to a new jury in June of 2008 before Judge Mary Wiseman of the Montgomery County Court of Common Pleas.  At trial, Plaintiffs presented new arguments never before raised in the ten years since their trees had been cut in 1998.  For example, Plaintiffs presented testimony by an expert psychologist that Lillian Blust, who had passed away at the age of 96 in 2001, experienced psychological injury as a result of the tree cutting.  Plaintiffs’ expert, a Dr. John Layh out of Yellow Springs, Ohio, had never seen or met Lillian Blust, and Lillian Blust had never seen a psychologist or other counselor in her life.

The jury was instructed at the close of evidence that it must award some amount of punitive damages to the Plaintiffs.  After deliberating for three hours and inquiring of the Court as to whether any part of the award could be designated for charity, the jury returned a verdict of only $66,000.00 in punitive damages, as compared to the $2.45 million awarded by the first jury.  Plaintiffs had requested $2.5 million in closing.  The jury further refused to award attorney fees to the Plaintiffs.

The Plaintiffs filed numerous post-trial motions, including a request for judgment notwithstanding the verdict denying attorney fees, an increase of the prior jury’s attorney fee award due to “clerical error,” additur (an increase in the amount of punitive damage award), and for a new trial.  Judge Wiseman recently denied all of Plaintiffs’ post-trial motions.

--Nicholas E. Subashi & Anne P. Keeton

April 24, 2008

On January 16, 2003, Lori McGohan smoked a cigarette on the concrete patio of her first-floor apartment.  After smoking her cigarette for two or three minutes, she snuffed her cigarette out in a snow-filled butter dish she used as an ashtray.  She heard the cigarette sizzle in the snow as she snuffed it out, and then went back into her apartment, leaving the snow-filled butter bowl and snuffed-out cigarette outside.  The butter bowl sat just outside her sliding glass patio doors on top of a plastic table.  Immediately behind the plastic table and butter dish was an inoperable electrical outlet.

Just ten to fifteen minutes after going back inside her apartment, Ms. McGohan heard a “pop” coming from outside her patio doors and noticed smoke on her patio.  Scott VanWinkle, assistant maintenance supervisor for the Plaintiff Dove Tree Apartments, also noticed the fire on Lori McGohan’s patio.  While plowing snow in the complex parking lot, he noticed a small fire about twelve inches off the ground between the sliding glass doors and the patio corner, approximately where the electrical outlet was located on the patio.  In VanWinkle’s words, the flames from the small fire were “protruding from the vinyl siding.”  Believing he could douse the fire with extinguishers, VanWinkle left, only to find that the fire had spread when he returned.

After containing the fire, Moraine firefighters investigated the cause and origin of the fire. The firefighters determined the area of fire origin to be on the patio immediately to the lower right of the sliding glass doors, where Scott VanWinkle observed a small fire with flames protruding from the vinyl siding.  In the area of origin were two potential causes for the fire – the malfunctioning electrical outlet and Lori McGohan’s makeshift ashtray.  The firefighters are not electrical engineers and have only basic training on electricity, arcing, and sparking.  The firefighters did not recall looking at the outlet connections to ensure they were proper.  The firefighters nevertheless disregarded the electrical outlet as a potential cause of the fire.

The firefighters admit that they could not completely eliminate the electrical outlet as a cause of the fire without sending the outlet to an electrical engineer.  In fact, they explained that, in a situation where they cannot entirely eliminate a potential cause of fire in the area of origin, they list the fire cause as “undetermined” in compliance with NFPA 921.  Nevertheless, and despite NFPA 921 standards providing that potential fire causes should only be eliminated if there exists definitive evidence that they did not cause the fire, the firefighters made the determination to not send the electrical outlet for testing and listed the cause of the fire as “discarded smoking materials” After closing the fire scene, the firefighters left the outlet where it lay on the patio, having cut the wires to the outlet.

Plaintiffs Dove Tree and Auto-Owners knew the electrical outlet would be an inextricable aspect to the defense of any case against Lori McGohan, or against an electrical contractor or outlet manufacturer.  After the fire, the Dove Tree property manager told an apartment resident that they were determining whether the electrical wiring caused the fire.  The day after the fire Dove Tree’s insurance company, Plaintiff Auto-Owners, hired Richard Kovarsky to inspect the fire scene for cause and origin determinations.  When he arrived at the scene on January 21, 2003, Kovarsky had the opportunity to examine all the evidence, including the malfunctioning electrical outlet.  He opined that the electrical outlet did not cause the fire, but that the fire was caused by “carelessly” discarded smoking materials.  Kovarsky left the electrical outlet and associated wiring at the fire scene.  But, when the expert retained by Lori McGohan’s carrier arrived at the scene on February 5, 2003, the electrical outlet was not present on the scene.

The case proceeded to trial on April 21, 2008 before a Montgomery County jury.  At trial, cause and origin expert Jim Hunter opined that the burn patterns shown in the Fire Department photographs and in Plaintiffs’ experts’ photographs indicated that the fire originated at the electrical outlet located in the wall cavity of Lori McGohan’s patio.  Electrical expert Ralph Dolence explained that enhanced images of the electrical outlet wiring depicted in the fire department photographs, showed beading on the wires, an indication of electrical failure.  Mr. Dolence also explained to the jury all of the testing that could have been performed on the electrical outlet and associated wiring, had the Plaintiffs saved those items.  Ultimately, however, the case did not turn on the issue of causation.  After hearing evidence for nearly a week, the jury deliberated for just one hour before returning a unanimous defense verdict finding that Lori McGohan did not act negligently.    

--Nicholas E. Subashi & Anne P. Keeton

Sept. 17, 2007
The Auglaize County Common Pleas Court granted summary judgment to Auglaize Farmers Cooperative in an employer intentional tort suit. This case began on August 14, 2003, when a grain dust explosion injured two employees at a feed mill in New Bremen, Ohio. The two employees suffered second and third degree burns over more than half of their bodies. The injuries occurred in the course of their employment and they, of course, submitted workers compensation claims. The Ohio Bureau of Workers Compensation paid total benefits (medical bills, prescription expenses, and wage replacement benefits) in excess of $756,000.

The two employees sued their employer, Auglaize Farmers Cooperative, Inc., alleging it had committed an employer intentional tort. They also directly sued Farmland Mutual Insurance Company, their employer’s commercial liability insurer. The theory of recovery against Farmland Mutual Insurance Company was that Farmland and Auglaize Farmers Cooperative had formed a “risk management partnership,” and that Farmland had assumed a duty to protect employees of Auglaize Farmers Cooperative. The Plaintiffs also sued the Timken Company and Emerson Power Transmission, both of which were involved in manufacturing bearings installed at the top of an elevator leg at the New Bremen feed mill. As to the bearing companies, the Plaintiffs asserted that a bearing failure at the top of the elevator leg caused the grain dust explosion, which propagated down the leg, vented at ground level, and lead to the fireball that severely burned the two employees. The cause and origin of the explosion was hotly disputed.

Discovery was time consuming and complex. The parties took over thirty depositions, and the Plaintiffs performed many inspections and metallurgical testing. Plaintiffs’ counsel retained numerous experts, including explosion cause and origin experts, grain industry experts, facility design experts, code compliance experts, etc. Throughout the course of discovery, Plaintiffs maintained a settlement demand of fifteen million dollars [$15,000,000].

Liability discovery closed in February of 2007. In March of 2007, the Defendants filed motions for summary judgment. Specifically, we filed a motion for summary judgment on behalf of Auglaize Farmers Cooperative, Inc. In a nutshell, the basis for the motion was that the Plaintiffs could not, as a matter of law, satisfy the Fyffe employer intentional tort standard. Among other things, we argued that Auglaize Farmers Cooperative did not have actual knowledge of the alleged ignition source for the explosion, and did not have actual knowledge of the conditions necessary for a grain dust explosion to occur. We also presented evidence that the possibility of grain dust explosions in grain handling facilities is well known and cannot be eliminated. The Plaintiffs attempted to present testimony about the existence of excessive dust in the facility, as well as testimony regarding several alleged violations of OSHA regulations and National Fire Protection Association standards. We completed the briefing of the motion for summary judgment in May of 2007.

In the September 17, 2007, Judgment Entry sustaining the motion for summary judgment, the Court began its analysis by citing to the case of Naragon v. Dayton Power & Light Co. (March 30, 1998), Shelby App. No. 17-97-21, unreported, and noting that “dangerous work must be distinguished from an otherwise dangerous condition within that work. It is the latter of which that must be within the knowledge of the employer before liability could attach. … Were it otherwise, any injury associated with inherently dangerous work … could subject an employer to intentional tort liability, whatever the cause.” The Court went on to state as follows:

Herein, it is uncontroverted that the possibility of injury from a grain elevator explosion is an on the job risk encountered by all employees in the grain industry. Grain dust explosions may occur because of negligence, and they may even occur without anyone’s fault. It is also uncontroverted that it is not possible to eliminate the risk of grain dust explosions in grain handling facilities. And, it is uncontroverted that Auglaize knew of the inherent risk of grain dust explosions and that they took some steps to reduce that risk, including the installation of a roller mill in place of an older hammer mill and by encasing its elevator legs in steel.

The Court evaluated the evidence presented by the parties and concluded that, while it might be sufficient to support a claim of negligence, it did not demonstrate that the actual condition that caused the explosion was within the knowledge of Auglaize Farmers Cooperative. In fact, the Court concluded that the Plaintiffs had “failed to establish … that Auglaize was aware that there was a condition where either the correct amount of dust necessary to explode was present, or that ignition was likely.” The Court also concluded that Auglaize Farmers Cooperative was not aware of any problem with the bearing that allegedly caused the explosion. Thus, the Court entered judgment in favor of Auglaize Farmers Cooperative and dismissed all of the Plaintiffs’ claims. The case remains subject to an appeal, but currently other claims remain pending against other parties.

-- Nicholas Subashi & Brian Wildermuth

Sept. 14, 2007
The Federal Court for the Southern District of Ohio granted summary judgment to the Dayton Board of Education in a lawsuit filed by a former bus driver. The plaintiff alleged he had been fired after a drug test revealed that he had reported back after lunch under the influence of marijuana to perform his job of transporting school children.

The plaintiff claimed that his rights under Federal Motor Carrier Safety Administration regulations were violated when he was denied a right he felt he had to request a confirmation drug test and when he was allegedly not allowed to seek counseling in order to retain his job under the FMSCA. The court recognized, however, that there is no private right of action to enforce the FMSCA regulations. Citing Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299 (6th Cir.2000). The plaintiff also alleged a Section 1983 claim for alleged violation of his procedural civil rights, but he ultimately failed to identify a procedure that might have been deprived.

-- Brian Wildermuth & Tabitha Justice

Sept. 11, 2007
On September 11, 2007, all Section 1983 and state law claims by plaintiffs, Benson and Robert Treinen, against the Village of Greenhills, Municipal Manager David Moore, Lt. Matt Johnson, and Officer Tony Patton were dismissed by Judge Herman Weber of the District Court for the Southern District of Ohio at Cincinnati. Back in 2004, Robert Treinen was arrested for disorderly conduct during the Pioneer Days Festival. As a result, the Treinens filed a federal lawsuit against the Village and others. The Court concluded the policy and practice claims and supervisory claims against the Village, Moore, and Johnson were insufficient to go to a jury. The plaintiffs conceded that the wrongful arrest and use of force claims against Officer Patton were without merit.

-- Nicholas Subashi & Tabitha Justice

August 17, 2007
In a thorough and well-reasoned opinion, the Second District Court of Appeals upheld summary judgment in favor of Carriage Trace, Inc., a condominium association, and nine of its individual board members who had been sued by a fellow association member for breach of fiduciary duty and false statement. Kleemann, et al. v. Carriage Trace, Inc., et al., 2nd Dist. No. 21873, 2007-Ohio-4209. Claudia Kleeman claimed that Carriage Trace and its board members breached fiduciary duties by trimming trees, installing speed bumps, removing unused tennis courts, and in the manner in which they gathered signatures approving new governing documents. Finding no question of fact that the Association’s efforts were taken in good faith and in a manner the directors reasonably believed to be in the best members of the Association, Judge Gorman of the Montgomery County Court of Common Pleas granted summary judgment to the Association and its individual board members and awarded costs against the Plaintiff. Kleeman raised eight separate assignments of error on appeal, all of which the Court of Appeals found to be without merit, finding the record to be “devoid of evidence indicating that the Board acted in bad faith, with deliberate intent to injure, or with reckless disregard for the best interests of the Association.”

Of import, the Second District found that boards of condominium associations are not charged under common law with a fiduciary duty to their members. Rather, R.C. § 1702.30 governs the fiduciary duties applied to boards of directors of non-profit corporations such as the Carriage Trace association. Moreover, the Second District interpreted R.C. §1702.30(D), allowing board members to rely on information and advice prepared by counsel, as a “statutory recognition that board members must typically rely on information and counsel from all types of sources, without independently verifying the accuracy of the facts or advice,” and found the provision to not constitute an affirmative defense.

- Nicholas E. Subashi & Anne P. Keeton

May 17, 2007
The United States Supreme Court declined jurisdiction over the First Amendment writ of certiorari filed by the plaintiffs in Kidwell v. City of Union, thereby affirming the decision of the Sixth Circuit Court of Appeals in favor of the City of Union (discussed below).

-- Lynnette Ballato & Tabitha Justice


May 16, 2007
On May 16, 2007, the Ohio Supreme Court confirmed that a schoolteacher or coach’s decision in determining the level of supervision necessary for students is discretionary and entitles school boards to immunity from civil liability. Elston v. Howland Local Schools, 2007-Ohio-2070. The Court reversed the court of appeals and reinstated the trial court’s decision dismissing all claims against the Howland Local Schools Board of Education on the basis of political subdivision immunity. As a political subdivision of the State of Ohio, a school board can only be held civilly liable in certain limited circumstances. The question, in Elston, became whether the board of education could be held civilly liable for certain alleged negligent decisions of its employees. The Supreme Court concluded that it could not.

The underlying case involved injuries to a 15 year-old baseball player who was practicing for a game in the gymnasium of Howland High School. Plaintiff Elston was short-toss pitching in a batting cage and he was not wearing a helmet at the time. One of the batted balls ricocheted off the cage and hit Elston in the head, causing him serious injuries. Elston’s family filed suit on his behalf against the school board, alleging negligent supervision and failure to properly train students on the use of equipment or to provide students with helmets.

The trial court granted summary judgment to the board of education, finding the Board was entitled to immunity under R.C. 2744.03(A)(3) and (A)(5). The Eleventh District reversed, contrary to existing legal precedent, deciding that 2744.03(A)(5) applies only to the discretionary decisions of a political subdivision, not the decisions of its employees. The Court concluded that, while coaching isn’t the type of discretionary activity addressed by Section (A)(3), “teachers and coaches, as employees of a political subdivision, have ‘wide discretion under R.C. 2744.03(A)(5) to determine what level of supervision is necessary to ensure the safety of the children in’ their care.”

Thus, the Howland coach’s decision in how to instruct pitchers on the use of equipment and his general guidance regarding game-day preparations was an exercise of his judgment and discretion in the use of equipment or facilities under Section (A)(5). Moreover, because political subdivisions act only through their employees, Section (A)(5) must be interpreted to immunize the board for the discretionary actions of its employees in this regard.

-- Nicholas E. Subashi, on behalf of amici curiae Ohio School Boards Association, Buckeye Association of School Administrators, Ohio Association of School Business Officials, Ohio Education Association, and Ohio Federal of Teachers.

April 20, 2007
On April 20, 2007, the United States Supreme Court once again granted certiorari to a police officer who was denied qualified immunity on a motion for summary judgment despite the fact that there existed an alleged question of fact for the jury. Scott v. Harris, ---S.Ct.---, FN2, 2007 WL 1237851 (2007). The Court emphasized that qualified immunity should be decided at the earliest possible stage. In other words, police officers should not have to face the burdens of trial if the constitutional violation alleged against them was not clearly established at the time.

On the night of March 29, 2001, a Georgia deputy observed a dark colored vehicle speeding down a two-lane road. That car was being driven by the teenage Harris. The deputy activated his lights, but Harris refused to pull over and began to drive at speeds exceeding 90 mph. Other deputies, including Defendant Scott, joined the pursuit. At some point, several cruisers blocked Harris in a parking lot, but Harris rammed Deputy Scott’s car and sped off. Scott received permission to from his superiors over the radio to P.I.T. Harris’s car, but ultimately applied his bumper to the rear of the car, which caused Harris to lose control of his car.

Harris sued Deputy Scott and others for a violation of his constitutional rights – i.e., use of excessive deadly force. Scott filed a motion for summary judgment based on qualified immunity. The district court found that material issues of fact existed and denied summary judgment. The Eleventh Circuit affirmed, holding that because a reasonable jury could find that ramming a vehicle under the circumstances was unlawful, Scott was not entitled to qualified immunity. The court theorized that the crime of speeding was a minor criminal violation under Tennessee v. Garner, and that the use of the cruiser in that manner constituted “deadly force.” Under the existing Garner test, the court concluded there was a material question of fact as to whether the officer was entitled to qualified immunity.

The Supreme Court declined to expressly decide whether the use of a police cruiser really was “deadly force,” but concluded that even if it were, it was certainly reasonable under the circumstances. Based upon a review of the video, Harris was clearly endangering the lives of numerous other citizens and the police officers. On that basis, the Court did not even need to get to the second step of the qualified immunity analysis. The Court further squarely rejected the notion that police officers must back off and simply allow persons such as Harris to escape. They rejected a rule that would encourage suspects to avoid arrest by simply driving so recklessly that they put innocent lives in danger, thereby forcing police officers to end the pursuit.

April 9, 2007
Associate Anne Keeton, along with her husband Mark Keeton, welcomed a new baby boy, James Edward Keeton.

March 5, 2007
Partner Lynnette Ballato, along with her husband Charles Dinkler and son Connor Ballato, brought into the world two beautiful new additions; fraternal brother and sister, Carmen and Carsen Dinkler.