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Robert Meyer v. United Parcel Service, Inc., Case no. 2008-0315
1st District Court of Appeals (Hamilton County)
State of Ohio v. Doron C. Silverman, Case no. 2008-0582
2nd District Court of Appeals (Montgomery County)
Medical Mutual of Ohio v. William Schlotterer, D.O., Case no. 2008-0598
8th District Court of Appeals (Cuyahoga County)
Mary-Martha Corrigan et al. v. The Illuminating Company, Case no. 2008-0708
8th District Court of Appeals (Cuyahoga County)
Do Different Remedies, Time Limits Apply To Claims Under Different Sections of Anti-Discrimination Law?
Robert Meyer v. United Parcel Service, Inc., Case no. 2008-0315
1st District Court of Appeals (Hamilton County)
ISSUE: When a lawsuit seeking recovery under a general provision of Ohio’s anti-discrimination statute, R.C. 4112.99, alleges age-based employment discrimination, is that suit subject to filing deadlines and limitations on recovery that are set forth in two other sections of the same statute, R.C. 4112.02 and 4112.14, that specifically address and establish causes of action for age-based discrimination?
BACKGROUND: This case involves a wrongful termination lawsuit filed by a Cincinnati truck driver, Robert Meyer, against his former employer, United Parcel Service (UPS). After an arbitrator rejected Meyer’s claim that he had been discharged without just cause, Meyer filed suit in the Hamilton County Court of Common Pleas in May 2004. He initially asserted a wrongful discharge claim against UPS only under R.C. 4123.90, a law that prohibits the firing of a worker in retaliation for filing a workers’ compensation claim. In July 2005, Meyer amended his complaint to also assert a claim of age discrimination under R.C. 4112.99, a general provision of Ohio’s civil rights statute that provides that a party engaging in any type of discriminatory conduct prohibited by Chapter 4112 “is subject to an action for civil damages, injunctive relief, or any other appropriate relief.”
Both claims were tried to a jury, which found in favor of Meyer on both causes of action and awarded him $113,000 in back pay, $175,000 in “other damages,” $25,000 in punitive damages and recovery of his attorney fees and court costs. UPS appealed. On review, the 1st District Court of Appeals vacated the trial court’s judgment and verdict based on its finding that Meyer’s workers’ compensation-based complaint should not have been tried to a jury, and that the jury’s verdict and award on his separate age discrimination claim was influenced by the evidence he presented in support of his workers’ compensation claim.
In its decision, the court of appeals specifically rejected arguments by UPS that Meyer’s age discrimination complaint under R.C. 4112.99 should have been dismissed because 1) it was not filed within the 180-day filing deadline set forth in R.C. 4112.02(N); and 2) it was barred by language in R.C. 4112.14 that precludes litigation of an age discrimination claim if the plaintiff’s discharge has previously been arbitrated and found to be for just cause. UPS sought and was granted Supreme Court review of the 1st District’s rulings that Meyer’s general age discrimination claim advanced under R.C. 4112.99 was not subject to the procedural requirements and limitations imposed by other sections of Chapter 4112 that specifically address age discrimination cases.
Attorneys for UPS argue that because the 180-day filing deadline and preclusion of previously arbitrated cases set forth in R.C. 4112.02 and 4112.14 are specifically limited to cases alleging age discrimination (as opposed to any of the other types of discrimination addressed by Chapter 4112), they should be read as part of a comprehensive legislative scheme intended to apply to all age discrimination cases, including those like Meyers’ that are filed under the “catch all” section of the statute, R.C. 4411.99. They point to prior court decisions holding that when there is a conflict between a law specifically addressing a narrow issue or type of complaint and a general law applicable to a much broader range of cases, the specific statute should take precedence over the general one. In this case, they say, the legislature has specified different procedural requirements and limitations on recovery for age discrimination lawsuits than for other types of civil rights actions, and the Court should apply those requirements and limitations to all claims in which the alleged discrimination was based on age.
Attorneys for Meyer respond by citing the Supreme Court of Ohio’s 2007 decision in Leininger v. Pioneer Natl. Latex, which they say specifically interpreted R.C. Chapter 4112 as providing four separate and independent causes of action available to employees who believe they have been victims of age-related workplace discrimination. They argue that the plain language of R.C. 4112.14 limiting recovery in previously arbitrated cases addresses only the “remedies available pursuant to sections 4112.01 to 4112.11” and thus is not applicable to Meyer’s claims, which were asserted under R.C. 4112.99.
Contacts
Kasey L. Bond: 513.651.5800, for United Parcel Service, Inc.
Stacy A. Hinners, 513.621.8800, for Robert Meyer.
Does Lack of Competency Hearing Bar Hearsay Evidence of Child’s Statement Alleging Sexual Abuse?
State of Ohio v. Doron C. Silverman, Case no. 2008-0582
2nd District Court of Appeals (Montgomery County)
ISSUE: When a criminal charge involving sexual abuse of a child is based on out-of-court statements made by a child under the age of 10 to a third party, and the child subsequently dies before the trial court has conducted an in-person competency hearing under Ohio Evidence Rule 601 to establish the reliability of his statements, does Ohio Evidence Rule 807 allow the state to offer third-party hearsay testimony at trial relating the child’s statements?
BACKGROUND: With certain specified exceptions, Ohio’s rules of evidence bar the admission at trial of “hearsay” testimony by a third party relating statements allegedly made by another person when the person who allegedly made the statements does not testify at trial. One exception to the hearsay rule is contained in Evid.R.807, which under certain conditions allows a third party to testify about statements made by a child under the age of 10 regarding a “sexual act performed by, with or on the child” when the child’s own testimony at trial “is not reasonably obtainable.”
A separate rule, Evid.R. 601, requires that before admitting into evidence testimony by a child under the age of 10, a court must first establish the child’s competence by determining whether he or she is “incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.”
In this case, Doron Silverman of West Carrollton was charged with sexually abusing a 4-year-old identified by the initials M.S. The charges were based on statements made by the child to family members. When questioned by police, Silverman’s answers lent some credibility to the child’s statements. Before Silverman was brought to trial, M.S. died in a fire. At trial, Silverman denied any sexual contact with the child and moved to suppress any third-party hearsay testimony relating to M.S.’s statements. The trial court denied the motion to suppress based on the exception to hearsay in Evid.R. 807, and witnesses testified about the child’s statements alleging sexual abuse. Silverman was convicted of gross sexual imposition.
On review, the 2nd District Court of Appeals reversed his conviction. The court of appeals held that because M.S. was under the age of 10 at the time he made the statements suggesting abuse, those statements could be admitted into evidence against Silverman only if the trial court first complied with Evid.R. 601 by determining whether M.S. was competent to give reliable testimony. In the absence of a finding of competency, the 2nd District held that M.S.’s statements were inadmissible as evidence notwithstanding the hearsay exception in Evid.R. 807.
Attorneys for the state now ask the Supreme Court to overrule the court of appeals and find that, in cases like this one where an abused child is unavailable because of death or disability before a court has the opportunity to conduct a competency hearing, the exception in Evid.R. 807 is sufficient to allow hearsay testimony relating the child’s statements. They argue that Evid.R. 807 contains detailed criteria for trial courts to use in assessing the reliability of a child’s statements based on corroborating facts and circumstances, and that in light of those criteria there is no need for a competency hearing under Evid.R.601. To the extent that a prior decision of this Court, State v. Said (1994), held that Evid.R. 807 does not eliminate the need for competency hearings, they urge the Court to limit or overrule its holding in Said for cases where there is no possibility of a hearing because the victim has died or become disabled.
Attorneys for Silverman respond that under Evid.R.601, children under the age of 10 are not eligible to give testimony in any court proceeding unless a court has first assessed their competence in person and found them capable of accurately perceiving events and behavior and accurately reporting what they have observed. They argue that the need to establish the competence and reliability of a child witness does not go away simply because a child becomes unavailable to testify in person, and that Said correctly held that courts may not admit third-party hearsay testimony repeating what may have been unreliable statements by a child unless the court has first tested the reliability of that child.
Contacts
R. Lynne Nothstine, 937.225.5757, for the state and Montgomery County prosecutor’s office.
Michael T. Columbus, 937.228.0894, for Doron Silverman.
May Insurer Compel Doctor to Disclose Non-Party Patient Medical Records in Insurance Fraud Suit?
Medical Mutual of Ohio v. William Schlotterer, D.O., Case no. 2008-0598
8th District Court of Appeals (Cuyahoga County)
ISSUE: Under the Supreme Court of Ohio’s 1999 holding in Biddle v. Warren General Hospital, does litigation in which an insurer alleges that a medical practitioner has engaged in insurance fraud constitute a “special situation” in which the statutory privilege afforded to patients’ confidential medical records is outweighed by the interests of the public and insurers in obtaining and examining non-party patient records?
BACKGROUND: Based on a review of its billing records, Medical Mutual of Ohio suspected that Dr. William Schlotterer of Cleveland had overbilled the insurer for services he provided to patients covered by Medical Mutual health plans.
Pursuant to the standard participation agreement it enters into with all covered service providers, Medical Mutual asked Schlotterer to provide it with information from the treatment records of patients whose treatment had been recently billed to the insurer. Schlotterer provided the initial set of requested records. However when the insurer later submitted a much wider request for records of other patients dating back five years, and for detailed notes and background information from the medical files of the original set of patients, Schlotterer refused to cooperate further, asserting that he was barred by the statutory privilege extended to medical records from disclosing the requested documents.
Medical Mutual subsequently filed a civil lawsuit asserting claims against Schlotterer for breach of contract and fraud. During pretrial proceedings, the insurer entered a discovery request asking the court to compel Schlotterer to provide it with copies of the patient records Schlotterer had refused to provide under a protective order. The trial court granted the requested discovery order with protective limitations on disclosure of information contained in the patient files. It held specifically that under the Supreme Court of Ohio’s 1999 decision in Biddle v. Warren General Hospital, the statutory privilege applicable to patients’ medical files under R.C. 2317.02 was outweighed in this case by the public’s interest in preventing and detecting medical insurance fraud.
Schlotterer appealed. On review, the 8th District Court of Appeals held 2-1 that the trial court had erred in granting the discovery order, and held that the “special situation” exception to doctor-patient privilege recognized in Biddle was not applicable to an insurer’s efforts to investigate and recover for alleged fraud by a physician.
Attorneys for Medical Mutual now ask the Supreme Court to overrule the 8th District and reinstate the trial court order compelling Schlotterer to disclose the requested patient records. They point to state insurance statutes that require insurers to establish and follow fraud prevention plans and report known or suspected fraud to the Ohio Department of Insurance. They contend that the public policy interest underlying those laws, which is to keep medical insurance rates under control by preventing millions of dollars in potential fraudulent overpayments to practitioners each year, was sufficient to constitute a “special situation” under Biddle that allowed the trial court in this case to compel disclosure of the requested patient records under protective conditions.
Attorneys for Dr. Schlotterer argue that R.C. 2317.02 provides for a waiver of doctor-patient privilege under only two carefully specified conditions, neither of which is applicable to this case. They cite multiple past decisions in which this Court has consistently declined to recognize judicially imposed waivers on a clear and unambiguous privilege established by the General Assembly. They assert that the only “special situations” allowing disclosure of privileged information envisioned by the Biddle court were situations in which the personal interests of a patient or the health of the public would be negatively affected if a physician were prevented from disclosing confidential medical information. In this case, they assert, a third party insurance company is seeking to compel access to patients’ privileged medical records not to advance public health or any interest of the patients involved, but merely to construct a better case for its own recovery of alleged past overpayments.
Contacts
Stephen F. Gladstone, 216.515.1660, for Medical Mutual of Ohio.
D. Jeffery Rengel, 419.627.0400, for Dr. William Schlotterer.
Does PUCO Have Exclusive Jurisdiction over Dispute Regarding Utility’s Removal of Tree in Easement?
Mary-Martha Corrigan et al. v. The Illuminating Company, Case no. 2008-0708
8th District Court of Appeals (Cuyahoga County)
ISSUE: Does a dispute between a homeowner and an electric utility company over the removal of a tree located on the owners’ property but within an easement owned by the electric company qualify as a challenge to the services or practices of a public utility that falls under the exclusive jurisdiction of the Public Utilities Commission of Ohio (PUCO)?
BACKGROUND: In this case, the Cleveland Electric Illuminating Company (CEI) informed homeowners Dennis and Mary-Martha Corrigan of Brooklyn that it intended to remove a mature maple tree at the back of the Corrigans’ residential lot. The tree was located on Corrigans’ property but within the boundaries of an easement owned by the utility. Under the terms of the easement, CEI had authority to “cut and remove any trees, shrubs or other obstructions upon the... property which may interfere or threaten to interfere with the construction, operation and maintenance of (CEI’s) transmission lines.”
The Corrigans asked the company to reconsider, pointing out that the tree in question had been in the same juxtaposition to CEI’s power lines for the previous 28 years, and that for all those years CEI or contractors it hired had found that merely pruning the tree approximately every five years was sufficient to keep it from interfering with or threatening the power lines. The utility advised the Corrigans that it had adopted a new policy of removing rather than pruning any tree or other vegetation within its easements that was more than 10 feet high, and that it intended to remove their tree consistent with that policy.
The Corrigans obtained a temporary injunction from the Cuyahoga County Court of Common Pleas barring CEI from removing the tree. During subsequent proceedings in which the Corrigans sought a permanent court injunction, CEI moved for dismissal, arguing that the common pleas court did not have subject matter jurisdiction to hear the case because it involved a challenge to a service or practice of a public utility, and by law such disputes fall under the exclusive jurisdiction of the PUCO. The trial court denied CEI’s motion to dismiss, finding that it had jurisdiction to hear the case. After a hearing, the court issued a permanent injunction in favor of the Corrigans, finding that CEI had not demonstrated that the maple tree interfered with or threatened its wires, and therefore the company’s easement did not permit it to remove the tree. On review, the 8th District Court of Appeals affirmed both the jurisdiction and judgment of the trial court.
Attorneys for CEI now ask the Supreme Court to reverse the lower courts and remove the injunction barring removal of the Corrigans’ tree. They point out that state public utility laws require electric companies to prevent service interruptions and public safety hazards by keeping trees from growing into their power lines, and say that legal obligation and the terms of their easement give them the right to take whatever corrective actions they find necessary to prevent the Corrigans’ tree from threatening nearby service lines. They also assert that, if the lower court rulings in this case are upheld, electric utilities will be hamstrung in their vegetation control efforts by lawsuits filed in local courts any time a property owner disagrees with the utility’s opinion about whether removal or trimming of a tree is necessary. The only way to avoid this outcome, they contend, is for the Court to affirm that CEI’s easement gives it unlimited discretion to trim or remove vegetation in an easement area, and that all complaints about a utility’s vegetation removal policies or procedures are subject to the exclusive jurisdiction of the PUCO.
Attorneys for the Corrigans respond that the easement held by CEI over a portion of the Corrigans’ lot is no different than other types of real estate easements, and that there is a large body of case law upholding the authority of local courts to hear and resolve disputes over the proper allocation of power or control between a real property owner and the holder of an easement. In this case, they argue, the language of the CEI easement does not grant the company unlimited authority to do what it pleases with trees within the easement, but rather specifically grants the company authority to trim or remove vegetation only when it “interferes or threatens to interfere” with power lines.
In this case, they say, the Corrigans showed by evidence that at the time CEI announced its intention to remove their tree it was not interfering with or threatening power lines, while CEI produced no evidence to the contrary, but merely relied on its claim of unconditional authority to trim or remove any vegetation in its easement. Because the prior condition set forth in its easement was not demonstrated, they argue, the trial and appellate courts correctly enjoined CEI from removing the Corrigans’ tree.
Contacts
Denise M. Hasbrook, 419.242.7985, for The Illuminating Company.
Lester S. Potash, 216.771.8400, for Mary-Martha and Dennis Corrigan.
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.