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Tuesday, Jan. 12, 2010

State of Ohio v. Joseph Pepka, Case no. 2009-0678
11th District Court of Appeals (Lake County)

State of Ohio v. Sally A. Massien, Case no. 2009-0825
9th District Court of Appeals (Summit County)

Cora Erwin, Administratrix of the Estate of Russel Erwin v. Joseph E. Bryan, M.D., et al., Case no. 2009-0580
5th District Court of Appeals (Tuscarawas County)

Akron Bar Association v. Harry J. Wittbrod, Case no. 2008-0723

Akron Bar Association v. Douglas B. Maher, Case no. 2008-1270


Is Indictment Defective if It Identifies Crime as Felony, But Omits Finding that Elevates Offense to Felony Status?

State of Ohio v. Joseph Pepka, Case no. 2009-0678
11th District Court of Appeals (Lake County)

ISSUE:  Under R.C. 2919.22(E)(2)(c), the offense of child endangerment is punishable as a first-degree misdemeanor except where the defendant’s acts or omissions cause “serious physical harm” to a child, in which case the offense is elevated to a third-degree felony. When a grand jury finds probable cause that a defendant committed child endangerment, and its indictment identifies the offense as a third-degree felony but does not include a finding that the victim suffered serious physical harm, does a trial court commit reversible error by allowing the state to amend the indictment before trial to add the element of physical harm?

BACKGROUND:  Joseph Pepka was indicted on three counts of child endangerment.  Each count in the indictment indicated that the offense with which he was charged was a third-degree felony, but the indictment did not include a finding by the grand jury that the victim had suffered serious physical harm as a result of his acts or omissions.

Before Pepka came to trial, the state sought and was granted permission by the trial court to amend the indictment to add to each count the element that the child victim suffered serious physical harm. Pepka was subsequently found guilty and sentenced on three felony counts of child endangerment.  Pepka appealed, arguing that his convictions should be reduced from felonies to first-degree misdemeanors because the grand jury had not made findings that he caused the victim serious physical harm, and without such a finding he should not have been tried or sentenced for felony counts of child endangerment. The 11th District Court of Appeals agreed that the trial court erred in allowing the state to amend the indictment to add a required element not found by the grand jury, and remanded the case to the trial court with a directive to vacate Pepka’s felony convictions and resentence him for three misdemeanor counts of child endangerment.  The state sought and was granted Supreme Court review of the 11th District’s judgment.

The Lake County prosecutor’s office argues that, because the original indictment  charged Pepka with felony counts of child endangerment, and the only way the offense is chargeable as a felony is when the victim allegedly suffered serious physical harm, the original indictment put Pepka on notice that he must prepare a defense against that allegation, and the trial court was simply correcting a clerical oversight in allowing the requested amendment. They also assert that physical harm to the victim is not a necessary element of the crime of child endangerment, but is rather a “special finding” that increases the punishment a court may impose upon conviction without changing the nature or identity of the underlying charge.

Attorneys for Pepka respond that, because it lacked any mention of serious harm to the victim, the indictment voted by the grand jury was legally sufficient only to charge him with three misdemeanor counts of child endangerment; and the trial court committed reversible error in allowing the state to amend that indictment by adding the element of physical harm, which effectively changed the charges against him from misdemeanors to felonies without any supporting finding by the grand jury.

Contacts
Joshua S. Horacek, 440.350.2683, for the State of Ohio and Lake County prosecutor’s office.

Albert L. Purola, 440.951.2323, for Joseph Pepka.

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Is a Nurse Employed by Hospital in a ‘Position of Trust?’

State of Ohio v. Sally A. Massien, Case no. 2009-0825
9th District Court of Appeals (Summit County)

ISSUE: R.C. 2929.13 allows a trial court, at its discretion, to refer a first-time offender charged with a low-level drug offense to an intervention/rehabilitation program in lieu of imposing a conviction for the charged offense. If the defendant successfully completes the intervention in lieu of conviction (ILC) program and does not reoffend, the drug offense may be expunged (deleted) from the defendant’s record. The statute specifies that certain offenders are not eligible for placement in an ILC program. One of those exceptions, set forth in R.C. 2929.13(B)(1)(d), bars from eligibility an offender who “held a public office or position of trust and the offense related to that office or position.” In this case, the Court is asked to resolve conflicting rulings by the state’s courts of appeals regarding whether the statutory exclusion for persons in a “position of trust” broadly bars a nurse or other private employee from participating in an ILC program for a drug-related offense if that offense was committed in the course of his or her employment.

BACKGROUND:  Nurse Sally Massien was charged with taking drugs from the Akron hospital where she was employed.  As a first offender, she applied for and was granted referral to the Summit County Court of Common Pleas ILC program. The state, represented by the Summit County prosecutor’s office, appealed her referral to ILC, arguing that because her position as a nurse gave her special access to drugs, and she had abused that access by taking them in the course of her employment, Massien qualified as a person in a “position of trust” who was barred from participation in an ILC program under R.C. 2929.13(B)(1)(d).

On review, the 9th District Court of Appeals affirmed the trial court’s holding that Massien was eligible for ILC. A 2-1 majority of the appellate panel held that statutory language excluding from ILC  persons who “held a public office or position of trust” was intended primarily to address government officials, law enforcement personnel and other public employees who had  abused their official powers or positions to commit drug-related crimes, and was not intended to broadly bar participation in ILC programs by nurses or other health care professionals who committed low-level drug crimes in the course of their private employment.  The 9th District certified that its decision was in conflict with a 2006 ruling by the 10th District Court of Appeals’ in a similar case,  State v. France. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for the state assert that the language of the statute does not  limit “positions of trust” to government officeholders or public employees. They contend that the 9th District erred by interpreting that language narrowly to exclude private employees, especially those who are licensed as health care professionals, from the category of drug offenders who should be barred from ILC programs because they abused their privileged access to narcotics in the workplace to commit criminal acts. They argue that under the 9th District’s interpretation  of the law, no drug-related crimes committed by a doctor or nurse, regardless of its severity, would preclude the offender from eligibility for ILC.

Attorneys for Massien contend that if the legislature intended to specifically bar ILC eligibility for private health care professionals who commit drug crimes on the job it could easily have included such a provision in the law, but did not. Under the state’s broad reading of the law, they say, not only health care workers but employees in any other private business or profession who hold “positions of trust” would be ineligible for a diversion program if their drug offense was related to their job. They contend that the legislature’s purpose in adopting the ILC statute was to allow qualifying first offenders a one-time chance at rehabilitation through treatment in lieu of punishment for their crimes. They argue that the state’s proposed “automatic” exclusion from ILC of all health-care workers who commit drug offenses on the job is contrary to that legislative intent, and point out that trial judges have complete discretion to deny ILC referral to any  physician, nurse or other offender if the court finds that diversion is not proportionate to that person’s offense or appropriate for that offender.

Contacts
Richard S. Kasay, 330.643.2800, for state and Summit County prosecutor’s office.

Karen H. Brouse, 330.928.7878, for Sally Massien.

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Does Civil Rule Allow Time Extension to Amend Complaint to Substitute Actual Defendant for ‘John Doe?’

Cora Erwin, Administratrix of the Estate of Russel Erwin v. Joseph E. Bryan, M.D., et al., Case no. 2009-0580
5th District Court of Appeals (Tuscarawas County)

ISSUE: When the plaintiff in a civil lawsuit has filed a timely complaint that includes claims against one or more “John Doe” defendants whose identities are unknown to the plaintiff at the time of filing, Ohio Civil Rule 15(D) allows the plaintiff to amend the complaint within one year after filing to substitute the name of an actual  defendant for a “John Doe” named in the initial complaint. In this case, the Court is asked to decide whether the one-year “relate-back” provision in Civ.R. 15(D) applies to amendment of a complaint in which the plaintiff knew the name of a potential defendant before the initial filing deadline expired, but lacked sufficient information at that time to determine whether the acts or omissions of that person materially contributed to the plaintiff’s injuries.

BACKGROUND: Russell Erwin was treated in the Intensive Care Unit at Union Hospital from June 29 through July 5, 2004. The physician with primary responsibility for his treatment was Dr. Joseph Bryan. Treatment included insertion of a tube into Mr. Erwin’s airway in order to allow him to breathe  through a respirator. On July 15, several days after his release from the hospital, Mr. Erwin collapsed at home and was transported to the emergency room, where he died. An autopsy revealed that he had suffered a recent embolism (blood clot) in his lung, and that the cause of death was a new and massive embolism in the same location.

On July 10, 2006, within the two-year statute of limitations (time limit) after Mr. Erwin’s death, his wife, Cora Erwin, filed a wrongful death lawsuit naming as defendants Dr. Bryan, Union Hospital, and five unnamed “John Doe” defendants described in the complaint as other  physicians unknown to Mrs. Erwin at the time of filing whose acts or omissions may have contributed to Mr. Erwin’s death. On July 15, 2006 the statute of limitations for filing a wrongful death claim arising from Mr. Erwin’s death expired.

On June 29, 2007, after her attorneys had deposed Dr. Bryan, Mrs. Erwin sought leave to amend her complaint to substitute the name of Dr. William Swoger, a physician who had been involved in the intubation of her husband during his hospitalization, for one of the “John Doe” defendants. The trial judge granted leave to amend the complaint, and Dr. Swoger and his medical practice, Union Internal Medical Specialties Inc. (UIMS), were served with copies of the amended complaint naming them as defendants.  Dr. Swoger and UIMS subsequently filed a motion for summary judgment dismissing them as defendants on the basis that Mrs. Erwin had not asserted claims against them until after the July 15, 2006 statute of limitations had expired. The trial court granted summary judgment in favor of Dr. Swoger and UIMS based on the statute of limitations defense.

Mrs. Erwin appealed the trial court’s grant of summary judgment, arguing that because she had included  then-unknown John Doe physicians as defendants in her original and timely complaint, Civil Rule 15(D) allowed her to amend that complaint within one year after the original filing date by substituting the name of an actual defendant for a John Doe defendant. The 5th District Court of Appeals reversed the trial court’s grant of summary judgment and reinstated Mrs. Erwin’s claims against Dr. Swoger and UIMS.  The Supreme Court has agreed to review the 5th District’s decision.

Attorneys for Dr. Swoger and UIMS argue that in allowing Mrs. Erwin to amend her complaint to join them as defendants after the statute of  limitations had expired, the 5th District ignored plain language in Civil Rule 15(D) that limits the rule’s one-year “relate-back” provision to cases in which a plaintiff “does not know that name of a defendant.”In this case, they say, it is undisputed that Mrs. Erwin “knew the name” of Dr. Swoger before July of 2006 because she met with him and gave him her husband’s medical history at the time of his hospitalization, and Dr. Swoger’s name appeared repeatedly in her husband’s medical records. They assert that the limited  purpose of Ohio’s rule allowing plaintiffs to name “John Doe” defendants in a civil complaint is to avoid depriving injured parties of the chance to recover from wrongdoers whose names they could not discover despite their best efforts to do so before  the deadline for filing suit. They argue that, if affirmed, the 5th District’s decision in this case would allow plaintiffs to improperly extend statutes of limitations set by the legislature by an additional 12 months by listing parties whose names they knew or could have discovered before the statutory deadline as “John Doe” defendants, and then invoking Civil Rule 15(D) to advance claims against those persons up to a year after the statutory deadline for filing suit has expired.

Attorneys for Cora Erwin respond that just because a plaintiff knows or can find out the names of  doctors and other medical workers that appear in medical records, that fact  does not mean the plaintiff are able to immediately identify which if any of those persons should be joined as “defendants” because their acts or omissions contributed a patient’s death or injury. They argue that the rule allowing plaintiffs to initially name John Doe defendants and later amend their complaint to substitute an actual person is based on the practical reality that, in many cases, it is only after taking depositions and obtaining other discovery that a plaintiff can determine which of dozens of medical personnel whose names appear in a patient’s records should be named as a defendant.

If the 5th District’s ruling in this case is overturned, they assert, plaintiffs who are facing filing deadlines knowing that they will have no future opportunity to amend their complaints based on discovery will be forced to file “shotgun” complaints that name as defendants every doctor, nurse, lab technician and other care provider whose name appears in the patient’s file, because failing to do so would permanently forfeit the plaintiff ‘s right to seek recovery from any “known” person not named in the original complaint. They argue that the filing of such complaints would be contrary to the public policy in favor of judicial economy and against overbroad litigation, and urge the Court to avoid that result by affirming the 5th District’s interpretation of Civil Rule 15(D).

NOTE:  The Ohio State Bar Association and Ohio Association for Justice have filed amicus curiae (friend of the court) briefs supporting the position of Mrs. Erwin. The Ohio State Medical Association, Ohio Hospital Association and Ohio Osteopathic Association have filed amicus briefs in support of Dr. Swoger and UIMS.

Contacts
Rocco D. Potenza, 330.670.7300, for Dr. William Swoger & Union Internal Medicine Specialties Inc.

Paul W. Flowers, 216.344.9393, for Cora Erwin and Estate of Russell Erwin.

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Attorney Discipline

Akron Bar Association v. Harry J. Wittbrod, Case no. 2008-0723

The Court has ordered attorney Harry J. Wittbrod of Cuyahoga Falls to appear before the Justices and show cause why he should not be held in contempt of the Court’s July 28, 2009 order imposing a six-month stayed suspension of his law license.

The Court’s order was issued in response to a complaint submitted by the Akron Bar Association alleging that Wittbrod has not complied with conditions of the Court’s suspension order, including failure to comply with the terms of a treatment contract with the Ohio Lawyers Assistance Program and failure to keep the Akron Bar Association, Clerk of the Supreme Court and Office of Disciplinary Counsel informed of any changes in his place of  residence.

Contacts
William G. Chris, 330.434.3000, for the Akron Bar Association.

Matthew W. Oby, 330.762.7377, for Harry J. Wittbrod.

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Attorney Discipline

Akron Bar Association v. Douglas B. Maher, Case no. 2008-1270

The Court has ordered attorney Douglas B. Maher of Barberton to appear before the Justices and show cause why he should not be held in contempt of the Court’s Feb. 5, 2009 order indefinitely suspending his license to practice law.

The order is based on a complaint filed by Akron Bar Association alleging that Maher has not complied with conditions of the Court’s suspension order, including provisions that required him to notify local courts, other attorneys and clients that his license was under suspension and to submit an affidavit of compliance verifying that he has met those and other requirements imposed by the Court in its order of suspension.

Contacts
William G. Chris, 330.434.3000, for the Akron Bar Association.

Matthew W. Oby, 330.762.7377, for Douglas Maher.

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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.