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Tuesday, Jan. 18, 2011

State of Ohio v. Aaron P. Ford, Case no. 2010-0235
5th District Court of Appeals (Licking County)

Lonna Loudin v. Radiology & Imaging Services, Inc., et al., Case no. 2010-0297
9th District Court of Appeals (Summit County)

Cleveland Metropolitan Bar Association v. Bryan S. Freeman, Case no. 2010-1479
Cuyahoga County

Disciplinary Counsel v. Vincent A. Stafford, Case no. 2010-1601
Cuyahoga County

Cincinnati Bar Association v. Darren Joseph Mullaney, John S. Brooking and Patrick F. Moeves, Case no. 2008-0412


May Firearm Specification be Added to Sentence for Crime in Which Discharging Gun is Element of Offense?

Under Ohio's 'Multiple-Count' Statute

State of Ohio v. Aaron P. Ford, Case no. 2010-0235
5th District Court of Appeals (Licking County)

ISSUE:  May a defendant convicted and sentenced for discharging a firearm at or into a habitation in violation of R.C. 2923.161 also be sentenced to an additional three years in prison under R.C. 2929.14(D) and 2929.145 based on the use of a gun in the commission of that crime? Or are the gun discharge offense and firearm specification “allied offenses of similar import” that must be merged into a single conviction punishable by a single sentence?

BACKGROUND: Ohio’s “multi-count statute,” R.C.  2941.25, provides that where the same act of a defendant can be construed to constitute two or more different criminal offenses, the state may indict and try the defendant on all of those charges, but if the defendant is found guilty of two or more of the allied offenses, the court must merge those counts into a single conviction subject to a single sentence.

In this case, Aaron Ford of Johnstown was arrested for firing several gunshots from the rear door of his home. One of the bullets he fired struck and penetrated the home of a neighbor. Ford was charged with violating R.C. 2923.161, which prohibits discharging a firearm at or into a habitation (residence). The indictment also charged Ford with a firearm specification under R.C. 2929.14(D) and R.C. 2929.145. The specification alleged that Ford had “a firearm on or about (his) person or under (his) control” while committing the weapon discharge offense, and “displayed, brandished, indicated that he possessed or used a firearm to facilitate” the weapon discharge offense. 

Ford was convicted and sentenced to three years in prison on the firearm discharge offense. He was also found guilty of the firearm specification, and sentenced to an additional three year prison term for that conviction. Ford appealed, arguing that the weapon discharge offense and firearm specification were allied offenses of similar import, and the trial court had erred by imposing a separate conviction and sentence for each charge rather than merging the two counts into a single conviction and imposing a single sentence as required by R.C. 2941.25. The 5th District Court of Appeals affirmed the separate convictions and separate sentences imposed by the trial court, but certified that its ruling was in conflict with a decision of the 8th District in a similar case. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Ford argue that, under the test for allied offenses set forth in the Supreme Court’s 2008 decision in State v. Cabrales, the weapon discharge offense and firearm specification in this case must be merged for sentencing because it was impossible for Ford to have committed the firearm discharge offense without possessing and firing a gun during the commission of that offense. They assert that the legislative purpose for enacting the firearm specification law was to recognize that the potential for lethal violence during the commission of felonies such as assault, robbery, kidnapping and rape is greatly increased when the person committing those crimes has a gun in his possession, and to deter such violence by “automatically” imposing additional punishment on offenders who possess or use a gun in committing non-gun-related offenses. They contend that the language of the firearm specification statute does not indicate legislative intent to “double punish” persons like Ford whose crime can only be committed by someone who is in possession of a gun by adding mandatory additional years of imprisonment to the statutory sentence for their underlying offense. 

Attorneys for the state urge the Court to affirm the 5th District’s holding that the multiple-offense statute is not applicable in this case because the state law establishing Ohio’s firearm specification did not create a separate “criminal offense” but rather authorized a sentence enhancement that is only triggered after a defendant has been convicted of a felony offense and the state has shown that the defendant possessed or used a gun during the commission of that crime. They point out that the firearm specification provision is not located in the portion of the Revised Code defining criminal offenses, but rather in the chapter titled “Penalties and Sentencing.”  The state also points to a specific section of the firearm specification statute, R.C. 2929.14(D)(1)(e), in which the legislature explicitly excluded the application of a firearm specification sentence enhancement to certain offenses such as Carrying A Concealed Weapon and Having a Weapon Under Disability, but made no such exclusion for the gun-related offense with which Ford was charged.

Contacts
Daniel H. Houston, 740.670.5255, for the state and Licking County prosecutor's office.

Christopher M. Shook, 740.345.9611, for Aaron Ford.

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Does Delay in Cancer Diagnosis Based on Doctor's Faulty Test Analysis Support 'Emotional Distress' Claim?

When Tumor Grew, Metastasized During Period of Delay

Lonna Loudin v. Radiology & Imaging Services, Inc., et al., Case no. 2010-0297
9th District Court of Appeals (Summit County)

ISSUE: When a physician’s failure to detect a tumor while analyzing a patient’s medical test results causes a delay in diagnosis and treatment of the patient’s cancer, and during that delay the tumor grows and metastasizes, increasing the possibility of a later recurrence of the cancer, does the growth and metastasis of the tumor during the period of delay constitute a “physical injury” to the patient sufficient to support a claim by the patient for negligent infliction of emotional distress based on the patient’s ongoing fear that her cancer will recur?

BACKGROUND: Under prior Ohio court decisions addressing tort claims for infliction of emotional distress, a plaintiff asserting such a claim is generally required to show that his or her alleged emotional distress arose from a contemporaneous physical injury for which the defendant was responsible.

In this case, Lonna Loudin underwent screening mammograms on a yearly basis beginning in the mid-1990s. The results of a mammogram she underwent in March 2003 were analyzed by Dr. Richard Patterson, an employee of Radiology & Imaging Services Inc.  Patterson’s  report indicated  that the test showed no evidence of breast cancer.

In May 2004, Loudin manually detected a lump in her left breast. Her gynecologist referred her for a diagnostic mammogram, which found a tumor of approximately 1.5-2.0 centimeters that was “highly suggestive of cancer.”  Loudin underwent a lumpectomy operation in June 2004 in which the tumor was removed. In examining Loudin’s medical records, the surgeon who performed the lumpectomy found that her March 2003 mammogram showed a tumor of approximately 1 centimeter in size at the same location of the larger mass he removed more than a year later. The final pathology report from the lumpectomy found that the tumor had extended to the margin of the breast, making it necessary to perform a second operation to remove and dissect nearby lymph nodes to determine if the cancer had spread. 

The pathology report from the lymph node dissection indicated that Loudin’s cancer was an “invasive carcinoma”  that had advanced to Stage II, and had metastasized to two lymph nodes. Loudin’s oncologist advised her that, based on those findings, her chances of living to a normal life expectancy were between 60 and 70 percent. 

Loudin filed suit in the Summit County Court of Common Pleas against Radiology & Imaging Services and Dr. Patterson, alleging medical malpractice, negligent supervision, and negligent infliction of emotional distress based on the spread of her cancer arising from the defendants’ failure to detect it in the 2003 mammogram results. The defendants moved for summary judgment dismissing Loudin’s claims. The trial court granted summary judgment in their favor, holding that because Loudin’s cancer was not caused by the defendants, and had not returned following the lumpectomy, she had not shown any physical injury caused by the delayed diagnosis. Without establishing a physical injury arising from the defendants’ conduct, the court held that Loudin could not pursue a claim against them for negligent infliction of emotional distress.   

Loudin appealed.  On review, the 9th District Court of Appeals reversed the summary judgment order and remanded the case to the trial court for further proceedings on Loudin’s claims.  In its opinion, the court of appeals held that, construing the evidence most favorably to Loudin as is required when a court considers a summary judgment motion, a reasonable judge or jury could find that the growth and metastasis of Loudin’s tumor between 2003 and 2004 was a “physical injury” caused by the defendants’ negligence, and that injury was a sufficient basis for Loudin to seek damages from the defendants for emotional distress arising from her ongoing fear that her cancer will recur.

The defendants sought and were granted Supreme Court review of the 9th District’s ruling.

Attorneys for Dr. Patterson and Radiology & Imaging Services urge the Court to follow its 2004 holding in Dobran v. Franciscan Medical Center that a patient who was not currently suffering from cancer could not assert an emotional distress claim against physicians who mishandled his tissue samples before they could be tested based merely on the patient’s fear that his cancer would recur. They argue that in this case Loudin did not suffer any emotional distress between March 2003 and May 2004 as a result of the faulty test analysis because she did not know her tumor existed; and as soon as the tumor was discovered it was successfully removed and had not recurred. 

Attorneys for Loudin respond that the Supreme Court’s Dobran decision and other medical negligence cases cited by the defendants are not applicable to this case because the plaintiffs in those cases did not allege that the defendants’ negligence caused their medical conditions to worsen, but merely alleged that the defendants’ negligence caused them to fear that they had a disease that was not actually present. In this case, they assert, the court of appeals correctly held that Loudin’s emotional distress claim was based on the assertion that she suffered actual physical harm because the 13-month delay in diagnosing and treating her cancer had allowed the disease to advance to a more dangerous stage and spread to other organs, increasing the probability that it would recur in the future and cause her premature death.

Contacts
Douglas G. Leak, 216.623.0150, for Radiology & Imaging Services Inc.

Lawrence J. Scanlon, 330.376.1440, for Lonna Loudin.

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Attorney Discipline

Cleveland Metropolitan Bar Association v. Bryan S. Freeman, Case no. 2010-1479
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Lakewood attorney Bryan S. Freeman be suspended indefinitely for multiple incidents of neglect and other professional misconduct in his representation of eight different clients.

Following default proceedings made necessary by Freeman’s failure to answer the disciplinary complaint brought against him by the Cleveland Metropolitan Bar Association or to appear for scheduled depositions, the board found that Freeman’s acts and omissions in his dealings with the complaining clients violated, among others, the state disciplinary rules that prohibit neglect of entrusted client legal matters and that require an attorney to act with reasonable diligence and promptness, keep clients informed about the status of their cases, promptly comply with clients’ reasonable requests for information, and promptly deliver funds or other property in his possession that a client is entitled to receive. The board also found that in his dealings with three of the eight complaining clients, Freeman engaged in conduct involving fraud, deceit, dishonesty or misrepresentation.

The bar association has filed objections to the board’s recommended sanction of an indefinite license suspension.  Its attorney argues that in light of aggravating factors in the case, including Freeman’s pattern of misconduct involving multiple clients, and his refusal to provide subpoenaed documents, appear for depositions or otherwise cooperate with the investigation of his rule violations, the appropriate sanction for his misconduct is permanent disbarment.

Contacts
Joseph N. Gross, 216.363.4500, for the Cleveland Metropolitan Bar Association.

Bryan S. Freeman, pro se, 216.227.1977.

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Attorney Discipline

Disciplinary Counsel v. Vincent A. Stafford, Case no. 2010-1601
Cuyahoga County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney Vincent A. Stafford be suspended for 18 months, with the final 12 months of that term stayed, for engaging in professional misconduct during the contentious litigation  of a high-profile divorce case and a legal malpractice action.

Following a disciplinary hearing that extended over 22 days during  a nine-month period, the board found that in the course of litigating the two cited cases Stafford committed eight violations of Ohio’s former Code of Professional Responsibility and current Rules of Professional Conduct, including unlawfully obstructing an opposing party’s access to evidence, knowingly disobeying an obligation under the rules of a court, engaging in conduct prejudicial to the administration of justice and engaging in conduct that adversely reflects on an attorney’s fitness to practice.   

In its report to the Court, the board found that the Office of Disciplinary Counsel had not proved by the required standard of “clear and convincing” evidence additional charges of professional misconduct against Stafford arising from his litigation tactics in three other cases. In recommending an 18-month license suspension with 12 months stayed as the appropriate sanction for his current misconduct, the board noted that Stafford had previously been publicly reprimanded and indicated that an actual suspension from practice was necessary to discourage him from similar misconduct in the future.

Both Stafford and the Office of Disciplinary Counsel have filed objections to the board’s findings and recommended sanction. 

Stafford asserts that the board erred in finding that his conduct during the litigation of the two cited cases was contrary to any of the state’s attorney discipline rules.  In the event that the Court does find that he was guilty of misconduct, he argues that the partially stayed 18 month suspension recommended by the board is disproportionate to his infractions and urges the Court to impose a reprimand or at worst a fully stayed license suspension.

The Office of Disciplinary Counsel has filed objections to the board’s findings that additional violations charged in its complaint against Stafford were not proven by clear and convincing evidence.  They urge the Court to impose an 18-month license suspension with no portion of that term stayed as a more appropriate sanction for Stafford’s rule violations.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

George S. Coakley, 216.687.1311, for Vincent Stafford.

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Attorney Discipline

Cincinnati Bar Association v. Darren Joseph Mullaney, John S. Brooking and Patrick F. Moeves, Case no. 2008-0412

Attorney Patrick Moeves of  Fort Wright, Kentucky, has been ordered to appear before the Court to show cause why he should not be held in contempt for providing legal services to an Ohio client in an Ohio legal matter while he was barred by a 2008 disciplinary order from practicing law in any form in Ohio for a period of two years.

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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.