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Tuesday, February 5, 2013

Jeanette Johnson et al. v. Randall Smith, Inc., et al., Case no. 2012-0014
Eleventh District Court of Appeals (Portage County)

In re: M.M., A Minor Child, Case no. 2012-0250
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Al E. Forrest, Case nos. 2012-0415 and 2012-0416
Tenth District Court of Appeals (Franklin County)

Todd L. Leopold, et al. v. Ace Doran Hauling & Rigging Co., et al., Case no. 2012-0438
Eighth District Court of Appeals (Cuyahoga County)

Disciplinary Counsel v. William Jeffrey Detweiler, Case no. 2012-1711
Summit County


Was Applying 2004 Legislation to Lawsuit Based on 2001 Events a ‘Retroactive’ Application of Law?

Where New Law Bars Evidence of Doctor’s ‘Apology’ as Admission of Liability

Jeanette Johnson et al. v. Randall Smith, Inc., et al., Case no. 2012-0014
Eleventh District Court of Appeals (Portage County)

ISSUE:  In a medical malpractice lawsuit based on events that took place and statements that were made in 2001, did a trial court err by excluding evidence based on a law enacted in 2004 that bars the use at trial of a doctor’s apology to a patient as an admission of liability?

BACKGROUND: In 2001, Dr. Randall Smith performed laparoscopic gall bladder surgery on Jeanette Johnson.  During the operation, Johnson’s common bile duct was injured, requiring a more invasive procedure to correct that injury.  Several weeks later, Johnson was readmitted to the hospital after suffering post-surgical complications related to the damaged bile duct.

Smith subsequently told Johnson that she would need to undergo another operation at a different hospital to address her condition. Johnson reacted to that information by becoming emotionally upset and crying.  In the presence of Johnson’s daughter and another person, Smith approached Johnson, took her hand, and said “I take full responsibility for this. Everything will be OK.”  A stent was subsequently inserted in Johnson’s bile duct to keep it open. She underwent five additional endoscopic procedures between May 2001 and April 2002 to further treat the narrowing of her bile duct.

In 2002, Johnson filed a medical malpractice action against Smith and his corporate medical practice.  That suit remained pending for several years. Exercising her right to do so, Johnson voluntarily dismissed her original complaint in September 2006, then refiled it with some alterations in June 2007. After extensive pretrial discovery, the case was scheduled for a jury trial in 2010. 

Prior to the trial date, Smith entered a motion asking the court to bar Johnson from introducing any evidence at trial regarding his statement to Johnson “accepting responsibility” for her condition. As the basis for that motion, Smith cited R.C. 2317.43, a law enacted in 2004 that bars the use at trial of statements by a medical professional “expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence” to an injured patient or family member  “as evidence of an admission of liability.”  Over Johnson’s objection, the court granted the motion to bar testimony about Smith’s statement.  In its opinion, the trial court agreed with Smith’s argument that the 2004 “apology statute” could be applied retroactively to Johnson’s statement because the law was procedural in nature and did not impose or remove a party’s substantive right or duty. After a two-day trial during which no evidence regarding Smith’s statement was considered, the jury returned a verdict in favor of the doctor.

Johnson appealed, arguing that the trial court had denied her a fair trial by improperly excluding testimony about Smith’s admission that he was “fully responsible” for her post-surgical medical complications. The Eleventh District Court of Appeals vacated the jury verdict and remanded the case for a new trial.  In a 2-1 majority opinion, the appeals court held that legislative enactments are presumed to apply only prospectively (to conduct that takes place after the law’s effective date) unless the language of a bill clearly indicates legislative intent that it be applied retroactively. Finding that there was no such language in  R.C. 2317.43, the court of appeals ruled that the apology statute could not be applied to exclude evidence of the statement made by Smith in 2001, regardless of whether the law was substantive or procedural in nature.

Smith sought and was granted Supreme Court review of the Eleventh District’s decision.

Attorneys for Smith, supported by amicus curiae (friend of the court) briefs submitted by the Ohio Attorney General and several medical professional associations, now assert that the Eleventh District erred in finding that the application of the apology statute to Johnson’s case was retroactive, because the statute prohibits admitting a doctor’s statement of apology as evidence “in any civil action brought” after the September 2004 effective date of that law.

They point out that Johnson’s amended malpractice complaint, which was the basis for the 2010 trial in which the judge excluded evidence about Smith’s statement, was filed in June 2007, almost three years after the effective date of the apology statute. They assert that because the event that triggers application of the statute is the “bringing” of a malpractice claim, and not the events underlying that claim, the trial court was actually applying the statute prospectively when it excluded testimony about Smith’s statement, even though the trial judge mistakenly believed and stated in his opinion that he was applying the law retroactively.

Smith and his amici also urge the court to go beyond the retroactivity issue on which the Eleventh District based its ruling, and hold that the broad language employed by the legislature in drafting the apology statute indicates legislative intent to bar trial testimony about “any and all statements” that a medical professional makes to a patient or patient’s family member in the context of expressing regret or condolence about an unexpected negative outcome of a medical treatment or procedure.  They urge the court to rule that the statute excludes such statements from evidence even when they include words such as “fault” or  “responsibility” in acknowledging the provider’s involvement in a procedure that resulted in unintended negative consequences.

Attorneys for Johnson’s estate (she died in 2012) urge the court to affirm the Eleventh District’s holding that because Johnson’s malpractice claim against Smith was based on medical negligence that took place in 2001, and Smith’s statement admitting that he was “fully responsible” for her post-surgical complications was made three years before the apology statute was enacted,  applying that statute  to bar trial testimony about Smith’s  statement was  an impermissible retroactive application of the law.

Even if the court finds that application of the apology statute in this case was prospective because Johnson’s amended lawsuit was not refiled until after the law took effect, Johnson’s attorneys argue that the trial court still erred in excluding Smith’s statement from evidence. They assert that Smith’s statement that he “took full responsibility” for Johnson’s post-surgical medical problems was not a statement “expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence,” but was rather an admission that he had provided sub-standard care; and the jury should have been allowed to consider that statement in determining whether Johnson’s malpractice claim had merit.

Contacts
Representing Randall H. Smith M.D.: Bret C. Perry, 216.875.2767

Representing Jeannette and Harvey Johnson: Antonios P. Tsarouhas, 330.253.5454

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Does State’s Failure to Appeal Exclusion of Evidence During Trial Waive Right to Later Seek Discretionary Appeal?

When Post-Verdict Appeal Challenges Evidentiary Ruling, But Not Judgment of Acquittal

In re: M.M., A Minor Child, Case no. 2012-0250
Eighth District Court of Appeals (Cuyahoga County)

ISSUE:  When a trial court hearing a criminal case grants a defendant’s motion to bar the state from introducing  certain evidence at trial, and the state does not pursue an appeal of that evidentiary ruling prior to the entry of a final judgment of acquittal, has the state waived its right to later pursue a discretionary appeal under R.C. 2945.67(A) challenging the trial court’s evidentiary ruling, but not its final verdict?

BACKGROUND:  A juvenile identified by the initials M.M. was charged with delinquency counts of rape and gross sexual imposition based on alleged conduct with four children who were between two and eight years of age at the time of the offenses. During pretrial proceedings before the Cuyahoga County Juvenile Court, the state indicated that it planned to introduce testimony by a social worker and adult relatives of the child victims in which those witnesses would recount out-of-court statements the children had made to them about being abused by M.M.

Defense counsel filed a motion asking the trial judge to bar as impermissible “hearsay” any testimony at trial by the adults about statements that had been made to them by the victims. The court granted that motion, which limited the state to presenting direct testimony by the three oldest victims. The state did not exercise its right to appeal the trial court’s ruling excluding the adult witnesses before the case was tried to a verdict. When none of the children who testified was able to describe any incident of alleged sexual abuse with sufficient particularity, the court entered a verdict of acquittal and dismissed the charges against M.M.

The state subsequently sought leave of the Eighth District Court of Appeals to pursue a discretionary appeal pursuant to R.C. 2945.67(A). That statute allows the state, at the court’s discretion, to pursue a post-verdict appeal in which the state does not seek reversal of the defendant’s acquittal, but asks the court of appeals to review and disapprove the legal analysis that the trial court employed in ruling on an issue other than the final verdict. In this case, the state sought leave to challenge the trial court’s conclusion that the proffered testimony by the social worker and the victims’ adult relatives was inadmissible under the hearsay rule.

The Eighth District initially granted the state leave to file its discretionary appeal. After reviewing pleadings submitted by the prosecutor and defense counsel, however, the court dismissed the discretionary appeal as having been improvidently allowed.  As its basis for that ruling, the court of appeals held that because the state had the option to appeal the trial court’s evidentiary ruling excluding the adult witnesses prior to entry of  a final judgment in the case, but had elected not to do so, it had waived the right to raise that issue in a subsequent discretionary appeal. The court of appeals also noted that, because the trial court verdict acquitting M.M. was final and any ruling by the Eighth District on the evidentiary issue would have no impact on the disposition of his case, the state was asking the court of appeals to issue an impermissible “advisory opinion” that was not necessary to resolve an actual dispute still pending between opposing parties.

The state, represented by the Cuyahoga County prosecutor’s office, sought and was granted Supreme Court review of the Eighth District’s decision.

Attorneys for the state contend that the plain language of R.C. 2945.67 allows a court of appeals to grant leave to the state to “appeal any decision of a trial court in a criminal case which is adverse to the state except a final verdict.”  They assert that nothing in the statute restricts appellate courts to granting discretionary appeals only on issues that the state could not have raised in an interlocutory (pre-verdict) appeal.  

They point to the Supreme Court’s 1990 holding in State v. Bistricky that appellate courts may grant leave for the state to appeal evidentiary rulings by a trial court despite a final judgment of acquittal where the issue the state seeks to appeal is one “capable of repetition yet evading review.” As an example, they point to  situations in which a trial court may have made an incorrect ruling admitting or excluding certain  evidence, and the court may cite and follow that ruling in future cases, but the state is unable to challenge the evidentiary ruling in a direct appeal because the trial court has issued a judgment of acquittal that terminates the actual conflict between the parties.

Attorneys for M.M., supported by an amicus curiae (friend of the court) brief filed by the state public defender’s office, contend that the language of R.C. 2945.67 authorizes the state to pursue two distinct and mutually exclusive categories of appeals in criminal cases: 1) appeals of right which may be pursued during the course of a trial from a trial court’s ruling granting “dismissal of all or any part of an indictment, a motion to suppress evidence, a motion for the return of seized property, or a grant of post-conviction relief”; and 2) discretionary appeals, in which the state may make a post-verdict challenge to “any other decision, except the final verdict, of the trial court.” They argue that this language limits the types of trial court rulings that may be challenged in a discretionary post-verdict appeal to rulings that were not subject to appeals of right.  Because the exclusion of the adult witnesses was a ruling the state had a right to appeal immediately, but it failed to exercise that right, defense counsel urge the court to affirm the Eighth District’s holding that the evidentiary issue could not be raised in a discretionary appeal after a final judgment had been rendered in the case.

They also urge the court to reexamine its 1991 holding in State v. Bistricky in light of Article IV, Section 3(B)(2) of the Ohio Constitution, which confers jurisdiction on the state’s appellate courts to review trial court decisions only to “affirm, modify or reverse” the final judgment of the lower court. To the extent that Bistricky has been read to authorize appellate courts to review evidentiary rulings by trial courts in cases in which a final judgment has been entered, and thus are no longer subject to “affirmance, reversal or modification,” they urge the court to clarify or overrule Bistricky on the ground that it impermissibly expands the jurisdiction of courts of appeals beyond the limits set by the constitution.

Contacts
Representing the state and Cuyahoga County prosecutor’s office: Daniel T. Van, 216.443.7800

Representing juvenile offender M.M.: John T. Martin, 216.443.3675

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Must All Judges of Appellate Court Vote on Motions Seeking ‘En Banc’ Review of Three-Judge Panel’s Decision

Or May Panel That Issued Original Ruling Decide Whether En Banc Review Required?

State of Ohio v. Al E. Forrest, Case nos. 2012-0415 and 2012-0416
Tenth District Court of Appeals (Franklin County)

ISSUE:  When a litigant who has received an unfavorable decision by a three-judge panel of a court of appeals moves for en banc reconsideration (collective review of the decision by all judges of the court) under App. R. 26(A)(2), does the rule require that all non-recused judges of the court must vote on the motion to grant or deny en banc review, or may the court delegate authority to consider the motion for en banc review to the three-judge panel that issued the original decision?

BACKGROUND:  In this case, the Franklin County Court of Common Pleas granted a motion by criminal defendant Al E. Forrest of Columbus to suppress evidence of drug-related crimes that was obtained by police when they forcibly removed Forrest from his parked car and searched the vehicle without a warrant and without observing any illegal conduct by Forrest. The Franklin County prosecutor appealed the trial court’s ruling to the Tenth District Court of Appeals. A three-judge panel of the eight-member Tenth District court affirmed the suppression of evidence obtained through the search and seizure of Forrest.

The prosecutor’s office then filed a motion for reconsideration seeking en banc review of the three judge panel’s ruling by all eight members of the court under App.R.26(A)(2). The rule provides that, if two or more decisions of a court of appeals are found to be in conflict with each other, “a majority of the en banc court may order that an appeal or other proceeding be considered en banc.”  In support of its motion, the state cited three prior decisions in which it alleged that different three-judge panels of the Tenth District had upheld the legality of police searches conducted under circumstances similar to the search in this case.

The three-judge panel that issued the decision being challenged by the state reviewed and denied the motion for en banc reconsideration, based on its finding that the police searches in the three “conflict” cases cited by the state were materially different from the search of Forrest, and therefore there was no intra-district conflict between the court’s decisions  justifying an en banc review.

The state sought Supreme Court review of the Tenth District’s denial of its motion for en banc review, alleging several substantive legal errors and also asserting that the Tenth District had violated App.R. 26(A)(2) by failing to have all eight judges of the court consider and vote on that motion.  The court agreed to hear arguments only on the procedural question of whether a motion for en banc review of a three-member panel’s decision must be considered and voted on by all members of a court of appeals.

Attorneys for the state contend that under the plain language of App.R. 26(A)(2), “a majority of the en banc court” must determine whether or not to grant en banc review of one of the court’s decisions. 
They argue that the whole purpose of en banc review is to prevent confusion and uneven application of the law in an appellate district by obtaining a consensus of the entire court on legal issues that have been decided differently by different three-judge panels. They also assert that allowing the same three-judge panel that issued a decision to determine whether that decision is in conflict with prior rulings of the court, as the Tenth District did in this case, results in a built-in bias against a finding of conflict because those judges have a vested interest in not exposing their rulings to criticism and possible reversal by their colleagues.  

Attorneys for Forrest respond that App.R. 26(A)(2) does not mandate that all members of a court of appeals must participate in the analysis of motions alleging intra-district conflicts, but instead uses permissive language to indicate that, where a conflict has been identified, “a majority of the en banc court may order that an appeal or other proceeding be considered en banc.” From a practical point of view, they argue that eight of the state’s 12 district courts of appeals consist of only four or five judges -- which means that in those districts, as a matter of simple mathematics, a 3-0 vote by the panel that decided a challenged case to deny en banc review already constitutes “a majority of the court en banc,” and therefore renders the involvement of the other district judge or judges in such decisions a complete waste of time and judicial resources.

They also point out that in the absence of evidence to the contrary, courts are required to presume that a judge will “fairly and impartially consider all matters that come before him,” and urge the court to reject the prosecutor’s implication that the three judges who decide an appeal will thereafter become so biased that they cannot be trusted to make an honest and objective evaluation of alleged conflicts between that decision and other cases decided in their district.

Contacts
Representing the state and Franklin County prosecutor’s office: Steven L. Taylor, 614.525.3555

Representing Al E. Forest: Stephen E. Hardwick, 614.466.5394

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Does Party’s Waiver of Medical Records Privilege in Suit She Filed Also Waive Privilege of Those Records In a Different Case?

Where New Suit Was Not Filed by Party Asserting Privilege, But Is Based on Same Incident

Todd L. Leopold, et al. v. Ace Doran Hauling & Rigging Co., et al., Case no. 2012-0438
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: When a party involved in a multi-car auto accident waived the privilege of her confidential medical records by filing a personal injury lawsuit against another party involved in the accident, but later dismissed that lawsuit,  may the defendant in the dismissed action later make use of confidential information from the disclosed medical records in a different lawsuit, not filed by the party asserting the privilege, that is based on the same accident? 

BACKGROUND:  In this case, the court is asked to determine whether a waiver of confidentiality of medical records by the plaintiff in one lawsuit also waives the confidentiality of those records in a different lawsuit filed by a different party but arising from the same events.

In March 2008, a car driven by Danielle Laurence, a delivery van driven by Todd Leopold and a semi tractor-trailer owned by Ace Doran Hauling Co. were involved in a multi-vehicle crash on I-90 in Cleveland.  Later that year, Lawrence filed a personal injury lawsuit against Ace seeking recovery for injuries she allegedly suffered when her vehicle was struck from the rear by Leopold’s van, which had been rear-ended by Ace’s truck. Because she initiated a lawsuit alleging physical injuries, Laurence was required by state evidence rules to disclose to Ace’s attorneys otherwise confidential  information including statements she made to emergency room staff in the course of receiving medical treatment on the day of the accident. Laurence did not file any of her medical records with the court.  In April 2009 she dismissed her suit against Ace, and did not refile it within the statutory time limit for doing so.

In 2010, Leopold and his wife filed suit against multiple other parties involved in the I-90 crash.  Their complaint named both Laurence and Ace as defendants.  During pretrial deposition of witnesses in that case, over objections by Laurence’s attorney, attorneys for Ace made repeated references to Laurence’s statements to emergency room personnel at the time they treated Laurence on the day of the accident, including a statement by Laurence indicating that she thought she might have struck the car in front of her before her car was struck from the rear.

Laurence’s attorney filed a motion asking the trial court to issue a protective order that barred Ace and all other parties in the case from making any reference during depositions or at trial to the content of Laurence’s confidential medical records. The trial court denied the motion for a protective order, ruling that Laurence had waived the privilege of her communications with medical personnel when she provided documents to Ace and was deposed in connection with her now-dismissed suit against Ace, and holding that the waiver of confidentiality carried forward to Leopold’s lawsuit because his claims arose from the same events that were at issue in Laurence’s lawsuit.

Laurence appealed.  On review, the Eighth District Court of Appeals affirmed the trial court’s denial of a protective order. Laurence sought and was granted Supreme Court review of the Eight District’s ruling.

Attorneys for Laurence argue that the decisions of the trial court and the Eighth District should be overturned because they are in conflict with the Supreme Court of Ohio’s holding in Hageman v. Southwest General Health Center (2008) that a litigant’s disclosure of confidential medical information in the context of one court case does not constitute a waiver of the confidentiality of that information in a different case.  They also cite this court’s 2009 holding in Medical Mutual of Ohio v. Schlotterer that a party that gained access to a person’s privileged medical records through discovery  in a court case may not disclose that information to others who were not parties to that case without the express consent of the person whose records are at issue.

Attorneys for Ace urge the court to affirm the Eighth District’s decision, which they say correctly held that Laurence waived the confidentiality of her medical records related to the accident when she initiated a personal injury suit against Ace, and that the waiver continues to apply in the Leopold case because Leopold’s claims arise from the same events that were at issue in Laurence’s suit. They also point out that the information disclosed by Laurence that they wish the court to consider in the Leopold case is her statements immediately after the accident suggesting that she, rather than the driver of Ace’s truck, may have triggered the chain-reaction crash. They argue that those statements had nothing to do with any injury or medical treatment that would be subject to doctor-patient privilege, and assert that Laurence should not be able to prevent a jury from considering her statements in determining liability for the accident because of the coincidence that she made them while being treated in a hospital emergency room.

Contacts
Representing Danielle Laurence: Shannon J. George, 419.241.3213

Representing Ace Doran Hauling & Rigging Co.: Brian D. Sullivan, 216.687.1311

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Attorney Discipline

Disciplinary Counsel v. William Jeffrey Detweiler, Case no. 2012-1711
Summit County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Akron attorney William J. Detweiler be suspended for 12 months, with the final six months of that term stayed on conditions, for sending multiple offensive text messages to a female divorce client in which Detweiler solicited sexual activity and attempted to establish a sexual relationship with his client.

In recommending an actual suspension from practice, the disciplinary board noted the aggravating factors that Detweiler acted with a selfish motive, engaged in a pattern of misconduct,  that  the client, who never met socially or engaged in sexual conduct with Detweiler, owed him approximately $10,000 in legal fees at the time he was soliciting her for sex, and could not afford to discharge him and retain another attorney.

Detweiler has filed an objection to the board’s recommended sanction in which he urges the court to impose the penalty that was agreed to by the parties and recommended by the three-member panel that heard the evidence against him, which was a 12 month license suspension with all 12 months stayed. He disputes the board’s finding that his client’s financial obligation to him should be considered an aggravating factor, on the basis that the court in which the client’s divorce case was pending had ordered her husband to pay all of her legal costs.

The Office of Disciplinary Counsel, which prosecuted the complaint brought against Detweiler, agrees that a fully stayed one year license suspension, conditioned on his compliance with a contract with the Ohio Lawyers Assistance Program and other terms recommended by the hearing panel, is commensurate with his violations and the penalties imposed in similar attorney discipline cases.

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

William Detweiler, pro se: 330.604.4586

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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.