Ohio’s Constitutional right to fair and full compensation for injury victims is restored — at least for some.

Article I, Section 16 of the Ohio Constitution guarantees every person the right to a “remedy by due course of law” and “for an injury done him in his land, goods, person, or reputation.” For many years (decades), this provision was used to protect the ability of an injured person to the full compensation that a judge or jury determined they were entitled to, based on evidence presented in court in individual cases. Sometimes those injuries are small, but sometimes they are devasting, catastrophic, and permanent, and sometimes immeasurable in terms of monetary value – like the long-term trauma that can result from the most serious of harms, and which does not always result in measure loss, like a medical bill or a loss of earnings can be measured. Citizen juries make that determination – or should.

But many years ago, starting at least as far back as 1975, and continuing into 1987 or so, the Ohio General Assembly (which was reputed at the time to be overly-influenced if not controlled by pro-business, even pro-insurance interests), on the heels of so-called “runaway juries,” and described under the umbrella of so-called “tort reform” (a term used to take determinations of fair justice away from citizen juries, and put it in the hands of elected politicians), passed multiple laws, and including Ohio Revised Code 2315.18, which in part limited how much compensation a judge or a jury can award, even based on evidence, and even for the most serious of injuries to individual persons in individual cases. That Statute specifically provided that full compensation for “noneconomic loss,” which includes “pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss,” is capped – maxed out, no judge or jury can go over that, no matter how serious the mental trauma might be — “shall not exceed the greater of [$250,000] or an amount that is equal to three times the economic loss, as determined by the trier of fact, of the plaintiff in that tort action to a maximum of [$350,000] for each plaintiff in that tort action or a maximum of [$500,000] for each occurrence that is the basis of that tort action.” (The amounts changed over the years). These are random arbitrary numbers that have no connection to the actual cases, or to the injured person, and override a citizen jury’s role in deciding if an individual is harmed severely enough that “full and fair compensation” might be more. The limits were inapplicable for noneconomic loss, however, if the loss is for “[p]ermanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system” or “[p]ermanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.” Meaning, that a person who is not necessarily seriously hurt on the outside, is potentially (and regularly) denied full compensation for the harms on the inside.

For years, that “cap” was challenged as being in violation of the Constitution. But, the Ohio Supreme Court (also at the time reputed by some to be overly influenced by pro-business, pro-insurance interest), in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, and again in Simpkins v. Grace Brethren Church of Delaware, Ohio, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122 (sex abuse committed by a pastor), decided that it was not unconstitutional for the General Assembly to pass laws that deny a citizen jury or even a judge the ability to decide, based on evidence and an individual person’s harm, and perfectly legal for the elected representatives in the General Assembly to make up a maximum number, applicable to everyone, no matter how serious their harms suffered might be. For decades, persons with the most severe personal trauma were denied full and fair compensation, because the General Assembly said, without even knowing them or what happened to them, what was enough compensation, for anyone and everyone. Of course, that saved many a business and many an insurance company from having to pay fully for the most serious harms they or their insured persons did to others.

That has now changed. In Brandt v. Poppa, 2022-Ohio-4525, decided December 16, 2022, the Ohio Supreme Court reversed Arbino and Simpkins (at least in part), and reinstated a jury verdict in a truly devasting case and found the arbitrary limits imposed by the Ohio General Assembly were in fact unconstitutional as applied to this particular victim.

As the Ohio Supreme Court described what happened:

“In 2006, Pompa [the defendant] was arrested and charged with, among other things, 17 counts of rape, 5 counts of kidnapping, 55 counts of pandering sexually oriented matter involving a minor, and 21 counts of gross sexual imposition. Pompa was accused of committing these acts against Brandt and other victims. Brandt was 11 and 12 years old when the incidents occurred. A jury found Pompa guilty of over 90 counts, 34 of which involved acts against Brandt. The court sentenced Pompa to life in prison.”

That is the kind of person Ohio’s “tort reform” and “damages caps” protect.

Brandt filed a civil suit for compensation, including for the severe trauma caused by Poppa, including dissemination of child pornography involving the victim. At a trial, the jury heard from family, expert clinical psychologists, and others. The circumstances of what Poppa, a family friend, did to this child is horrendous, including drugging her with “treats” at sleepovers in order to facilitate repeated and devastating sexual abuse of the worst kind imaginable for anyone, recording it, and disseminating it. The testimony at a trial to a jury described her, before the abuse, as a “pretty normal kid,” a “beautiful, happy-go-lucky friend to everyone,” and had dreams and hopes all children of that age have. After the abuse, she did not want to leave home, became a recluse, was full of anxiety, anger, suffered from panic attacks, could not attend or participate in family functions, could not sleep, experienced frequent and ongoing nightmares. After getting through high school, she lost jobs for not being able to keep up, turned to drugs to help her cope, became an addict – and with help, recovered and established sobriety – but was also homeless for approximately a year. She attempted suicide, overdoses, and hospitalizations. At the time of trial, she had been in counseling for 14 years, and “could not foresee a time when she would not need counseling.” She had continuing difficulty being in crowds, being touched, and could not freely engage in normal life activities.

That is the kind of person Ohio’s “tort reform” and “damages caps” hurt.

After hearing the evidence of her particular case, a jury found that full and fair compensation for her lifetime of harm caused to her was a combined $34 million in compensatory damages, and $100 million in punitive damages. But, because of Ohio’s “tort reform” and “damages caps” laws, the judge was required to, and did, reduce that to the random numbers assigned by the General Assembly, to $250,000.00, the maximum allowed by Ohio law, and the Court of Appeals agreed, based on the existing Ohio Supreme Court precedent.

But after years of litigation and exceptional hard work and perseverance, by Ms. Brandt and her hard-working dedicated attorneys (including John K. Fitch, Kirstin A. Peterson, Stephen C. Fitch, Robert S. Peck, and others), justice for Ms. Brandt, and others like her was achieved. In an opinion by (retiring) Chief Justice Maureen O’Connor, and joined by Justices Donnely, Stewart, and Brunner, Brant v. Poppa, the Court of Appeals and the trial court were reversed, the citizen jury’s determination of what was fair and full compensation for Ms. Brandt was reinstated, and the approval of the random and arbitrary caps created by the General Assembly were ruled unconstitutional, reversing Arbino and Simpkins. The Court wrote:

“Subjecting this group to the compensatory-damages caps for noneconomic loss has little to no connection to improving the tort system in Ohio. This group comprises victims who are entitled to the full range of constitutional remedies, regardless of whether their severe injuries are physical or psychological.”

As a result:

“R.C. 2315.18 is unconstitutional as applied to Brandt and similarly situated plaintiffs (i.e., people like Brandt who were child victims of intentional criminal conduct and who bring civil actions to recover damages from the persons who have been found guilty of those intentional criminal acts) to the extent that it fails to include an exception to its compensatory-damages caps for noneconomic loss for plaintiffs who have suffered permanent and severe psychological injuries.”

Justices Kennedy, Fischer, and DeWine, disagreed, and would have upheld the random numbers assigned by the General Assembly.

So, at least for some, there is now an open door for full and fair compensation for the worst of those harms caused by wrongdoers. It remains to be seen if this ruling will be applied or expanded to other psychologically-traumatized victims, who maybe are not child victims, or not necessarily victims of convicted criminals. Will it be applied or expanded to adult victims of similar kinds of harm? Will it be applied or expanded to those who have escaped criminal conviction, that perhaps police or prosecutors did not, could not, or would not pursue, due to no fault of the victims? Those questions will be litigated by other hard-working dedicated trial lawyers like those who did this work. Those questions might also be addressed by future General Assemblies, which efforts at re-legislation are currently underway. Those questions are also likely to be addressed in future cases, by other judges, and by the Ohio Supreme Court. One would be wise to consider that in how they consider exercising their own rights to communicate with our elected representatives, and how votes are cast for them and for judges, and justices.

For further reading the Brandt case can be found at:

https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-4525.pdf

This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only. Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed. Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations. Internet reading is never a substitute for an actual consultation with a competent lawyer. More information about my practice and background can be found at:

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

Did the Supreme Court make it easier for police to do their job, or easier for police to avoid accountability for doing it wrong?

According to the United States Supreme Court in Nieves v. Bartlett, Bartlett was attending a festival, and the police said they were talking to some people and a drunk Mr. Bartlett started yelling to those persons, “Don’t talk to the police!” The officers approached Bartlett to find out what was up with him. Bartlett allegedly became belligerent with the police.

According to Mr. Bartlett: He was not drunk or belligerent and only complained to the police about bothering people with no reason.

Some kind of struggle ensued and the police arrested him for disorderly conduct and then for resisting arrest. Bartlett later sued the police for violation of his constitutional rights — retaliation against him for exercising his First Amendment rights.

It has long been the law that police can stop, detain, or arrest, if they have constitutional justification for doing so — reasonable suspicion for a stop, or probable cause for a search or arrest — and just because they are doing so for an ulterior or “pre-textual” reason, does not make the otherwise justified intrusion unconstitutional. Common examples include following a suspected criminal around, with no proof the “suspect” did or are doing anything, and then pulling them over or stopping them for speeding, not using a turn signal, maybe not coming to a complete stop at a sign, or taillight out or license plate obstruction. Literally, any traffic infraction would do. Then with the person pulled over, lawfully, the police can engage in activity such as searching the person or the car, depending on the circumstances.

But at the same time, it has always been unconstitutional to initiate an arrest, search, detention, or prosecution in violation of the 14th Amendment guarantee of equal protection of the law — a famous case being shaking down Chinese persons for operating a laundry without a permit, while White laundries did the same thing with no consequence. And it has always been the law that the government (including police officers) can’t retaliate against citizens for exercising their First Amendment free speech rights. There is a long line of cases that police can’t arrest someone for cursing at them for example (as long as it doesn’t cross over to threats of harm, or interference with lawful police activity). Putting up with non-threatening verbal “challenge” is part of the job of being a police officer.

In this case, the Supreme Court tweaked all that — and melded these rules, and according to the dissents and concurrences, made a new rule, that is neither in the Constitution nor in the applicable federal civil rights protection statute. The “new rule” is that basically even if the police are retaliating against someone for exercising their First Amendment rights, if the police otherwise had justification — probable cause that a crime was committed for example — the arrest is allowed and there is no right to sue for unconstitutional retaliation, unless the plaintiff has “other evidence” of unlawful motive — more than just “I’m exercising my first amendment, and they arrested me for it.” Like someone else doing the same conduct, without the First Amendment exercise, and they didn’t get arrested; or the officer saying something more indicative of bad motive, like “I’ll show you who’s boss,” etc. (although in this case the plaintiff alleged the officer said, “bet you wish you would have talked to me now.”).

The result though is that Bartlett can’t sue the police for arresting him for retaliation for exercise of his First Amendment rights, because the police had at least probable cause to believe he was committing the crime of disorderly conduct (in most states, disturbing the peace or public intoxication), and Bartlett didn’t have better evidence of a retaliatory motive.

In the course of the various opinions on the case, Justice Sotomayor dissented from the majority holding, that might make it easier to violate constitutional rights, stating:

“Put into practice, the majority’s approach will yield arbitrary results and shield willful misconduct from accountability. As one example, suppose police respond to reports of a man prowling a front porch. The man says that he is a locked-out homeowner; the police want ID. The man alleges profiling; the officers insist they are just doing their jobs. Tempers flare. A passerby, stepping into a next-door neighbor’s yard for a clearer view of the confrontation, pulls out a cell phone camera and begins streaming video of the encounter to her social media followers. One of the officers notices and orders the passerby to stop recording. When the passerby persists, the officer places the passerby under arrest for trespassing.

Will this citizen journalist have an opportunity to prove that the arrest violated her First Amendment rights? Under the majority’s test, the answer seems to turn on how many other curious bystanders she can identify who were not arrested in a situation like hers. If she was one of a crowd to enter the neighbor’s yard that night, she can sue using her readily available comparator neighbors. But if she was keeping a lonely vigil, she is out of luck (unless she can find some other pool of comparable individuals). And the video of the officer demanding she stop recording moments before the arrest? Irrelevant, apparently. What sense does that make?”

In addition, normally conservative Justice Gorsuch disagreed with the mostly conservative majority:

“Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. And for good reason. History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is “one of the principal characteristics by which we distinguish a free nation.” Houston v. Hill, 482 U. S. 451, 463, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987).

So if probable cause can’t erase a First Amendment violation, the question becomes whether its presence at least forecloses a civil claim for damages as a statutory matter under §1983 [the federal statute that allows suit against someone who violates your federal constitutional rights]. But look at that statute as long as you like and you will find no reference to the presence or absence of probable cause as a precondition or defense to any suit. Instead, the statute imposes liability on anyone who, under color of state law, subjects another person “to the deprivation of any rights, privileges, or immunities secured by the Constitution.” Maybe it would be good policy to graft a no-probable-cause requirement onto the statute, as the officers insist; or maybe not. Either way, that’s an appeal better directed to Congress than to this Court. Our job isn’t to write or revise legislative policy but to apply it faithfully.”

So, it may appear that in fact the United States Supreme Court made it easier for police to retaliate against “citizen journalists.” It certainly is arguable that the Court made it easier for police to avoid accountability to citizens who are just exercising their Constitutional rights.

For further reading the Bartlett case can be found at:

https://www.supremecourt.gov/opinions/18pdf/17-1174_m5o1.pdf

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

A Proposed Ohio Constitutional Amendment is Not the Way to Protect the Interests of Crime Victims in the Criminal Justice System.

Pending in the Ohio election on November 7, 2017, is what is being called “Issue 1,” also known as Marsy’s Law (named after a college student killed in California in 1983). It is Ohio’s version of a law being pursued in multiple states nationwide. The Issue provides for an amendment to the Ohio Constitution that gives “crime victims” great protections and privileges in the criminal justice system, over and above what is currently provided for under Ohio (and Federal) law.

There is great debate about that Issue – a lot of which is because of the apparent simplicity and appeal of the presentation – protection of the rights of crime victims, as opposed to what are sometimes perceived (or represented) as too many rights for “criminals” – even though the opposing person is supposed to be innocent until proven guilty. Who can be against victims of crime?

Good as the intentions might be, there are substantial flaws in Issue 1, and it is opposed by major participants in the criminal justice system – both prosecutors and defense lawyers (a rare occasion that both sides are on the same side). It shifts Constitutional law from a 200+ year successful practice to something unnecessary and unwieldly and maybe even harmful to victims and to others.

First, “victim” is the term commonly used to describe anyone who accuses someone of a crime. But there are at least two kinds of persons who are in that group. One may be a bank that was robbed, an insurance company alleging they paid money to someone who lied, or a person beat up, robbed, whose home was broke into, or worse.

But there is also a group of “victims” that include neighbors complaining about insults or offenses over fences and property rights; former business partners who think the other took money they shouldn’t have; drivers in car accidents; teachers vs. students and students vs. teachers, employers against employees, parents against their children, estranged spouses and roommates and life partners or people just dating; and others. They may or may not have been actually hurt, because to be a “victim” they must only accuse, and then have, in the eyes of police or prosecutors only a probable cause of any crime and possible suspect. If the person was actually hurt, they still may or may not have accused the correct person, and sometimes for entirely appropriate reasons – flawed memories, imperfect views of strangers’ faces, or other reasons. Sometimes accusations against innocent people are just misunderstandings, innocent mistakes.

But there are also worse “victims”: outright liars, who make things up, sometimes to hurt people, sometimes just to get an advantage in some other dispute and use the criminal justice system to do it, whether it is over a contract, a job, or a boundary line, for example. For some people it is over worst kind of disputes, over marriages and children, and the “victims” make accusations from the most trivial to the most horrendous, from theft or assault or abuse of them or a child, to get an advantage in a divorce of a custody fight, or to just get back at someone, or sometimes for sympathy, to get themselves out of some trouble, or just for drama.

Certainly people who have been injured, assaulted, stolen from, or worse, when involved in the criminal justice process have been through and are going through some of the most emotional and traumatic events of their lives. But Issue 1 does not make a distinction between the “quality” or character of the “victim” or the merits of the accusation – or who should be called the “alleged victim” – they are only “alleged,” because under current law the person they accuse is merely a defendant, presumed to be innocent. But to a great extent Issue 1 reverses that presumption, and equates a person who merely accuses someone of something with the person who may be fighting for their life and their freedom, and need all the resources possible to defend themselves, sometimes from outright false accusations. Under current law (in Ohio) there are Rules and Statutes that provide for the method of determining the truth (or lack of sufficient truth) to prove those accusations. Those who are accusers have access to information and other protections under current law. They have assigned to them special “advocates” by the prosecutors’ offices to be their voice and their source for information. They can go to any hearing they want. They are as entitled to Due Process of Law as anyone else is.

In addition, the current criminal justice system – which is still viewed as the best in the world, that people from other countries come to study – have other processes in place that make it the best. At its heart, the criminal justice system is supposed to be a search for truth, and therefore justice. The United States and Ohio Constitutions provide for Due Process of Law, meaning that everyone has a right to be notified of any proceeding that affects their interests, to be heard in that proceeding, and to be heard by an impartial decider.

In addition, there are police and prosecutors and judges who have been trained, are experienced, and who have sworn to uphold justice and search for the truth. They are balanced with defense attorneys who are also trained, experienced, and who have taken a similar oath, and who have a Constitutional obligation to their client – a person accused but who may be actually innocent, to advocate for the application of the Constitution to the process used against them. Just look up the actual statistics of persons who have been accused or even convicted of the most heinous crimes, and subsequently determined to be completely innocent. All this works, to the best of human ability, to achieve that justice.

But Issue 1 turns that upside down. It gives constitutional protection to whoever is merely accusing someone of a crime. It applies before a person is found guilty of anything. It applies to turn over large parts of the process that police, prosecutors, judges, and defense attorneys are sworn to protect and preserve due process and justice, to persons who are going through maybe the most traumatic events in their lives, at a time they are maybe at their most vulnerable, least objective, and have an absolute, and sometimes emotionally justified motive, not to seek the truth or justice, but revenge. These people are sometimes those who have suffered terrible trauma. But sometimes they are the next “Jerry Springer” contestant, someone seeking their 15 minutes or You Tube moments, or someone who has an unnecessary and uncontrollable need for drama in their lives, or someone out for some other worse reason to “get” someone. The irrationality of some of these persons is demonstrated in high profile cases, where the accusers or even families of the accusers or victims advocate for convictions, no matter whether the person accused did anything or not. It may not be wrong, but those persons are not always in the frame of mind to be making decisions about truth and justice, much less telling police, prosecutors, or judges how to do their jobs. Issue 1 turns a large part of that over to them, and on the grounds that the real victims of crime are deserving of more protections than what some people think they already have.

The Justice System is not supposed to be the slave of passion, emotion, drama, or revenge. But Issue 1 may very well make it that. The courthouse can be turned into the next talk show episode. These problems are why major organizations who are dedicated to justice are opposing it.

In fact, those who remember being a victim may think, when I was going through that, I would have liked it to be different. By the same token, when you, or a close friend or family member are accused, maybe falsely, you do not want to know that their accuser, maybe a bitter neighbor, a former spouse or significant other, or a complete stranger who is merely mistaken about their accusation, is running the prosecution, and telling the court system what to do, even in part. That is what Issue 1 may well do.

These and other reasons for the opposition to Issue 1 are reported by:

Ohio State Bar Association (professional association of attorneys on all sides of the legal spectrum):

https://www.ohiobar.org/Pages/OSBA-2017-Election-Day-info.aspx

Ohio Prosecuting Attorney’s Association (the statewide organization of attorneys who prosecute those accused of crimes):

http://www.ohiopa.org/pressroom.html

Ohio Public Defender’s Office (the state office for attorneys who defend those accused of crimes who are determined to not be able to afford private attorneys):

http://opd.ohio.gov/Policy-Outreach/Policy-Outreach/Issue-1-Marsys-Law

Ohio Association of Criminal Defense Lawyers (statewide organization of private attorneys and public defenders who defend persons accused of crimes):

https://www.cincinnati.com/story/news/politics/2017/10/09/election-2017-what-ohio-issue-1-aka-marsys-law/688598001/

Ohio American Civil Liberties Union (organization dedicated to advocating for protection of all constitutional rights):

http://www.acluohio.org/archives/press-releases/aclu-of-ohio-opposes-issue-1

Other positions and arguments regarding the Issue can also be found at:

Click to access 1-against.pdf

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

The Constitutional Right to Jury Trial versus Political “Tort Reform” – Sometimes Those Benefitting (or Hurt) from the “Reform” Are Not the Ones Intended – Simpkins v. Grace Brethren Church

One of the most precious rights enjoyed by Americans is the right to a trial by a jury of one’s peers. Before there was such a right, historically a person’s dispute, or fate, might be in the hands of a single person, a magistrate, justice of the peace, judge, or king, and if they had a bad day, or didn’t like where you came from, or what you did, you had no recourse and were at that single person’s mercy.

People though became civilized, decided that instead or rule-by-one, a jury, made up of random citizens from all walks of life, should hear a dispute and decide, using their common sense and collective life experiences and wisdom, what the result should be. This right is engrained in the Magna Carta. The denial of the right to a jury was one of the grievances enumerated by Thomas Jefferson in the Declaration of Independence, as a reason to leave the rule of England. It became part of the Bill of Rights in the Seventh Amendment to the United States Constitution, and also is in the Ohio Constitution.

The United States Supreme Court noted in Railroad Company v. Stout, 84 U.S. 657 (1873), that when it comes to deciding a fair and reasonable result, it is not a judge but a jury that “can draw wiser and safer conclusions.” Juries have long been called “the conscience of the community” in administering justice. Jury nullification (the concept that a jury can render a verdict that in fact does not follow, but ignores, a law deemed unjust) is a fact, although not cared for by judges (and in Ohio can’t even be argued in court).

Decades ago though, certain interests (generally, corporations, businesses, insurance companies, fostered by chambers of commerce) rebelled against the jury system. They railed against so-called “runaway juries,” giving allegedly “unfairly” large verdicts for compensation or even punitive damages. Such concerns are based almost entirely on anecdotal evidence, as each case stands on its own. A jury of citizens that hears evidence, sees the harm caused and what caused it, and determines a fair result, is not “running away,” but doing its job. But these business interests picked cases of notoriety to argue that verdicts are essentially, too high, and that juries don’t know how to be fair, or at least can be excessive. A favorite is the infamous “McDonald’s Hot Coffee” case, where a verdict was rendered for a plaintiff burned by McDonald’s coffee. The business interests complaining argued that everyone knows coffee is hot, that she burned herself, and that a reportedly large verdict was wrong. They omitted that McDonald’s knowingly and intentionally served its coffee at that time at a temperature too high to safely drink, on the theory that their customer wanted to take it home or to the office to drink and wanted it to stay hot the entire time; that the person who was burned had her skin between her legs literally melted it was so hot; and that the award was approximately one day’s profit from coffee sales. Further information on that case and others like it is presented in the documentary “Hot Coffee,” and is indeed eye opening.

So the businesses wanted to do something about juries who arguably were doing nothing other holding people who hurt other people accountable. They did so in an effort that became known as “tort reform” (also derisively called “tort deform” by consumer and victim advocates). This took the form of massive advertising campaigns, to try to make people think that there were too many lawsuits, too many frivolous lawsuits, and too many “high” verdicts. They argued that high verdicts cost jobs, raised other people’s insurance, closed businesses, etc. There are ample sources of empirical data that proves otherwise. But the efforts were perceived by many to have poisoned many people who then sat on juries, to be skeptical, if not outright critical, of those who came to court for redress of injuries caused by someone else’s fault.

But “tort reform” also took political steps. Business interests invested heavily in state judicial campaigns, funding and supporting pro-business or anti-consumer/victim candidates for judges; and also in state legislatures for the same ends. There was passed in many states so-called “tort reform” legislation, to curb perceived jury verdict abuse, by business-friendly legislatures, constitutional challenges to which would then be passed upon by perceived business-friendly judges. These laws included reducing statutes of limitations or statutes of repose, which limited how long an injured person could make a claim – sometimes before they even knew they had a claim; placing extra burdens on proving negligence, particularly against the health care professions; and expanding defenses and immunities from suit for particularly interests. These laws were challenged as a violation of the rights in the Constitutions, including the right to a remedy and to a jury to determine such things as who was right and who was wrong and what the proper result should be. Indeed, in more “conservative” or “business friendly” jurisdictions, the protections of possible wrongdoers were more often than not victorious over the interests of person injured by them.

One of the most prevalent laws passed, including in Ohio (Ohio Revised Code Section 2315.18) are “damage caps,” that in one way or the other place a maximum amount of compensation that a jury can award to an injured person – no matter what happened to them. Exceptions are built in based on the seriousness of a physical injury, or the amount of “economic loss” suffered (lost wages, or medical bills). So persons injured or killed but without large medical bills, or who have no income (mostly babies, children, homemakers, or the elderly) are less likely to be able to avoid the “caps.” In most cases, it is those that are hurt the most that are hurt the most by damage caps, and those who do the most harm that are benefited the most by it.

These laws were professed to limit how much a civil defendant could be made to pay for hurts they cause, because it might cost jobs, raise insurance rates, close businesses, etc. The fact of the matter is, that when the wrongful party isn’t held accountable for the harm they cause, the responsibility falls on the injured person, or more often everyone other than the person who caused the harm – in the form of higher medical costs for everyone else, and higher taxes due to the government having to take care of those seriously in need of care. So these laws worked to protect businesses and insurance companies across the board from being required to compensate someone they hurt, by limiting what a jury, the conscience of the community, could find was fair and reasonable in any individual case. It is a way of saying that the government can’t trust the citizens to determine what is just.

The harm that is caused by not allowing a jury to be the one to make that determination came to a horrible but obvious head in a recent case heard by the Ohio Supreme Court. In Simpkins v. Grace Brethren Church, a 15 year old girl went to a pastor at their family’s church for counseling regarding poor grades at school and issues with her parents’ separation. What happened to her in that office is too terrible to discuss in polite company. The “pastor” forced the girl to perform oral sex on him, and then when she tried to run away, he trapped her in the room, pushed her to the ground, and then forced vaginal intercourse on the girl. In the course of investigation of the “pastor,” it was discovered he had been involved in “questionable” activities with other teenage girls in church activities in the past, more than once. The church that hired him knew or had reason to know of those issues when it installed him in the position that allowed him to rape this girl, and cause probably a lifetime of trauma that most of those reading this cannot imagine.

A jury of that county heard the case and found the fair compensation to be $3,651,378.85, including $3,500,000.00 for her past and present and future “noneconomic” harm, or pain, suffering, and emotional damages. But she only had incurred actual costs (so far) of $1,378.85 in treatment/counseling, and no lost wages (she was only 15 years old). As a result, the “caps” passed by the Ohio General Assembly politicians (to protect from alleged “runaway juries”) applied to override the judgment of the jury, and the court was forced to take away all of her compensation from the verdict for the non-economic damages except for the maximum the “tort reform” allowed — $350,000.00, coincidentally 1/10^th of what a jury thought it should be in her particular case.

The child’s counsel argued vigorously against the caps, arguing that it was an unconstitutional infringement of her right to a jury trial, that it was a violation of her constitutional right to a remedy for harm caused to her, that it denied her due process of law (to arbitrarily and randomly decide that the harm to her was only worth a randomly selected number), and that due to her age and circumstances it was a denial of her right to equal protection of the law. But the Ohio Supreme Court upheld the politicians’ “judgment” of what a jury should be able to award to this girl, this victim repeatedly raped by her “pastor” after her church appointed him to the position that allowed him to do it, when they should have known better. Here was the effect of business-sponsored “tort deform” successfully influence on the legislature and the courts to take the determination of a jury and turn it into a math problem, and completely remove the human conscience.

Obviously, the result is tragic. The two Justices of the Ohio Supreme Court (Justice Pfeiffer and Justice O’Neill) who disagreed with the other five justices knew that. As Justice Pfeiffer said:

“‘Tort reform,’ however misguided and unconstitutional, was designed to protect doctors and corporate interests. . . . Today, we learn that ‘tort reform,’ not surprisingly, had unintended consequences. It turns out that ‘tort reform’ (and the justices who sanctioned it) also ensured that rapists and those who enable them will not have to pay the full measure of the damages they cause—even if they rape a child. It is past time for the General Assembly (and this court) to reconsider ‘tort reform’ and return the authority to determine damages to juries, where it rightfully and constitutionally belongs.”

And as Justice O’Neill said:

“I cannot accept the proposition that a teenager who is raped by a pastor fits into a preordained formula for damages. Are we really ready to affirm the legislature’s decision to say to a future victim, ‘we don’t know you, we don’t know the facts of your case, and we don’t know what a duly empaneled jury is going to say, but your damages are a maximum of $500,000?’ No parent of a teenage daughter would accept that outcome as being just.

***

“The only way to bypass the Ohio Constitution and make changes to the tort system in Ohio would be by constitutional amendment. Unless and until that happens, arbitrary caps on damages are unconstitutional.

“This child was raped in a church office by a minister, and a duly empaneled jury established an appropriate level of compensation for the loss of her childhood innocence. We have no right to interfere with that process. Shame on the General Assembly. The children are watching. And I for one do not like what they are seeing.”

This child cannot be helped any further by the political and judicial system, who in great part turned its back on her. She and her parents will now have to rely on their mental health professionals, their faith, and their family. But others, like us, can help maybe the next persons in such a situation. We can express to our state senators and representatives our displeasure when they take the side of the corporate interests, and in this case a child rapist, by allowing laws like this, over the rest of us. We can participate in elections, by finding out, knowing, and acting, regarding those who profess that “tort reform” by politicians, or by judges, is better than the jury system. In other words: become educated as to who are making these decisions, and let them know how you feel, both by contact to them directly, and by voting in the next and every election. And, don’t be afraid of, and be a willing and active participant when called for jury service, as it might be you or your child or loved one who needs a jury to help them someday.

For further reading the Simpkins case can be found at:

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-8118.pdf

More information about the documentary exposing “tort reform,” “Hot Coffee,” can be found at:

http://www.hotcoffeethemovie.com/Default.asp

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

“Endangering Children” May Not be What You Think – and Hopefully it Won’t Take a Trial for You to Find out.

In Ohio and in most if not all other states, it is a crime with serious punishment potential to unnecessarily put a child in risk of harm – as it should be. In Ohio this is known as Child Endangering, Endangering Children, or Child Endangerment. Parents (and others in the role of a parent, known as “in loco parentis”) have been charged in various states for things ranging from refusing to get medical care due to religious or other personal beliefs, to outright abuse of a child.

But there is much room for discussion about when a parent’s legitimate exercise of their role as parent, their fundamental constitutional right to parent their own child, crosses a line from legitimate parenting to criminal acts.

In Ohio, Endangering Children, Ohio Revised Code 2919.22(B), can be charged in several ways, including more clear and obvious accusations of persons who:

— “Abuse” or “torture or cruelly abuse” a child;

— “Administer corporal punishment or other physical disciplinary measure,” or “physical restraint” but “in a cruel manner or for a prolonged period,” which is “excessive” and “creates a substantial risk of serious physical harm;” or

— “Repeatedly administer unwarranted disciplinary measures,” where there is a “substantial risk” that the measures will “seriously impair or retard the child’s mental health or development”; or

— Involve the child in in some illegal sexually oriented or nudity oriented matter (what constitutes child pornography, generally);

— Allowing a child to be within a certain distance of drug manufacturing activity;

— Driving under the influence with a child.

These acts all seem pretty obvious, that no reasonable sensible person, much less a parent, would do, and if they did, would be a crime. Prosecuted cases in Ohio have included the worst conduct one can imagine, including in a reported case, a parent essentially “branding” a child with hot scissors, and another parent just watching and allowing it. State v. Sammons, 58 Ohio St. 2d 460, 391 N.E.2d 713 (1979), which can also be found at:

http://www.sconet.state.oh.us/rod/docs/pdf/2/2011/2011-ohio-4296.pdf

These offenses in Ohio can be punished (depending on the circumstances and the result) can be punishable as a first degree misdemeanor (punishable by up to six months in jail and a $1,000.00 fine), to high level felonies punishable by lengthy prison sentences.

There is another form of Endangering Children though that is less clear. Ohio Revised Code 2919.22(A) also makes it illegal to “create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.” There is a stated exception for a parent or custodian of a child who “treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.”

Prosecutions under this section, which is obviously not very specific, have included neglecting a child – not attending to proper food, clothing, shelter, or medical or emotional care. Such a case was State v. Daniels, 61 Ohio St. 2d 220, 400 N.E.2d 399 (1980), which can be found at:

http://www.leagle.com/decision/198028161OhioSt2d220_1239/STATE%20v.%20DANIELS

So how does a parent know though when something they do, that does involve some risk, is legal, as opposed to illegal? What is a “substantial risk” to the health or safety of a child? What about parents who sign kids up for football – which has an obvious risk of anything from bruises to broken bones and these days repeated concussions and other brain injuries? What about martial arts or wrestling? Soccer? Boating, camping, hiking? Shooting activities (hunting, firearms and archery)? Rollercoasters? Skating and skateboarding? Horseback riding? Even swimming? Each of these activities involves a risk of harm, potentially serious harm. For that matter, going outside, to work, to school, getting in a car and going out on the public roads, involves a risk, sometimes substantial risk. Who gets to decide when it becomes “substantial” and therefore illegal? There is a constitutional right to not be charged with something that is so vague an ordinary person can’t know when it is illegal to do it, or when the illegality of it is up to the subjective opinion of police officers, prosecutors, or judges; or when the definition of the crime is so broad as to include legal activities in the definitions of illegality. This is known as the vagueness or overbreadth doctrine, and is protected both by the First Amendment and the Due Process clauses. A discussion of these rights is in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), which can be found at:

https://www.law.cornell.edu/supremecourt/text/408/104

Courts in Ohio have imposed limitations on the broad wording of “a substantial risk” to a child’s health or safety. These include:

— Including in the definition of the offense that the person must have acted “recklessly” in creating the substantial risk, which means “with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.” (Ohio Revised Code 2901.22(C)).

— “Substantial risk” has also been defined as “a strong possibility, as contrasted with a remote or even a significant possibility that a certain result may occur or that certain circumstances may exist.”

— In addition, a court (or jury) is not permitted to “make an inference upon an inference in order to transform a speculative risk into a substantial risk” (meaning drawing an inference or conclusion from one fact, and then inferring another fact from that inference – “if that happens, this might also happen”). There must also be “some evidence beyond mere speculation as to the risk of harm that could potentially occur due to a single imprudent act.”

Discussions of these added limitations to the offense can be found at State v. Hughes, decided by the Ohio Third Appellate District, where a parent was charged (and eventually convicted of Child Endangering) for leaving his 5-year old alone in a car, with the air conditioning on and with a cell phone, while in a Walmart for 27 minutes. Although the father was convicted at a trial, the court of appeals reversed the conviction (with one of the three appellate judges disagreeing), because the conduct did not meet the required standards. The case can be found at:

http://www.sconet.state.oh.us/rod/docs/pdf/3/2009/2009-ohio-4115.pdf

So the question is left open: when (and who gets to decide when) it is a crime where a parent engages with their children in what one parent might think is entirely appropriate recreational or sports activity, that involves some risks, but that someone else (a police officer, a prosecutor, or even an opposing parent) thinks is too dangerous? Some Ohio courts have found the statute to be unconstitutionally vague or overly broad because of that question, but others have not. It is not clear. So in Ohio in some cases it might mean a judge or a jury must make that decision, and a parent can be brought in to court to defend their decisions as what is not too much risk in recreational activities. A parent could have to choose between not doing something fun and maybe entertaining or even enriching or character-building for a child, in fear of being prosecuted because someone thinks it’s too dangerous. Many very common recreational or sports activities could legitimately be argued to be too much of a “substantial risk” to the health of the child, and it is “reckless” for a parent to let the child do those.

For one person, these limitations on the offense did not keep him from being accused and charged and tried. The dilemma for a parent was recently tested in a courtroom trial for such a parent, in the context of off-roading and 4-wheeling. The case involved a single separated father of 4 and 7 year old sons. In the past the entire family had been avid off-roading and 4 wheeling participants. Each child had their own 4 wheeler at each parent’s home they rode by themselves. They had also gone to a local festival where they rode Jeeps and other ATV’s through mud and obstacle courses, with the kids in the vehicles. Police attend and watch.

This time Dad took the children in his Jeep, which had modifications for off-roading (higher suspension, larger tires) to a local off-road wilderness area that they had gone to together before, as a family. The area has a creek bed with various stages of water, rocks, and rough and not-as-rough areas. The kids were buckled in, the 7 year old in front, the 4 year old in back with a booster seat. Dad had the two front doors off the Jeep. Although there is some dispute about what the riding in the area was like, it included slow driving but on bumpy surfaces and water around a few inches to maybe around a foot deep – not up to the axles even. There was some dispute about how “rough” the water was. No accident happened, no one was injured.

The other parent found out and objected to the activity, expressing concern that it was too dangerous and something terrible could happen. Local police expressed the opinion that due to the area, something bad (an accident, breakdown, roll-over, etc.), was likely to happen, and if it did, it would be difficult or impossible for emergency personnel to get to the area. So a prosecutor approved Child Endangering charges, and the father retained counsel, and chose to defend the case in court and in front of a jury.

The case tested the extent of what is not enough or too much risk. The analogy was made to other activities, where yes something bad could happen. After all the prosecution’s evidence was presented, the Judge applied the principals of when a risk is “substantial” enough, and not based only on “remote” or “even significant” risks, and not based on mere speculation or the prohibited “inference on an inference” – too many “ifs” before the harm could happen (“if” the Dad did something, and then “if” that resulted in an accident, and then “if” emergency crews were needed, then it would be a problem). Under that evidence, the Judge found that there was not enough evidence and dismissed the charges, so the jury never had to decide it. The jurors interviewed after agreed that was the correct result.

This case can be looked at in several ways. It could be argued that the law is too lenient and the court allowed too much danger for children. It could be argued that it is the correct application of constitutional and criminal law and that a parent can’t be punished for conduct, even if risky or even irresponsible, if not certain enough to actually result in harm. As one court described the policy on the law (in the context of leaving the child in the car at Walmart):

“However, simply because Hughes made an irresponsible parenting decision does not mean that his conduct rises to the level of a criminal offense, deserving of fines and possible imprisonment. It is not the function of the criminal justice system to invade the sacred right of parents to raise their children as they deem suitable and proper, and police officers and prosecutors should exercise the appropriate discretion in deciding whether a parent’s conduct crosses that thin line between bad parenting and criminal culpability. ‘We, as a society, cannot [criminally] punish parents for every error in judgment, even if a child is injured, under a theory of strict liability.’” (Quoting the Hughes case above).

What is certain though is that this particular parent found himself in a courtroom in front of a jury and judge, defending himself and his parenting, for choosing a certain kind of “fun” for him and his children, versus the opinion of a police officer, a prosecutor, and an opposing parent. Some could also argue he should not have been required to do so, but it doesn’t change that he did. Fortunately for him, he was also acquitted. The hope (always) is that lessons were learned by all involved.

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

The “Right” of Subrogation for Insurance Companies versus the “Right” of Injured Persons to Compensation

Currently pending before the Ohio Governor is House Bill 64, also part of the State Budget, which must be signed, if at all, by June 30, 2015. Included in the Bill is a new insurance subrogation law that impacts Ohioans who have been injured by someone and have incurred medical bills that might be covered by some form of insurance. Here’s how it works.

In Ohio, and in most other states, insurance companies have a common law or a contract right of subrogation. This means that if your insurance company, or the government (Medicare, Medicaid, Worker’s Compensation) pays your medical bills, that were caused by someone else’s fault, the insurance company can represent you and get the bills they paid for you back from the person whose fault it was to start with. This right of subrogation applied if it was a medical payments policy on your car insurance or homeowners insurance, workers compensation, a car accident, an injury caused by falling, slipping, or tripping due to some dangerous condition of someone’s property, medical negligence, and other situations.

For the longest time, Ohio, and many other states, observed what was known as the “Make Whole Doctrine.” This means that you, the injured person, are entitled though to be fully compensated for an injury, or “made whole,” before an insurance company gets subrogated or reimbursed. So if another driver hurts you, they have to compensate you first, completely, and only then does the insurance company get paid back.

Over the last several years, the Make Whole Doctrine has been eroded away. In most instances, due to decisions of the courts and acts of the Legislature, insurance companies have been permitted to “step to the head of the line,” and get paid back for what they paid out – usually only paid out because the injured person paid premiums to get that right – before the injured person gets anything. So for an example, another driver might hurt you in an accident, and you have $50,000.00 of medical bills as a result paid by your own health insurance. But the other driver only has $50,000.00 of liability insurance. Your insurance company would have a right to the entire recovery, first, before you get reimbursed for any lost wages, pain and suffering, and before reimbursement to your own attorney for fees and expenses incurred to get that recovery. And, the insurance company didn’t have to pay anything for the work that you and your attorney did to prove the case and get the recovery. So it was the “Make Whole Doctrine” upside down – the insurance company gets paid first, even though it took premiums for the benefits it paid out, and before the actual injured person gets anything.

There is now though in the Ohio General Assembly a part of the current budget bill that will fix a large part of that, and for the benefit of actual Ohio citizens. It is found in House Bill 64, the state budget bill, which the Governor must sign by June 30, 2015. The corporate lobbyists, with the health insurance industry and the Chamber of Commerce leading the way, are pressuring Governor Kasich to use his line-item veto to erase the corrections.

The corrections fix the subrogation rules as follows:

If the injured person receives from a claim or settlement from the person who cause their injuries less than full value for his/her claim, the subrogated interest (in most cases, a health insurer) gets only its pro rata share of the recovery, diminished by the same proportion that the plaintiff’s recovery is diminished. So that if the true full value of a person’s claim is $100,000.00, but they only get $50,000.00 (usually due to lack of full insurance on the party at fault, or compromise to avoid the time and expense of trial), their claim is reduced by 50%, and so is the insurance company’s. If they paid $30,000.00 in medical bills, they also get only 50% back, just like the injured person.
The subrogated interest must also pay its pro rata share of legal fees and expenses. So if the injured person owes a lawyer 1/3 to get the recovery, the insurance company’s claim is also reduced by 1/3 (which depending on the attorney representing the injured person, either pays the attorney for getting the insurance company the money they wouldn’t otherwise have, or it can go back to the injured person).
If the injured party and the subrogated interest cannot agree on the numbers, either may have a court resolve it for them.

The pro rata subrogation provision, which is modeled after an Indiana statute, places Ohio on the conservative side of similar state laws nationally. It is not completely “make whole,” but is not as bad as the law here now. Forty out of 50 states are either “make whole” or are pro rata. In addition, Ohio’s workers’ compensation system, Medicaid and Medicare, also have a proportionate share policy that governs their subrogated recoveries, automatically, so this law only applies the same concepts – shared reduction of claims and recovery – to private insurance companies just like public ones.

Persons who are in favor of applying this “shared recovery” law, and reduce the private insurance companies’ priority rights or recovery which is now even greater than the person who actually suffered the injury, are encouraged to call the Governor’s office (614-466-3555), or send an email, to support signing this Bill with this new provision. Here’s what you can say: “I support the fair subrogation provision in the budget bill and ask the Governor to sign it into law. It’s fair and proven to work.” The Governor’s contact form can be found here:

http://www.governor.ohio.gov/Contact/ContacttheGovernor.aspx.

More information can be obtained about civil justice in Ohio at:

https://www.oajustice.org – for the Ohio Association for Justice

and in Kentucky at:

https://www.kentuckyjusticeassociation.org – for the Kentucky Justice Association

and nationwide at:

http://www.justice.org – for the American Association for Justice.

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

OVI and DUI in Ohio is no longer (purely) “trial by machine.”

For many decades in Ohio, the General Assembly allowed the Ohio Department of Health to develop the program to test drivers for being under the influence of alcohol. The ODH responded by approving, as the Ohio General Assembly directed, breath-testing machines, designed and approved by the State, which were deemed to be reliable methods of measuring the amount of alcohol in a person, by taking and measuring the alcohol in their breath – measured by blowing into the machine and through a scientific and mechanical process measuring the content of the alcohol in the breath sample, and then through a mathematical calculation producing a result in terms of the amount of alcohol in the person – the mathematical ratio of alcohol to breath calculated to how much that must mean in the body or blood.

The original law though just created a presumption, that if the driver has so much alcohol in them, as determined by the machine, they must be “under the influence,” meaning appreciably impaired in their driving ability and therefore the safety of the public, but the driver could fight or rebut that by other evidence, such as actual safe driving, witnesses, or other scientific tests.

Part of the defenses included attempts to show, by scientists and engineers, that the methodology was flawed, or the machines weren’t reliable. In State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), the Ohio Supreme Court held that when the General Assembly wrote the DUI laws and said, the ODH can determine reliable methods for testing, those methods so approved could not be attacked as unreliable – the courts would not be permitted to rewrite the law even if they disagreed with the science, or lack of science.

Along the way the “presumption,” that could be attacked, that a person the machine said had so much alcohol in them was legally “under the influence,” also changed. Ohio law was changed (as it was in almost every other State) to do away with the “rebuttable presumption” of being under the influence, to the new “per se” offense, that it was illegal to drive if the machine said your alcohol level was above a certain limit. In a “per se” prosecution, it didn’t matter whether you were really under the influence or not, if the machine said your blood alcohol content, as measured by comparison to your breath alcohol content, was so much, you committed a crime.

This came to be known as “trial by machine.” If the machine said so, you were guilty. So attorneys defending persons accused of driving “over the limit,” the per se offense, attempted to attach the machine or in some cases the testing method itself, as well as their client’s actual impairment. Courts in Ohio for years said that State v. Vega prohibited that attempt. One couldn’t challenge the machine, or the test, and could only challenge if the test was done on an approved machine and by the approved method. But that was it.

But that is not what State v Vega said. It only “precluded an accused from presenting expert testimony attacking the general scientific reliability of breath-alcohol tests that have been conducted in accordance with methods approved by the director of ODH.” It did not prohibit an accused driver of arguing that the result was wrong, because the machine didn’t work right, generally or in their case.

In recent years the ODH approved a new breath testing machine that has been so controversial that the attack on “trial by machine” was opened anew. Ohio approved the “Intoxilyzer 8000” (named because it was cheaper than the “Intoxilyzer 10000”). Study of the machine by scientists and legal professionals discovered many potential defects in the machine that called into question the reliability of it generally and in individual cases. The machine was so controversial that many police departments quit using it and went back to the machines that were used before it. But efforts were made to get to the source of the methodology used and the history of the design and use of the new machine. Many courts resorted to the mistaken but commonly accepted misinterpretation of State v Vega to prevent those efforts and challenges to the machine.

The approval of this controversial machine that so many across the country thought was unreliable opened the door to attach that commonly accepted misinterpretation, and the attack was successful. In 2011 a driver (Mr. Ilg) lost control of his car on Beekman Street in Cincinnati, Ohio, and ran off the road striking a fence, a sign, and a pole. The investigating officer arrested Ilg for OVI (used to be known as DUI). Ilg submitted to a breath-alcohol test on the Intoxilyzer 8000 machine, which measured his breath-alcohol concentration over the legal limit. His attorneys asked the court to suppress or exclude the results of his breath test. In that process they tried to get documentation not only on Ilg’s test, but other data about the operation of the machine, both on him and on others.

The prosecution did not produce the requested information, so Ilg’s attorneys subpoenaed them directly from the ODH for its database maintained from each breath-analyzer machine for each breath test performed across the State. Ilg also subpoenaed records regarding the Intoxilyzer 8000 between ODH and the city of Cincinnati, the Ohio Department of Public Safety, and the manufacturer of the breath-analyzer machine. None of the subpoenaed persons even responded.

So Ilg’s attorneys did what all attorney’s do when a subpoena is ignored – they asked the court to exclude the results of his breath test because of the failure to comply with the discovery requests and subpoenas. How can they present the test result, but hide the information used to get it? At a hearing on the request ODH officials testified they couldn’t give the requested information, for various technical reasons. The court disagreed with the State and the City, ordered ODH to disclose the records requested in the subpoena, and told the prosecution that sanctions would be imposed it if did not comply.

The court’s deadline for compliance passed, and so Ilg again moved for the sanctions to be imposed, including the exclusion of the breath-test results. At the hearing on why the State did not comply, ODH claimed it “lacked the personnel and technology to copy the database,” and that “it would require an additional employee and approximately $100,000 to produce a copy that could be released,” and even then it would be “technologically difficult to produce.”

The court held that Ilg had the right to challenge the reliability of his breath test but could not without the data generated by the Intoxilyzer 8000 that tested him. The trial court therefore excluded the breath-test results from evidence.

The State appealed, but the court of appeals that the trial court did not commit error by suppressing the results. Disregarding the argument that State v. Vega prevented the attempt to do what Ilg was trying to do, the court also held that Ilg had not sought to challenge the scientific reliability of all Intoxilyzer 8000s, but to discredit the particular breath analyzer that Cincinnati Police used to test his breath-alcohol concentration. The prosecution appealed again, to the Ohio Supreme Court, arguing one proposition: “State v. Vega prohibits defendants in OVI cases from making attacks on the reliability of breath testing instruments, thus a defendant cannot compel any party to produce information that is to be used for the purpose of attacking the reliability of the breath testing instrument.”

The Ohio Supreme Court rejected this proposition, confirmed what it meant in State v Vega, and allowed the challenge and the sanction imposed – exclusion of the test that they would not allow to be examined. Although “an accused therefore may not attack the general scientific reliability of that machine test,” ODH approval of the Intoxilyzer 8000 “does not preclude an accused from challenging the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific tests results at issue in a pending case.” And as Ilg’s expert witness testified, “[i]n order to be able to evaluate the reliability of the test, this particular Intoxilyzer 8000 machine, and the testing procedures in this case, all of the documents requested of the State and ODH are necessary.” So Ilg was “entitled to discovery of relevant evidence to support his claim that the Intoxilyzer 8000 machine used to test him failed to operate properly.”

The case is not a complete victory for those defending accusations of OVI, because it did not allow the challenge to the entire machine and method once approved by ODH. But it did allow the argument that the test in the particular case was scientifically unreliable – the “machine” might be wrong, and if it might be wrong, there might be reasonable doubt as to whether an accused driver did in fact violate the per se offense. And the absolute bar to any attack of the machine’s test result, on the basis of simple science, based on the misinterpretation of State v. Vega, is no more.

The case is in City of Cincinnati v. Ilg, 2014-Ohio-4258, and can be found at:

Click to access 2014-ohio-4258.pdf

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

“Trial Lawyers” – A misunderstood and misapplied title for lawyers who represent inury victims

“Trial Lawyers” – a misunderstood and misapplied title for lawyers who represent injury victims

In England (and other countries), lawyers come in two varieties: solicitors, who are known to advise and consult and do transactional work, documents, etc.; and barristers, who the solicitors hire to go into court to litigate a case for the client, when necessary.

In the United States, there is no such formal division, and many lawyers do both. Many lawyers never go in a courtroom and do 100% outside “transactional” work. Lawyers to actually go to court, either with or without a jury, may also do outside or transactional work.

The lawyers who actually go to court are sometimes called “trial lawyers.” The term because associated primarily with those lawyers who go to court on behalf of injury victims, to seek legal compensation for their losses, instead of representing those accused of causing the harm. The term, applied to plaintiff’s or injury victims’ lawyers, became common probably in the 1960’s and after. Many professional associations of lawyers doing that kind of work – also known as “personal injury lawyers” or “bodily injury lawyers” – took on that title, as with the American Trial Lawyers Academy (ATLA) or the State affiliated organizations, such as the Ohio Academy of Trial Lawyers (OATL) or the Kentucky Academy of Trial Attorneys (KATA). This is a misnomer, as those who primarily defend such cases had their own “trial lawyer” associations, generally calling themselves, “civil trial lawyers.” It is also a misnomer because those who defend persons accused of crimes, those who represent people sued (or suing) for other things in civil court, and those who represent parties in family court, also use the trial processes to seek justice for their clients.

Due to much rhetoric and propaganda, persons began to associate negative connotations to “trial lawyers,” conjuring up the most negative of stereotypes, but almost exclusively connecting those stereotypes to the lawyers who went to court for injury victims, to the exclusion of those other “trial lawyers” who did the same thing in different contexts.

This led to a movement in recent years for the professional organizations – many of them, but not all – who primarily represent injury victims to change their names. ATLA became the American Association for Justice. OATL became the Ohio Association for Justice. KATA became the Kentucky Justice Association. And many others across the county did the same thing. It was to avoid many of the negative stereotypes that became associated with the moniker of “trial lawyer” for those representing injury victims. But the work those of us do who represent injury victims is the same: using the judicial system and court process to hold those who injury others accountable, by seeking fair compensation to the victims of negligence, defective products, and dangerous activities and agents. That is, in the eyes of those doing this work, the purest “civil justice” that can be pursued for those whose lives are sometimes devastated through no fault of their own, but by those of careless individuals or companies.

When one finds themselves in that position – in the shoes of someone injured, or whose life is disrupted by someone else’s carelessness or fault – it will be those who seek “civil justice” to go to for help. Most of those people were used to be known as, and still are, “trial lawyers.”

More information can be obtained about civil justice advocates’ activities at:

https://www.oajustice.org – for the Ohio Association for Justice

and:

https://www.kentuckyjusticeassociation.org – for the Kentucky Justice Association

and:

http://www.justice.org – for the American Association for Justice.

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

Ohio Personal Injury and Medical Negligence – An apology for doing something wrong does not mean something wrong happened — at least not for medical care

The situation is not uncommon, where someone makes a mistake, maybe even hurting someone, maybe even by accident, and then they “do the right thing” – they apologize, or say something like an apology, either for what they did, or for what happened. Occasionally, this happens in health care. A patient ends up with a bad result from a treatment, a prescription, or from a medical procedure, or some other medical mistake – which recent statistics and studies show is more common than one might think. The health care provider might say they were sorry, or “I’m sorry for your loss,” or maybe even “I take full responsibility for what happened.”

Sometimes those incidents end up in court. Ohio has Rules of Evidence, which govern what can be presented in court, and what cannot. Ohio Rule of Evidence 801(D)(2) provides that an “admission” by an opponent in court is not inadmissible hearsay. So one would think that if a medical provider makes a mistake that is actionable negligence, “apologizes” for it, or even admits it was their responsibility, that would be admissible in court against them if the patient takes them to court for compensation for what the medical provider did.

Not so in Ohio courts, regardless of the Rule of Evidence. The Ohio General Assembly in 2004 enacted R.C. 2317.43, the “Apology Statute.” It provides – and only for medical providers, not for ordinary citizens – that if the medical provider makes a “statement of sympathy,” which includes pretty much all “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence,” it is not admissible against that provider in a medical malpractice case.

So the General Assembly meant to insulate a medical provider, when something bad happens from their actions, when they say “I’m sorry” or something like that, that the “apology” can’t be used against them in court. The Statute serves the purpose of both allowing medical providers to make expressions of sympathy for what happened, even if it is not their “fault,” but also to prevent such statements from being used in court, so a judge or jury wouldn’t be allowed to decide if the provider was just expressing sympathy, or actually admitting they made a mistake.

But what about when the provider doesn’t just express sympathy or sorrow for a tragic result, fault or no fault, but goes further, and comes closer to actually admitting they made a mistake – such as “I take full responsibility for this”? It would seem, under the Rules of Evidence, this is admissible. And it would seem that the Apology Statute would not apply to that, as it is not just an expression of sympathy, but appears to go farther.

According to the Ohio Supreme Court, such a statement – accepting full responsibility for what happened – is not an “admission” of fault, but only an apology and therefore not admissible in court. In April 2001 a physician performed a laparoscopic procedure on a patient’s (Jeanette’s) gall bladder. Complications arose during the procedure resulting in the narrowing of the duct in the gall bladder (that allows for the waste product to be eliminated). Jeannette was nonetheless released from the hospital, but three weeks later had to go back, due to jaundice and the obstructed gall bladder. The same physician told her that she’d have to go through another surgery to fix it, and told her, “I take full responsibility for this.” Jeannette went through the procedure and a lengthy period of recovery, and eventually filed suit against the surgeon.

While the suit was pending, the Apology Statute was passed. The surgeon’s attorney successfully convinced the court to exclude from the trial the surgeon’s acceptance of “full responsibility.” After a trial to a jury – where the jury was not allowed to hear the surgeon’s statement – the jury decided in favor of the surgeon.

On appeal, the Court of Appeals stated that the Apology Statute couldn’t even be applied, because to do so would be the unconstitutional retroactive application of the law; and that a jury should have been able to determine what the surgeon meant by taking “full responsibility.” But the surgeon appealed to the Ohio Supreme Court, and the court disagreed, and sided with the trial judge, that the “acceptance of full responsibility” is the same as an “apology,” and therefore it was correct that the jury never heard those words from the surgeon. The Court construed the circumstances of a distressed and upset patient, and a physician attempting to comfort them, and it was appropriate for the trial court to exclude from the jury’s consideration those circumstances.

The result is another example of the burdens and roadblocks in the way of a patient trying to obtain justice from a physician’s mistake, and having a jury, not a judge, decide the facts, even when the physician, maybe, conceded their own fault. The “rule” wouldn’t apply to a driver at the scene of a car accident, or a business owner who left something dangerous in the way of their customers, or an attorney who messed up their client’s case, who says, “I accept full responsibility for this” accident. It only applies to medical providers. Maybe it would have been a different result (the Court did leave room for other situations) if the “distressed and upset” patient or family member had then asked the surgeon, “Do you mean it was your fault?” Or if the patient had not been “distressed and upset” over being injured by the physician’s error. Those cases are yet to be addressed.

The case is Estate of Johnson v. Smith, 135 Ohio St.3d 440, 2013-Ohio-1507, and can be found at:

http://www.sconet.state.oh.us/rod/docs/pdf/0/2013/2013-ohio-1507.pdf

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.
Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

Criminal Law: Ohio Self-Defense is not like Florida v. George Zimmerman

There has been much discussion lately, in light of the trial of George Zimmerman in Florida, about self-defense laws. The law of self-defense comes from the common law (historical judicial announcements of the law, sometimes over centuries. As a result though, it is subject to modification by the legislatures, or by the courts over time.

Traditionally, from the common law any person is generally entitled to use “reasonable force” to defend themselves, or someone else, from the loss of property, or from bodily harm or death. What force is “reasonable” depends of the circumstances, and particularly the force being defended. One can’t for example use deadly force in response to less than deadly force. One can’t use a gun (generally, with exceptions) to respond to a fist fight. The responsive force can’t be “excessive,” that is, can’t be more than is necessary to prevent the harm being defended against.

One is generally also not entitled to use “deadly force,” the greatest degree of force possible (that can result in serious bodily harm of death), just to defend one’s property (someone running away from a shoplifting, or someone picking up your purse or wallet and running away). This leads many to repeat usually false stories about people breaking into one’s home, and then suing the resident when the resident uses force to defend the home. These stories are generally false, because the common law, sometimes knows as the “Castle Doctrine,” is that one is allowed to assume that if someone is in their home, at night, without permission, that serious bodily harm may result, and therefore serious bodily harm in response is usually justified (“One’s home is their castle.”).

In addition, the common law generally requires, before one can use deadly force to defend even themselves, they must not be the aggressor in the confrontation, and they must first attempt to retreat if they can, unless they are in their own home where they have no duty to retreat – another part of the “Castle Doctrine.” The philosophy behind these common law principles is that physical harm and violence is never preferred, and that bodily harm is not justified by loss of mere property. It is deemed better to run away, or lose your property, and let the police and courts sort it out later, than to have anyone hurt or even killed if it is avoidable.

And in most states that follow this traditional common law, the person charged with the crime and who claims they were defending themselves has to prove their claim. The State doesn’t have to prove it wasn’t justified defense.

The so-called “stand your ground” laws are legislative modifications of these common law doctrines. They remove, in some cases, the “duty to retreat,” even in public, and extend the “Castle Doctrine” outside of one’s home. Such laws are generally based on the principle that one should not be required to run away, and can fight, even kill if necessary, even in public, if sufficiently threatened. And many of those laws also shift the burden of proof, requiring the State to prove the person wasn’t justified in defending themselves.

Such laws as have been recently discussed are not the law in Ohio, and a greatly different result may have occurred if the Zimmerman case were in Ohio. Two recent cases illustrate this point.

In one case from Butler County, Ohio, an altercation occurred in a night club over someone’s girlfriend and an allegation of cheating. During the fight, one of the persons, I’ll call them L., picked up a barstool and started swinging it as a weapon. The other person, I’ll call them G., found a machete on the floor (allegedly – don’t ask me what kind of night club this is), and picked it up to defend himself from the barstool attack – instead of leaving the scene. Using the machete, G. severed a finger from L. G. was charged with Felonious Assault, a second degree felony, which is assault either with a deadly weapon or that causes serious bodily harm.

At the trial, G. tried to get the Court to instruct the jury that he was entitled to defend himself from the bar stool attack, and use the machete – “deadly force” – to do so. The trial court refused, and G. was found guilty. He appealed, arguing that he was entitled to self-defense and an instruction to the jury.

The Twelfth District disagreed, and affirmed the conviction. Noting the Ohio precedent discussed above, G. wasn’t entitled to a self-defense argument. Although part of the reason for denying that argument was that G. argued that he didn’t even use the machete but just “showed” it as a deterrent (denying he swung it), in which case it is inconsistent at the same time to argue what he did was in self-defense, in addition the evidence was clear that G. also didn’t resort to the deadly force as his only means of escape and avoiding injury, which is the law in Ohio. Specifically by G.’s own testimony he did not go out the unlocked front door that was behind him, instead of fighting, he violated the “duty of retreat” because the use of force was not the only means available to avoid being injured himself. Because G. could have just left, and had other means to diffuse the situation, he had no right to claim, argue, or have the jury instructed, on self-defense. His conviction was affirmed.

The case is State v. Gomez, was decided July 1, 2013. The links may change but the case can currently be found at:

http://www.sconet.state.oh.us/rod/docs/pdf/12/2013/2013-ohio-2856.pdf

In another recent case, two men got into an altercation on a public street in Cincinnati, over a debt. S., who was owed the money, was sitting in his car and saw C., who allegedly owed the money, across the street. S. got out of his car to confront C. When C. refused to pay, S. started cussing him and threated to “kick his ass.” C. then pulled a gun, told S. he “was going to die,” and shot S. at close range, and shot a couple more times when S. fell to the ground. S. though did survive, although sustaining numerous serious injuries.

C. turned himself into police. He claimed that he knew S. was known to carry a gun, and that he had his hands in his pockets during the confrontation. C. also said that S. was known to have a violent history, a criminal record, and including gun charges. He said he shot S. because he was afraid S. would shoot him first. C. was charged with attempted murder and felonious assault, and was convicted at trial, but waived a jury so it was a judge or “bench” trial.

On appeal he argued he should not have been convicted, among other reasons because he only shot S. in self-defense. The First District Court of Appeals agreed with the trial court, it was not self-defense. First, C. only threatened to “kick his ass,” and according to witnesses never actually raised his hand to S., and in response S. pulled a gun and shot him several times. And C. could also have just run away. Self-defense, in Ohio, does not apply in those circumstances.

The case is State v. Carmen, was decided July 31, 2013. The links may change but the case can currently be found at:

http://www.sconet.state.oh.us/rod/docs/pdf/1/2013/2013-ohio-3325.pdf

These cases show that the law that was applied in the Zimmerman case would not have applied in Ohio and that in Ohio a much different result may have occurred. To some extent, these cases also give grounds to argue against the laws that applied in Florida, resulting in street violence and maybe unnecessary harm.

More information about my practice and background can be found at:

www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney

Eagle Law Office

Legal Issues Important to Ohio Families and Businesses

Ohio’s Constitutional right to fair and full compensation for injury victims is restored — at least for some.

Did the Supreme Court make it easier for police to do their job, or easier for police to avoid accountability for doing it wrong?

A Proposed Ohio Constitutional Amendment is Not the Way to Protect the Interests of Crime Victims in the Criminal Justice System.

The Constitutional Right to Jury Trial versus Political “Tort Reform” – Sometimes Those Benefitting (or Hurt) from the “Reform” Are Not the Ones Intended – Simpkins v. Grace Brethren Church

“Endangering Children” May Not be What You Think – and Hopefully it Won’t Take a Trial for You to Find out.

The “Right” of Subrogation for Insurance Companies versus the “Right” of Injured Persons to Compensation

OVI and DUI in Ohio is no longer (purely) “trial by machine.”

“Trial Lawyers” – A misunderstood and misapplied title for lawyers who represent inury victims

Ohio Personal Injury and Medical Negligence – An apology for doing something wrong does not mean something wrong happened — at least not for medical care

Criminal Law: Ohio Self-Defense is not like Florida v. George Zimmerman