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Advocates Circle Firms

Arthur Law Firm Co., LPA.

 

Barkan Meizlish
Handelman Goodin DeRose
Wentz, LLP

 

Bordas & Bordas, PLLC

 

Brian, Zwick, Marchisio & Associates

 

Elk & Elk

 

Geiser, Bowman & McLafferty, LLC

 

The Gervelis Law Firm

 

Kisling Nestico & Redick

 

Kitrick, Lewis & Harris Co.,. LPA

 

Leizerman & Associates, LLC

 

Lamkin, Van Eman, Trimble & Dougherty, LLC

 

Meyer Wilson Co., LPA

 

Murray & Murray Co., LPA

 

Nurenberg, Paris, Heller & McCarthy Co., LPA

 

O'Connor Acciani & Levy, LPA

 

Rittgers & Rittgers

 

Plevin & Gallucci Co., LPA

 

Rourke & Blumenthal

 

Slater & Zurz, LLP

 

Robert J. Wagoner, Co., LLC

 

Tzangas Plakas Mannos Ltd.

 

Young and McCarthy LLP

 


 

                       

 

OAJ BLOG CENTRAL

Some Truck Drivers Fighting Roadway Fatigue with Stimulants

Shared by Levy Law Offices

www.levylawoffices.com/blog


Truck drivers in Ohio and across the rest of the country are under increased pressure to meet hauling deadlines at all hours of the day. This type of demanding work, especially when extensive driving of long distances is required, can contribute to driver fatigue. Due to the weight and size of trucks, the victims in these accidents tend to be people in other vehicles, passengers and nearby pedestrians or cyclists.

While any type of truck-related collision can have serious consequences for everyone involved, it's longer trips lasting more than 51 miles that tend to result in motor vehicle accidents. Also, one out of every four truck drivers reports having fallen asleep behind the wheel at least once during the past month. What's also raising eyebrows is the increased use of stimulants by some truck drivers looking to stay awake while getting to their long-distance destination.

Nearly 1 percent of truck drivers are using amphetamines, cocaine and similar substances while operating large vehicles that sometimes contain dangerous materials, according to random drug sampling results. Ironically, drivers using stimulants to stay awake as they drive actually have higher driving infraction rates than non-stimulant-using drivers. Part of the reason for this is because drugs that stimulate the body can also cause potentially serious side effects that could affect cognitive and motor functions. Some stimulant drugs also affect attention spans, impulse control and decision-making abilities. And while the FMCSA (Federal Motor Carrier Safety Administration) requires drug and alcohol testing of drivers on a regular basis, roughly 2 percent of drivers fail these tests.

With motor vehicle accidents involving trucks, there's always the potential for personal injuries. If it's believed some type of negligence on the part of a driver may have been a contributing factor, an attorney may look at results from a driver's past mandatory drug/alcohol tests or check records for hours of service violations that might suggest a driver was likely fatigued. In some cases, it may be possible to take legal action against the company a driver works for or the manufacturer of the vehicle if mechanical flaws were an additional factor.


Merit Decision: Compensatory Damages Cap for Noneconomic Loss Applies in Defamation Action. Wayt v. DHSC, L.L.C.

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


“We hold that under the plain language of R.C. 2315.18(A)(7), defamation is a ‘civil action for damages for injury or loss to person.’”

Justice Fischer, majority opinion

“Defamation is an injury or loss to reputation, not to person, and therefore the caps on damages in R.C. 2315.18 do not apply when a person is defamed.”

Chief Justice O’Connor, dissenting opinion

“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.”

Othello Act 3, scene 3

On December 7, 2018, the Supreme Court of Ohio handed down a merit decision in Wayt v. DHSC, L.L.C., Slip Opinion No. 2018-Ohio-4822. In a 5-2 opinion written by Justice Fischer, in which Justice DeGenaro concurred in judgment only, and Chief Justice O’Connor dissented, joined by Justice O’Donnell, the court held that the statutory damage cap for noneconomic loss applies to compensatory damages awarded in a defamation action. The case was argued August 1, 2018.

Case Background

Appellee Ann Wayt was employed as a nurse by Appellant DHSC, LLC, which does business as Affinity Medical Center (“Affinity Medical”). Wayt was accused of neglect of duty and falsifying a medical record, and was fired, following an investigation. Following Wayt’s termination, the head nurse at Affinity Medical sent a complaint to the Ohio Board of Nursing which included an accusation that Wayt had engaged in patient neglect.

After she was fired, Wayt applied for many nursing jobs, but received only two interviews and could not obtain a permanent nursing position.

The National Nurses Organization Committee, a union of registered nurses, filed charges against Affinity Medical with the National Labor Relations Board (“NLRB”), claiming that Wayt had been fired because of her involvement with the union, which the hospital had refused to bargain with.  The NLRB found in favor of the nurses’ union. The NLRB’s ruling was affirmed by the U.S. District Court for the Northern District of Ohio. Affinity Medical was ordered to reinstate Wayt to her former position, and to retract its report to the Ohio Board of Nursing. Wayt did return to her old job, but was belittled by another Affinity Medical employee, who, in front of several nurses allegedly stated that just because she won in court did not mean Wayt deserved to get her job back or that she was a good nurse.

Wayt filed a lawsuit in the Stark County Court of Common Pleas, alleging that she had been defamed by Affinity Medical and its employees. The jury found that Wayt had been defamed, and awarded her $800,000 in compensatory damages and $750,000 in punitive damages.

Affinity Medical filed a post-trial motion to have the court apply the cap on noneconomic damages set forth in R.C. 2315.18(B)(2) and the cap on punitive damages in R.C. 2315.21(D) to reduce the jury award. The trial court ruled that the statutory caps did not apply to injuries to reputation, and that the cap on punitive damages is twice the amount of compensatory damages awarded, not twice the amount of compensatory damages as capped.

On appeal, the Fifth District Court of Appeals unanimously affirmed the decision of the trial court.

Read the oral argument preview of the case here and the analysis of the argument here.

Key Precedent

Ohio Constitution Article I, Section 16 (All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation shall have remedy by due course of law . . .)

R.C. 2315.18 (Compensatory Damages in Tort Actions)

(A)(4) “Noneconomic loss” is categorized as any nonpecuniary harm to a person or property and can include, but is not limited to, pain and suffering, loss of society, consortium, companionship, care, and other nontangible losses.

(A)(5) “Occurrence” means all claims resulting from or arising out of any one person’s bodily injury.

(A)(7) “Tort action” means a civil action for damages for injury or loss to person or property. “Tort action” includes a civil action upon a product liability claim or an asbestos claim. “Tort action” does not include a civil action upon a medical claim, dental claim, optometric claim, or chiropractic claim or a civil action for damages for a breach of contract or another agreement between persons.)

(B)(2) (specifies caps to be applied in tort actions for compensatory noneconomic damages.)

R.C. 2315.21 (Punitive or Exemplary Damages)

(D)(2)(a) Punitive damages shall not be awarded in excess of two times the compensatory damages awarded to the plaintiff.)

Smith v. Buck, 119 Ohio St. 101 (1928) (syllabus) (1. The words “personal injury” as defined by lexicographers, jurists and text writers, and by common acceptance, denote an injury either to the physical body of a person or to the reputation of a person, or to both.  2. The words “personal injury” by “wrongful act,” of Section 11519, General Code, comprehend, among other injuries to the person, injury by libel or slander.)

Nadra v. Mbah, 2008-Ohio-3918 (“Bodily injury” covers all actions whose purpose is to recover for an injury to the person whether based in tort, contract, or statute.)

Dunbar v. State, 2013-Ohio-2163 (Legislative intent is not considered when determining whether a statute is ambiguous.)

Tisdale v. Eubanks, 180 N.C. 153 (1920) (One’s reputation is part of one’s person, and injury to reputation, therefore, is injury to person.)

Times Democrat Publishing Co. v. v. Mozee 136 F. 761 (5th Cir. 1905) (At common law, libel and slander constitute personal injuries or injuries to a person.)

 

Click here to continue reading article.


Fear of Asbestos-Related Illness Sparked by Discovery at School

Shared by Goldberg Law Firm Co., LPA

www.smglegalblog.com


The debate over the dangers of asbestos seemed to have been settled long ago. However, the political climate has again sparked questions as to how dangerous it truly is and whether it can still be used for certain purposes. Still, for people in Ohio and across the nation, the mere mentioning of the word sparks concern that exposure will eventually lead to asbestos-related illness, significant health problems, and almost certain death. Understanding what steps to take when there is a belief that there was asbestos exposure is imperative in a medical and legal sense.

A middle school in Kentucky had a part of its building closed when it was believed that ongoing construction exposed asbestos. The school was undergoing renovation in a conference room and it was believed might have unearthed asbestos. There is no immediate concern that health is at risk, but the staff and families of the students were informed. The release of the substance was said to have been limited to the area in which the work was taking place. That area was closed as the investigation continues and Environmental Protection Agency guidelines are being followed.

When asbestos is discovered in a building, there will be fear. This is true whether it is commercial, residential or public. Of specific concern is when it is found in a school. Because asbestos was once viewed as beneficial in many industries, its presence is common and will often be found during construction projects. The mineral can cause mesothelioma, asbestosis, cancer and other health issues. There are no known cures for diseases related to asbestos. When there is a belief that asbestos has been found, those who believe they or their children might have been exposed should remember their rights to seek compensation for any illness that is believed to have been due to asbestos.

Regardless of where asbestos is found, its discovery will initiate widespread fears that it could be elsewhere. This is especially worrisome in a school.


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When is a Bar or Club Liable for Causing a Fatal Drunk Driving Crash in Ohio?

Shared by Tittle & Perlmuter

www.tittlelawfirm.com/blog


Drunk driving is a leading cause of fatal car accidents in the Cleveland area. In some cases, a bar or other business that serves alcohol to a driver who causes an accident may also be held liable for damages to the victim or their family. Under Ohio’s Dram shop law, a liquor license holder is responsible if it “knowingly sold an intoxicating beverage” to someone who is already intoxicated, and that person’s intoxication “proximately caused the personal injury, death, or property damage” to a third party.

FEDERAL COURT: INSURER ON THE HOOK FOR $8 MILLION PERSONAL INJURY JUDGMENT

The Dram shop law provides a statutory remedy for victims. But what about common-law claims for negligence? A recent decision by a federal appeals court, Mesa Underwriters Specialty Co. v. Secret’s Gentleman’s Club, suggests that businesses that serve liquor may be held responsible if they fail to stop a severely intoxicated customer to drive away. Furthermore, this liability exists independently of any obligation not to serve a drunk customer under the Dram shop law.

This case arose from the tragic death of a 22-year-old woman, Desiree Snyder, on I-480 in Cleveland. At the time, Snyder was a passenger in a vehicle struck by another man who was intoxicated and driving on the wrong side of the highway. As it turned out, the drunk driver had a blood-alcohol content of approximately 0.265 percent, more than three times the legal limit in Ohio.

In a criminal proceeding, the drunk driver pleaded “no contest” to aggravated vehicular homicide. A Cuyahoga County judge sentenced the driver to 15 years in prison.

Snyder’s family then sued the strip club where the driver had been drinking just prior to the fatal crash. Of note, the family chose to dismiss its Dram shop claim against the club and instead argued common-law negligence. The case was tried in Cuyahoga County court before a judge sitting without a jury. In September 2016, the judge ruled in favor of the family.

In brief, the judge determined that the club “had a common law duty to prevent foreseeable harm to others, including to Desiree Snyder.” The club failed in this duty. The judge noted that the driver was ejected from the club after he assaulted a dancer. In fact, the driver was “physically brought to” management and detained for a period of 15-20 minutes before he was allowed to leave the premises in his car. Given the driver’s level of visible intoxication–not to mention the fact he’d just attacked an employee–the club was therefore negligent. Under these circumstances, the judge said that management should have called the police.

The judge ultimately awarded the family over $8 million in damages. This led to a second lawsuit–the subject of the federal appeals court decision–between the strip club and its insurance company. The insurance company sought a declaration that it was not liable to cover the $8 million state court judgment. But the federal courts ruled against the insurer. According to the U.S. Sixth Circuit Court of Appeals, the federal courts had no grounds to second-guess the judgment of the state court, and the language of the insurance policy did not clearly exclude claims for “common-law negligence,” only those brought under the Dram shop law.


Game Manufacturer Hit With Discrimination Lawsuit

Shared by Nilges Draher LLC 

www.ohlaborlaw.com/blog


Riot Games' productions, including the hit "League of Legends", have large numbers of fans in Ohio. However, the company is now facing a class action lawsuit accusing it of gender discrimination in the workplace. The lawsuit was filed by a current employee and a former employee and came after journalists highlighted issues with sexism inside the company. The two women say that they have been denied equal pay and access to promotions on the basis of their gender. They also cite sexual harassment, misconduct and a hostile working environment at the game manufacturer.

The complaint alleges violations of California laws against gender discrimination, including the Equal Pay Act. The women who filed the lawsuit are seeking compensation for lost wages and other damages, and they also want the court to certify the case as a class action for all female employees of the company. Earlier reports about the company mentioned 28 current and former workers, including one of the plaintiffs in the lawsuit. There are 2,500 employees at the company with a workforce that is 80 percent male.

Women have alleged that female job applicants were denied despite being highly qualified because they did not meet the company's stereotypical image of gamers. Women also said that employment decisions were often made on the basis of "culture fit", but this term was often used to justify promoting men, including those engaged in sexist or aggressive behavior. Women's complaints were allegedly frequently brushed aside or dismissed without any action being taken.

Women continue to face workplace discrimination, even at some of the country's most advanced tech firms. They face sexual harassment on the job, or they may lose out on career advancement due to companies favoring men. Those who have been the victim of such behavior might want to meet with legal counsel to discuss their situations.


“U” Coverage Umbrella Advisory

Shared by Kenneth Knabe | Knabe Law Firm Co., LPA

klfohio.com/blog


More and more, we are seeing that CAR INSURANCE COVERAGE IS NOT ALL THE SAME! These days, when folks are buying their car insurance, they’re more often purchasing it online without professional advice. Many Ohio laws designed to protect those purchasing car insurance have been repealed, and “buyer beware” exists!

 

For example, let’s talk about umbrella coverage. Liability umbrella coverage gives the insured extra coverage if the insured causes a car crash, injures someone and gets sued. If the insured’s umbrella is high enough, the injured party will be less likely to touch the insured’s assets. The liability umbrella coverage protects the insured from personal liability which could cause the liable insured to lose their home, income, and assets.

 

However, another important reason for umbrella coverage is to add coverage to an insured’s existing “U” coverage which protects the insured if the insured is injured by an uninsured or underinsured driver!  An alarming number of folks who have liability umbrella coverage fail to also elect umbrella U coverage.  This defies logic!

 

Let’s say an insured is severely injured by a careless driver who has $250,000 in liability insurance. The insured has $250,000 in underlying U coverage. This $250,000 in U coverage gets the insured NOTHING! The two cancel each other out. If the insured has a $1 million U coverage umbrella, the insured could potentially recover $750,000 more if the injury is that serious. But if the insured did not elect umbrella U coverage, the insured still gets NOTHING under their umbrella policy.

 

We recommend making sure you add U Coverage to your umbrella policy. Be aware, however that some insurance companies no longer offer U coverage umbrellas. If that is the case, find an insurer that does!


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Jury awards $4.2 million dollars for kidney failure misdiagnosis

Shared by McKeen & Associates, PC

www.mckeenassociates.com/blog


Last week, a judge awarded $4.2 million dollars to a woman in a medical malpractice lawsuit. The woman, who is now in her twenties, required a kidney transplant almost a decade ago after her doctors failed to diagnose her kidney failure as a child.

The plaintiff began seeing her doctor as an infant and continued visits for urinary tract infections as a child. Her doctor performed blood tests that resulted in indications of kidney failure, but failed to diagnose her condition. The doctor's defense was that the blood work was normal for an adult, but the patient's attorney claimed is was highly indicative of kidney failure in children.

In the two years prior to her kidney transplant, the plaintiff had two abnormal blood tests at the local medical clinic; however, there was no further action taken. A few weeks later, a different hospital in another state diagnosed her with end-stage renal failure and she underwent a kidney transplant. 

The court found the doctor was 85 percent negligent in the case. The court also found the facility, where she failed to get an accurate diagnosis, was responsible for 15 percent of the negligence. 

In this case, the plaintiff received damages for past medical expenses, as well as pain and suffering from the emotional distress caused by the ordeal.

Kidney failure is a serious condition that prevents your body from filtering waste from your blood, and it needs to be treated immediately. Common symptoms of kidney failure include:

  • Reduction in urine output
  • Swelling in lower extremities
  • Nausea
  • Extreme fatigue
  • Changes in breathing
  • Chest pains
  • Mental difficulties

 

Achieving Equal Protection against Discrimination through the Ohio Fairness Act

Shared by Cooper & Elliott

www.cooperelliott.com/topic/blog


The law is intended to protect the rights of all citizens equally. But what happens to equal protection when the laws are inconsistent from one jurisdiction to the next? In that case, the promise of protection waivers, and the rights of certain individuals and groups become unclear.

That’s what is going on right now in Ohio regarding LGBT rights. There is, however, a potential solution on the horizon—if Ohio’s legislators can demonstrate the commitment to fairness required to enact it.

Hit-or-miss discrimination laws

Nearly half of the states in the U.S. lack a statewide law offering blanket protection of civil rights for LGBT citizens. Ohio is one of those states.

Some of Ohio’s municipalities and counties have anti-discrimination laws that address sexual orientation and transgender identity. But in localities where there are no laws covering specific instances of LGBT discrimination, there are no legal means to fight against or seek damages for those injustices.

Federal law does not fill the gap. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees by employers on the basis of sex, race, color, national origin, or religion. This law generally only applies to employers with 15 or more employees, including federal, state, and local governments. Title VII also fails to specifically address situations that involve housing, education, and credit.

Historically, courts are divided as to whether Title VII protections extend to gay and transgender people.

Protecting LGBT rights with the Ohio Fairness Act

The Ohio legislature has addressed the issue of statewide protection for LGBT rights, but it has not completed its task. House Bill 160 would introduce the Ohio Fairness Act. This sweeping anti-discrimination legislation is fair and needed.

Unfortunately, as of now, the bill is still only pending.

The proposed House Bill 160 aims to extend legal protection against discrimination specifically to the LGBT community. It would make it illegal for any Ohio employer, employment agency, or labor organization to discriminate against an employee or applicant based on an individual’s sexual orientation, gender identity or expression.

Similar versions of House Bill 160 have been introduced over the last decade, yet none have passed. The current version of the bill had its hearing earlier this year, but the legislature, once again, failed to pass it.

In our opinion, that failure hurts all of Ohio’s citizens.

Why equal protection matters

Enacting the Ohio Fairness Act is not only the right thing to do for Ohio and its citizens. It also has real-life benefits for the people of Ohio.

As civil rights attorneys, we routinely field inquiries from people who have been discriminated against based on sexual orientation or transgender identity. While we do have resources and alternate avenues by which we can help people seek justice for discrimination, we’re not able to use the full potential of the civil litigation system for individuals who don’t live and work in one of the few Ohio localities where appropriate discrimination laws are already in effect. Passing House Bill 160 would empower us to use civil litigation to its fullest against discriminating parties anywhere in Ohio.

In addition, the non-discrimination protections afforded by House Bill 160 would be good for Ohio’s economy and business environment. By protecting the LGBT community’s right to work, the bill could only enhance the ability of Ohio businesses to attract and retain talent. That’s why House Bill 160 is backed by numerous chambers of commerce as well as Ohio Business Competes, a collective of more than 475 statewide businesses.

Since the 1960s, our society has—piece by piece—pulled down the walls of discrimination that unfairly blocked good people from basic rights and opportunities. The malicious discrimination of the past—common prejudices based on race, gender, religion, disabilities, and national origins—were remedied starting with laws that empowered enforcement agencies and set the stage for private lawsuits. The explicit statewide protections that would be afforded by the Ohio Fairness Act are no less needed, and the LGBT community no less deserving.

As the new Ohio Legislature returns to office this fall, a number of things could happen with House Bill 160

If you agree that statewide protection against discrimination should be equally available to all Ohioans, then let your voice be heard in support of House Bill 160 by reaching out to Equality Ohio or the Ohio ACLU.


Electric Scooter Injuries Are on the Rise

Shared by Williams DeClark Tuschman Co., L.P.A.

www.wdtlaw.org/personal-injury-blog


In the age of mobile rideshare services, electric scooters are becoming a popular alternative to hailing an Uber or Lyft. In Toledo, scooter services like Bird and Lime are already taken over college campuses and are soaring in popularity among riders. Unfortunately, these scooters are also linked to soaring ER visits.

E-Scooters & Traumatic Injuries

Across the country, hospitals are noticing a rise in scooter-related injuries in people aged 18-50. Many of these injured people have been hurt while riding a ride-share scooter. There are a number of ways that these injuries can occur, especially since many riders opt to forgo helmets.

Injuries commonly seen in scooter accidents include:

  • Fractures
  • Lacerations and road rash
  • Head and brain injuries
  • Spinal cord injuries

There are many causes of these serious injuries. Riders often face hazards, such as potholes, curbs, cars, pedestrians, and bicyclists. When riding on sidewalks, scooter riders may need to dodge foot traffic and various obstacles. When riding on the street, riders are at a greater risk of being struck by a car, riding into an open car door, and other traffic hazards.

Similarly, many pedestrians, bicyclists, and other scooter riders have been injured by careless riders. When riding through busy areas at excessive speeds, scooter riders can run into others, cause them to lose their balance and fall, or cause injuries when people try to get out of the way.


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NTSB and Others Call for Mandatory Crash Avoidance Tech on Trucks

Shared by Young & McCarthy LLP

www.truckcrashvictimhelp.com/blog


While some trucking companies in Ohio have installed crash avoidance technology in their fleets, many have not. These businesses should know that some groups are pushing for the mandating of such technology on all commercial trucks. This action is being supported by several members of Congress.

The National Transportation Safety Board has been the most prominent advocate of this step. On at least 10 occasions since the 1990s, the NTSB has recommended that all heavy trucks be required to have forward crash avoidance and mitigation systems. However, the National Highway Traffic Safety Administration has reportedly failed to act on the recommendations.

The NHTSA has issued a written statement saying that it studied early automatic emergency braking technology and that it has proceeded to research next-generation versions of the technology. This research is projected to wrap up in 18 to 24 months and could help NHTSA make informed decisions in the future.

Crash avoidance systems can prevent more than seven out of 10 rear-end collisions, according to the trucking companies that have incorporated the technology. When wrecks do occur, the technology is able to mitigate the severity of the injuries and vehicle damage. However, lobbying groups for the trucking industry maintain that implementing such technology should be voluntary.

Even with the latest safety tech, truckers are responsible for keeping their vehicles under control at all times. When they fail to do so and cause truck accidents, victims will have the grounds for personal injury claims. Legal counsel could help an accident victim obtain compensation for medical bills, lost wages and pain and suffering.


Merit Decision: Football Widow Allowed to Proceed with Husband’s Alleged CTE Claim. Schmitz v. Natl. Collegiate Athletic Ass’n.

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


“Schmitz’s experience of disorientation as to time and place following head impacts establishes that he was, or at least should have been, aware that he had sustained head injuries. But head injuries, including concussions, are an inherent part of football…They do not inherently suggest the existence of actionable wrongdoing.”

Justice French, majority opinion

On October 31, 2018, the Supreme Court of Ohio handed down a merit decision in Schmitz v. Natl. Collegiate Athletic Assn.Slip Opinion No. 2018-Ohio-4391. In a decision written by Justice French, joined in full by Chief Justice O’Connor and Justices DeWine and DeGenaro, the court allowed a lawsuit to proceed which was filed by the widow of a football player who sustained repetitive blows to the head during his college playing days in the 1970’s, but who was not diagnosed with chronic traumatic encephalopathy (“CTE”) until December of 2012. The court ruled that the 12(B)(6) motions to dismiss the claims as time-barred should have been denied. Justice Fischer concurred in judgment only. Justice Kennedy, joined by Justice O’Donnell, concurred in part, and concurred in judgment only in part, with an opinion. The case was argued April 11, 2018.

Case Background

During the 1970’s, when Steven Schmitz played college football for Appellant Notre Dame, he received repetitive concussive and subconcussive brain impacts. In December of 2012, Schmitz was diagnosed at the Cleveland Clinic with CTE, a degenerative brain disease.  By 2014, at age 58, Schmitz was also diagnosed with severe memory loss, cognitive decline, dementia, and Alzheimer’s disease, which he claimed were caused or exacerbated by the repetitive head impacts from his college football days. Schmitz died in February of 2015.

Shortly before he died, in October of 2014, Schmitz and his wife Yvette filed suit against Notre Dame and the National Collegiate Athletic Association (“NCAA”)(Collectively, the “Football Defendants”). In January of 2015, they filed an amended complaint, alleging claims of negligence, constructive fraud, and fraudulent concealment against the Football Defendants. Schmitz and his wife claimed the Football Defendants failed to notify, educate and protect Schmitz from the long-term dangers of repetitive head impacts. After his death, Schmitz’s estate was substituted as a plaintiff. The Estate and Yvette individually, and as fiduciary of Schmitz’s estate, are the appellees in this appeal.

The Football Defendants moved to dismiss the claims under Civ. R. 12(B)(6) as time barred; the NCAA also moved to dismiss for failure to state a claim on which relief could be granted.  The trial court granted the motions to dismiss without opinion. In a unanimous opinion authored by Judge Boyle, and joined by Judges Jones and Celebrezze, the Eighth District Court of Appeals affirmed in part and reversed in part. It affirmed the dismissal of contract claims against the Football Defendants and the constructive fraud claim against the NCAA. But it reversed the trial court’s dismissal of the other claims, characterizing the amended complaint as alleging a “latent injury” that “did not manifest until decades after Schmitz stopped playing football.”

Read the oral argument preview of the case here and the analysis of the argument here.

Key Precedent

R.C. 2305.10(A) (“an action for bodily injury . . . shall be brought within two years after the cause of action accrues.”)

R.C. 2305.09(C) (An action for fraud “shall be brought within four years after the cause thereof accrued.”)

O’Brien v. Univ. Community Tenants Union Inc., 42 Ohio St.2d 242 (1975) (A complaint cannot be dismissed under Civ.R. 12(B)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief.)

Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982) (To justify dismissal of an action as untimely under Civ.R.12(B)(6), an amended complaint must conclusively show on its face that the claims are time-barred.)

O’Stricker v. Jim Walter Corp., 4 Ohio St. 3d 84 (1983) (“When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant.”) (syllabus)

Allenius v. Thomas, 42 Ohio St. 3d 131, 133, 538 N.E.2d 93 (1989) (Under the cognizable event doctrine, a claimant does not need to “be aware of the full extent of the injury.”)

Liddell v. SCA Serv. of Ohio, Inc., 70 Ohio St. 3d 6 (1994) (Extending O’Stricker’s rule of accrual to an individual exposure to toxic gas, which manifested itself six years later.)

Norgard v. Brush Wellman, Inc.95 Ohio St.3d 165 (2002) (Discovery of physical injury alone is insufficient to start the statute of limitations running if at that time there is no indication of tortious conduct giving rise to a legal claim.)

Pingue v. Pingue, 2004-Ohio-4173 (5th Dist.) (In order for the discovery rule to apply, there must be (1) discovery of the injury and (2) discovery of the wrongful conduct. Since this plaintiff knew the perpetrator and that he had been injured, his claims were time-barred.)

Football Defendants’ Proposed Propositions of Law

Number 1

A diagnosis for the long-term effects of an injury a plaintiff already knew about does not revive a time‐barred claim.

Number 2

Plaintiffs’ fraudulent‐concealment and constructive fraud claims are subject to R.C. 2305.10(A)’s two‐year statute of limitations.

Merit Decision

Executive Summary

The discovery rule applies to all the bodily injury claims. The fraud claims were also considered bodily injury claims, thus also subject to the two year statute of limitations.On the fraud claims, the Football Defendants’ second proposed proposition of law was accepted.

Accepting all allegations in the amended complaint as true, and drawing all inferences in favor of appellees, as is required for a Civ.R. 12(B)(6) motion, the amended complaint does not conclusively show the claims are time-barred, and therefore the amended complaint should not have been dismissed. So the Football Defendants first proposed proposition of law is rejected. But the court did throw a Hail-Mary pass here—the court’s opinion suggests that as discovery progresses, the Football Defendants may be able to prove that Schmitz knew or should have known about his neurological conditions and their connection to the defendants’ conduct before October of 2012, which would mean the lawsuit was untimely.  We’ll see.

The Negligence Claims

Positions of the Parties

During the extremely well argued oral argument in this case, the Football Defendants insisted Schmitz’s claims accrued by 1978, the end of his college football-playing years, and were thus time-barred  long before 2014 when the suit was filled. The appellees argued that this was a latent-injury case, and as such, the claims accrued in 2014 when Schmitz was informed by competent medical authority that he had CTE.

Analysis

For me, a retired torts professor, Justice French’s opinion was like a stroll down the good old time-of-discovery days of torts.

 

Click here to continue reading post.


A Provoked Dog Bite Doesn't Constitute an Injury Claim

Shared by Sandel Law Firm

www.sandellaw.com/blog


When a dog bites someone - be it a neighbor, family member or stranger - an injury claim is only valid if the animal was unprovoked. Otherwise, there may not be retributions for the incident.

If you live near a dog that may be dangerous, follow these tips to keep from making any action that could be considered "provoking" the animal to bite.

Define provoke

An Ohio dog owner is liable for any harm a dog causes - whether it be purposeful or not - if the injured person was not stimulating or deliberately upsetting the dog, trespassing or breaking any other criminal law on the dog owner's property.

Avoid provoking a dog

While petting a passerby's dog may seem innocent to you, doing so could be considering provoking the animal to bite.

To keep your intentions from resulting in a dog bite, here are a couple of preventive measures you should follow when you are near someone else's animal:

  • Never pet or reach out to pet an animal without the pet owner's permission
  • If an owner permits you to pet their dog, hold out your hand and allow the animal to sniff and approach you first
  • Do not approach an animal you are not familiar with it and no one is around
  • If an unfamiliar dog approaches you, don't run - remain still, keep calm and avoid direct eye contact with the animal
  • Turn slightly away from an unfamiliar animal and slowly back away or instruct the animal to "Go home"
  • Do not throw objects or make loud noises if you are near an unfamiliar animal
  • Avoid attempting to interact with a dog who is eating, sleeping or nursing puppies

Injuries associated with dog bites

A dog bite can be extremely painful, but in some circumstances, the bite may only be of the suffering. If the animal has not been vaccinated for rabies, it's bite, saliva or scratches can transmit the virus. Bites can also spread other germs that may result in infection.

If you are bitten by a dog, it's important to call local authorities to the scene and seek medical attention as soon as possible.

If a dog attacks unprovoked

Even if a friendly dog (unprovoked) jumps on you and causes you to fall or hurt yourself, the owner is liable for your injuries. In cases when a dog attacks you or otherwise causes you harm, report the incident and seek medical attention.


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Wrongful Death Case Filed After Amputee Resident Fell

Shared by Michael A. Hill | Eadie Hill Trial Lawyers

www.eadiehill.com


According to an article in the Kokomo Perspective, a nursing home in Indiana is being held accountable for leaving a woman, who had one of her legs amputated, alone in the shower. A negligent error that led to the woman’s death.

The article reports that a wrongful death suit has been filed against Aperion Care Kokomo by the family of Sicely Daulton. The article reports that:

In the suit, it’s claimed that Daulton, missing a leg from an amputation, was left unattended standing in a shower, resulting in a fall that broke the elderly woman’s leg. And it’s claimed in the suit that Aperion attempted to conceal the error that resulted in the woman breaking her leg.According to the complaint, Daulton’s fall occurred on March 1, 2017. After being left standing alone in the shower, Daulton fell and was found with “her left leg bent at the knee pressed up against the wall and the calf of the left leg resting on the thigh of her right upper leg.” An Aperion staff member called 911 following the incident and admitted to the operator that it was an unwitnessed fall.

Nursing Home’s Lies Lead to Death

The article claims that there is proof that the fall was indeed witnessed:

The nursing home staff “in a blatant attempt to conceal the truth and cover up their neglect, the nursing staff later falsely documented the nursing record to suggest that Ms. Daulton’s fall was in act witnessed and that the fall was caused by Ms. Daulton letting go of a wheelchair.”

Jeff Powless, the attorney representing Daulton’s family, said the alleged coverup was found after he obtained a recording of the 911 call made after Daulton’s fall.

“What’s particularly concerning about this case, and we see this far too often, is that the medical records, upon close examination and when we look into the facts of the case and do additional investigation, often do not reflect the reality of what happened,” said Powless. “I think it’s unfortunate that far too many nursing homes spend their time trying to cover up what happened rather than correct it. Here in this case, but for the fact that we obtained the 911 recording, critical information about what happened in this case wouldn’t have ever come to light if we’d simply relied upon the medical records as documented by the facility staff.”

When nursing homes are dishonest in an investigation of an injury, it can lead to complications, even death. Things get a lot more complicated when the resident dies in the ensuing days, weeks, or months, because their death may or may not be related.  Proving that connection requires medical expert to review and determine the death was caused—at least in part—by the negligence-caused injuries.

If the nursing home injures a resident and the resident dies because the resident was sick, weak, or otherwise unable to recover from the trauma or injury, that is the nursing home’s fault.  They do not get a pass because the person they injury was not stronger or healthier than someone else.

This Was Not The Resident’s First Fall

According to the article, the resident actually had a history of falls. In fact, in two years the resident had fallen more than 15 times. The article reports that:

It’s also alleged in the suit that Daulton’s fall in the shower wasn’t her first. According to the suit, during her residency at the nursing home, Daulton experienced at least 16 falls between Jan. 1, 2015, and March 3, 2017.

The primary claim of the suit is that the “nursing home staff knew Ms. Daulton was at high risk for falls, yet they failed to provide adequate supervision and assistance devices to prevent accidents such as falls.”

 

You can read the full article referenced above here. 


How to get Young Drivers to take Driving Safety Seriously

Shared by Cubbon & Associates Co., L.P.A.

www.cubbon.com/blog


You see plenty of young drivers on the roads every day. These teenagers learned enough to pass their driving tests, but you worry that they simply approached them like any school test: They crammed until they had the information "memorized" for a few days, passed the tests and then forgot most of what they had learned.

In particular, you worry about distracted driving. You know how dangerous it is. You know how often teens do it. And you also know that, despite being told about the dangers many times during their training, teens just do not take this risk seriously. That's why they keep on doing it. How can adults change this dangerous mindset?

Show them the reality

One potential option is to push teens closer to the reality by showing them what the results of a distracted driving accident look like. Often, they think of warnings as rules that they want to bend or break when no one is looking. They do not think of them as something designed to really keep them safe.

An educational program combated this by taking them to a hospital and having them tour a trauma center. They also got to listen to testimony from someone who had survived traumatic injuries. When shown the reality, they understood why the rules existed, and that made them more likely to follow those rules.

Help them connect

Meeting with the survivor was especially impactful, as it helped the teens connect with someone who had really been through a terrible event. They could see how it had changed that person's life forever. Seeing it first-hand humanized things more than simply watching a movie or reading a textbook. It brought the reality home for them before they got into serious accidents, rather than after.

Does it work?

The big question is whether a program like this actually works. According to the students who went through the program, it does.

For instance, before the program, around 64 percent of students said they probably would not use their phones to make calls while behind the wheel. Afterward, that number jumped to 82 percent. Similarly, around 69 percent claimed they would not text and drive at the beginning, but that percentage leapt all the way to 92 percent at the end.

Could the increase have come from the fact that students knew what the program's goal was and how adults expected them to answer? Perhaps. But the changes do show that it had an impact, which hopefully carries over and influences the way those teens actually drive.


Why Don’t Surgical Centers Have to Report the Deaths of Their Patients?

Shared by Crandall & Pera Law, LLC

www.injuryverdicts.com/blog


There are certain types of surgical procedures that don’t require long hospitals stays. Biopsies and colonoscopies are a good example, because they’re same-day procedures that don’t require an overnight stay; tonsillectomies, X-Rays, and cataract removals are also same day procedures. As a result, they are often performed at stand-alone surgery centers – not hospitals. These centers often cost less money, and are more conveniently located than hospitals, making them popular alternatives.

Right now, there are more than 5600 surgical centers located across the U.S. – far more of them than there are hospitals. A USA TODAY/Kaiser Health News investigation in March uncovered more than 260 patient deaths at these centers in the last 5 years.

One of those deaths was a 12-year-old boy. CBS Evening News tells his story: https://youtu.be/s0dfoUMzEOo

The latest investigation by USA TODAY has found that 17 states have “no mandate to report patient deaths after surgery center care. So no facility oversight authority has examined whether the deaths were a statistical anomaly or cause for alarm.” Furthermore:

[These] surgery centers operate under such an uneven mix of rules across U.S. states that fatalities or serious injuries can result in no warning to government officials, much less to potential patients. The gaps in oversight enable centers hit with federal regulators’ toughest sanctions to keep operating, according to interviews, a review of hundreds of pages of court filings and government records obtained under open records laws. No rule stops a doctor exiled by a hospital for misconduct from opening a surgery center down the street. (emphasis ours)

A doctor who has had his or her privileges revoked from a hospital due to misconduct can simply open up a surgical center of his or her own, no questions asked. And that doctor doesn’t have to tell anyone, it seems.

When a patient dies in a hospital, that hospital may be required by law to report that death. In some cases, hospitals may be required to report a death to the Centers for Medicare and Medicaid Services, to the county Medical Examiner (if there is a need for an autopsy), or to the state health department. Not all deaths need scrutiny, but the unexpected ones do – like a 12-year-old boy dying from a tonsillectomy, or anyone dying after a colonoscopy, which is one of the safest procedures a person can have.

Incomplete reports are not limited to deaths

Understand, too, that this incomplete reporting is not limited to deaths. Per the USA TODAY investigation, “Medicare allows surgery centers to report data for as few as half of just their Medicare patients, ignoring most patients under age 65 who do not yet qualify for Medicare. In practice, that has allowed surgery centers to report as many hospital transfers as they choose – unless more than half of their patients leave by ambulance.”

What this means is, when you do your research into surgical centers, you might see that the Kentucky Surgery Center in Lexington, or the Ohio Surgery Center in Columbus, shows that fewer than half their patients have been transferred to hospitals because of complications. What you don’t see is any explanation for why the numbers present the way they do. In a 2013 study published by the National Institutes of Health (NIH), researchers looked at patient’s “acute care needs after care” at ambulatory surgical centers. They reviewed records (July 2008 through September 2009) of 3,821,670 surgical patients who were treated at 1,295 ambulatory surgery centers in three states, to determine:

  • How many were transferred to hospitals at the time of their discharge from the centers; and
  • How many people needed hospital-based or Emergency Room care within 7 days of that discharge.

They concluded that “Among adult patients undergoing ambulatory surgery center care, hospital transfer at discharge is a rare event. In contrast, the hospital-based, acute care rate is nearly 30-fold higher, varies across centers, and may be a more meaningful measure for discriminating quality.”

In short, despite low levels of transfers to hospitals, the number of adult patients who sought additional care from the E.R. or through hospital admittance was about 30 times higher than those who did not.

Perhaps most telling, however, is that the transfer rates at the surgical centers across all three states varied very little. Because of this, researchers found, the data “may offer little in a patient’s or payer’s ability to determine which ambulatory surgery centers are providing ‘better’ care.”

What can be done to protect surgical center patients?

The NIH study’s authors recommend penalties and rewards to incentivize centers to do better. Medicare can issue sanctions, too, for facilities with serious safety lapses. But instead, in July of 2018, Medicare proposed ending its collection of transfer data altogether – after all, transfer rates vary so little from facility to facility, and from state to state.

That means it is up to us, as patients and advocates, to force changes for the better. One of the reasons Medicare does not always send officials to investigate problems at surgical centers is that they rely on consumer complaints. Therefore, we must take it upon ourselves to report problems we, or our loved ones, have at these centers. This is especially true for cases concerning minors, as Medicare collects no data on that at all.

The other thing we must do is contact our local and state representatives, and demand that more oversight and regulation be put in place for surgical centers. The owners and operators of these facilities must be held accountable for the mistakes they make, and for their medical negligence. If Medicare and the facilities won’t do it, then we need to ensure that other authorities or governing bodies will. 


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About the Blog
OAJ Blog Central showcases informative blog posts from law firms and trial attorneys throughout Ohio. 

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Recent Posts:
• Some Truck Drivers Fighting Roadway Fatigue With Stimulants
• Merit Decision: Compensatory Damages Cap for Noneconomic Loss Applies in Defamation Action. Wayt v. DHSC, L.L.C.
• Fear of Asbestos-Related Illness Sparked by Discovery at School
When is a Bar or Club Liable for Causing a Fatal Drunk Driving Crash in Ohio?
• Game Manufacturer Hit With Discrimination Lawsuit

Keywords: Truck Drivers, Stimulants, Compensatory Damages Cap, DefamationAsbestosBar Liability, Dram Shop Law, Discrimination Lawsuit,"U" Coverage, Car Insurance, Kidney Failure MisdiagnosisOhio Fairness Act, House Bill 160, Electric Scooters, Rideshare ServicesCrash Avoidance Technology, National Transportation Safety Board, Ohio Supreme Court, Tort Reform, Football lawsuit, Dog Bite, Wrongful Death Case, Nursing Home, Driving Safety, Young Drivers, Surgical Centers, Patients

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