The cases listed on this page are of special interest to forensic
economists in Ohio. If you know of a case that should be added to those listed
on this page, please forward your suggestion to Ralph
Frasca
1996 Breach of Promise
Jack E. Patterson, Plaintiff-Appellee, v. Dondee Blanton,
Defendant-Appellant.
No. 95APE07-858
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
109 Ohio App. 3d 349; 672 N.E.2d 208; 1996 Ohio App. LEXIS 548
February 13, 1996, Rendered
The more widely held
view in Ohio is that gifts made in contemplation of marriage, most
typically exemplified by an engagement ring, may be recovered by the
donor if marriage does not ensue, regardless of which party, may be at
fault regarding the termination of the engagement. Lyle v. Durham
(1984), 16 Ohio App. 3d 1, 473 N.E.2d 1216; McIntire v. Raukhorst
(1989), 65 Ohio App. 3d 728, 585 N.E.2d 456. The contrary view has also
been taken by at least one court, see Wion v. Henderson (1985), 24 Ohio
App. 3d 207, 494 N.E.2d 133 (engagement ring need not be returned when
donor unjustifiably breaks off the engagement). The court in McIntire
noted that, in declining to follow the rule in other jurisdictions,
whereby a court must establish whether the donor of an engagement ring
was not at fault in the termination of the engagement prior to granting
replevin of the ring, the "no-fault" rule eliminates the need
for a trial court to engage in the often impossible task of establishing
blame in the emotionally complex context of an engagement to be married.
For the same reasons, we find Lyle and McIntire to state the better
rule, and adopt the "no fault" reasoning of those cases.
2002
Child Support
Lakesha Carr And Mirakle Carr, Plaintiffs-Appellants, v. Jeff
Blake, Defendant-Appellee
APPEAL NO. C-990174
COURT OF APPEALS OF OHIO, FIRST APPELLATE DISTRICT, HAMILTON COUNTY
2000 Ohio App. LEXIS 557
February 18, 2000, Date of Judgment Entry on Appeal
Court did not err in
deviation from guidelines in this high-income child support case.
Rejection of "10 percent rule" was justified based upon evidence
presented at trial.
Excerpted
Text
2005 Collateral Sources - Valuation
Caroline Robinson, Plaintiff-Appellant, vs. Helen Gist Bates, Trustee,
Defendant-Appellee.
Appeal No. C-040063
Court Of Appeals of
Ohio
, First Appellate District,
Hamilton
County
160
Ohio
App. 3d 668; 2005
Ohio
1879; 828 N.E.2d 657; 2005
Ohio
App. LEXIS 1789
April 22, 2005, Date of Judgment Entry on Appeal
A plaintiff's recovery of the reasonable value of
her medical treatment is not limited to the amount paid by her insurance. The
defendants should be liable for the full amount of damages caused by their
wrongdoing, independent from the financial situation of their victims. We
conclude that the collateral-source rule applies to any written-off amount
agreed to by a plaintiff's health-care provider and insurer. The plaintiff is
entitled to seek recovery for the entire undiscounted amount of her medical
bills, not just the amount paid by her insurance company.
1995 Collateral Sources
- Constitutional Issues
Buchman, Appellant and Cross-Appellee, et al., v. Board of
Education of the Wayne Trace Local School District, Appellee and
Cross-Appellant
No. 94-412
SUPREME COURT OF OHIO
73 Ohio St. 3d 260; 1995 Ohio 136; 652 N.E.2d 952; 1995 Ohio LEXIS
1812
April 4, 1995, Submitted August 23, 1995, Decided
R.C. 2744.05(B) on limitations for recovery on
tort actions brought against political subdivisions is constitutional.
Social Security and Medicare benefits are the type of collateral
source benefits contemplated by the act that are deductible against
the jury’s verdict. However,
Social Security benefits that the victim’s children have received or
are entitled to receive are not deductible from the jury's verdict.
Future collateral benefits, to the extent
they can be determined with a reasonable degree of certainty, are
deductible from the jury's verdict against a political subdivision.
However, a collateral benefit is deductible only to the extent that
the loss for which it compensates is actually included in the jury's
award.
1994 Collateral Sources -
Constitutional Issues
Sorrell et al.,
Appellants, v. Thevenir, Appellee. Clark et al. v. Quality Stores,
Inc.
Nos. 92-2382, 93-1041
Supreme Court of Ohio, 69 Ohio St. 3d 415; 1994 Ohio 38; 633 N.E.2d 504; 1994 Ohio LEXIS
1129
January 11, 1994, Submitted June 1, 1994, Decided
ORC 2317.45 is unconstitutional, because it
effectively denies some victims the right to a jury trial. Under 2317.45
collateral sources are deducted against jury awards. This may
eliminate awards.
Excerpted
Text
1970 Collateral Sources
Pryor, et al., Appellants, v. Webber, Appellee
No. 69-414
Supreme Court of Ohio
23 Ohio St. 2d 104; 263 N.E.2d 235; 1970 Ohio LEXIS 378; 52 Ohio
Op. 2d 395.
September 23, 1970, Decided
Damages are not reduced by revenues from
collateral sources. One such collateral source is workmen's
compensation. The receipt of such benefits is not to be admitted
in evidence, or otherwise disclosed to the jury. The admission of such
evidence is irreversible error.
The court is of the view that wages or other benefits paid to an
employee by a private employer, whether gratuitously or by reason of
contract, while he is unable to perform any work due to a disability
caused by the negligent act of a third party, are collateral in nature
and do not bar a recovery by the employee from such third party of the
wages he would have earned had he been able to work and perform services
for his employer.
Other collateral benefits mentioned in the opinion
include:
-pension payments during disability
-medical expenses paid by another
-proceeds of an accident insurance policy
Excerpted
Text
1999 Constitutional Issues,
Punitive Damages, Noneconomic Damages
The State Ex Rel. Ohio Academy Of Trial Lawyers Et Al.
v. Sheward,
Judge, et al
No. 97-2419
SUPREME COURT OF OHIO
86 Ohio St. 3d 451; 1999 Ohio 123; 715 N.E.2d 1062; 1999 Ohio LEXIS 2580
September 29, 1998, Submitted, August 16, 1999, Decided
Am.Sub.H.B. No. 350 is unconstitutional in
toto. Am.Sub.H.B. No. 350 intrudes upon judicial power by declaring
itself constitutional, by reenacting legislation struck down as
unconstitutional, and by interfering with this court's power to regulate
court procedure.
The
court indicates that the following parts of the act are individually
unconstitutional:
 | The statute authorizes the jury to consider the
effect of collateral source payments it believes appropriate in its
determination of compensatory damages. |
| The
statute places a cap on punitive and exemplary damages. |
| The
statute provides an offset for other punitive damage awards against
the tortfeasor. |
| The
statute places a cap on noneconomic damages. |
1994
Constitutional Issues - Periodic Payment - Prejudgment Interest
Galayda, Appellee, v. Lake Hospital Systems, Inc., f.k.a. Lake
County Memorial Hospitals, Inc.;
Damian et al., Appellants
No. 93-2276
Supreme Court of Ohio
71 Ohio St. 3d 421; 1994 Ohio 64; 644 N.E.2d 298; 1994 Ohio LEXIS 2948
September 21, 1994, Submitted December 30, 1994, Decided
R.C. 2323.57, which requires a trial court upon
motion of a party to order that any future damages award in excess of $
200,000 be paid in a series of periodic payments, is unconstitutional in
that it violates the Right to Jury Trial Clause (Section 5, Article I)
and the Due Process Clause (Section 16, Article I) of the Ohio
Constitution.
.R.C. 1343.03(C), which authorizes an award of prejudgment interest in a
tort action against a defendant who failed to act in good faith to
settle, does not violate either the Due Process Clause (Section 16,
Article I) or the Right to Jury Trial Clause (Section 5, Article I) of
the Ohio Constitution by imposing a penalty for exercise of that right.
2001
Discovery - Non-testifying Expert
Robert J. Becker, Executor, Plaintiff-Appellant Vs. Clyde Metzger,
M.D., Et Al, Defendants-Appellees
Case No. 00-Je-12
Court Of Appeals Of Ohio, Seventh Appellate District, Jefferson County
144 Ohio App. 3d 52; 2001 Ohio 3286; 759 N.E.2d 455; 2001 Ohio App.
LEXIS 2565
June 8, 2001, Decided
The order also stated, "* * * [Appellant]
shall provide to Counsel for [Appellee] any report received from any
expert, whether intended to be used as a trial witness or not that
supports the claim of [Appellant] against [Appellee] upon written
request of [Appellee]." Appellant argued that the orders were in
violation of Civ.R. 26(B)(4) which provides that absent a showing
of special circumstances, a party may not discover an expert's opinion
when that expert is not identified as a testifying expert.
"* * * Civ.R. 26(B)(4)(a) allows for the
discovery of experts consulted for trial preparation only upon a showing
of 'undue hardship' or 'exceptional circumstances' * * * Other than in
those situations * * * it would appear that the identity of experts
consulted prior to trial but who will not be called as witnesses as well
as the findings or opinions of those experts are not subject to
discovery by the opposing party."
As the trial court misinterpreted and misapplied
the rules of civil procedure as they apply to discovery matters and
appears to issue contradictory orders, the trial court acted erroneously
in ordering Appellant to disclose his expert witness reports. It is
obvious that disclosure of reports of non-testifying experts could
result in irreparable harm to Appellant, as it would afford Appellee an
opportunity to tailor his deposition testimony. Although not necessary
to our decision herein, we note with approval the holding of the Federal
District Court for the Northern District of California regarding
parallel federal civil rules:
"* * * the drafters of [the rule] wanted it to reinforce each
litigant's motivation to aggressively develop his own side of any given
case by retaining and relying on his own expert. The flip side of that
objective was to discourage lazy or unscrupulous lawyers from trying to
cut case-preparation corners by leaching basic information or valuable
opinions from experts retained by their opponents."
2004
Divorce - Lost Earning Capacity
Susan
P. Sutphin, Plaintiff-Appellee/Cross-Appellant, vs. Stuart B. Sutphin
III, Defendant-Appellant/Cross-Appellee
COURT OF APPEALS OF
OHIO
, FIRST APPELLATE DISTRICT,
HAMILTON
COUNTY
2004
Ohio
6844; 2004
Ohio
App. LEXIS 6710
December 17, 2004, Date of Judgment Entry on Appeal
Testimony
concerning the lost income opportunities experienced by stay-at-home
mothers was properly admitted. The court is required by R.C.
3105.18(C)(1)(m) to consider "the lost income production capacity
of either party that resulted from that party's marital
responsibilities" in determining whether spousal support would be
appropriate.
2005
Divorce - Marital Assets - Home and Pension
Dennis
G. Measor, Plaintiff-Appellant/Cross-Appellee, - vs -
Judy K. Measor,
Defendant-Appellee/Cross-Appellant
CASE NO. 2002-G-2491
Court Of Appeals Of
Ohio
, Eleventh Appellate District,
Geauga
County
2005
Ohio
1417; 825 N.E.2d 1169; 2005
Ohio
App. LEXIS 1378
March 25, 2005, Decided
The
wife was the sole owner of the residence she brought to the marriage.
The marital property in the home is equal to the current market value of
the home less the wife’s equity in the home at the time of marriage
and the remaining balance on the mortgage at the time of divorce.
Each
party also brought retirement accounts to the marriage. Where a party
seeks to have a portion of the appreciation in a retirement account
deemed passive and separate, that party bears the burden of establishing
such by a preponderance of the evidence.
2003
Divorce - Marital Assets - Pensions
Lillian
Makar, Plaintiff-Appellee, - vs - Thomas Makar,
Defendant-Appellant.
Case No. 02 Ca 37
Court of Appeals Of Ohio, Seventh Appellate District, Mahoning
County
2003 Ohio 1071; 2003 Ohio App. LEXIS 1023; 30 Employee Benefits Cas.
(BNA) 2380
March 7, 2003, Decided
The
prior decree distributed to wife 40 percent of the marital portion of
the pension or 40 percent of entire pension which would include
husband's post-divorce contributions. The magistrate and the trial court
held that the prior entry awarded wife 40 percent of the entire amount
received by husband in the future even though nearly fourteen out of the
thirty years of pension service occurred post-divorce.
Basically, husband believes wife was previously
awarded only 40% of $ 351 or $ 140.40. Wife argues she was previously
awarded 40% of each monthly pension check, which presently would be 40
percent of $ 2,000 or $ 800. We hold that both parties are incorrect.
Rather, we hold that the trial court previously awarded wife 40
percent of the marital portion of the pension. The phrase "when
distributable" in the judgment merely sets a time when wife will
begin receiving her 40 percent of the vested interest, i.e. a time when
she may begin enforcing her right. The prior court made such a statement
to clarify that she was not entitled to any pension funds at the time of
the divorce.
Portions of a pension earned before marriage or
after divorce are non-marital as they are not the result of joint
efforts during a marriage. We hold that the prior entry awarded wife 40
percent of the marital asset represented by the pension.
Under the presumptions required by law concerning marital assets, we
conclude that the original court did not order that wife receive 40
percent of the entire pension regardless of how many years could be
accumulated in the plan as the result of husband's post-divorce labor.
As such, the estimated coverture formula, as applied under the facts of
this case with years rounded to the nearest whole years, would look as
follows: sixteen years of marriage multiplied by .40 (40% of marital
asset awarded to wife) = 6.4 years; 6.4 divided by 30 (total years
worked by husband) = .213. In which case, wife would receive 21.3 % of
the current pension checks, which is $ 426 per month.
1998
Divorce - Marital Assets - Separate Property
Middendorf, Appellee, v. Middendorf, Appellant.
No. 97-261
SUPREME COURT OF OHIO
82 Ohio St. 3d 397; 1998 Ohio 403; 696 N.E.2d 575; 1998 Ohio LEXIS 1865
April 22, 1998, Submitted, July 29, 1998, Decided
An increase in the
value of separate property due to either spouse's efforts is marital
property. The plain language of R.C. 3105.17(A)(3)(a)(iii) unambiguously
mandates that when either spouse makes a labor, money, or an in-kind
contribution that causes an increase in the value of separate property,
that increase in value is deemed marital property.). If the evidence
indicates that the appreciation of the separate property is not due to
the input of either spouses' labor, money, or in-kind
contributions, the increase in the value of the asset is passive
appreciation and remains separate property
1990
Divorce - Marital Assets - Pensions
Hoyt, Appellee, v. Hoyt, Appellant
No. 89-98
Supreme Court of Ohio
53 Ohio St. 3d 177; 559 N.E.2d 1292; 1990 Ohio LEXIS 357; 12 Employee
Benefits Cas. (BNA) 2584
January 24, 1990, Submitted
August 29, 1990, Decided
In determining the proportionality of the
pension or retirement benefits, the non-employed spouse, in most
instances, is only entitled to share in the actual marital asset. The
value of this asset would be determined by computing the ratio of
the number of years of employment of the employed spouse during the
marriage to the total years of his or her employment.
1988
Divorce - Marital Assets - Pension
Holcomb, Appellant, v. Holcomb, Appellee
No. 88-381
Supreme Court of Ohio
44 Ohio St. 3d 128; 541 N.E.2d 597; 1989 Ohio LEXIS 163
March 15, 1989, Submitted, July 26, 1989, Decided
Vested pension plan accumulated during
marriage is marital asset and must be considered in conjunction with
other factors listed under R.C. 3105.18 in dividing marital assets and
liabilities. It is immaterial that, at the time of a divorce, as herein,
a spouse has started receiving the benefits in the form of periodic
income.
1986
Divorce - Marital Assets - Professional Degree
Stevens, Appellant, v. Stevens, Appellee
No. 85-552
Supreme Court of Ohio
23 Ohio St. 3d 115; 492 N.E.2d 131; 1986 Ohio LEXIS 615; 23 Ohio B. Rep.
273
April 23, 1986, Decided
A professional degree or license is not
marital property and the present value of the projected future earnings
of the degreed spouse is not a marital asset subject to division upon
divorce. Although not an asset, the future value of a professional
degree or license acquired by one of the parties during the marriage is
an element to be considered in reaching an equitable award of alimony in
accordance with R.C. 3105.18.
The amount of speculation attendant to reducing the future value of a
professional degree to its present value is unacceptably high.
Economists can only predict the future earnings of a "typical"
professional in a given field and must assume that the degreed spouse
will continue in a certain career path. In reality, however, after
a divorce a person may choose not to practice his or her chosen
profession, may later change to a less lucrative specialty, or may fail
in the chosen profession. Such developments cannot be anticipated at the
time of divorce. A division of property based on the estimated value of
a professional degree or license would be particularly unfair to a
professional who wishes to change careers, because a property award
cannot be modified after divorce to reflect a change in circumstances
1925
Earnings Capacity
Hanna V. Stoll
No. 18794
Supreme Court of Ohio
112 Ohio St. 344; 147 N.E. 339; 1925 Ohio LEXIS 325; 3 Ohio L. Abs. 250
April 14, 1925, Decided
Where impairment of earning capacity is pleaded
as special damages, it is essential that evidence be adduced from which
an estimate thereof may be made by the jury, and in the absence of any
evidence upon the subject, it can not properly be submitted to the jury
as an element of damages. The measure of damages for impairment of
earning capacity is the difference between the amount which the
plaintiff was capable of earning before his injury and that which
he is capable of earning thereafter.
1996
Expert Witness Fee
Donald A. Sommer, Appellant v. Richard H. French, Jr., Appellee
C.A. NO. 96CA006338
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, LORAIN COUNTY
115 Ohio App. 3d 101; 684 N.E.2d 739; 1996 Ohio App. LEXIS 4346
October 2, 1996, Dated
In order to
preclude personal liability, it is an elemental principle of agency law
that an agent must not only disclose his principal, but also the agency
relationship. We consider it equitable that in the absence of an express
agreement to the contrary, court officials and persons connected with
the progress of the litigation may safely regard themselves as dealing
with the attorney. The "express agreement" rule is predicated
on the obvious fact that mere knowledge that an attorney is representing
a client hardly constitutes notice that payment must be secured only
from attorney's client.
1994
Expert Witness Fee
Kirby v. Ahmad
No. 92-CV-1837
Court of Common Pleas of Ohio, Stark County
63 Ohio Misc. 2d 533; 635 N.E.2d 98; 1994 Ohio Misc. LEXIS 17
April 12, 1994, Decided
The
expert's fee to be charged by Artz is $ 500 per hour for in-office
depositions and $ 750 per hour for in-office video depositions.
Defendant has objected to paying this amount and has moved the court to
reduce Artz's expert fee.
In the context of the frequent polemics that
occur between the legal and medical professions with reference to
medical malpractice, the common perception exists that the recent
proliferation of medical malpractice cases somehow is due to the onerous
efforts of the lawyers. Without being drawn into that argument, it has
been the experience and observation of this court that in all the
medical malpractice trials over which it has presided, the ultimate
beneficiaries, in an economic sense, are truly the physicians who
demand and usually obtain exorbitant compensation for their
testimony as expert witnesses. Ordinary checks and balances are
nonexistent in medical malpractice cases and the standard appears to be
to get whatever the traffic will bear. In too many medical malpractice
cases, unfortunately, the Hippocratic Oath has been supplanted by
opportunism and greed by those who participate as medical expert
witnesses.
An expert witness is not free to arbitrarily
dictate his compensation and burden his adversary with whatever price
tag he decrees. The plaintiff having handpicked Artz, the defendant who
happens to be of the same profession as Artz, is at the complete mercy
of Artz. The defendant, in other words, becomes a hostage who has no
leverage whatever to bargain or negotiate a price mutually agreeable to
himself and Artz. Such an event can and does have cataclysmic and
unwanted results in the justice system and must be discouraged at all
costs.
Accordingly, the fee to be charged by Artz, whether $ 500 or $ 750 per
hour for his in-office (video) deposition, is clearly excessive. Artz,
having agreed to be an expert witness on behalf of the plaintiff, is to
submit to discovery deposition(s) and the plaintiff is to pay Artz the
hourly rate of $ 250 for any and all depositions to be taken by
plaintiff of Artz. Such compensation is reasonable and fair.
2002
Hedonic Testimony
Lynn B. McGarry, et al., Plaintiffs-Appellants v. James B. Horlacher, M.D.,
et al., Defendants-Appellees
C.A. CASE NO. 18901
COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
2002 Ohio 3161; 2002 Ohio App. LEXIS 3204
June 21, 2002, Rendered
Testimony of an
economist who was to testify to hedonic damages in personal injury was properly excluded.
Excerpted Text
1999
Hedonic Testimony
Deborah J. Abbott, Plaintiff/Appellant Cross-Appellee - V -
Jarrett Reclamation Services, Inc., et al., Defendants/Appellees
Cross-Appellants
CASE NO. 96-BA-36
COURT OF APPEALS OF OHIO, SEVENTH APPELLATE DISTRICT, BELMONT COUNTY
132 Ohio App. 3d 729; 726 N.E.2d 511; 1999 Ohio App. LEXIS 1082
March 15, 1999, Decided
Testimony of an
economist who was to testify to hedonic damages in wrongful death was properly excluded.
Excerpted
Text
1998
Hedonic Testimony
Russell G. Lewis, et al., Plaintiffs-Appellees And
Cross-Appellants, v. Alfa Laval Separation, Inc., Defendant-Appellant
And Cross-Appellee
Case No. 96 CA 44
COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRICT, LAWRENCE COUNTY 128
Ohio App. 3d 200; 714 N.E.2d 426; 1998 Ohio App. LEXIS 2537
June 4, 1998, Filed
The abuse of
discretion standard of review applies when appellate courts review trial
court decisions to admit or exclude expert scientific evidence in
accordance with Daubert. There was no abuse of discretion by the trial
judge in admitting expert testimony on hedonic damages in personal
injury.
Excerpted
Text
1992
Hedonic Damages Ramos et al., Appellees, v. Kuzas, M.D., et
al.; Marymount Hospital, Appellant
Case
No. 92-748
Supreme Court of Ohio
65 Ohio St. 3d 42; 600 N.E.2d 241; 1992 Ohio LEXIS 2497
September 15, 1992, Submitted
October 28, 1992, Decided
The appellee is not entitled to "hedonic
losses", since she was injured either in utero or at birth. This
result is premised on the fact that a newborn cannot suffer
"hedonic" damages, since he or she has not had adequate time
to develop an ability to perform a pleasurable activity or hobby
specifically identified to his or her lifestyle (for example, dancing).
1992
Hedonic Damages
Fantozzi et al., Appellees and Cross-Appellants, v. Sandusky
Cement Products Company, Appellant and Cross-Appellee, et al.
Case No. 91-1169
Supreme Court of
Ohio
64 Ohio St. 3d 601; 1992
Ohio
138; 597 N.E.2d 474; 1992
Ohio LEXIS 1946
April 29, 1992, Submitted
September 9, 1992, Decided
Damages
based on "loss of enjoyment of life" have been
identified by a number of names or descriptions by legal authors
and judicial opinions throughout the country, but in essence it is
an allegation in a tort action that the plaintiffs capacity to
enjoy certain activities of life has been impaired as a result of
personal injury. This damage connotes the deprivation of certain
pleasurable sensations and enjoyment through impairment or
destruction of the capacity to engage in activities formerly
enjoyed by the injured plaintiff.
We
have noted that recently in Ohio, as elsewhere, plaintiffs'
attorneys have more frequently included an additional element of
damage, which they generally term "loss of enjoyment of
life," in complaints in personal injury actions. Although
this court in Binns did recognize that "loss of enjoyment of
life" could be considered by the jury in assessing damage in
the type of case presented therein, the question remains for our
consideration whether such damage, be it known as loss of
enjoyment of life or by another name, may be allowed in other
types of negligence actions, and may be considered as a separate
element of damages in the jury instructions, interrogatories
submitted to the jury, and in a special verdict form.
…we find it reasonable to treat the claimed inability to
perform usual functions (both basic and hedonic) as a separate and
distinct element of damage. Our intent is that the trial court
shall henceforth instruct the jury that if it awards damages for
loss of ability to perform usual activities (which will also
encompass the permanency of the disability suffered), the jury
must not award additional damages for that same loss when
considering any other element of damages, such as physical and
mental pain and suffering, as such additional award would be
duplicative.
2003
Loss of Chance
Ruth A. McDermott, Executrix of the Estate of Joseph R. McDermott,
Plaintiff-Appellant, v. Charles Tweel, M.D., and Victor VerMeulen, M.D.,
Defendants-Appellees.
No. 02AP-784
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
151 Ohio App. 3d 763; 2003 Ohio 885; 786 N.E.2d 67; 2003 Ohio App. LEXIS
816
February 27, 2003, Rendered
The loss of chance
doctrine adopted in Roberts is only available
where the patient had a less-than-even chance for recovery at the time
of the alleged malpractice.
2000
Loss of Chance
McMullen, Exr., Appellant, v. Ohio State University Hospitals,
Appellee
No. 98-2358
SUPREME COURT OF OHIO
88 Ohio St. 3d 332; 2000 Ohio 342; 725 N.E.2d 1117; 2000 Ohio LEXIS 768
September 21, 1999, Submitted April 12, 2000, Decided
The loss-of-chance
doctrine should not be applied to reduce damages in a case where the
plaintiff proves that the negligence of defendant was the direct and
sole cause of the ultimate harm.
Excerpted
Text
1996
Loss of Chance
Norma Davison, Et Al., Plaintiffs-Appellants, Vs. Jerome Rini,
M.D., Defendant- Appellee.
Case No. 96 CA 2415
COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRICT, SCIOTO COUNTY 115
Ohio App. 3d 688; 686 N.E.2d 278; 1996 Ohio App. LEXIS 5187 November 18,
1996, FILED
Appellee sought
summary judgment on whether appellant can recover for the shortening of
her life expectancy. Appellee argues that because Appellant Norma
Davison has not yet had a recurrence of her cancer, she has suffered no
injury. We reject appellee's argument that the fact that Appellant Norma
Davison's cancer has not yet recurred bars her from recovering for a
shortened life expectancy. We agree with the Eighth District's opinion
in Shapiro that a shortened life expectancy is a cognizable injury.
In Roberts, the court held that in order to maintain an action for
the loss of a less-than-even chance of recovery or survival, the
plaintiff must present expert medical evidence demonstrating that the
defendant's negligent act or omission increased the risk of harm to the
plaintiff. In the case sub judice, appellants satisfied that requirement
by presenting evidence that if Appellant Norma Davison's cancer had been
diagnosed in a timely manner by appellee, Appellant Norma Davison would
have had an increased chance of survival.
1996 Loss of
Chance
Roberts, Appellant, v. Ohio Permanente Medical Group, Inc., Et
Al., Appellees.
No. 95-1042
SUPREME COURT OF OHIO
76 Ohio St. 3d 483; 1996 Ohio 375; 668 N.E.2d 480; 1996 Ohio LEXIS 618
May 8, 1996, Submitted, August 28, 1996, Decided
The amount of damages recoverable by a
plaintiff in a loss-of-chance case equals the total sum of damages for
the underlying injury or death assessed from the date of the negligent
act or omission multiplied by the percentage of the lost chance.
To ascertain the amount of damages in a case of lost chance of
survival or recovery, the trial court must instruct the trier of fact to
consider the expert testimony presented and (1) determine the total
amount of damages from the date of the alleged negligent act or
omission, including but not limited to lost earnings and loss of
consortium; (2) ascertain the percentage of the patient's lost chance of
survival or recovery; and (3) multiply that percentage by the total
amount of damages.
1993 Loss
of Filial Consortium
Gallimore, Appellee, v. Children's Hospital Medical Center,
Appellant
No. 92-823
Supreme Court of Ohio
67 Ohio St. 3d 244; 1993 Ohio 205; 617 N.E.2d 1052; 1993 Ohio LEXIS 1841
April 20, 1993, Submitted, September 15, 1993, Decided
Ohio has long
recognized the right of a parent to maintain a derivative action against
a third-party tortfeasor who injures the parent's minor child. We have
held that the parent may maintain the action for the child's medical
expenses, and for the parent's loss of the child's "services."
It would be incongruous to deny parents recovery for loss of the society
and companionship of a seriously injured child while recognizing that
such losses are compensable in cases involving death. We now hold that a
parent may recover damages, in a derivative action against a third-party
tortfeasor who intentionally or negligently causes physical injury to
the parent's minor child, for loss of filial consortium. We further find
that "services" are just one aspect of consortium.
"Consortium" includes services, society, companionship,
comfort, love and solace.
1982
Loss of Child - Marriage - Non-Market Services - Prospective Inheritance
Terveer Et Al., Admrs., Appellants, V. Baschnagel, Appellee
No. 81AP-684
Court of Appeals of Ohio, Tenth Appellate District, Franklin County
3 Ohio App. 3d 312; 445 N.E.2d 264; 1982 Ohio App. LEXIS 10917; 3 Ohio
B. Rep. 365
August 5, 1982, Decided
The contingency of
marriage may be considered by the trier of fact in determining the
amount recoverable by surviving parents for the wrongful death of their
child.
Our review of the record causes us to conclude that the verdict of
the jury is against the manifest weight of the evidence. At a minimum,
damages should have been awarded for the loss of decedent's services in
helping her parents with their rental properties, cutting her brothers'
hair, and cleaning her family's teeth, for the loss of rental and
related expenses to her sister, and for the loss from her inability, as
a result of her death, to repay the loans her parents had made to her.
There was no evidence indicating the decedent would not have repaid the
loans to her parents, and there was evidence indicating she would have
repaid them. The jury also should have determined the value of the
estate the decedent would have accumulated had she lived.
While a jury of one's peers may believe that some of the services
provided by the decedent to members of her family represent gestures of
friendship found in close family relationships, it is not for the jury
to decide that such gestures, which clearly have a pecuniary value, may
not be the basis for an award of damages.
2001 Loss
of Parental Consortium
Rolf Et Al. v. Tri State Motor Transit Company Et Al.
NO. 00-1329
SUPREME COURT OF OHIO
2001 Ohio 44; 91 Ohio St. 3d 380; 745 N.E.2d 424; 2001 Ohio LEXIS 1121
January 31, 2001, Submitted, April 25, 2001, Decided
An adult emancipated
child may recover for loss of parental consortium. When a parent is
seriously injured, the adult child suffers an injury in being
deprived of that parent's love and guidance. Therefore, regardless of
the age of the child, the loss to the parent-child relationship is real
and should not be minimized.
2001
Lost Profits - New Business
Agf, Inc., Appellee, v. Great Lakes Heat Treating Company,
Appellant
No. 89-685
Supreme Court of Ohio
51 Ohio St. 3d 177; 555 N.E.2d 634; 1990 Ohio LEXIS 243; 11 U.C.C. Rep.
Serv. 2d (Callaghan) 859
April 3, 1990, Submitted, June 6, 1990, Decided
A new business may
establish lost profits with reasonable certainty through the use of such
evidence as expert testimony, economic and financial data, market
surveys and analyses, business records of similar enterprises, and any
other relevant facts. It is not necessary to a recovery of 'profit' to
show a history of earnings, especially if a new venture is involved. The
"new business rule" is not the law in Ohio.
1987
Methodology
Hancock, Appellee, V. Norfolk And Western Railway Company, Appellant
No. 51702
Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County
39 Ohio App. 3d 77; 529 N.E.2d 937; 1987 Ohio App. LEXIS 10679
March 23, 1987, Decided
The
economist presented three different estimates of future wage loss. Each
was dependent on a different assumption regarding future employability.
The jury selected the scenario they found most credible for assessing
damages.
1982
Present Value Analysis
Willie F. Reeder And Letteria Ann Reeder, Co-Administrators Of The
Estate Of Willie J. Reeder, Deceased, Plaintiff-Appellant, v. James P.
Suggs, Defendant-Appellee.
NO. 1-81-46
COURT OF APPEALS, THIRD APPELLATE DISTRICT, ALLEN COUNTY, OHIO
1982 Ohio App. LEXIS 15782
June 29, 1982
Testimony on future damages by expert witness
was properly excluded because the witness did not reduce the future
damages to present value. Once substantial expert testimony as to future
total earnings is introduced, relevancy requires some
evidence as to the appropriate formula for arriving at current value.
Otherwise, the jury could be grossly misled by these estimates.
1956 Present Value
Maus, Appellee, V. The New York, Chicago & St. Louis Rd. Co.,
Appellant
No. 34597
Supreme Court of Ohio
165 Ohio St. 281; 135 N.E.2d 253; 1956 Ohio LEXIS 491; 59 Ohio Op. 366
May 23, 1956, Decided
In determining the amount of damages due a
plaintiff who has suffered a wrongful personal injury resulting in loss
of future earning power, the jury should take into consideration the
loss of future earnings which it finds with reasonable certainty will
result from the injury and also the earning power of money; and the
amount awarded for future earnings should be reduced to its present
value as a lump sum payable at the time of the verdict
1996 Prospective Inheritance
Andrew L. Fabens, III, Administrator Of The Estate Of Karen A.
Porcelli, Plaintiff-Appellant, v. USAIR, Inc., Defendant-Appellee
No. 95-3291
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT,
1996 U.S. App.
LEXIS 30333,
November 20, 1996, FILED
Porcelli was not survived by a spouse or
children, her mother is her only heir at law. One type of compensatory
damages which an heir can recover is the "loss of prospective
inheritance." Where there is no reasonable expectation of
inheriting from a child's estate, no recovery for pecuniary loss is
allowed. A parent can still recover when there is not much of an age
differential between parent and child, or when the decedent's health
might be worse than the parent's health.
1998 Punitive Damages
Williams, Appellee, v. Aetna Finance
Company, d.b.a. ITT Financial Services, Appellant
No. 97-1670
SUPREME COURT OF OHIO
83 Ohio St. 3d 464; 1998 Ohio 294; 700 N.E.2d 859; 1998 Ohio LEXIS
2965
May 26, 1998, Submitted November 4, 1998, Decided
Punitive damages that are 100 times compensatory damages
may not be excessive when one of the guideposts is particularly
relevant. The three indicia are (1) the degree of reprehensibility of
the defendant's conduct, (2) the disparity between the harm or potential
harm to the plaintiff and the amount of the punitive damages, and (3)
the difference between the amount of punitive damages awarded and the
civil or criminal sanctions available to be imposed for similar
misconduct.
Excerpted Text
1995 Remarriage of Surviving
Spouse
Pena v. Northeast Ohio Emergency
Affiliates,
C.A. NO. 94CA005906,
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, LORAIN COUNTY,
108 Ohio App. 3d 96; 670 N.E.2d 268; 1995 Ohio App. LEXIS 5624,
December 20, 1995, Decided
The jury may consider evidence of the
remarriage of a
surviving spouse in determining the amount of damages he or she has suffered by reason of the
wrongful death of a prior
spouse. The jury should not, however, considered plaintiff's
remarriage in determining the amount of damages the children, parents, and
next of kin suffer as a result of the spouse's death.
Excerpted
Text
2003
Stigma Damages
Steven And Reva Ramirez, Plaintiffs-Appellants v. Akzo Nobel
Coatings, Inc., Et Al., Defendants-Appellees
Case No. 02CA70
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, LICKING COUNTY
153 Ohio App. 3d 115; 2003 Ohio 2859; 2003 Ohio App. LEXIS 2549
June 2, 2003, Date of Judgment Entry
Stigma damages,
defined as damages resulting from a diminution in the value of one's
real property because of a public perception that the property may be
contaminated with a dangerous or toxic substance are not recoverable in
the absence of physical damage to a plaintiff's property.
1981
Taxation
Lola I. Kaiser, Plaintiff - Appellee, -vs- The Ohio Bell Telephone
Company, Defendant - Appellant
No. 43056
Court Of Appeals, Eighth Appellate District, Cuyahoga County, Ohio
1981 Ohio App. LEXIS 10528
August 27, 1981
Unless the case was
brought under the Federal Employers' Liability Act (FELA), evidence of
income tax consequences on damages awards should not be admitted.
1956 Taxation
Bergfeld, Admx., Appellee, v. New York, Chicago & St.
Louis Rd. Co., Appellant
No. 194
Court of Appeals of Ohio, Third Appellate District, Van Wert County
103 Ohio App. 87; 144 N.E.2d 483; 1956 Ohio App. LEXIS 737; 3 Ohio Op. 2d 167
December 28, 1956, Decided
On cross
examination of the plaintiff's expert witness the defense attempted to to
introduce evidence of the amount of deductions from decedent's gross earnings
for railroad retirement and withholding tax. The defense insisted that
decedent's contribution to his widow was a percentage of his take-home pay and
not of his gross earnings. The plaintiff objected to the introduction of this
evidence and the objection was sustained by the court. The court did not err
in refusing to admit evidence with reference to the amount of decedent's
take-home pay. The plaintiff's contribution to the support of his widow should
be based on gross earnings.
1994
Wrongful Adoption
Wilson et al., Appellees, v. Stark County Department of Human
Services et al., Appellants
No. 93-1000
Supreme Court of Ohio
70 Ohio St. 3d 450; 1994 Ohio 394; 639 N.E.2d 105; 1994 Ohio LEXIS 2084
May 11, 1994, Submitted, September 28, 1994, Decided
Immunity from civil
liability conferred upon a county by R.C. Chapter 2744 extends to
county's human services department. Complaints for wrongful adoption
against the county are barred by political subdivision immunity.
1986
Wrongful Adoption
Burr Et Al., Appellees, V. Board Of County Commissioners Of Stark
County et al., Appellants
No. 85-786
Supreme Court of Ohio
23 Ohio St. 3d 69; 491 N.E.2d 1101; 1986 Ohio LEXIS 608; 23 Ohio B. Rep.
200; 56 A.L.R.4th 357
April 11, 1986, Decided
Couple that adopted
a child after fraudulent misrepresentation are entitled to damages. Jury
award for medical expenses and emotional damages was proper.
2004
Wrongful Birth
Helen Schirmer, And Richard Schirmer, Plaintiffs-Appellants, vs.
Mt. Auburn Obstetrics & Gynecologic Associates, Inc., Kevin R.
Fitzgerald, M.D., Children's Hospital Medical Center, Martha Walker,
M.S., And Howard M. Saal, M.D., Defendants-Appellees, And Tom P. Barden,
M.D., And Andrea Scheidler, Defendants.
APPEAL NO. C-030034
COURT OF APPEALS OF OHIO, FIRST APPELLATE DISTRICT, HAMILTON COUNTY
2003 Ohio 7150; 2003 Ohio App. LEXIS 6471
December 30, 2003, Decided
A claim for wrongful
birth remains, at its core, a medical negligence claim that is to be
determined by application of common-law tort principles; to prevail, the
parents must prove the following elements: (1) a duty running from the
medical professionals to the parents, (2) a breach of that duty, (3)
damages suffered by the parents, and (4) a proximate causal relationship
between the breach of duty and the damages.
The proper measure of damages in a wrongful-birth claim is (1) the
pregnancy and birth-related costs directly related to carrying a fetus
to full term, and (2) the consequential, economic damages of raising a
disabled child over and above the ordinary child-rearing expenses for a
normal child....Upon remand, the Schirmers may adduce facts to prove the
elements of a medical negligence claim, including the extraordinary
consequential, economic costs necessary to treat the birth defect and
the additional medical or educational costs attributable to the birth
defect during the child's minority.
1997
Wrongful Discharge - Whistleblower
Kulch, Appellant, v. Structural Fibers, Inc. et al., Appellees.
No. 95-650
SUPREME COURT OF OHIO
78 Ohio St. 3d 134; 1997 Ohio 219; 677 N.E.2d 308; 1997 Ohio LEXIS 836;
1997 OSHD (CCH) P31,325; 12 BNA IER CAS 1484
October 8, 1996, Submitted, April 16, 1997, Decided
The remedies
available pursuant to R.C. 4113.52 for violations of the statute and the
remedies available for the tort of wrongful discharge are cumulative.An
at-will employee who is discharged or disciplined in violation of R.C.
4113.52 may maintain a statutory cause of action for the violation, a
common-law cause of action in tort, or both, but is not entitled to
double recovery.
The remedies available pursuant to R.C. 4113.52 are not sufficient to
provide the complete relief that would otherwise be available in a
Greeley-based cause of action for the tort of wrongful discharge. The
statute does not provide for certain compensatory damages and does not
specifically authorize recovery of punitive damages. Most important, the
statute permits the court to fashion an award based upon whatever the
court deems to be appropriate
The mere existence of statutory remedies for violations of R.C.
4113.52 does not operate as a bar to alternative common-law remedies for
wrongful discharge in violation of the public policy embodied in the
Whistleblower Statute.
1990
Wrongful Discharge
Greeley, Appellant, V. Miami Valley Maintenance Contractors, Inc.,
Appellee
No. 88-1829
Supreme Court of Ohio
49 Ohio St. 3d 228; 551 N.E.2d 981; 1990 Ohio LEXIS 119; 5 BNA IER CAS
257; 115 Lab. Cas. (CCH) P56,231 November 22, 1989, Submitted March 14,
1990, Decided
In Ohio, a cause of
action for wrongful discharge in violation of public policy may be
brought in tort. R.C. 3113.213(D) gives rise to a civil cause of action
for damages. Public policy warrants an exception to the
employment-at-will doctrine when an employee is discharged or
disciplined for a reason which is prohibited by statute
2000
Wrongful Life
Hester, Natural Father & Next Friend of Hester, A Minor,
Appellant, v. Dwivedi et al., Appellees
No. 99-683
SUPREME COURT OF OHIO
89 Ohio St. 3d 575; 2000 Ohio 230; 733 N.E.2d 1161; 2000 Ohio LEXIS 2050
January 26, 2000, Submitted, September 6, 2000,
Decided
The only injury
causally related to the appellees' breach of duty was the deprivation of
the chance to make a fully informed decision whether to continue the
pregnancy. We reject the suggestion that appellee suffered damage
based on the fact of her being born rather than aborted.
2000
Wrongful Pregnancy
Simmerer Et Al., Appellants, v. Dabbas, Appellee, et al.
No. 99-1570
SUPREME COURT OF OHIO
89 Ohio St. 3d 586; 2000 Ohio 232; 733 N.E.2d 1169; 2000 Ohio LEXIS 2060
May 10, 2000, Submitted, September 6, 2000, Decided
Medical expenses and
emotional distress damages associated with a child's birth defect are
not recoverable in a wrongful pregnancy action, when the child's birth
defect was not reasonably foreseeable by the defendant who negligently
performed the sterilization procedure. Courts |
