Daily Case Update Archive

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June 23, 2006

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Evidence - Homicide - Juries
- Civil Miscellaneous - Evidence - Appellate Review/Civil
- Procedure / Rules - Contracts
- Autos/Criminal - Evidence
- Children - Counsel
- Federal Tort Claims Act
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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State v. Davis (June 23, 2006) (2006-Ohio-3171)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3171.pdf
-  The trial court did not err when it refused to allow the testimony
of defendant's self-defense expert:  The reasonableness of the
defendant's actions was for the jury to determine, and it was well
capable of doing so without the expert's testimony. The trial
court's  denial of the defendant's Crim.R. 29 motion and its
decision to instruct the jury on voluntary manslaughter were not
improper where the  state had presented sufficient evidence of voluntary
manslaughter. The trial court did not err in allowing the state to use
its peremptory  challenges to strike three African-Americans from the
jury:  The prosecutor provided race-neutral explanations for exercising
the  challenges, and the trial court's conclusion that there was no
discriminatory intent was not clearly erroneous. Judgment AFFIRMED.

Loukinas, et al. v. Roto-Rooter Services Co. (June 23, 2006)
(2006-Ohio-3172)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3172.pdf
-  To receive consideration on appeal, trial-court errors must be
argued and supported by legal authority and citation to the record;
errors not argued in a brief will be regarded as having been abandoned
in accordance with App.R. 12(A)(1)(b) and 16(A). A trial court may
exclude expert testimony as a sanction for spoliation of evidence if it
determines that the evidence has been intentionally altered or
destroyed by a party or its expert before the defense has had an
opportunity to examine the evidence; if the threshold showing of
spoliation is made, the burden then shifts to the proponent of the
evidence to prove that the other side was not prejudiced by the
alteration or destruction of the evidence. The test for prejudice where
a party has spoliated evidence is whether there is a reasonable
possibility, based on concrete evidence, that access to the evidence
that was destroyed or altered, and that was not otherwise obtainable,
would produce evidence favorable to the objecting party; in applying
this test, the trial court must determine the degree of prejudice to
the defendant and impose a sanction commensurate with that degree of
prejudice.  Appellate review of the spoliation issue requires a
determination of whether the trial court abused its discretion in
determining an appropriate sanction. When imposing a sanction for
spoliation of evidence, a trial court should impose the least severe
sanction that effectively removes the prejudice caused by the
sanctioned party's wrongdoing; thus, where a plaintiff destroyed
evidence from which its expert witness concluded that the defendant had
negligently damaged a drain pipe while excavating near the pipe,
preventing the defendant's expert from verifying the condition of the
drain, and no other means remained to verify the manner of the
excavation, the trial court's exclusion of the plaintiff's expert
testimony  was appropriate.  Judgment AFFIRMED in part, REVERSED in
part, and cause REMANDED.

Cembex Care Solutions, LLC., et al. v. Gockerman (June 23, 2006)
(2006-ohio-3173)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3173.pdf
-  The trial court properly granted the appellee's motion to enforce
an agreement that provided for the settlement of the appellant's
action against the appellee for breach of the parties' confidentiality
agreement:  Civ.R. 15(E) permitted the appellee to seek to enforce  the
settlement agreement by filing in the confidentiality-agreement action a
supplemental pleading.  And competent, credible evidence, in  the form
of e-mail correspondence between the parties, supported the court's
finding that the terms of the settlement agreement were those  embodied
in a draft agreement prepared by appellee's counsel. Judgment
AFFIRMED.

City of Cincinnati v. Branch (June 23, 2006) (2006-ohio-3174)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3174.pdf
-  The trial court erred when it convicted the defendant of speeding in
violation of Cincinnati Municipal Code 506-8:  The reliability and
accuracy of the speed-measuring device had not been established, and
absent evidence of the defendant's speed as measured by the device,
the police officer's testimony that the defendant was going faster
than the flow of traffic was insufficient to sustain the conviction.
Judgment REVERSED and Appellant discharged.

In Re:  Andrew Graham, Sean Graham & Kera Graham (June 23, 2006)
(2006-ohio-3170)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2006/2006-ohio-3170.pdf
-  The trial court had sufficient evidence to place three children in
the permanent custody of Hamilton County Job and Family Services,  when
the children exhibited symptoms of sexual abuse and had severe emotional
disorders, and when their mother had not shown significant  progress in
her ability to maintain a healthy and safe relationship with them.  When
the children who are the subject of a juvenile court  proceeding to
terminate parental rights do not express a consistent wish for placement
contrary to the recommendation of their guardian ad  litem, it is not
necessary for the trial court to appoint independent counsel for the
children. Judgment AFFIRMED.
 

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

No Opinion.
 

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

Brown v. USA (June 23, 2006) (Appeal from E.D. Michigan)
-  http://www.ca6.uscourts.gov/opinions.pdf/06a0206p-06.pdf
-  This Federal Tort Claims Act suit was brought by the family of a
former U.S. Army serviceman, who himself is not a plaintiff. The  former
serviceman, Arvid Brown, caught a parasitic infection called
Leishmaniasis while serving in the Persian Gulf War in 1991. Arvid
transmitted the disease to his family after his discharge. A civilian
doctor diagnosed Arvid with the disease after the family members had
already been infected. According to the plaintiffs, the federal
government negligently failed to warn Arvid that he had been exposed to
the disease while stationed in Saudi Arabia. The plaintiffs also claim
that the federal government failed to diagnose or treat the  illness,
neglected to follow proper procedure, committed medical malpractice, and
thereby caused them $125 million in damages. The  district court entered
an order dismissing the complaint for lack of jurisdiction. At a
hearing, the district court explained that the  plaintiffs' lawsuit is
barred by Feres because it derives from events that took place in the
course of Arvid's active duty military  service. This appeal followed.
Although the district court has jurisdiction over the plaintiffs'
claims on this basis, it has no  jurisdiction to award damages for the
military's conduct related to Arvid while he was on active duty. For
instance, the military's  decision to deploy Arvid to Saudi Arabia
cannot be used at trial to prove liability, nor can the government's
decision not to warn,  diagnose, or treat him while he was a soldier.
The plaintiffs may not recover any portion of their damages deriving
solely from military  decisions incident to Arvid's service. The
judgment of the district court is reversed in part. The case is remanded
for proceedings  consistent with this opinion.

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