Ohio Supreme Court civil considerations

In the first of two civil considerations this week, the Ohio Supreme Court on Wednesday found that a law firm, being an entity as opposed to an individual, does not engage in the practice of law, and therefore cannot directly commit legal malpractice; also holding that law firms can't be held liable for legal malpractice unless one of its principals or associates is found liable. [ Nat'l. Union Fire Ins. Co. of Pittsburgh v. Wuerth ( summary )( opinion ) ]

In answering that certified question from the federal Sixth Circuit Court of Appeals, Ohio's Supreme Court "(drew) upon the similarities between the legal & medical professions," in part referencing its 1989 decision in Zimmie v. Calfee, Halter & Griswold where it had held that "[m]edical and legal malpractice actions should conform to the same standard for determining when a cause of action accrues and when the statute of limitations commences so we do not discriminate 'for or against' doctors or 'for or against' lawyers."

"Our precedent concerning medical malpractice is instructive," the Court said, "and in the medical context, we have recognized that because only individuals practice medicine, only individuals can commit medical malpractice… In Browning v. Burt (1993), we explained that '[a] hospital does not practice medicine and therefore is incapable of committing malpractice' … As we explained in Thompson v. Community Mental Health Ctrs. of Warren (1994), '[i]t is well established common law of Ohio that malpractice is limited to the negligence of physicians and attorneys.'"



Yesterday, it held that in lawsuits for negligence a party cannot be awarded punitive damages unless compensatory damages were first awarded, also ruling that there was no "per se" rule barring a defendant accused of negligent tortuous conduct from asserting a claim of self-defense. Whether evidence presented supports such a claim is a matter trial courts should decide on a case-by-case basis. [ See Niskanen v. Giant Eagle, Inc.( summary )( opinion ) ]



And last Tuesday the Court held that Ohio's Administrative Code, O.A.C. 109:4-3-16(B)(22), is unconstitutional and invalid to the extent that it allows state courts to consider "parol evidence" of alleged oral promises or representations made by a vendor to a consumer that are contrary to the terms of a written contract signed by the parties. [ See Williams v. Spitzer Autoworld Canton,L.L.C ( Summary )( Opinion )]

"Under the parol evidence rule," the Court said, "if an agreement between parties has been reduced to a signed, written contract, and that contract includes language stating that all terms and conditions of the agreement are set forth in the contract and no other terms or conditions previously discussed by the parties are binding on the parties, then neither party may later introduce 'parol' evidence (evidence of alleged verbal or written commitments outside of the signed contract) to seek additional compensation or concessions from the other party."

Pleading Standard in Federal Civil Procedure

"Congress is preparing to wade into the growing debate over the pleading standard for civil lawsuits after two recent Supreme Court decisions effectively upended long-standing precedent," a National Law Journal article said last week.

The article continued by saying that, "United States Senator Arlen Specter, had introduced a bill designed to return that standard to what it was prior to 2007, when the Court handed down its ruling in Bell Atlantic Corp. v. Twombly. That case, and another -- Ashcroft v. Iqbal, from the most recent term -- have raised the standard that pleaders must meet to avoid having their cases quickly thrown out of court." Senator Specter's bill would specifically direct federal courts to interpret pertinent rules as the Supreme Court did in a much earlier decision, Conley v. Gibson, in 1957.

The Supreme Court was authorized to make general rules of civil procedure for district courts in 1934. The original rules were adopted in 1937 and became effective in 1938. At issue now is how specific a pleading must be under the Federal Rules of Civil Procedure. Rule 8 requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief," while Rule 12 allows for the dismissal of complaints that are "vague or fail to state a claim". Under the Court's decision in Iqbal, many courts are now requiring more specific facts that, plaintiffs lawyers say, aren't often available until discovery.

Michael Dorf in a FindLaw commentary yesterday, sought to answer the question, "Should Congress Change the Standard for Dismissing a Federal Lawsuit?," observing that "the goal of the Rules is adjudication on the merits, and so each of the pleadings—the plaintiff's complaint and the defendant's answer—need only put the court and the other side 'on notice' of what claims or defenses are at issue."

Dorf posits that the bill should be rewritten in that if it were concluded that the more liberal notice pleading regime of Conley v. Gibson should be restored, the Specter bill would still be problematic. Rather than specifying a standard for dismissing lawsuits, the Specter bill simply incorporates the Conley standard by reference.

"It's possible," he writes, "that even with the enactment of Senator Specter's proposed Notice Pleading Restoration Act, courts would still require 'plausible' pleadings per Twombly and Iqbal. They would be able to say that Twombly and Iqbal merely clarified, rather than overruled, Conley, and that by following Twombly and Iqbal, they are thereby also following Conley. True, such a move would not be consistent with Senator Specter's intent, but the courts often follow what they take to be the meaning of the words of a statute, rather than the intent of its sponsor.

Dorf also foresees Senator Specter's proposed legislation raising two other, more technical, difficulties as well. "First, the bill would make Conley the standard for dismissal of a plaintiff's complaint, but would do nothing with respect to the standard for judging a defendant's answer…

"The second difficulty is even more, well, technical. Even in the days of Conley, there were select circumstances in which pleaders were required to set forth specific facts, rather than general allegations. Rule 9(b) states that a party alleging fraud or mistake 'must state with particularity the circumstances constituting fraud or mistake.' By forbidding the dismissal of a complaint except under the Conley standard, the Specter bill would arguably eliminate the heightened specificity requirement for fraud or mistake—but again, only for plaintiffs.

"There is something to be said for repealing Rule 9(b). It has always been a bit of a mystery why just fraud and mistake, but not other easy-to-allege-but-difficult-to-prove facts, are covered by the Rule. Yet, if Rule 9(b) is to be repealed, it should be repealed expressly, and for defendants as well as plaintiffs."

Ohio Personal Injury Median Awards

The August 2009 installment of LRP's Personal Injury Verdict Review relates one of their recent studies, based on award data from 2002 thru 2008, shows that the compensation median for personal injury trials in Ohio is $13,000, with plaintiffs receiving damages in 49% of cases going to trial. Nationwide, the Review said, the median award amount was $35,000 with a plaintiff recovery probability of 50 percent.

Statistics here were based on Jury Verdict Research’s Verdicts & Settlements Database which contains more than 250,000 cases. Further information can be obtained @ http://www.juryverdictresearch.com/