In reviewing the case decision list from around the state there were two decisions worth mentioning from last week and one from the Sixth Circuit; unfortunately mostly examples of what not to do. On Friday, the Tenth District's recent decision providing some well-needed leniency in drafting 180 letters, extending the statute of limitations in medical malpractice actions, will be discussed.
In Whitehead v. Skillman Corp., 2014-Ohio-4894, the plaintiff was injured while working on a construction project on March 2, 2012. The generic John Doe numbers 1 through 20 were included and on October 17, 2013, the individual responsible for the hazard causing plaintiff’s injury was served with a complaint substituting one of the John Does with the individual. The court found two problems with the plaintiff’s substitution. The court determined that generically including John Does in the pleading is insufficient and serving the substituted John Doe over a year and a half after the complaint violated Civ.R. 3(A). Neither are novel issues, but the case nonetheless serves as an important reminder.
In Gordon v. Erie Islands Resort & Marina, 2014-Ohio-4970, the court reversed the trial court’s granting the class certification of six named classes with a two paragraph, rote recitation of the Civ.R. 23 requirements. The Sixth District held that was insufficient, citing the trial court’s lack of a factual basis to grant certification, and remanded the case to the trial court for a re-do. It seems likely that it will be another year before the class certification can be resolved. Especially with class certifications, parties should try to ensure that the trial court’s decision is supported by factual and legal findings. That might have saved a year in this case.
And finally, if prosecuting a discrimination claim, the dissent from Gary Franks v. Village of Bolivar provides a road map when faced with position where the employee demonstrated some levels of contempt for the employer. In that case, the employer proffered four incidences of insubordination as the basis for the employee's termination. The majority determined those four incidences were a sufficient non-discriminatory reasons to shift the burden to the plaintiff to prove pretext, in order to survive summary judgment. The dissenting voice would have reversed the summary judgment in the employer's favor because two of the four incidences were disputed, and the remaining two might not justify the termination alone. In the end, the employer wins, but that is an argument to keep in mind.
