By: Thomas J. Diehl (In 2008) With the enactment of Senate Bill 80, damages in many tort actions are capped. The jury’s determination of rightful compensation to a Plaintiff will be disregarded in many circumstances. In any claim for damages for injury or loss to person or property, including product liability claims, a plaintiff who has suffered non-catastrophic or noneconomic damages is limited to the greater of Two Hundred Fifty Thousand Dollars ($250,000) or three times the economic loss,but not to exceed Three Hundred Fifty Thousand Dollars ($350,000). EXAMPLE NO. 1: Plaintiff is injured in a non-catastrophic motorcycle accident and incurs medical bills of Ten Thousand Dollars ($10,000) and a wage loss of Five Thousand Dollars ($5,000), for total special damages of Fifteen Thousand Dollars ($15,000). The most he can receive for his non-economic loss (i.e. pain and suffering) is Two Hundred Fifty Thousand Dollars ($250,000). 3 x $15,000 = $45,000. Plaintiff is entitled to three times economic loss or Two Hundred Fifty Thousand Dollars ($250,000), whichever is greater. EXAMPLE NO. 2: Plaintiff is injured in a non-catastrophic loss and incurs medical bills of One Hundred Thousand Dollars ($100,000) and wage loss of Twenty-Five Thousand Dollars ($25,000), for a total loss of One Hundred Twenty-Five Thousand Dollars ($125,000). If a jury awards pain and suffering of Five Hundred Thousand Dollars ($500,000), that portion of the jury verdict will be reduced to Three Hundred Fifty Thousand Dollars ($350,000), because of the cap. It seems odd that the Ohio legislature would protect drunk and reckless drivers at the expense of truly injured persons. Although the Ohio Legislature limits the recovery available to a plaintiff seriously injured in a car accident caused by a drunk driver, it has made certain that producers of corn, wheat and soybeans injured by someone speaking badly of their products are fully compensated. Ohio Rev. Code §2307.81 subjects anyone who falsely disparages an Ohio agricultural or aquacultural food product, to “in addition to any award of punitive damages, damages in an amount up to three times the amount of compensatory damages.” Thus, the Ohio Legislature has chosen to place a cap on the damages a drunk driver will pay, while it subjects those that may dare to disparage a soybean to treble damages. http://www.thomasjdiehl.com
By: Tom Diehl (In 2008)
In the last edition of the Co-Counsel Reporter, we discussed the pitfalls occasioned by the recent modifications and abrogation of joint and several liability as set forth in SB 120. Specifically, if a defendant can convince the trier of fact that a different defendant has some liability for the injuries sustained, the defendants will be liable for the overall damages only according to their percentage of liability. This can have disastrous consequences if the “other defendant” is not a party to the suit or is judgment proof.To help minimize the potential for disastrous consequences, plaintiff's counsel should consider these strategies: * File discovery early requesting the defendant to identify and specify any other defendants allegedly having liability for injuries caused. Consider, submitting requests for admissions demanding defendant to deny the existence of other liable defendants; * In the initial complaint, bring claims against all potential liable party defendants;* When partially settling with the joint tortfeasor, release only that tortfeasor; * Consider filing a challenge to the constitutionality of SB120 -- send a copy of the challenge to the Ohio Attorney General. Grounds for potential constitutional challenge include an argument that SB 120 violates Article II Section 15 (One Subject Rule) or Article IV Section 5 (Separation of Powers). At Thomas J. Diehl & Co., LLC, we have been handling personal injury claims in Southwest Ohio since 1988. We regularly work with counsel in ethical fee sharing arrangements. Thomas J. Diehl is a Fellow of the Litigation Counsel of America and a member of the Million Dollar Advocates Forum. http://www.ThomasJDiehl.com
By Marty Hubbell
Closing arguments ended today in Ryan Widmer’s third trial for the murder of his wife. This was the attorneys’ opportunity to tell the jury what they believed the evidence showed throughout the case. The jury will be instructed that the arguments of counsel are not to be considered as evidence.
After closing arguments the judge read the jury instructions and the jurors entered the jury room for deliberations. All of the exhibits will accompany them, together with the verdict forms.
Some thoughts on the Widmer case:
1. Truth really is stranger than fiction. This case has a lead detective who lied on his police application, a surprise witness that used to work in an Iowa strip joint, a third murder trial, and a married female witness who flew in from Seattle to support the defendant. And, of course, an expert who worked on the Kennedy assassination and testified at the O.J. Simpson murder trial.
2. The State’s surprise witness, Jennifer Crew, testified that Ryan Widmer confessed the murder to her. This witness walked into court with quite a bit of baggage. But the State had to call her as a witness, as a confession will certainly make jurors’ ears perk up.
That being said, her credibility is in question based upon her prior criminal record and past life choices. I spoke to multiple people in the courtroom during her testimony, and they gave her testimony a grade from lukewarm to good.
3. I think the defense team doesn’t expect a NOT GUILTY verdict. They would like one, but such a finding will be even more difficult after the confession testimony from Jennifer Crew. Keep in mind, in the two previous trials, depending on which version you believe, either 22/24 or 20/24 jurors have voted GUILTY at the end of the day.
My guess is the defense would be tickled pink to have another hung jury.
4. People ask me whether Ryan Widmer should testify. The answer: hell no. Rest assured that throughout the three trials Ryan has been prepped and coached to testify, just in case. My guess is that he has done very poorly in these practice examinations.
5. One of the confusing parts of the Law is reconciling guilt with proof. It is entirely possible that a person can be guilty of an offense, but the State lacks the ability to prove guilt beyond a reasonable doubt.
When would this happen? All the time. This morning I drove to the airport with almost no traffic on the road. A portion of I-71 near downtown Cincinnati has a 55 m.p.h. speed limit. I sped. Although I am technically guilty of this offense, without additional evidence the State would never be able to prove my guilt beyond a reasonable doubt (even with my admission!).
A defendant is presumed innocent of a crime. The State carries the burden to prove guilt beyond a reasonable doubt. If that burden is not met, it is a juror’s duty to sign the NOT GUILTY verdict form. Suspicion or ‘probably did it’ does not suffice.
6. freeryanwidmer.com was a website created to assist Ryan Widmer in the defense of his case. This is also the website used by the State’s surprise witness, Jennifer Crew, to get in touch with Ryan. The only real new evidence in this third trial is her testimony. If convicted, how ironic would it be that the group formed to raise money for Ryan Widmer assisted in his ultimate conviction?