By Marty Hubbell
What’s next in the Ryan Widmer case? Expect the defense to file a motion for a new trial in the next few days. This motion must be filed within 14 days of the verdict that was rendered on February 15, 2011.
This motion is critical for Widmer’s case, and is separate from the appeal of his actual murder conviction. His appeal would be to the 12th District Court of Appeals in Middletown, Ohio; the motion for a new trial would be heard by Judge Bronson in the Warren County Common Pleas Court. The appeal will not be filed until the upcoming motion is resolved in the trial court.
Why is this motion for a new trial important? The 12th District Court of Appeals is probably the most conservative appellate court in the State of Ohio; less criminal convictions are overturned in this court than in any other appellate district. If he cannot persuade Judge Bronson to grant him a new trial, it is likely that the next significant hearing for Ryan Widmer will occur in about 14.5 years, at his first parole hearing.
The defense attorneys are scrambling to find any and all evidence they can to support the motion. From the press releases thus far, it appears that they are going to try to argue some form of juror misconduct.
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: Tom Diehl
Issue #32 of The Personal Injury Co-Counsel Reporter
Recent pronouncements from Ohio courts pertaining to Ohio Civil Rule 15(C) should make it clear to the plaintiff’s injury practitioner that amending a complaint after the statute of limitations has expired can be fraught with pitfalls.
Generally speaking, a claim for bodily injuries from an automobile accident must be filed within two years from the date of the accident. However, if there is any question as to the identity of the responsible defendant, it is not advisable to wait the full two years before filing. Recent court pronouncements on “relation back” make it clear that the plaintiff’s injury practitioner may not be able to successfully amend a complaint after the two year deadline has expired.
Ohio Civil Rule 15(C) provides that if plaintiff files an amended complaint, the amendment “relates back” to the date of the original pleading, if the amendment contains a claim or defense asserted in the original pleading and arose out of the conduct, transaction or occurrence set forth in the original pleading. Thus, in certain circumstances, plaintiff’s counsel can file an amended complaint after the two-year statute of limitation has expired, and successfully argue that under Civil Rule 15(C), the date of the filing of the amended complaint “relates back” to the date the original complaint was filed. But, there is a distinct danger in this approach. If discovery reveals that the wrong defendant was named in the original complaint or an additional defendant needs to be added, the filing of amended complaint to correct this oversight will, most likely, not “relate back” under Civil Rule 15(C) and, therefore, the amended claim will be barred by the statute of limitations. In Kooyman v. Staffco Construction, Inc. (2010), 189 Ohio App. 3d 48, the plaintiff was killed when operating a motorcycle in a public park. Plaintiff filed suit against the Metropolitan Park District within the filing deadline for instituting an action. The discovery process revealed that the proper defendant should be a municipality. The plaintiff filed an amended complaint, naming the municipality as a defendant. The amended complaint was filed after the statute of limitations had expired, but plaintiff argued that the case should not be dismissed under a statute of limitations defense, because the amended complaint should relate back under Civil Rule 15(C). The Kooyman court found this argument to be unpersuasive, and held that 15(C) would not salvage the claim for two reasons. First, the court noted that the Relation Back Doctrine under Rule 15(C) only applies to fixing clerical mistakes such as the misspelling of a defendant’s name. Secondly, Rule 15(C) does not allow a plaintiff to add an additional party. It merely allows the plaintiff to substitute a party.
The lesson . . . file suit well before the two year deadline to allow sufficient time to conduct discovery and, if necessary, add defendants or change defendants before the statute of limitations runs.
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 has been selected as a Fellow of the Litigation Counsel of America and granted membership in the Million Dollar Advocates Forum.