Civil Jury Trials
FRANKLIN COUNTY COMMON PLEAS COURT
By Monica L. Waller
Verdict: $549,307.77. Employment Discrimination.
Plaintiff Don O. Smith was employed by Defendant Superior
Production, LLC from the early 1980’s through 2008 when
he was laid off and not called back. Superior Production
is a manufacturing company that produces automotive
parts. Mr. Smith worked as a production supervisor.
According to Mr. Smith, out of 30 production supervisors
employed by Superior Production, he was one of only two
African-American supervisors. Mr. Smith claimed that,
from approximately 1997 through 2008, he endured an
intimidating and racially divided work environment, racial
slurs and disparate treatment. Mr. Smith worked under the
direct supervision of Duane Holstein, the manufacturing
manager and part owner. The Holstein family owned
Superior Production. Duane Holstein’s father, Roger
Holstein is a vice president of the company and his uncle,
Richard Holstein was the company president. According to
Mr. Smith, Duane Holstein made racial slurs directed at Mr.
Smith, intimidated him by cocking a gun and laying it on his
desk when Mr. Smith was called in to Mr. Holstein’s office
and singled him and other African-American employees out
for discipline. Mr. Smith reported the discrimination to the
plant manager and stated that he could no longer work with
Duane Holstein. In response, Superior transferred Mr. Smith,
demoted him to assistant production supervisor and cut his
pay. Mr. Smith was laid off a month later. Superior laid off
employees in phases and tried to retain employees who could
perform multiple jobs. During his long tenure at Superior,
Mr. Smith had performed every job in the facility. However,
Mr. Smith was the eighth employee laid off overall. None
of the production supervisors were laid off. Mr. Smith was
the only assistant production supervisor laid off. Mr. Smith
believed that he was laid off before Caucasian employees
with less seniority and lesser skill sets. Mr. Smith signed a
statement indicating that he would be willing to accept any
other position in the company to avoid the lay off. Superior
later called back many of its laid off employees, but not Mr.
Smith. Superior also re-hired some employees terminated
for cause. Superior later hired from outside the company to
fill Mr. Smith’s former production supervisor position. Mr.
Smith sued Superior alleging that he was subjected to a hostile
work environment, terminated based on race and retaliated
against for reporting the hostile work environment. Superior
argued that Mr. Smith’s termination was not motivated by
race, but rather part of a downsizing that resulted from the
poor economy. Superior explained that Mr. Smith was not
rehired because rehiring decisions were dictated by the need
for laborers with a certain skill set. Mr. Smith’s skill set was
most in line with the press bay area which was under the
supervision of Duane Holstein. Since Mr. Smith did not want
to work for Duane Holstein, he was not rehired. The jury
28
Winter 2015 Columbus Bar Lawyers Quarterly
found in favor of Mr. Smith on all claims and awarded him
$266,900.00 for back pay, $100,000.00 for compensatory
damages, $41,870.40 for front pay, $0 for emotional
distress and $200,000.00 for punitive damages. $49,972.63
was subtracted for mitigating wages and $9,490.00 was
subtracted for unemployment benefits received. Neither side
called any experts. Last Settlement Demand: $75,000.00.
Last Settlement Offer: $10,000.00. Length of Trial: 5 days.
Counsel for Plaintiff: Greg Mansell, Derek J. Walden and
Danny Caudill. Counsel for Defendant: Jan E. Hensel and
Anjali Chavan. Judge Richard Sheward. Case Caption: Don
O. Smith v. Superior Production, LLC, Case No. 11 CV
15815 (2013). Note: Following the verdict, Superior moved
for in the alternative for a judgment notwithstanding the
verdict or a new trial. The trial court granted the motion
and Plaintiff appealed. The Tenth District Court of Appeals
reversed the trial court’s decision in part and remanded the
case for reinstatement of the jury verdict on liability and
a new trial on damages. The parties settled the case upon
remand. See, Smith v. Superior, 10th Dist. Franklin No.
13AP-690, 2014-Ohio-1961.
Verdict: $198,105.60. ($48,105.60 for Economic
Damages; $150,000.00 for Non-Economic Damages; $0 for
Loss of Consortium) Medical Malpractice. On April 6, 2009,
Defendant William P. Gianakopolous, M.D. performed a
lithotripsy procedure on Plaintiff Richard Hunter (57-yearsold) to remove kidney stones. Mr. Hunter returned to the
emergency room the following day with severe abdominal
pain. He was diagnosed with a ruptured spleen which
required an emergency splenectomy. Mr. Hunter asserted that
the damage to his spleen was caused by Dr. Gianakopolous’s
negligent performance of the lithotripsy procedure. Dr.
Gianakopolous denied negligence and argued that spleen
injury is a known risk of lithotripsy that can occur despite
proper performance of the procedure and that the risk was
disclosed to Mr. Hunter. Medical Specials: $48,105.60
reduced to $14,415.19 after write-offs. Lost Wages: None.
Plaintiff’s Expert: Louis Liou, M.D. (urology). Defendant’s
Experts: David Neal, M.D. (radiology); Joseph Dankoff,
M.D. (urology). Last Settlement Demand: $150,000.00. Last
Settlement Offer: None. Length of Trial: 4 days. Counsel for
Plaintiffs: Curtis M. Fifner. Counsel for Defendant: Thomas
Dillon. Magistrate Ed Skeens. Case Caption: Richard
Hunter, et al. v. William Gianakopolous, et al. Case No. 10
CV 14046 (2013).
Verdict: $80,000.00. (Breach of Contract) On January
22, 2011, Plaintiff Hassan Nour entered into a sublease
agreement with Defendant Jamal Shiwar for a property
located on Morse Road. The property was to be used as a
daycare facility by Kids Zone Day Care, Inc. Pursuant to the
agreement, Mr. Shiwar was to make certain improvements to
the property by May of 2011. The improvements included
new parking spaces, a grass playground area, a fire wall
and an HVAC system. According to Mr. Nour, Mr. Shiwar
did not complete the improvements and, despite repeated
requests, the improvements remained incomplete as of
October of 2011. Mr. Nour discontinued rent payments
after November 2011. He alleged that he spent in excess of
$30,000 in construction costs and hired a daycare consultant
to get the daycare facility up to code. Mr. Shiwar asserted that
the improvements were made with the exception of the fire
wall. The fire wall was not constructed because the parties
discovered after the agreement was signed that a firewall
was not necessary. Mr. Shiwar filed a counterclaim against
Mr. Nour for unpaid rent. The jury found in favor of Mr.
Nour on both his claim and the counterclaim. Neither side
called any experts. No settlement negotiation information
was provided. Length of Trial: 4 days. Counsel for Plaintiff:
Troy J. Doucet. Counsel for Defendant: Joseph C. Lucas.
Magistrate Pamela Browning. Case Caption: Hassan Nour v.
Jamal Shiwar Case No. 12 CV 26 (2013). Note: Following
the judgment, Plaintiff moved for an award of attorneys fees
pursuant to an indemnity provision in the sublease agreement.
The Court denied the motion and Plaintiff appealed. The
Tenth District affirmed the decision in Nour v. Shawar, 10th
Dist. Franklin No. 13AP-1090, 2014-Ohio-3016.
Verdict: $5,670.53 ($3,970.53 for Economic Damages;
$1,700.00 for Non-Economic Damages). Automobile
Accident. On September 9, 2010, Plaintiff Ashley Adams
was traveling eastbound on I-270 when her vehicle was rearended by a vehicle driven by Defendant Lowell Jolley. At the
time of the collision, Mr. Jolley was in the course and scope
of his employment for Defendant HD Supply Waterworks,
Ltd and driving a vehicle owned by Defendant Penske Truck
Leasing. Ms. Adams sued Mr. Jolley for negligence and
asserted a claim against Penske for negligent entrustment
and against HD Supply based on respondeat superior. Ms.
Adams claimed that she injured her neck in the accident
and developed bursitis in her shoulder. Mr. Jolley disputed
the extent of the injury. Medical Specials: $3,970.53. Lost
Wages: None. Plaintiff’s Expert: Gayan Poovendran, M.D.
(family practice). Defendant’s Expert: None. Last Settlement
Demand: $20,000.00. Last Settlement Offer: $5,000.00.
Length of Trial: 2 days. Counsel for Plaintiff: Walter
Messenger. Counsel for Defendant: Kevin Foley. Judge
Patrick Sheeran. Case Caption: Ashley Adams v. HD Supply
Management, Inc., et al. Case No. 12CV-10255 (2013).
Verdict: $4,570.53. Automobile Accident. On February
14, 2012 Plaintiff Stacey Carr was headed eastbound on
Schrock Road approaching Cleveland Avenue when her
vehicle was rearended by a vehicle driven by Joyce Jester.
Ms. Jester’s vehicle had been rearended by Defendant Kim
Glaser and pushed into Ms. Carr. Ms. Carr claimed severe
and debilitating injuries to her neck and back. She went to
the emergency room on the day of the accident and began
physical therapy the following week. After approximately 6
weeks of physical therapy, she began chiropractic therapy
which continued for another 3 months. Ms. Glaser stipulated
liability and the case proceeded to trial on damages only.
Ms. Glaser argued that Ms. Carr was not injured in the
accident. She pointed out that the collision was low impact
with minimal property damage and that Ms. Carr did not
strike the interior of the vehicle and was not transported by
ambulance from the scene. She also argued that Ms. Carr
had a pre-existing permanent back injury. Medical Specials:
$6,830.00 (reduced to $4,103.89). Lost Wages: None.
Plaintiff’s Expert: Jill Gardner, DC. Defendant’s Expert:
None. Last Settlement Demand: $8,000.00. Last Settlement
Offer: $1,498.00. Length of Trial: 2 days. Counsel for
Plaintiff: Jay Hurlbert. Counsel for Defendant: Jonathan
Preston. Magistrate Ed Skeens. Case Caption: Stacey Carr v.
Kimberly Glaser, Case No. 12CV-011883 (2013).
Defense Verdict. Breach of Contract. In 2008, Defendant
Plaza Properties, Inc. announced plans for the development
of real estate located in the Arena District in Columbus. At
the time, Plaza Properties served as the asset manager for
the real estate to be developed. From 2004 through 2008,
Milligan Communications, lead by Ruth Milligan, worked
as an independent consultant for Plaza Properties providing
public relations, marketing and some “corporate matchmaking” services. In late 2008, Milligan Communications
was approached by political consultants driving the ballot
initiative for the development of a casino in Columbus.
The consultants inquired about Milligan’s contacts with
management companies, developers or property owners
who would be interested in the development of a casino.
On November 28, 2008, Ruth Milligan met with the
chief development officer for Plaza and disclosed that she
Monday through Friday, The Daily Reporter reaches
Central Ohio’s top decision makers. Make sure you’re connecting
with the people who can help make your business successful.
Follow the crowd
T
Be in the right place, at the right time. Be in The Daily Reporter.
Call 614-228-NEWS (6397) today for advertising information.
Winter 2015 Columbus Bar Lawyers Quarterly
29
had contacts interested in casino
development. Plaza expressed an interest
and, on December 9, 2008, entered
into a “Finder’s Fee Agreement” with
Milligan Communications. According
to the terms of the agreement, Plaza
authorized Milligan to introduce Plaza
to potential investors and/or developers
for the Arena District property and,
if an investor and/or developer that
Milligan introduced Plaza to made
an investment in that site or any
related projects, Milligan was entitled
to a finder’s fee. The same day that
the agreement was signed, Milligan
arranged a meeting between the
political consultants and various Plaza
executives. The political consultants
thereafter put the Plaza executives in
contact with Penn National Gaming,
Inc. Milligan Communications was
not involved in Plaza’s negotiations
with Penn National. The negotiations
were handled by the president of
Plaza Properties, Laurence Ruben,
who was also a real estate broker. In
2009, Plaza and Penn National entered
into a Purchase Agreement for the
Arena District property. The Purchase
Agreement included a 4% commission
to Plaza President, Laurence Ruben,
as the seller’s agent. Milligan
Communications did not receive a
finder’s fee. Milligan Communications
sued Plaza for breach of contract and
unjust enrichment. It also sued Laurence
Ruben for tortious interference and
unjust enrichment and Ruben’s realty
company, LGR Realty, Inc., for civil
theft. The Court granted summary
judgment in favor of defendants on
Milligan’s unjust enrichment claims and
converted the civil theft claim into a
claim for conversion, but the remaining
claims survived summary judgment.
According to the jury interrogatories,
the jury found that Plaza did not
breach its agreement with Milligan
and that the information Milligan
provided to Plaza was not confidential
information for which Milligan held an
ownership or property interest. Plaintiff
claimed $274,700.00 in damages.
No information regarding experts or
settlement negotiations was provided.
Length of Trial: 7 days. Counsel for
Plaintiff: Shawn J. Organ and Douglas
R. Cole. Counsel for Defendants Plaza
Properties, Inc. and Laurence Ruben:
James C. Frooman and Katherine M.
Klingelhafer. Counsel for Defendant
LGR Realty, Inc.: Michael Carpenter,
Katheryn M. Lloyd and Jeffrey R.
Corcoran. Judge Kim Brown. Case
Caption: Milligan Communications,
LLC v. Plaza Properties, Inc., et al. Case
No. 10 CV 1471 (2013).
Defense Verdict. Premises Liability.
Plaintiff Victoria Sue Meadows (53years-old) sublet an apartment at 417
E. 15th Avenue owned by Defendant
T&E Rentals I, LLC. The apartment
had a front porch with poured concrete
steps and a wrought iron handrail.
On March 10, 2009, Ms. Meadows
left her apartment and placed her
right hand on the handrail to steady
herself as she descended the steps. The
handrail collapsed and Ms. Meadows
fell, landing on top of the handrail on
the ground. She sustained fractures of
her right pinky finger, vascular damage
to her right tibia from a contusion, a
broken upper denture and multiple
other contusions and abrasions. Ms.
Meadows sued T&E claiming that the
wrought iron handrail was corroded,
unstable, in disrepair and dangerous
and that T&E failed to inspect and
maintain the property. T&E argued
that it had no notice that the handrail
had deteriorated. Ms. Meadows was
not working at the time of the accident,
having been disabled by pre-existing
unrelated conditions. She had some
deformity in her little finger from
the fracture that was permanent and
interfered with her ability to play guitar,
which she had previously enjoyed as a
hobby. She also had skin discoloration
and vascular complications from the
tibia contusion that were still present at
the time of trial. The parties stipulated
on the medical bills and proceeded to
trial on liability and non-economic
damages. Plaintiff’s Expert: James
Rutherford, M.D. Defendant’s Expert:
None. Last Settlement Demand:
$25,000.00. Last Settlement Offer:
$20,000.00. Length of Trial: 2 days.
Counsel for Plaintiff: Ronald Plymale.
Counsel for Defendant: Benjamin
Ritterspach. Magistrate Mark Petrucci.
Case Caption: Victoria Sue Meadows
v. T&E Rentals
Case No. 12 CV
9136 (2013).
Monica L. Waller, Lane Alton & Horst
[email protected]
30
Winter 2015 Columbus Bar Lawyers Quarterly