Estate of Owensby v. City of Cincinnati, No. 1:01 CV 00769.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Citation385 F.Supp.2d 626
Docket NumberNo. 1:01 CV 00769.
PartiesEstate of Roger D. OWENSBY, Jr., Plaintiff, v. CITY OF CINCINNATI, et al., Defendants.
Decision Date20 May 2004

Frederick Mason Morgan, Jr., Volkema Thomas Miller Burkett Scott & Merry L.P.A., James Burdette Helmer, Jr., Paul B. Martins, Helmer Martins, Rice & Popham Co., L.P.A., John J. Helbling, The Helbling Law Firm, L.L.C., Cincinnati, OH, Mark Theodore Tillar, Mason, OH, for Plaintiff.

Kenneth L. Lawson, II, Lawson & Associates, Kimberly A. Rutowski, Hardin Lefton Lazarus & Marks LLC, Brian Edward Hurley, Crabbe, Brown & James LLP, Donald Edson Hardin, Geri H. Geiler, Gloria J. Sigman, Julie Furber Bissinger, Mark Carl Vollman, Richard Ganulin, Ravert J. Clark, Wilson G. Weisenfelder, Jr., Cincinnati, OH, Neil Frank Freund, Vaseem S. Hadi, Dayton, OH, Larry Holliday James, Columbus, OH, for Defendants.

ORDER

SPIEGEL, Senior District Judge.

On November 6, 2001, Roger Owensby, Jr.'s Estate (the "Estate") filed a Complaint against the City of Cincinnati ("Cincinnati" or the "City"), the City of Golf Manor, and Huntington Meadows, as well as numerous police and security officers these Defendants either employed or currently employ (doc. 1), raising claims arising from the death of Roger Owensby, Jr. ("Owensby") while in police custody.1 The severity of the allegations are underscored by the flurry of motions filed by the parties in the instant case. Currently ripe and pending before the Court are the following motions:

1. Defendants City of Cincinnati and Police Chief Thomas Streicher, Jr.'s Motion to Bifurcate Claims From the Claims Against the Individual Police Officer Defendants (doc. 57);

2. Motion for Summary Judgment On Behalf of Defendants, The Village of Golf Manor, Chief Stephen Tilley, Robert Heiland, and John Doe # 7 N/K/A Chris Campbell (doc. 85);

3. Plaintiff's Motion for Partial Summary Judgment Against Defendants Village of Golf Manor, Its Police Chief and Its Individual Police Officers For Their Failure to Provide Critical Medical Care (doc. 87);

4. Plaintiff's Motion for Partial Summary Judgment Against Defendants City of Cincinnati, Its Chief of Police and Its Individual Police Officers For Their Failure to Provide Critical Medical Care (doc. 88);

5. Defendants City of Cincinnati and Police Chief Thomas Streicher, Jr.'s Motion for Reconsideration of March 25, 2004 Order Overruling Summary Judgment on Sovereign Immunity; Request to Certify Question to Ohio Supreme Court Regarding Revised Code 2744's Constitutionality; Alternative Motion to Certify Conflict to Sixth Circuit Court of Appeals (doc. 118).

Also pending are a number of liminal motions filed by the parties in an effort to exclude various testimonial sources and other evidence at trial. The Court will consider each of these motions in turn.

I. MOTION FOR RECONSIDERATION

In its March 25, 2004 Order (doc. 113), this Court denied the City and its police officers statutory immunity from Plaintiff's state-law claims of wrongful death, negligence, assault, and battery pursuant to Ohio Rev.Code §§ 2744.02 and 2744.03, respectively. The Court found, based upon the recent Ohio Supreme Court precedent Butler v. Jordan, 92 Ohio St.3d 354, 750 N.E.2d 554 (2001) and consistent with its prior decisions, that these statutory immunity provisions violate the Ohio Constitution and, as a result, that they are unavailable to the Defendants in this case. The City seeks reconsideration of this determination or, in the alternative, certification of the question of their constitutionality to either the Ohio Supreme Court or the United States Court of Appeals for the Sixth Circuit for review (doc. 118).2

In its motion, the City contends that this Court erred in its holding that recent pronouncements of the Ohio Supreme Court imply that the Ohio court would conclude the statutes were unconstitutional if it were actually presented with the issue for review. In support, it invokes a number of cases decided contemporaneously with or subsequent to Butler that it purports necessarily imply that the Ohio Supreme Court has, in fact, accepted the constitutionality of these provisions. For example, the City's motion advances the following contention:

For example, on June 19, 2002, eleven months after its Butler decision, the Ohio Supreme Court decided Ryll v. Columbus Fireworks Display, Co., Inc., which set forth a three-tier analysis in adjudicating Revised Code § 2744 immunity. (2002), 95 Ohio St.3d 467, 469-70, 769 N.E.2d 372. The [Ohio] Supreme Court in Ryll, expressly stated that it was not entertaining any constitutional challenge to Chapter 24 Sovereign Immunity. (Id. at 468, 769 N.E.2d 372.) Instead, "the general rule of R.C. Chapter 2744 `political subdivisions are not liable in damages' is applicable." (Id. at 469, 769 N.E.2d 372) (quoting Greene Cty. Agricultural Society v. Liming (2000), 89 Ohio St.3d 551, 556-57, 733 N.E.2d 1141). Therefore, the Supreme Court employed its three-tier analysis to determine whether the general rule immunized defendant City of Reynoldsburg from liability. Ryll, 95 Ohio St.3d at 469-70, 769 N.E.2d 372....

While the Ryll Court ultimately held Reynoldsburg was not entitled to immunity because it was not engaged in a "governmental function" under the test's first prong, the Supreme Court in Ryll never held Chapter 2744 Sovereign Immunity was unconstitutional. If this were true, the Court would have stated the same before engaging in its three-part analysis to determine if the general immunity rule applied. More importantly, if Chapter 2744 Sovereign Immunity was struck down as unconstitutional in the Butler Decision, decided eleven months earlier, it follows the Supreme Court in Ryll would have immediately dismissed Reynoldsburg's sovereign immunity claims and cited Butler. Stated differently, the Ryll Court's three-tier sovereign immunity analysis coupled with its failure to state that its earlier Butler Decision might have invalidated sovereign immunity as unconstitutional, displaces any view that the Butler Decision supports plaintiffs' Owensby's view.

(doc. 118)(all errors in original).

The City simply misstates the holding of the Butler decision, this Court's interpretation and application of the Butler decision, and the general framework this Court must follow when attempting to ascertain the status of state law. None of the cases the City cites directly hold that the statutory immunity provisions at issue are constitutional; simply put, this issue was never before the Ohio Supreme Court in any of these cases. As the Ohio Supreme Court noted in Ryll:

The issue before this court is whether Reynoldsburg and Truro Township are immune from liability. Some members of this court are on record as believing sovereign immunity to be an unconstitutional infringement of Section 16, Article I of the Ohio Constitution. See Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624 N.E.2d 704 (Pfeifer, J., concurring). Today, however, we resolve the issue before us in favor of the appellant without addressing the constitutional issue.

Ryll, 95 Ohio St.3d at 468, 769 N.E.2d 372 (emphasis added). Contrary to the City's assertion, this Court does not find it unusual that the Ohio Supreme Court would decide the proper application of a statute — as it does in the cases the City advances — when the constitutionality of the statute is not challenged in that case or upon review. Far more important for our purposes, a review of Ohio Supreme Court caselaw fails to reveal any case where the constitutionality of the immunity statutes at issue has been expressly decided in the recent past.

When faced with the need to resolve an undecided question of state law, a federal court must make the "best prediction, even in the absence of direct state precedent, of what the [state] Supreme Court would do if confronted with [the] question." Combs v. International Ins. Co., 354 F.3d 568, 577 (6th Cir.2004)(addressing issue in diversity action); see also Welsh v. U.S., 844 F.2d 1239, 1245 (6th Cir.1988) (addressing issue in Federal Tort Claims Act case). In performing this inquiry, the Court "may rely upon analogous cases and relevant dicta in the decisional law of the State's highest court, opinions of the State's intermediate appellate courts to the extent that they are persuasive indicia of State Supreme Court direction, and persuasive opinions from other jurisdictions, including the `majority rule.'" Welsh, 844 F.2d at 1245 (emphasis added); see also generally Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Significantly, whether this Court would find this rule advisable or fair is immaterial and is of no weight in the analysis. See Combs, 354 F.3d at 577; Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1429 (6th Cir.1997).

In invoking and analyzing Butler to conclude that the Ohio Supreme Court would find the statutory provisions at issue unconstitutional, the Court followed this rule. Inarguably, Butler provides the most thorough discussion of this issue of any recent Ohio Supreme Court decision. While this discussion may properly be characterized as "dicta," and while it may indeed be true that the "constitutionality of R.C. Chapter 2744 is not at issue in" Butler, these acknowledgments in no way detract from the reality that it is the most through, thoughtful — and only — discussion of the constitutionality of these provisions yet articulated by the Ohio Supreme Court. Butler, 92 Ohio St.3d at 375, 750 N.E.2d 554 (Cook, J.) (concurring in judgment). It remains the best "prediction ... of what the [Ohio] Supreme Court would do" if presented with the question. Managed Health Care Assoc., Inc. v. Kethan, 209 F.3d 923, 927 (6th Cir.2000). None of the cases presented by the City hold to the contrary: they simply fail to address or discuss this issue at all. As a result, the Court finds no grounds upon...

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