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Supreme Court preview

The Ohio Supreme Court had oral argument in no fewer than fifteen cases this week, which for some reason put me in mind of Mark Twain's observation that no man's liberty is safe when Congress is in session....  Anyway, here's a brief recap of some of the more interesting decisions coming to a store near you:

Gliozzo v. University UrologistsI highlighted this case when the 8th District handed it down last May; what happened was that the defendant had a valid claim for lack of proper service, raised it in his pleadings, but didn't press the issue until the eve of trial.  The appellate court voted 2-1 to reverse the dismissal, holding that despite asserting the defense initially, the defendant waived it by participating in discovery and pretrial negotiations.  The smart money here is on a reversal.

Manley v. Marsico.  Civil Rule 10(D)(2) requires that a medical malpractice claim be accompanied by an "affidavit of merit" -- an affidavit from a medical professional saying that there's evidence to support the case.  The plaintiff didn't include one, so the defendant's made a motion to dismiss.  The plaintiff filed a motion to supplement the pleading with an affidavit, and the court granted the motion.  The defendant appealed, and the court of appeals held the denial of a motion to dismiss wasn't a final order.  That's what the Supreme Court is going to decide, but of course, the central question will be whether the failure to include the affidavit at the time of filing the complaint is fatal.  In this corner, Form, in that corner, Substance.  May the best man win... This one's pretty close to even money, but if I had to pick, I'd say that the Court will hold that the pleading can be supplemented with the affidavit at a later time.

State v. Hassler.  This is one of those cases where the Supreme Court has to clean up its own mess.  The DWI statute provides that, to be admissible, a test for alcohol has to be taken within two hours after the violation.  (It did at the time of this case; it's since been amended to allow three hours.)  Back in 1988, the Supreme Court held that the state had to "substantially comply" with that section -- in non-lawyer-speak, stick to the time limit -- in prosecutions for the per se violation (being over the blood-alcohol limit), but could go beyond the time limit where the offense charged was the standard "driving under the influence" charge.  Then in 2005, a case in which the defendant was charged with aggravated vehicular homicide by virtue of driving drunk, the Court held that substantial compliance was necessary, without making any distinction between a per se violation and the general one.  Hassler's an agg vehicular homicide case, too, where the police waited eight hours before getting the sample.  (The defendant refused, and the cops had to get a warrant.)  I'd expect an affirmance here.

State v. MuttartThis is probably the most interesting case on the docket.  For various reasons, statements of children in sexual molestation cases often come in through some exception to the hearsay rule, especially excited utterances, statements made for purposes of medical diagnosis and treatment, and the generic hearsay exception for child sex abuse cases under Evidence Rule 807.  For various reasons, children are sometimes deemed to be incompetent witnesses in those cases, especially if they are very young (under five).  The question presented by Muttart is the interplay between competency and hearsay:  must a court hold a hearing and determine the child competent before allowing the child's hearsay statements to be admitted?  The specific issue in Muttart is whether competency has to be determined to allow statements made for purposes of medical diagnosis and treatment, under Evidence Rule 804(B)(4).  Most court of appeals decisions have held that it doesn't, but back in 1994, the Ohio Supreme Court held that a competency hearing was required for admission of statements under 807.  (As for the third exception, all the court cases indicate competency isn't at issue for determining whether an excited utterance is admissible.)  Given the language in the 1994 decision, I think the Court's going to be hard-pressed to distinguish 807 statements from those made under 804(B)(4). 

There was also another case argued, involving a landfill in Auglaize County, and which presented the following issue:

When a contract between political subdivisions includes a specified term of 12 years, does a provision in that agreement agreeing that one party will assume complete responsibility for "all the environmental monitoring (for a facility) required by applicable statutes and regulations... both prior to and subsequent to closure (of that facility)," extend liability for environmental monitoring beyond the general 12-year term of the contract?

As those of you who are regular readers of this blog know, something like this is right up my alley, so I'll be spending all next week discussing it in detail.

Uh-huh.

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