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February 2011 IssueThe Gavel: "State of the Court" Judges Pearson and O'Malley Confirmed By Senate Summer Associate Reception Sponsors Limbert Brown Bag Draws Capacity Audience in Youngstown The Role of the Magistrate Judge U.S. Supreme Court Limits “Honest Services” Prosecutions Rich Blake Named Winner of Iron Lawyer II Judge Zouhary on Discovery Reform (among other things) Advanced Federal Practice CLE Addresses Removal and MDLs FBA Annual Meeting and Convention 2010, Celebrating the Crescent City Profile of New FBA-NDOC Board Members Michael Newman Receives 2010 Elaine R. "Boots" Fisher National Award Installation of New Chapter President, Kip T. Bollin Chapter Members Recognize and Celebrate National Pro Bono Week University of Toledo College of Law Hosts Investiture Distinguishing the Sophisticated User from the Sophisticated Intermediary Defense Fifth Annual State of the Court Luncheon Information |
Federal Bar Association Northern District of Ohio Chapter | www.fba-ndohio.org | (877) 322-6364 President’s Podium Kip Bollin December was a momentous month for the Northern District of Ohio. We gained a new District Court Judge, we saw one of our judges depart for an appellate bench, and we said goodbye to an old and valued friend. Another article in this newsletter reports the good news of the confirmations of Judge Benita Y. Pearson to our federal bench in Youngstown, and of Judge Kathleen M. O'Malley to the U.S. Court of Appeals for the Federal Circuit. The two confirmations occurred within 24 hours of each other in the last days of the 111th Congress. Throughout 2010, the national Federal Bar Association lobbied for confirmation votes on behalf of our federal court nominees, as did our Northern District of Ohio Chapter. And while we are grateful that our judges have now been confirmed, we still cannot help but be disappointed that the Senate took so long to act. Judge Pearson's nomination lingered for over a year before she received her confirmation vote in the Senate, and Judge O'Malley waited over six months for her own confirmation (by unanimous voice vote). During this time, our judges' dockets grew and we were left for some time with no U.S. District Court Judge sitting in Youngstown. Thankfully, Judge Pearson will now be filling that void. But the transition of Judge O'Malley from the Northern District to the Federal Circuit is a loss to our District in more ways than one. On November 15, 2010, absent any timely action by the Senate a temporary judgeship created for the Northern District of Ohio expired. The Senate's delay of Judge O'Malley's confirmation until after that temporary judgeship expired, means that her seat on our bench will now not be refilled. So not only are we losing a talented and hard working jurist in Judge O'Malley, but with her departure we are also left with one less Article III judge in the Northern District of Ohio. This can be remedied only if the 112th Congress decides to act, which – given the other challenges presently before it, and Congress' history on matters judicial – seems less and less likely. December also marked the loss of one of our distinguished Senior Judges, Sam H. Bell. On December 23, 2010, Judge Bell passed away suddenly after a short illness. http://www.cleveland.com/obituaries/index.ssf/2011/01/sam_h_bell_was_a_gentlemanly_f.html As a former law clerk to Judge Bell I might be considered biased, but Judge Bell was widely regarded as a fair and contemplative judge who had a healthy respect for both the law and for the lawyers who practiced before him. I recall an occasion when, after having slogged through the parties' briefs on some question of law (now long-forgotten), I came to the Judge rather energized about a cavalier interpretation of the case law that was being pushed by one of the parties. I had even drafted some sharp words about that cavalier interpretation that the Judge might use in his opinion, if he was so inclined. Judge Bell listened to my concerns, addressed the merits and substance of the arguments and then, once the legal discussion was done, there was a silence. After the silence, the Judge told me to always remember that on the other end of any brief I read there was a lawyer doing his best to advocate for his client. Or perhaps there was a young associate doing his best to follow the direction of a senior law partner. But the point was that there were real people out there – certainly the parties to the lawsuit, but also their lawyers – whose lives and livelihoods were wrapped up in the words and papers before us, and that we had a very real duty to be careful and to do right by all of them. So in the end, the opinion was written and the law was upheld, but the "sharp words" never found their way into print. Judge Bell was a gentleman, a scholar and a worthy mentor to me and to so many others. He will be greatly missed. District Court Clerk's Corner Geri Smith Senior District Judge Peter C. Economus Last fall, Judge Economus began sitting by designation of the Chief Judge of the Sixth Circuit Court of Appeals in the Southern District of Ohio. Judge Economus has relocated to the Columbus, Ohio, area where most of his family now resides. Judge Economus no longer maintains an office or staff in the Northern District of Ohio. Reassignments Jury Evidence Recording System (JERS) eJuror CJA Online Reference Tool New Toledo Courthouse: Courtroom Mock-Ups National Clerks Conference CM/ECF Version 5.0 Unfortunately, some early users experienced problems with logging into CM/ECF after the upgrade due to the requirement to adopt secure passwords. If you encounter any problems logging into our system, please call the CM/ECF Help Desk at (800) 355-8498. eJuror Video Posted on USCourts.gov The video features interviews with jurors, judges and court employees as they describe how eJuror has streamlined the jury management process for courts and potential jurors alike. Strategic Plan for the Federal Judiciary Civil Litigation Management Manual (2 Ed.) www.uscourts.gov/FederalCourts/PublicationsAndReports/CivilLitigationManagementManual.aspx The manual, which was produced in response to the requirements of the Civil Justice Reform Act, was updated by the Committee on Court Administration and Case Management with the assistance of the AO and the FJC. The Judicial Conference approved the manual in March 2010. Please review this new version which incorporates statutory and rules changes and contains updated advice on electronic case management, electronic discovery, and ways of containing costs and expediting cases. Like the original version, there are sample forms included. Amendments to the Federal Rules of Practice and Procedure Under 28 U.S.C. §2074(a) and the April 28, 2010, Supreme Court orders, the amendments will govern all proceedings commenced on or after Dec. 1, 2010, and all proceedings then pending “insofar as just and practicable.” The text of the amended rules and extensive supporting documentation can be found on the Judiciary’s Federal Rulemaking website at: www.uscourts.gov/RulesAndPolicies/FederalRulemaking/Overview.aspx. Please note that amendments to several Bankruptcy Rules affect filing time periods in ways unrelated to the 2009 time-computation amendments. These amended filing requirements appear in Rule 1007(c) (which adds time) and in Rules 1019(2)(B), 5009, and 5012 (which create new filing periods). Additionally, an amendment to Rule 1007(a)(2) reduces from 14 days to seven days the time for a debtor in an involuntary case to file a list of creditors’ names and addresses. A court may extend the time to file the list if a debtor shows cause, which may include a failure to meet the new deadline from lack of knowledge about the amendment, especially within the first six months after the shorter period becomes effective. Proposed Amendments to Federal Criminal and Bankruptcy Rules Redesigned Website Please do not hesitate to let me know if there is any additional information we can provide on our website to assist you in your practice in the Northern District of Ohio. The Gavel: "State of the Court" * Judge Oliver By Solomon Oliver Jr., Chief Judge, U.S. District Court for the Northern District of Ohio I thank you all from the bottom of my heart for being here. This is meant to be not just my swearing-in ceremony, but a celebration of our court as you will see and hear as we progress from here to the reception. Some of you may remember my Investiture 16 years ago so you know that I was raised in Bessemer, Alabama and come from a large family. I have five brothers and four sisters. In recounting that day, I have heard some say that I individually introduced all 100 of my relatives who were present. I must confess that it’s probably true for I am as proud of them as they are of me. Today, for the sake of time, I will not introduce all of them individually. But in addition to my wife Louisa, our sons, Michael and Jon, and my brother Paul, my sister Eunice is here from Alabama with her husband Alexander and their son, Chip, daughter-in law, Cathy, and grandson, Parker. Also here from Alabama is my baby brother Nathan and his wife Carol. My other brothers and sisters and their families are with us in spirit. Also present with me are a number of Cleveland relatives, both on my mother’s side and my father’s side of the family. Louisa’s sister Elizabeth and her family, Lu and Emma, are present, as are her cousin Cathy and her family, Sean and Samantha. I am happy they could all be with me. My brother Paul has told you about our growing up in thoroughly-segregated Alabama. He also told you how our father, a steelworker who later became a minister, and our mother, who worked in the home, prepared us for future opportunities they hoped and prayed would be ours; opportunities they never had because of their race. Paul, as are my other brothers and sisters, is modest–it was the way of my father and mother. Growing up in the segregated South of the '50s and early '60s, he was raised by our parents, as the rest of us were, to have more confidence than he appeared to be entitled to based on the then-existing societal conditions. He proved to be a stiff competitor early and determined before I did that he wanted to be a lawyer. Paul was successful in his 10th grade year in a nationwide competition to attend a summer enrichment program at Yale, called Yale Summer High School. He was then recruited by some of the top New England prep schools, including Choate and Westminster Preparatory School in Simsbury, Connecticut. Choate concluded he would need an extra year of high school since he came from a poor, all-black and inferior school of the segregated South. He was having none of that, choosing to attend Westminster, where he finished his last two years of high school while lettering in three sports. Next, he was on to Yale and to Harvard Law School. He has now been an outstanding litigator and an employment lawyer for more than 35 years. I tell his story because I think it demonstrates that when children are taught to believe in themselves, no matter what color, and are provided opportunities, they can excel. My friendship with Magistrate Ken McHargh goes back to our time at the College of Wooster. Those of you who were at his Investiture heard me describe how he was that rare student who, during the turbulent '60s, could garner the respect of his fellow African-American students, the white students and hold the respect of the administration. He displayed at that time the same steady calmness that he displays as a judge today. Chaka Patterson was one of my first law clerks. I am proud of him as I am of all of my law clerks. When the next two come on in August, I will have had 22. They have been a very diverse lot–African-American, white American, Asian-American, vegetarian, Christian and Jew, from Cleveland State, Case, OSU, Harvard, Columbia, Georgetown, Duke and Michigan, for example. They have worked in the U.S. Attorney’s Office in Chicago, New York and Washington, taught on law school faculties, been associates and partners in large law firms, and served in the Civil Rights Division of the Department of Justice. Chaka was a partner in a large law firm in Chicago, before becoming Assistant Attorney General for Consumer Affairs in the State of Illinois. The latter post was the one he held before joining Exelon, a natural gas Fortune 100 company where he has now risen to Vice President and Treasurer. What I am most proud of is that my clerks are a racially and ethnically diverse group of people who are good human beings. I have encouraged them to pass it on, because no one can do well without some help along the way. I had my mother, father, sisters and brothers, uncles, aunts, teachers and many others. I had my friend and mentor, Dr. Ted Williams at the College of Wooster, I had Judge William H. Hastie, the first African-American to serve on a federal circuit court and for whom I clerked. I had Fred Coleman, Bill Beyer and Jim Williams, all U.S. Attorneys for whom I worked here in Cleveland. I had Judge Nate Jones, a retired U.S. Sixth Circuit Court of Appeals Judge and Judge George White, retired Chief Judge of this court and the first African-American to serve on it. I. Introduction Before I give you the state of the court, let me first say that as judges on this court, we are proud to serve the nearly six million people in our district. We take seriously our responsibility to decide not only ordinary disputes, but to be, in the words of Alexander Hamilton in the 78th Federalist, guardians of the Constitution. Let me also note the arrival of the newest member of our court, Magistrate James Knepp II, who serves in Toledo. He joined the court upon the retirement and recall of Magistrate Judge Vern Armstrong. After clerking for our colleague, Senior Judge Retired John Potter, Jim joined a major law firm in Toledo where he became partner and earned a reputation as an outstanding litigator. His formal investiture ceremony took place in Toledo on Sept. 22. My assessment of the state of the court is that it is sound. Clearly, there are some areas of concern, but there is no cause for alarm. II. Judicial Resources and Personnel As you all know, we suffered the loss of our colleague, Ann Aldrich, in May of this year. She was the first woman to serve on this court and was a trailblazer in many areas of her life and our society. At her memorial ceremony, I said of her, and I repeat, “Ann was a thoughtful and fair judge who accorded and demanded respect. The individual, the corporation and the government truly were treated equally. In that regard, she tolerated no nonsense....[S]he was a caring and a helpful colleague, always willing to share her wisdom and experience with the many new judges, including me, who have joined the court over the years.” She will be sorely missed. Of course, another transition took place on our court when our colleague, Jim Carr, stepped down as of June 1, 2010, after 5-1/2 years of distinguished service as our Chief, and I was sworn in as Chief Judge by retired Senior Judge Sam Bell. Fortunately, Judge Carr continues to serve as a senior judge on our court and is available to me for his wise counsel as I seek to find my way. On Aug. 22, Senators Brown and Voinovich recommended to President Barack Obama that Jeffrey Helmick fill the vacancy created by Jim when he took senior status. We are hopeful that Magistrate Judge Benita Pearson will soon join us on the District Court to fill the vacancy that was created in Youngstown when our colleague, Peter Economus, assumed senior status. Her nomination was voted out of the Senate Judiciary Committee quite some time ago and she is awaiting confirmation by the Senate. Her confirmation becomes all the more crucial because Judge Economus has moved to Columbus to be closer to family. He now serves as a senior judge in the U.S. District Court for the Southern District of Ohio. We also face an impending vacancy on our court caused by the nomination of our colleague, Kate O’Malley, by President Barack Obama to the U.S. Court of Appeals for the Federal Circuit. Her nomination has been voted out of the Judiciary Committee, and she is awaiting confirmation by the Senate. Though we are happy that she has been honored by the President with this nomination, we are in no hurry to see her go. We are also hopeful that Congress will act to replace our so-called “temporary judgeship” at or near the time she is confirmed. As many of you have heard over the years, one of our 12 District Court judgeships is so-called temporary. So, the first vacancy occurring after the Nov. 15, 2010, cannot be filled unless the judgeship is extended. Meanwhile, we are, in coordination with our Congresspersons and with the Administrative Office of the U.S. Courts, doing all we can to retain and extend the judgeship. In August, we celebrated the retirement of recalled Magistrate Judge James Gallas, who served this District for 14 years as its Clerk of Court and 19 years as a Magistrate Judge. In October, we celebrated the retirement of recalled Magistrate David Perelman after 31 years of service as a Magistrate Judge. While we applaud their service and extraordinary contributions to this court, we understand that they deserve the opportunity to vary their pace and do some of the other wonderful things in life that beckons. However, their know-how and experience cannot be easily replaced. We are extremely happy that Magistrate Judge Verne Armstrong decided to continue to serve for an additional period of time. All and all we will have fewer Magistrate Judges, but we feel we can manage effectively as long as we have our full complement of seven active magistrate judges. III. Budget The federal judiciary is currently working under a Continuing Resolution (CR), which expires on Dec. 3, 2010. It is anticipated that the CR will likely be extended until Dec. 18, 2010. If agreement is not reached by then on the Omnibus Appropriations bill, then the CR will be extended until the new session of Congress begins. The Director of the Administrative Office of the U.S. Courts, Jim Duff, recently commented that extending the CR through February would be most likely as it would give the incoming Congress an opportunity to complete the FY2011 appropriations bills. Although the judiciary has fared well in recent years, the changing fiscal climate will result in budget balancing reductions for the judiciary. We anticipate cuts to salary and non-salary requirements, both during this fiscal year and in the years ahead. We are hopeful that any reductions to the budget of our court will be manageable. IV. Court Caseload New case filings have been declining. For the year ending June 30, overall civil filings declined nearly 28 percent, from 5,169 in 2009 to 3,732 in 2010. Traditional civil filings declined 12%, from 3,411 to 2,992 and Multi-District Litigation filings declined 67 percent, from 2,258 to 742. The biggest declines in traditional filings were in the areas of contract and personal injury cases. There were small increases in intellectual property cases (patent, trademark, unfair competition). The court currently has 11 multi-district litigation actions on its docket, comprising over 2,222 pending cases, which represents nearly half of our pending civil docket of 4,492 cases. Criminal case filings declined over 8 percent, from 533 in 2009 to 487 in 2010 for the year ending June 30. The number of new criminal defendants rose 4 percent, however, from 708 to 738, reflecting an increase in multi-defendant matters. There are 424 criminal cases and 636 defendants currently pending on the court’s docket. V. Building and Technology A. Building—Toledo Court House Project B. Technology Last November and December, we conducted a series of online surveys and in-person meetings with attorneys, as well as among ourselves, as part of an IT Strategic Planning Process. We have been using the comments you have provided to improve our courtroom technology, such as by enabling attorneys to access videos from equipment on the presentation carts by utilizing laptops while seated at the counsel table. We have also installed lavalier microphones in all district judge courtrooms for use by attorneys and defendants and are working on upgrading the attorney wireless systems in our courthouses to be more flexible and easier for attorneys to use. You should continue to see further improvements as we make our way through the list of suggestions you have made. In recent months, we have provided an online automated CJA spreadsheet to help Criminal Justice Act Panel Attorneys complete their reimbursement vouchers more easily and quickly. Through our E-Juror System, the court now allows potential jurors to use the Internet to complete their qualification questionnaires, supply name and address changes, and request excuses or deferrals of service. The E-Juror System was developed by the Administrative Office of the U.S. Courts and is being implemented nationwide. Approximately 30 percent of our potential jurors now use this option to communicate with the court online. And, in October, the Clerk’s Office, in conjunction with the Federal Judicial Center and the Administrative Office of the U.S. Courts, hosted the National Clerk/Chief Deputy Conference in Cleveland which brought together the top 200 federal district court administrators from throughout the country. VI. Programs A. Civil Pro Bono Protocol B. Attorney Admissions Fund Grants C. Pretrial and Probation Programs Project Penalty Awareness is the Northern District of Ohio’s federal drug prevention program. Its purpose is to educate the public about federal drug trafficking offenses and penalties. The target audience includes groups that may be predisposed to engage in drug trafficking offenses, such as juveniles, gang members, drug users, and individuals with prior drug convictions. The Cleveland Municipal School District continues to be the Cleveland Office’s biggest audience with over 50 presentations given last year, mostly to 7th and 8th grade students. VII. National Leadership We, as Judges, and as a court have been involved at a national level in the leadership of the federal judiciary. For example, I have served on the Judicial Conference of the United States. Judge Kate O’Malley serves on the Space & Facilities Committee, Judge Patricia Gaughan on the Committee on Federal-State Relations, Bankruptcy Judge Art Harris serves on the Bankruptcy Rules Committee, Judge David Katz chairs the Committee on Audits and Administration Accountability, Judge James Gwin has served on the Committee on Information and Technology, Judge Dan Polster on the Committee on the Administration of the Magistrate Judge System, Judge David Dowd on the Criminal Rules Advisory Committee, and Judge James Carr on the Committee on the Magistrate Judge System, the Criminal Law Committee and the Foreign Intelligence Surveillance Court. Finally, I wish to thank the Federal Bar Association for its support of the work of the court over the years. I look forward to working with the Federal Bar as well as the Cleveland Metropolitan Bar Association, the Norman Minor Bar Association and the other bar associations throughout our District, separately and collaboratively, on matters of mutual concern, such as providing continuing legal education to the Bar and programmatic and other efforts to provide equal access to legal services and opportunities in the profession. * Redacted and revised remarks made at the State of the Court Luncheon on Sept.13, 2010. Judge Oliver received his B.A. degree from the College of Wooster and his J.D. from New York University. He was appointed to the U.S. District Court for the Northern District of Ohio in May of 1994. Previously, he served as Associate Dean and Professor of Law at Cleveland-Marshall College of Law.He also served as Chief of the Civil Division and Chief of Appellate Litigation in the U.S. Attorney’s Office in Cleveland. Judge Oliver clerked for the late William H. Hastie of the U.S. Court of Appeals for the Third Circuit. He served as Secretary to the Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar, and Co-chair of the Litigation Section’s Minority Trial Lawyer Committee. He is a member of the American Law Institute, the Board of Trustees of the College of Wooster, and the Judicial Conference of the United States.Oliver received the Distinguished Alumni Award from the College of Wooster and from NYU’s Black, Latino, Asian Pacific American Law Alumni Association. His most recent publication is a chapter on summary judgment in a six-volume treatise entitled, Business and Commercial Litigation in Federal Courts.Law School CornerCase Western Reserve University Law School Panel on Judicial Vacancies Judge Moore noted that the Sixth Circuit has operated on a short-handed basis for most of the past dozen years. At one point half of the authorized judgeships were vacant. At the time of the program, all the court’s positions were filled, but there is now another opening as a result of one judge’s taking senior status in late November. She explained how the circuit has dealt with its caseload, particularly through the continuing contributions of senior judges and visiting judges. Judge Polster emphasized that the Northern District of Ohio already has two vacancies and that Judge O’Malley has been nominated to the Federal Circuit, which could create a third opening. The district also faces the prospect of losing a temporary judgeship. Judge Polster expressed particular concern that the lengthy and contentious confirmation process has discouraged some well-qualified lawyers from considering appointment to the bench. Professor Adler cited data from the Administrative Office showing cyclical trends in judicial nominations and confirmations at different points in every recent presidential administration. University of Toledo College of Law Last year was The University of Toledo College of Law’s first year of involvement with the Federal Bar Association Northern District of Ohio Chapter. Toledo Law came in 2nd in the student membership drive last spring and will begin another membership push in January 2011. The College of Law thanks Rennillo Deposition & Discovery for reimbursing all student membership costs and also thanks the FBA for its contribution toward student academic awards given last year to three students who achieved the best performance in each of Toledo’s Con Law II sections. The Toledo Law students who achieved this honor were Amanda Hasty, Aamir Mahboob and Matthew Waigand. The University of Toledo College of Law has two outstanding student representatives for 2010-11. Douglas Leavitt is a 2L who served as a Seabee in the Navy and worked as a steel mill operator prior to law school. While attending law school he works part time as a clerk for a trial counsel team along while staying active with the Student Bar Association and its networking committee, the Toledo Bar Association, the American Bar Association and, of course, the Federal Bar Association. His interests include backpacking, snowboarding, rugby and other outdoor activities and he hopes to relocate to the Boise, ID area after graduation. Mark Abramowitz is a 3L who is serving his second year as an FBA student representative. Mark enjoys the excitement of the courtroom and plans to be a litigator. He looks forward to helping people believe that his answer is the right answer. This past summer Mark worked at the Lake County Prosecutor’s office and he is looking forward to interning at the DiCello law firm beginning in January. Mark is a member of Federal Bar Association, The Young Lawyers’ Association, Student Bar Association, Toledo Bar Association, and Ohio State Bar Association. Mark grew up in Toronto but plans to move to Cleveland to practice and start a family with his fiancée, a doctor in the Cleveland area. Upcoming Events: On Feb. 18, 2011, The University of Toledo College of Law’s Law Review will host a Symposium on Ohio’s Sentencing Policies and Practices, Costs and Consequences, coordinated by the Honorable James G. Carr. For more information contact Peg Ery at (419) 530-2962 or peggy.ery@utoledo.edu. Members in the News
Matthew T. Fitzsimmons, a partner at the Cleveland law firm of Nicola, Gudbranson & Cooper, LLC, has been elected Chairman of the Board of Trustees of Northeast Ohio Neighborhood Health Services, Inc. (“NEON”). NEON (formerly known as The Hough-Norwood Clinics) is the second oldest federally qualified community health center in the country. NEON has been serving the medically underserved of Cuyahoga County for 42 years.
Judge David A. Katz was named chair of the Committee on Audits and Administrative Office Accountability by Chief Justice John G. Roberts. Judge Katz’s term began his two year term on October 1, 2010.
FBA-NDOC President Kip T. Bollin has been appointed as a member of the Nominations and Elections Committee of the national Federal Bar Association for the 2011 year.
FBA-NDOC Secretary Jason A. Hill was elected to the OSBA Council of Delegates for a two year term beginning July 2011. He is also a recipient of the 20 under 40 Leadership Award.
Benjamin Sassé has been elected as Partner with Tucker Ellis & West. Mr. Sassé’s practice focuses on representing companies and individuals in complex trials and appeals. He has represented clients in cases involving employment law, trade secrets and covenants not to compete, intellectual property law, products liability, legal malpractice, and issues of constitutional law, including constitutional challenges to Ohio’s tort reform statutes. Ben is an active member of the Ohio State Bar Association, Cleveland Metropolitan Bar Association, American Bar Association, the Defense Research Institute and the Federal Bar Association. He earned his J.D. from Case Western Reserve University School of Law and B.A. from Earlham College.
Barbara Paynter's firm of Hennes Paynter Communications received top recognition from the Greater Cleveland Chapter of Public Relations Society of America for its crisis counseling work on behalf of clients in the regions. On December 3, 2010, the firm received a Gold "Rocks" award for work done on behalf of The MetroHealth System. Hennes Paynter Communications offers crisis communications, media training and mediation relations as well as litigation communication support. Submit your news story for “Members in the News” by email to admin@fba-ndohio.org.
Judges Pearson and O'Malley Confirmed By Senate Judge Pearson On December 21, 2011, the U.S. Senate confirmed the nomination of Magistrate Judge Benita Y. Pearson to fill a vacancy on the District Court in Youngstown, replacing Judge Peter Economus. The Senate’s vote, over a year in the making, is historic as Judge Pearson becomes the first African-American female to serve on the federal bench in Ohio. Prior to being appointed as a Magistrate Judge in Akron, Judge Pearson served as a United States Assistant Attorney for the Northern District of Ohio, was in private practice at Jones Day and clerked for the late Honorable John Manos. Senator Sherrod Brown hailed her confirmation as a proud day for all Ohioans.
 Judge O'Malley Judge Kate O’Malley was also confirmed by the senate to serve on the U.S. Court of Appeals for the Federal Circuit. She is the first former trial court judge to be elevated to the Federal Circuit. The Federal Circuit handles issues involving international trade, government contracts and , patent and trademarks, among others. Judge O’Malley was appointed to the District Court by President Clinton in 1994. Prior to her judicial service, she was Chief Counsel to the Ohio Attorney General, a partner at Porter, Wright, Morris & Arthur and began her legal career as a law clerk to the Hon. Nathaniel R. Jones. In lauding her confirmation, Senator Brown noted her confirmation was a loss for Ohio but a win for the nation. The FBA NDOH congratulates both these judicial officers on their confirmations. Summer Associate Reception SponsorsThank you to our 2010 Summer Associate Reception sponsors! Your continued support is greatly appreciated. Baker & Hostetler LLP Limbert Brown Bag Draws Capacity Audience in Youngstown (L to R) Chapter Board Member James Satola, Neil Schor, The Chapter’s Brown Bag lunch with U.S. Magistrate Judge George J. Limbert on July 16, 2010, was a huge success, drawing a capacity audience of more than 46 attendees who were treated an interesting and interactive presentation by the judge at the Thomas Lambros Federal Building and U.S. Court House in Youngstown. It marks the first of what is planned to be many Chapter events in Youngstown. Judge Limbert shared his views about proper handling of civil and criminal cases by attorneys who appear before him. He also discussed the role of a magistrate judge in handling such cases. Included in his discussion was review of a Chapter newsletter article by U.S. District Judge Jack Zouhary identifying ten things attorneys should not do in federal court. Limbert has served as a magistrate judge since 1999. He previously was in private practice in Youngstown from 1965-1996 and 1997-1999. He was a Mahoning County Common Pleas Judge from 1995-1996. He was president of the Mahoning County Bar Association 1986-’87 after serving as a member of its Board for a decade. He has a BA from John Hopkins University and his JD and LLM from Case Western Reserve University. The Role of the Magistrate Judgeby Magistrate Judge George J. Limbert In the federal courts today, there are currently 500 full-time magistrate judges ($151,984/year) and 45 part-time magistrate judges; 324 bankruptcy judges ($ 151,984/year); 678 active district judges ($165,200/year); 179 circuit judges ($175,100); as well as a number of senior judges, retired from active duty, who handle varying caseloads of at least 25 percent of an active judge. In the Northern District of Ohio, there are eight magistrate judges (five in Cleveland, which includes one recalled judge, one in Akron, one in Youngstown and one in Toledo), 12 authorized active district judges and five senior district judges. Magistrate judges, like bankruptcy judges, are selected by a Merit Selection Panel of approximately 25 members not employed by the court and consisting of lawyers, educators and distinguished community leaders. The panel, after posting notices and holding interviews, recommends five names to the active district judges, who must then select a magistrate judge from those five names, and cannot go outside that list of five. The term of office is eight years, with the right to seek reappointment, but again with a Merit Selection Panel involved in the review. (Bankruptcy judges are selected in a similar fashion by the Circuit Court of Appeals for 14-year terms, but all other staffing and benefits are the same as the magistrate judges.) A magistrate judge and bankruptcy judge are eligible for retirement at 65 with a full cost of living adjusted salary for life and can insure a spouse for a 25 percent annuity and a lump sum insurance benefit of five times salary. As noted above, magistrate judges and bankruptcy judges are currently paid $151,984/year, 92 percent of a district judge’s salaries, and have a staff of a non-lawyer courtroom deputy clerk, and a secretary and a law clerk, or, alternatively, two law clerks and no secretary. The tasks undertaken by magistrate judges vary from district to district. They fulfill many of the pretrial civil and criminal roles. Their criminal jurisdiction for trials are misdemeanor and petty offenses, although they are involved in felony cases issuing complaints, search warrants, phone tap and trace authorizations (but not wiretaps, which must be issued by an Article III judge), forfeiture seizure warrants, holding preliminary hearings to determine probable cause, and setting bond or detaining defendants pending trial. On the civil side, magistrate judges do some pretrial case management, including discovery. They can enter orders on non-dispositive motions involving civil case management, such as discovery orders. Because of constitutional constraints under Article III, magistrate judges cannot enter dispositive orders and judgments (i.e., those ending a case) or injunctions without the parties and the Article III judge to whom the case is assigned consenting to a magistrate judge exercising such jurisdiction. When the Article III judge and parties consent, a magistrate judge can rule on dispositive motions to dismiss, summary judgment motions, and also try a case with a dissatisfied party appealing to the circuit court. In most cases where there is not consent, a magistrate judge can hear dispositive motions and write a report and recommendation, to which decision either or both parties can file objections. These objections are then ruled on by the Article III judge assigned to the case, who makes a de novo determination. Magistrate judges in our district handle all social security disability and state and federal habeas corpus petitions, except for capital cases on a report and recommendation basis, unless there is consent. The position was created by the Federal Magistrates Act of 1968 that ended the position of commissioner in the federal court and created 82 full-time magistrates and 448 part-time magistrates. The jurisdiction and role was greatly expended in the Federal Magistrates Act of 1979, creating civil trial jurisdiction with party consent. With the increase in federal caseload, and the political hurdles that exist to the creation of new Article III positions, the number of magistrate judges has grown significantly to serve as adjunct judges in district court. The number of full-time magistrates has increased nearly 150 percent in the last 20 years. Editor’s note: This article was written in 2006. The number of judges on the bench and the compensation rates for judges have changed over time. This article is reprinted with permission of the Akron Bar Association. U.S. Supreme Court Limits “Honest Services” Prosecutions Deneen LaMonica by Deneen LaMonica In a post-Enron world, the reins have tightened on prosecutorial vigilantism. On June 24, 2010, the U.S. Supreme Court unanimously ruled in a trilogy of cases that charges of “honest services” fraud must now be supported with proof of bribes or kickbacks. Merely deceiving one’s employer, or the public, is no longer enough to violate the honest services statute. Justice Ruth Bader Ginsburg issued the three opinions for the Court: Skilling v. United States Although Justices Scalia, Thomas and Kennedy would have declared the statute unconstitutional on due process grounds, the Court chose instead to limit the provision. Addressing those due process concerns, Justice Ginsberg wrote: “Reading the statute to proscribe a wider range of offensive conduct would raise vagueness concerns, the Court holds that §1346 criminalizes only the bribe-and-kickback core of the pre-McNally case law.” Id. at 6. Weyhrauch v. United States Black et al., v. United States What these cases mean for “honest services” prosecutions These cases raise the question whether the next step is to strike the statute altogether as vague, especially in light of more specific, existing anti-bribery and anti-kickback statutes. The new, narrower scope of the statute provides grounds to dismiss current charges that overstep the statute’s reach, or to persuade the government to close or decline investigations -- at least until the next legislative fix. Deneen LaMonica is a litigator in the White Collar Defense and Investigations Practice of Cleveland, Ohio-based law firm, Calfee, Halter & Griswold LLP. She can be reached at (216) 622-8821 or dlamonica@calfee.com. Learn more about Deneen and Calfee at www.calfee.comRich Blake Named Winner of Iron Lawyer II Richard Blake Attorney Richard Blake, Brickler & Eckler LLP, was named the winner and “Iron Lawyer” of the Northern District of Ohio Federal Bar Association’s 2010 Iron Lawyer II CLE and Competition. Blake, along with Edward Bryan, Assistant Federal Public Defender, Northern District of Ohio, Kim Moses, Calfee, Halter, & Griswold LLP, and Robert Anspach, Anspach Meeks Ellenberger, LLP, participated in the CLE and competition which consisted of each lawyer presenting a 20-minute closing argument of their choosing to the CLE attendees. The closing argument topics ranged from criminal prosecutions and terrorism cases, to commercial litigation and FELA defense. After hearing each closing argument, the attendees voted and selected one winner as the Iron Lawyer. The Iron Lawyer II was moderated by Cleveland Marshall Interim Provost Geoffrey Mearns. After each participant presented their argument, Mearns lead an analytical discussion with the celebrity panel judges, U.S. District Judges Dan A. Polster and Christopher A. Boyko, and U.S. Magistrate Judge Greg E. White, focusing on the strategic, stylistic, and substantive critique of each lawyer’s closing argument. This was the second Iron Lawyer competition sponsored by the Federal Bar Association. Blake joins Eric Zagrans, the winner of the 2008 inaugural Iron Lawyer competition, as the Iron Lawyer of the Northern District of Ohio. What is Your Client’s Number…What is Your Client’s Number: 11 U.S.C. Section 707(b), 11 U.S.C. Section 727, or 18 U.S.C. Section 152? Andy Vara & Dean Wyman By Andy Vara, and Dean Wyman Daniel McDermott is the U.S. Trustee for Region 09, which encompasses Ohio and Michigan. United States Trustees are Department of Justice officials who supervise the administration of bankruptcy cases. See 28 U.S.C. 581-589a (2006 & Supp. II 2008); H.R. Rep. No. 595, 95th Cong., 1st Sess. 88 (1977). United States Trustees may appear and be heard on any issue in a bankruptcy case or proceeding. 11 U.S.C. §307. The U.S. Trustee has been likened to a watchdog of the bankruptcy system. In re Revco, D.S., Inc., 898 F. 2d 498, 500 (6th Cir. 1990). Because the United States Trustee is an active participant in bankruptcy cases, it is likely that you will see representatives of his office if your client files bankruptcy or if your client has pending litigation against someone who has filed bankruptcy. With 38,214 bankruptcy cases filed in the Northern District of Ohio during calendar year 2009, there are several areas in which you may encounter the U.S. Trustee. The U.S. Trustee maintains his office in Cleveland, Ohio, in the Howard M. Metzenbaum U.S. Courthouse. This office covers the entire Northern District of Ohio. Other offices in Region 9 are located in Columbus, Cincinnati, Detroit and Grand Rapids. The Cleveland Office has eight attorneys and five bankruptcy analysts. Attorneys from the Cleveland office appear in bankruptcy courts located in Cleveland, Youngstown, Akron, Canton, and Toledo. Bankruptcy analysts provide accounting and financial oversight and investigation. In chapter 11 cases, the U.S. Trustee may file objections to retention of professionals, objections to fee applications, or motions to convert, dismiss, or for appointment a chapter 11 trustee. In chapter 7 cases, you may see the U.S. Trustee pursue motions to dismiss or complaints objecting to discharge. Generally, the U.S. Trustee becomes involved in cases where he perceives parties are engaging in practices that violate the Bankruptcy Code or Federal Rules of Bankruptcy Procedure. The U.S. Trustee seeks to consistently and fairly enforce the bankruptcy laws as drafted by Congress and prevent fraud and abuse whether committed by debtors, creditors, attorneys or bankruptcy petition preparers. This article will explore some areas where you may see the U.S. Trustee. Abuse Under 11 U.S.C. §707(b) The U.S. Trustee seeks dismissal in cases where the presumption of abuse arises. Unless, the debtor establishes special circumstances, such as a serious medical condition or call to active duty in the Armed Forces, the case will be dismissed. In re Taylor, 417 B.R. 762 (Bankr. N.D.Ohio 2009). Alternatively, the U.S. Trustee may seek dismissal under 11 U.S.C. §707(b)(3) based upon either bad faith or the totality of circumstances. In re Krohn, 886 F. 2d 123, 126 (6th Cir. 1989). The totality of the circumstances includes the ability to repay creditors. Hence, the U.S. Trustee will often argue that the debtor lacks any need for a bankruptcy discharge because excess income allows creditors to receive payment over time. The U.S. Trustee usually will rely upon debtor’s Schedule I (Income) and Schedule J (Expenses) in making this determination. However, the Court is not bound by a debtor’s own estimates of his income or expenses. In re Gonzales, 378 B.R. 168, 176 (Bankr. N.D. Ohio 2007)(observing that a debtor may not throw numbers at a court to attempt to defeat a motion to dismiss). Even a small repayment percentage may justify the dismissal of the case. In re Behlke, 358 F. 2d 429 (6th Cir. 2004). Under the bad faith prong of 11 U.S.C. §707(b), the Court may dismiss a case where the debtor’s conduct is not honest or fair. In re Oot, 368 B.R. 662 (Bankr. N.D. Ohio 2007)(referring to a “smell test” to gauge bad faith). Denial of Discharge Under 11 U.S.C. §727 The U.S. Trustee may object to the discharge of the debtor. 11 U.S.C. §727(c)(1). In most cases, the U.S.Trustee alleges that the debtors have concealed assets or made false oaths. 11 U.S.C. §727(a)(2)(concealing assets); 11 U.S.C. §727(a)(4)(making a false oath); In re Kenney, 227 F. 3d 679 (6th Cir. 2000). To establish concealment, the U.S. Trustee only needs to show that the debtor did something to delay or obstruct the bankruptcy trustee in his duties to collect and distribute assets to creditors. United States v. Wagner, 382 F. 3d 598, 609-10 (6th Cir. 2004). To prove a false oath, the U.S. Trustee must show that the debtor made a statement under oath, the statement was false, the debtor knew the statement was false, the debtor acted with fraudulent intent, and the statement was material. In re Kenney, 227 F. 3d at 685. A debtor who makes a statement with reckless disregard for its truth has made the statement knowingly. Id., at 686. Both the U.S. Trustee and chapter 7 panel trustees are active in filing adversary proceedings objecting to the discharge of debtors on the grounds of concealment and false oaths. Bankruptcy Crimes: 18 U.S.C. §152 Section 152 of title 18 “exists not to protect individual creditors, but rather ‘to prevent and redress abuses of the bankruptcy system.’” United States v. Wagner, 382 F. 3d 598, 608 (6th Cir. 2004)(citation omitted). Section 152(1) of title 18 proscribes concealing assets in bankruptcy cases. This statute simply states that it is illegal to knowingly and fraudulently conceal from creditors or the trustee any property belonging to the estate of a debtor. There is no materiality requirement under this statute. United States v. Wagner, 382 F. 3d 598 (6th Cir. 2004). Similarly, Section 152(3) of title 18 prohibits a person from knowingly and fraudulently making a false statement under the penalty of perjury in a bankruptcy case. United States v.Ellis, 50 F. 3d 419, 422 (7th Cir. 1995). Even a superficial comparison of 11 U.S.C. §727 (civil denial of discharge) with 18 U.S.C. §152 (criminal bankruptcy crimes) points out there are basic similarities between the civil and criminal statutes. The elements are virtually identical. The burden of proof in a denial of discharge action is the preponderance of the evidence. In re Bailey, 375 B.R. 410, 416 (Bankr. S.D. Ohio 2007). In contrast, the burden of proof in criminal cases is beyond a reasonable doubt. United States v. Henry, 545 F. 3d 367, 382 (6th Cir. 2008). But debtor’s conduct that may warrant the denial of discharge may also support a criminal conviction. The similarity between 11 U.S.C. §727 and 18 U.S.C. §152 suggests that a debtor’s bankruptcy attorney must be aware of the potential consequences of any action brought under 11 U.S.C. §727. In such an action, the debtor would be expected to lodge an answer, respond to discovery requests, and testify at depositions or trial. Each statement made by the debtor can be used against him in any possible future criminal action. See, United States v. Lay, 612 F. 3d 440, 448 (6th Cir. 2010)(holding the defendant’s prior deposition testimony was non-hearsay under 801(d)(2)). The debtor, however, has an alternative: he may refuse to testify upon the strength of the Fifth Amendment. But the debtor must understand by invoking the Fifth Amendment, he then permits the Court to draw an adverse inference against him in the civil action. In re Brown, 427 B.R. 715, 722 (D. Minn. 2010). The similarities between 11 U.S.C. §727 and 11 U.S.C. §152 present challenges. In every chapter 7 bankruptcy case, a trustee is appointed by the U.S. Trustee. Under 18 U.S.C. §3057, these trustees refer cases if they have a reasonable ground to believe that violations of laws relating to bankruptcy have occurred. Similarly, the U.S. Trustee refers matters to the U.S. Attorney that “may constitute a crime under the laws of the United States.” 28 U.S.C. §586(a)(3)(F). For example, the U.S. Trustee program made approximately 1,611 bankruptcy and bankruptcy related criminal referrals during fiscal year 2009. As a result, bankruptcy attorneys should be aware that conduct that threatens a debtor’s discharge may also suggest criminal conduct on the part of the debtor. If you practice in the bankruptcy court, or if you have clients who are affected by bankruptcy filings, you should be familiar with 11 U.S.C. §707(b), 11 U.S.C. §727, and 18 U.S.C. §152. Conclusion Andy Vara, Assistant U.S. Trustee and Dean Wyman, Senior Trial Attorney, United States Department of Justice, Office of the U.S. Trustee, The United States Trustee.The statements herein are solely those of the authors and do not represent a statement of policy or otherwise by the U.S. Trustee for Region 9, Executive Office for U.S. Trustees, or any other person or entity.Judge Zouhary on Discovery Reform (among other things) Judge Zouhary United States District Court Judge Jack Zouhary, serving on the federal bench in Toledo, Ohio, since 2006, can liven up even the dullest of procedural topics. His late afternoon presentation on Thursday, Oct. 14, 2010, was no exception. Billed as a one-hour CLE on discovery reform, Judge Zouhary took the opportunity not only to showcase the work of the American College of Trial Lawyers’ Task Force on Discovery and Civil Justice, but also to enlighten practitioners in attendance on the “top ten” ways, in his courtroom, to “secure the just, speedy and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. From the outset of every new case, Judge Zouhary takes the “one size does not fit all” approach. Although he claims to adhere strictly to track assignments, schedules and page limits, he is also a fan of staged, or proportionate, discovery and creative approaches to identifying and resolving key issues early in a case. While emphasizing that not every case needs a motion, and not every motion needs an opinion, when appropriate, he likes oral argument and may even send counsel questions that he wants addressed ahead of time. At oral argument, he will be looking for more of a “point-counterpoint” type of discussion than an appellate style argument. Practitioners appearing before Judge Zouhary at the outset of a case should expect to be prepared and to have their case well thought out, from the drafting of the initial complaint (Judge Zouhary prefers speaking complaints and detailed answers, thank you) to the detail in the parties’ report of their initial planning meeting. Civility and professionalism are expected and are given in return. Discovery disputes require a joint written letter and will get prompt attention and resolution, by phone. Lawyers with cases before Judge Zouhary were well served to have attended his presentation. Lawyers who were unable to attend are invited by Judge Zouhary to call chambers before appearing and simply ask how things are done in his court. Advanced Federal Practice CLE Addresses Removal and MDLsThe Chapter’s Advanced Federal Practice CLE was held Nov. 12, 2010, at the Carl Stokes Federal Court House in Cleveland. It was the fifth year this highly successful program has been held, which originated and has been coordinated by Immediate Past President Carter Strang. Each year the District’s substantial MDL practice has been a focus of the CLE, and this year was no exception.  (L to R) Eric Kennedy, Judge Dan Polster and Peter Brodhead. MDL Special Master David Cohen provided attendees with an overview of the emergence of MDLs as the best way for handling large claims that previously would have been handled in many different districts and now can and are being consolidated in one district. The Northern District has been, he reported, a major player in handling such cases, and continuing to be a popular “transferee” district is critically important for our legal and civic community. David then moderated an MDL panel composed of Judge Dan Polster and attorneys Eric Kennedy and Peter Brodhead. The panel discussed many aspects of MDL practice, including how it is that cases get transferred to a specific district, how plaintiff and defense attorneys position themselves to play a role in such MDLs, and how the MDLs are handled, including the use of “bellwether cases.” Removal was discussed via an interactive panel discussion lead by Prof. Steven Steinglass of Cleveland-Marshall College of Law, who prepared an outstanding outline on the topic that was part of the course materials. The removal panel included attorney John Newman along with Judge Polster and Eric Kennedy. Topics discussed included plaintiff and defense perspectives on the advantages and disadvantages of removal and issues involving tactics used to either make it more or less likely a case will be able to be and stay removed. Judge Polster provided insightful commentary regarding what courts look to in deciding to remand. David R. Cohen, Federal Special Master, was appointed by the Hon. Ann Aldrich to oversee all aspects of a mature, mass tort multi-district litigation, including settlement negotiations involving complicated insurance coverage issues for In re: Oral Sodium Phosphate Soln. Prod. Liab. Litig., MDL No. 2066 (2009 – present). He was also appointed by the Hon. Kathleen McDonald O'Malley to oversee all aspects of a mass tort multi-district litigation involving 12,000 individual actions from across the country, including putative class actions for In re: Welding Fumes Prod. Liab. Litig., MDL No. 1535 (2004 — present). He is a former member of the FBA-NDOC Board of Directors.FBA Annual Meeting and Convention 2010, Celebrating the Crescent City James Satola By James W. Satola Call it “The Big Easy,” the “Crescent City,” “NOLA,” or just home to the 2010 Federal Bar Association’s Annual Meeting, the City of New Orleans did itself proud as the host of this year’s convention. The Northern District of Ohio Chapter held its own too, being honored at the Annual Meeting with awards recognizing its fine efforts in Chapter activity and programming, as well as the continuing top-quality of this newsletter. As most of you know, the Annual Meeting brings together FBA members from all over the country to formally swear in its incoming President and new national officers, as well as to allow conference attendees to partake in the educational and social events offered throughout the three-day event. It’s also a lot of fun.  New Orleans French Quarter. The 2010 meeting, at which New Orleans native Ashley Belleau was sworn in as this year’s FBA National President, ran from Thursday, Sept. 23, to Saturday, Sept. 25, 2010. For some, who arrived a day early for this year’s meeting (including myself), the conference also provided an opportunity to do good in addition to doing well on behalf of our Chapters on the preceding Wednesday, Sept. 22, with a busload of conference attendees taking part in the “Bring a Spouse, Build a House” activity, coordinated between the FBA and New Orleans’ “Rebuilding Together” project, at which those participating helped rebuild fencing and pour new concrete walkways and steps at two houses (across the street from each other) in New Orleans’ Gentilly neighborhood, which was particularly hard-hit by Hurricane Katrina in 2005, and is still at the rebuilding stage in many areas. (A 10-minute YouTube video featuring the project can be found on the current home page of the FBA’s website, fedbar.org, titled “The FBA and Rebuilding Together Help Rebuild New Orleans” Check it out.) Wednesday’s activities concluded with a reception at the historic Louisiana Supreme Court building, in New Orleans’ French Quarter, at which conference attendees were treated to a view of the magnificent restoration of this New Orleans landmark.  FBA-NDOC Past President Carter E. Strang (center) accepts the The first formal day of the convention, Thursday, Sept. 23, opened with a plenary session titled “Rising from the Ashes,” which featured New Orleans Mayor Mitch Landrieu, Louisiana State University Health Center Chancellor Larry Hollier, Eastern District of Louisiana U.S. Attorney Jim Letten, and KIPP New Orleans School Executive Director Rhonda Aluise. The program focused on the changes in New Orleans since Hurricane Katrina. This opening session was followed by a morning and afternoon of CLE programming on a variety of topics pertinent to federal practitioners as well as some more far afield, such as “Piracy on the High Seas.” In between these CLE sessions, the Foundation of the FBA held its annual FBA Fellows Luncheon, at which a number of new Fellows were inducted. The day’s events were capped off with an evening reception at New Orleans’ new World War II Museum. Friday morning opened with a swearing-in ceremony to U.S. Court of Appeals for the Fifth Circuit, conducted by Fifth Circuit Chief Judge Edith Jones. Fifteen FBA members can now add admission to the Fifth Circuit to their list of bar admissions. Like Thursday’s events, this opening ceremony was followed by additional CLE offerings, including one on the potential advantageous uses of social media in our legal practices. Friday’s activities also included the Younger Federal Lawyers Awards Luncheon, the Younger Lawyers Division Board Meeting, the Federal Bar Building Corporation Meeting, and a training session geared toward Vice Presidents of the Circuits training for incoming Circuit VPs. The culmination of the day was an event unique to New Orleans, a reception at “Mardi Gras World,” which included a walk through the warehouse where hundreds of the giant floats used in the city’s famous parade each February are stored for the remaining eleven months of the year. And, of course, on each of these two evenings, a number of the conference attendees explored the sights and sounds of Bourbon Street along with many other of New Orleans’ unique and wonderful attractions.  FBA-NDOC Past President Carter E. Strang (far left) accepts the Chapter Saturday’s morning and afternoon events were dedicated primarily to FBA leadership meetings and chapter training programs, including the Vice Presidents of the Circuits Meeting, the Sections and Divisions Leadership Meeting, and a Chapter Education Program where participants first break into smaller groups by Circuit to discuss programs and other ideas that have worked well for their Chapter, then all rejoin at the end of the meeting in a plenary session to share the results among the full group. This final day also hosted the FBA Awards Luncheon, at which the FBA Northern District of Ohio Chapter was presented with a Presidential Excellence Award for Chapter activities and an Outstanding Newsletter Award for this publication. As always, the Awards Luncheon was followed by the central business meeting of the convention, the FBA National Council Meeting, which was almost entirely focused on the issue of dues increases for membership. The subject created lively debate and discussion, and will most certainly be the subject of much to come from the Federal Bar national organization, and is set to be the central topic of discussion at the March 2011 Midyear Meeting. Definitely more to come on this topic. The convention concluded on Saturday night with the Presidential Installation and Banquet, which marked the formal installation of Ashley L. Belleau as the FBA National President for 2010-2011 and the swearing in of the FBA’s newly-elected National officers and Circuit Vice Presidents. The event also showcased the presentation of the most prestigious FBA national awards, including the presentation of the Elaine R. “Boots” Fisher Award for outstanding community, public, and charitable service, which is the subject of another article in this issue. Other awards presented at the Installation Banquet were the Earl W. Kintner Award (the FBA’s highest award), the Sarah T. Hughes Civil Rights Award, and the “President’s Award,” an award given annually by the outgoing FBA National President to an FBA member demonstrating “extraordinary service and commitment to the Federal Bar Association.” Next year’s Annual Meeting will be held in Chicago from Sept. 8 to Sept. 11, 2011, and will include receptions at the John G. Shedd Aquarium and the Art Institute of Chicago. It will also welcome the induction of next year’s FBA National President, Fern C. Bomchill, of the Chicago Chapter. As always, it promises to be a great event. Mark your calendars. James W. Satola is a Past President of the FBA Northern District of Ohio Chapter, and currently serves as FBA National Vice President for the Sixth Circuit.Profile of New FBA-NDOC Board MembersCynthia A. Binns has been with GrafTech International Holdings Inc. (Parma, Ohio) since December 2005, where she holds the position of Assistant General Counsel. Cynthia was previously employed by two local companies: The Glidden Company (dba ICI Paints) as Associate General Counsel and Nordson Corporation as Corporate Counsel. Cindy holds a J.D. from Cleveland Marshall College of Law and a B.A. in business from Baldwin-Wallace College. She has had extensive experience in a corporate law department environment and has provided counsel in the areas of corporate governance, commercial contracts, litigation management, immigration, and health, safety and environmental protection, and more recently export compliance. In addition, Cindy has been an active member of the board of the Northeast Ohio Chapter of the Association of Corporate Counsel—America (NEO ACCA). She is a former President of NEO ACCA and is currently co-chair of the Pro Bono Committee.  Jennifer Flemming Jennifer Lesny Fleming is a partner with Thompson Hine LLP. She has been practicing law in Cleveland for more than 17 years, having graduated from Vanderbilt University in 1993. She is in Thompson Hine’s Business Litigation practice group, handling a wide variety of complex civil litigation matters, including disputes involving commercial contracts, corporate governance, business torts, professional liability, fiduciary duty, real estate and real estate development, and product liability matters. Jennifer has been very involved in community boards. She is presently the co-chair of the Board of Directors for The Children’s Museum of Cleveland, and also serves on the Museum’s Site Development, Board Development and Gala committees. Jennifer is also on the Executive Committee for the Board of Directors of The Littlest Heroes, a nonprofit that helps kids and their families living with cancer in Northeast Ohio, and also heads its Board Development and Administration committees. Jennifer has taught various courses at Case Western Reserve School of Law over the years, including Focused Problem Solving and The Lawyering Process (client interviewing, counseling and negotiation). She is appointed to the Federal Court Panel of Alternative Dispute Resolution, Northern District of Ohio. This year, Jennifer has taken on the new role of Chair of the Community Relations and Public Service Committee and Board member for The Federal Bar Association. Having helped to coordinate Thompson Hine’s outreach with The Legal Aid Society’s “Brief Advice” and other clinics in prior years, Jennifer feels a strong commitment to giving back to the community. She looks forward to working with the esteemed members of the FBA and to developing some new ways in which the FBA can serve the needs of the community. Jennifer’s husband, Kyle Fleming, is also a lawyer, an IP litigator at Renner, Otto, Boise & Sklar. They have 2 children and live in Bay Village where they like to sail in the summer months.  Josephine Noble Josephine S. Noble is an associate with Ogletree Deakins. Her practice includes representation of employers in single plaintiff litigation arising under Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), and comparable state laws. Josephine also has substantial experience defending employers in class and collective action disputes, including wage and hour litigation involving claims of allegedly unpaid rest and/or meal periods; unpaid overtime; and/or exempt status misclassification. Josephine dedicates a significant portion of her practice to proactively counseling employers with respect to litigation prevention and overall compliance with state, federal, and administrative laws and regulations. In addition, Josephine is experienced in drafting various employment agreements including noncompetition and severance agreements. Josephine is a graduate of Harvard College, from which she received her B.A. in Sociology in 2001. During college, Josephine was selected to participate in the White House Internship Program, where she spent one summer as a Presidential Correspondence Intern during former President William J. Clinton’s presidency. She received her J.D. from the University at Buffalo Law School in 2004. In joining the FBA-NDOH Board, Josephine is chairing the Diversity Committee. Josephine is also active in a number of professional and community organizations including the Cleveland Metropolitan Bar Association, Ohio State Bar Association (Labor and Employment Law Section Council), American Bar Association, and YWCA of Greater Cleveland (Advisory Council). She is also the proud mother of a daughter, Lucia, who is in sixth grade at the Laurel School. Michael Newman Receives 2010 Elaine R. “Boots” Fisher National AwardThe Elaine R. “Boots” Fisher Award is a national Federal Bar Association Award that was established by former Chapter President and former FBA National President Stan Fisher in memory of his wife Boots who passed away in 1989. The award commemorates the tireless community, public and charitable service she provided throughout her life. The Northern District of Ohio Chapter administers the award. Each year the Chapter’s award committee evaluates the nominations of those FBA members proposed for the award to select a recipient whose service above and beyond the daily practice of law best exemplifies the ideals Boots strove to accomplish. A representative of the Chapter presents the award at each year’s Presidential Installation Banquet that concludes the FBA’s National Convention.  (L to R) Carter Strang, Jim Satola, Anna Newman, Bridget Newman, The 2010 Award recipient is Michael Newman. Michael is well-known throughout the FBA. He is a former President of the Cincinnati/Northern Kentucky Chapter and has been a Sixth Circuit Officer for several years. He is a monthly contributor to the Federal Lawyer’s Labor and Employment Corner. Chapter representative Aaron Bulloff informed the audience of Michael’s record of accomplishment in community and public service on behalf of the Big Brothers/Big Sisters Association of Cincinnati, his lead in the creation of the Sherman Scholarship at Chase Law School for minority students seeking a career in public service law, and his noted service on the Boards of the Red Cross Cincinnati Area Chapter, the Business on Board Arts Program, the Fine Arts Fund Grants Committee, the Northern Kentucky Chamber of Commerce, and the Cincinnati Symphony Association. Chapter representative Jim Satola presented Michael with a plaque and a check for $1,000.00, which Michael is contributing to the DePaul Cristo Rey School of Cincinnati, a school which provides underprivileged teen students with job skills and work/study programs with corporate employer partners. Congratulations to Michael. Installation of New Chapter President, Kip T. Bollin Members of the 2010-2011 FBA-NDOC Board of Directors. On Oct. 23, 2010, Chief Judge Solomon Oliver Jr. welcomed into his courtroom the new officers and Board of the Northern District of Ohio Chapter of the Federal Bar Association. Judge Oliver administered the oath of office to new Chapter President Kip T. Bollin, as well as President-Elect Diana Thimmig, Vice President Virginia Davidson, Secretary Jason Hill, and Treasurer Dennis Terez. Judge Oliver also swore in the members of the 2010-2011 Board of Directors: Hon. Randolph Baxter, Rebecca J. Bennett, Cynthia Binns, Kenneth A. Bravo, Aaron H. Bulloff, Annette G. Butler, J. Philip Calabrese, Tim L. Collins, Joseph T. Dattilo, Rocco I. Debitetto, Keven Drummond Eiber, Lisa Forbes, Catherine Garcia-Feehan, Edward A. Icove, Stephen H. Jett, Arthur M. Kaufman, Kenneth Kowalski, Anthony J. LaCerva, Jennifer Lesny Fleming, Charles A. LoPresti, George L. McGaughey, Jr., Michael E. Mumford, Josephine Noble, Steven Paffilas, Hon. Benita Pearson, Hon. Dan Aaron Polster, Meggan A. Rawlin, James W. Satola, Harris A. Senturia, Geri M. Smith, Ellen Toth, Anthony J. Vegh, Vicki L. Ward, Sanford Watson, Hon. Greg White, Bruce H. Wilson, Dennis P. Zapka.  FBA-NDOC 2010-2011 President Kip T. Bollin presents immediate past Also at the ceremony, new President Kip Bollin, recognized and thanked immediate past President Carter Strang for all of his work on behalf of the Chapter, and presented him with a commemorative plaque. Chapter Members Recognize and Celebrate National Pro Bono WeekDid you know that Oct. 24-30, 2010, was National Pro Bono Week? Members of our local Chapter did and they recognized and celebrated the event in the most fitting way. Chapter members donated their time and talent assisting Cleveland residents in a Brief Advice and Referral Clinic held on Oct. 23, 2010, at the Fatima Family Center on Lexington Avenue, located in one of the poorest neighborhoods in the City of Cleveland. Annette Butler eloquently stated “We would be remiss not to realize how vital legal services are to those who are much less fortunate than we are. Many of these people have no other recourse than to come to these free clinics.”  Dennis Terez, Federal Public Defender and FBA-NDOC Chapter members volunteering to serve at the clinic included Chapter President Kip Bollin, Rebecca Bennett, Cindy Binns, Annette Butler, Deborah Coleman, Jason Lorenzon, Karen Neilsen, Lauren Perko, James Satola, Dennis Terez and Diana Thimmig.  FBA-NDOC President Kip Bollin speaking with other Clinic volunteers. The clinic was one of many organized throughout the year by the Legal Aid Society of Cleveland. Ann Porath, managing attorney of the Volunteer Lawyers Program at the Legal Aid Society of Cleveland, began by providing a brief orientation to all clinic volunteers. The Fatima Family Center was full of individuals seeking assistance. Annette Butler noted that “this activity is efficiently organized by the Legal Aid staff so that we can serve more clients in the time allotted.” Following the orientation, student volunteers from area law schools began interviewing individuals seeking legal assistance and prepared intake forms, identifying the issues on which legal advice was sought. A myriad of problems were presented throughout the morning involving questions surrounding domestic violence, divorce, custody disputes, consumer fraud, estate and probate, criminal expungement, foreclosure, bankruptcy, landlord/tenant rights, public benefits and insurance. Our Chapter volunteers, together with lawyers from the U.S. Attorney’s Office, provided brief advice and when appropriate, a referral for further assistance. The clinic was one of the best attended clinics in 2010. With the assistance of our members, it was an unqualified success. Reflecting back on her experience, Lauren Perko acknowledged that “it was very well organized and the clients genuinely need the assistance”. Rebecca Bennett agreed and added that “this is one of the few community projects in which lawyers can contribute legal skills to provide meaningful assistance without committing a huge chunk of time and resources.” Overall, the Chapter members who volunteered at the clinic thoroughly enjoyed their participation and agreed that it was a very rewarding experience. Many have encouraged that our Chapter make this a regular event. As a result, our Chapter will be sponsoring another clinic in Spring 2011. University of Toledo College of Law Hosts Investiture Geri Smith, Northern District of Ohio Clerk of Court, On September 22, 2010, The University of Toledo College of Law hosted the investiture ceremony for the Hon. James R. Knepp II, who was sworn in as magistrate judge for the U.S. District Court, Northern District of Ohio, Western Division. Knepp, a 1992 graduate of the University of Toledo College of Law, was selected from a pool of finalists by the district court judges of the Northern District of Ohio to assume the magistrate judge vacancy in Toledo resulting from Magistrate Judge Vernelis K. Armstrong’s recent assumption of recall status. Chief Judge Solomon Oliver Jr. presided over the investiture, and was joined in attendance by several district court, bankruptcy, and magistrate judges from across the Northern District of Ohio. Judge Knepp also received well wishes from several local bar associations. Secretary Jason A. Hill welcomed Judge Knepp to the bench on behalf of the members of the Northern District of Ohio Chapter of the Federal Bar Association with a plaque representing an honorary membership in the association. More than 150 people attended the investiture. Several FBA-NDOC Board Members were also on hand to welcome Magistrate Judge Knepp to the bench. Three Cheers for JERS!Judge Zouhary By Judge Jack Zouhary, Deanna Cox, Courtroom Deputy Our Chambers recently used the new JERS (Jury Evidence Recording System) for several jury trials. What is JERS? In a word (or two): electronic exhibits. Counsel submit, prior to trial, a CD of exhibits, which is then loaded into JERS. JERS can support a variety of exhibit types, including documents and audio/visual files. The Courtroom Deputy Clerk makes any necessary changes, such as document descriptions, and then, as the trial progresses, the Clerk checkmarks those exhibits approved for viewing by the jurors. When the time comes for jury deliberations to begin, it is a quick set up in the jury room to verify that the correct exhibits are available. A brief tutorial on how to use the system with jurors takes five minutes or less. In our trials, jurors never requested additional assistance in using the system. Our initial concern was that JERS would require a significant amount of time and that it would be complicated to operate. The exact opposite turned out to be true. The system is very user friendly from start to finish. Juror feedback has been very positive:
In our first trial, jurors were provided hard copies of the exhibits as well as JERS. The jurors did not utilize the hard copy exhibits and found JERS to be very user friendly. There was an audio clip in that group of exhibits and the jury had no difficulty maneuvering through JERS to access the exhibits, including listening to the audio file again during their deliberations. Since then, we only send back JERS—no hard copies. For reference, our standard Trial Order now is supplemented with a JERS Order www.ohnd.uscourts.gov/Judges/index.html. Additional information regarding JERS can be found at the following links: Link to brief video demonstrating JERS (45 MB): Link to JERS User Manual: Link to the Western District of North Carolina’s JERS web site: JERS is an excellent complement to the use of electronics. While we start with an explanatory Powerpoint during voir dire, and encourage counsel to utilize courtroom electronics during trial, the jury now has all the admitted exhibits at their fingertips during deliberations. Distinguishing the Sophisticated User from the Sophisticated Intermediary Defense
By Joseph J. Morford and Christopher J. Caryl of Tucker Ellis & West LLP Many mass tort and toxic tort actions assert claims for product liability based on failure to warn. The plaintiff claims that the manufacturer of the product had a duty to warn of a dangerous characteristic of the product. However, a manufacturer need not warn of every hazard. “Modern life would be intolerable unless one were permitted to rely to a certain extent on others doing what they normally do, particularly if it is their duty to do so.”1 A manufacturer’s duty to warn may be discharged when the person using or controlling the use of the product is or should be aware of the dangers associated with it. This is the sophisticated user and/or sophisticated intermediary defense. This article discusses the legal background for this defense from the Restatement (Second) of Torts, points out the differences between the sophisticated intermediary and sophisticated user defenses, and reviews how courts have recently analyzed these defenses. As the cases cited in this article demonstrate, this doctrine is typically raised in a dispositive motion, but it may also be submitted to the jury as an instruction. Origins in Restatement (Second) of Torts Section 388 One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. Comment n to section 388, entitled “Warnings given to third person,” outlines the sophisticated user and sophisticated intermediary defenses. The comment states that chattel or product is often supplied for the use of persons other than the manufacturer’s original purchaser. For example, the product manufacturer sells to a wholesaler who sells to a retailer who, in turn, sells the product to a consumer. In these situations, “the question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.” A manufacturer must have a “reasonable assurance that the information will reach those whose safety depends upon their having it.”2 Some of the factors to consider are the known or knowable character of the third person (i.e., whether the third person will communicate the dangerous characteristics of the product to those who use it) and the magnitude of the risk or the seriousness of the likely harm. As the risk of serious injury from a product increases, so does the manufacturer’s duty to exercise reasonable care in communicating the hazardous potential of the product. If the dangerous nature of the product is great, a warning or label that sufficiently describes the dangerous characteristics of the product may be appropriate so that it reaches those that are likely to use the product. Courts applying this doctrine consider several of the factors listed in the comments to section 388. The courts consider whether the manufacturer was reasonable in the manner in which it communicated the warning to those that would use the product. They also examine whether the manufacturer’s reliance on a third party, typically the plaintiff’s employer, to communicate the dangerous propensities of the product to the end user was reasonable under the circumstances. The Sophisticated User The duty to warn does not “turn on the individual plaintiff’s actual understanding of the risk.” 4 Rather, “legal duties must be based on objective general predictions of the anticipated user’s population’s knowledge, not case-by-case hindsight examinations of the particular plaintiff’s subjective state of mind.” The Obvious Danger Doctrine and Proximate Causation In tort law, one with a duty to warn is not liable for failing to warn a party of facts that the party already knew. . . .The theory of this exception is that a failure to warn a party of a danger of which it was independently aware cannot be the proximate cause of injury resulting from that danger, since presumably the party would not have acted differently even if warned.5 In Johnson v. American Standard, Inc., the Supreme Court of California stated that, although it had not previously adopted the sophisticated user defense, it recognized that the doctrine was quite similar to the obvious danger rule, which was a well-established law in that jurisdiction.6 Knowledge and Other Experience Although the plaintiff claimed that he was not aware of the dangers of phosgene gas, the court found the manufacturer’s duty to warn was discharged because an HVAC technician with a universal certification knew or should have known of the hazard of brazing refrigerant lines. The court also noted that plaintiff’s expert admitted that HVAC technicians knew or should have known of the risks of phosgene gas, that plaintiff read the MSDS for the refrigerant, and that the EPA study guide for universal certification required HVAC technicians “to understand the decomposition products of refrigerants at high temperatures.”8 All of these factors supported the conclusion that HVAC technicians knew or should have known of the dangers of heating refrigerant. Similarly, in Humble Sand & Gravel, Inc. v. Gomez, the Texas high court held that the supplier of flint had no duty to warn operators of abrasive blasting equipment of dangers of inhaling silica dust because it was common knowledge in the industry: “A supplier has no duty to warn of risks involved in a product’s use that are commonly known to foreseeable users, even if some users are not aware of them.”9 Whether the risk is commonly known is an objective standard. In Triplett v. Minnesota Mining and Manufacturing Co., although the court found the manufacturer’s duty to warn was discharged by the intermediary’s knowledge (see discussion below), it also noted that the knowledge of the end user is based on an objective standard: “the reasonably anticipated knowledge, perception, appreciation, circumstances, and behavior of expected users.”10 In Dusoe v. Union Carbide, the court granted the manufacturer summary judgment based, in part, on the sophisticated user doctrine. The manufacturer of an oxygen regulator involved in an explosion of a welding system was not required to warn because of the plaintiff’s extensive welding knowledge and experience; attendance at a training program for several weeks 15 years prior to the accident, which included instruction and testing about the welding system; and responsibility to train other employees on welding equipment. Based on these factors, the court found that the plaintiff’s “experience and knowledge reduced or eliminated the need and utility of a warning.”11 In contrast, a different federal court, in Russell v. Ashland, Inc., held the sophisticated user defense inapplicable in a case involving benzene exposure and denied defendant’s motion for summary judgment.12 The court noted that Arkansas had not adopted section 388 of the Restatement (Second) of Torts but found that the proper inquiry was on the knowledge of the end user, not the employer or intermediary. Because no evidence established that the plaintiff end user was educated in the hazards and dangers of benzene, the court found the manufacturer’s duty to warn was not discharged. The court in Russell analyzed that case under the sophisticated user criteria; however, the facts of that case suggest that a sophisticated intermediary analysis may have been more appropriate. The Sophisticated Intermediary Learned Intermediary Defense Reasonable Reliance A manufacturer is not shielded from liability merely by providing all significant information regarding a product’s potential hazards to the intermediary. Comment n to section 388 states in pertinent part: Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it. Rather, the manufacturer must be reasonably assured that the safety information will reach the end user. As a practical matter, in many jurisdictions the employer is seldom a party to the action due to the preclusive effect of workers’ compensation statutes. While other factors can be significant, including whether the manufacturer provided warnings and whether the manufacturer’s reliance on an intermediary to warn the end user was reasonable, proof establishing the knowledge of the intermediary is critical. Reasonable reliance is the crucial element for a manufacturer in proving that the employer was a sophisticated intermediary. A manufacturer may discharge its duty to warn “when the product is sold to a ‘knowledgeable or sophisticated intermediary’ whom the manufacturer has adequately warned.”18 “Delegation of the duty to warn makes particular sense where the manufacturer cannot control how the intermediary will use the product.” To establish the defense, “the intermediary must have knowledge or sophistication equal to that of the manufacturer, and the manufacturer must be able to rely reasonably on the intermediary to warn the ultimate consumer.”19 Whether the manufacturer can reasonably rely on the purchaser to convey the warning to the end user is determined by balancing “the reliability of the employer as a conduit of necessary information about the product, the magnitude of the risk involved, and the burdens imposed on the supplier by requiring it to directly warn the ultimate users.”20 Analysis of the Intermediary’s Knowledge In a twist on these related defenses, the recent decision in Taylor v. Airco found that the employer, not employee, was the end user for the purpose of applying the defense.21 The employer was in the position to issue all product-related warnings directly to the employees. In addition, the employer conducted monthly safety meetings and had access to the same information as the supplier regarding the risks of vinyl chloride. The court granted the motion for summary judgment of the manufacturer and supplier of the product. The court found the employer to be a sophisticated user because the employer had its own library of materials on the potential health effects of vinyl chloride, had its own company-wide medical department, was a member of the chemical industry trade group, and participated in the trade group’s research programs.22 All of these facts demonstrated that the employer had access to precisely the same information as the manufacturer and supplier of the product and, therefore, it was reasonable for the manufacturer and supplier to rely on the employer to provide adequate warnings to its employees. For similar reasons, an Ohio trial court granted a bulk supplier’s motion for summary judgment based on the sophisticated intermediary defense, even where the bulk supplier provided no warnings to the employer.23 In that case, the plaintiffs, employees of a foundry, claimed injury by exposure to silica dust. The sand was supplied in unpackaged bulk shipments by rail or truck. The sand was dumped into a pit or blown into a silo and conveyed throughout the foundry. Despite the sand suppliers’ failing to warn the employer, the court found that the employer had sufficient knowledge of the risks associated with exposure to respirable silica dust through safety inspections and industry trade associations to discharge the suppliers’ duty to warn. Further, the supplier’s reliance on the employer to communicate the hazards associated with silica to its employees was reasonable because it “continually updated its policies and procedures based on inspections and pro-actively worked with its employees in joint safety ventures to provide a safe working environment.”24 Similarly, another recent Massachusetts decision, Genereux v. American Beryllia Corp., granted a manufacturer summary judgment on the basis of the plaintiff’s employer’s knowledge of the hazard at issue. In determining whether the employee or employer was the end user, the court examined the “broad range of information available to the employer.”25 The court found that the employer was a sophisticated intermediary because of the “knowledge held by employees, the employer’s policies and internal memoranda, and warnings provided to the employer by its suppliers.” The specific facts of the case warranted application of the sophisticated intermediary doctrine. In a recent asbestos decision, Tatera v. FMC Corp., the Court of Appeals of Wisconsin denied the defendant’s motion for summary judgment on a negligence claim. In Tatera, there was no evidence that the supplier sent content sheets to the employer warning of the presence of asbestos in the brake linings.26 Therefore, whether the employer knew the product contained asbestos was a material fact in dispute. An Ohio trial court ruled against a sand supplier to a foundry based on the reliability (or lack thereof) of the employer to inform its employees of the well-known hazards of the product. In Glass v. 3M Co., the court noted that the employer, a foundry, had “violated OSHA regulations and took [OSHA] inspectors to play golf when the inspectors came to the plant.”27 The plaintiff’s employer, although knowledgeable of the hazards associated with respirable silica, was not a “reliable conduit” to communicate the hazard to its employees. What Can We Learn from These Cases? The sophisticated user and sophisticated intermediary defenses apply to product liability cases alleging a failure to warn. A manufacturer seeking to invoke either of these defenses must determine to whom it discharged its duty to warn – the plaintiff or the employer. Courts applying the sophisticated user defense consider whether the end user knew or should have known of the hazards associated with the product, an objective standard. Courts applying the sophisticated intermediary defense appear to be using a subjective standard when evaluating the employer’s knowledge of the hazard. Regardless of the standard applied, when the manufacturer meets this burden, it may have a complete defense if the content of its warning was suspect, or even if there were no warnings at all. Since the original publication of this article the Hamilton County Court of Appeals, in Doane v. Givaudan Flavors Corp., 184 Ohio App.3d 26, 2009-Ohio-4989, issued an opinion applying the sophisticated purchaser doctrine in Ohio. The Court in Doane upheld the trial court’s Order granting summary judgment for the suppliers of diacetyl, a chemical used in butter flavoring finding that the injured plaintiffs’ employer, Givaudan, was a sophisticated purchaser of the chemical. The Court acknowledged, among several factors, Givaudan’s creation of a task force to investigate claims of lung ailments at the facility; its regulation of employee safety; and its exclusive control over the chemical diacetyl after delivery. The Court held that Givaudan was a sophisticated purchaser with knowledge equal to or greater than that of Defendant suppliers and that Defendant suppliers’ reliance on Givaudan to relay any warnings to its employees concerning the chemical diacetyl was reasonable. Endnotes 1Restatement (Second) of Torts §388, cmt. n. Joseph J. Morford is a partner and Christopher J. Caryl is counsel in the Cleveland office of Tucker Ellis & West LLP.This article originally appeared in the Fall 2009 ABA Mass Tort Newsletter. Save the DateThe FBA NDOH and the Toledo Bar Association invite you to a reception to honor Judges Carr, Armstrong and Knepp on Feb. 24, 2011, from 4-6 p.m. at the Toledo Club. Judge Carr recently completed his tenure as Chief Judge of the Northern District of Ohio but continues to serve on senior status. Magistrate Armstrong is presently on recall status and remains a vital part of the judiciary for the NDOH. Magistrate Knepp was recently installed as the third full-time magistrate to serve in the NDOH Western Division. Please join us in celebrating these judicial milestones and welcoming our newest judicial officer. For more information or to RSVP, please contact admin@FBA-ndohio.org. Fifth Annual State of the Court LuncheonOn Monday, Sept. 13, 2010, the FBA- NDOC Chapter held its Fifth Annual State of the Court Luncheon at the Cleveland Marriott Downtown at Key Center. Chapter President Carter Strang, welcomed a packed house in the Marriott ballroom and provided brief introductory remarks. Chief Bankruptcy Judge Marilyn Shea-Stonum provided a report from the U.S. Bankruptcy Court, Northern District of Ohio, providing information of interest to bankruptcy practitioners in our district. Chapter Vice President and event Chair Diana M. Thimmig introduced the newest member to our bench, Magistrate Judge James R. Knepp II. Magistrate Knepp was sworn in on July 30, 2010, and will serve in Toledo, Ohio. Magistrate Knepp, a graduate of Mount Union College (BA, 1986), Bowling Green State University (MA, 1987), and the University of Toledo College of Law (JD, 1992), began his legal career as a law clerk to the Hon. John W. Potter, followed by 16 years of private practice in Toledo with the firm of Robison, Curphey & O’Connell. In keeping with tradition, Magistrate Judge Knepp was provided an honorary membership to the Federal Bar Association. Chief Judge Solomon Oliver Jr. then provided a detailed report from the U.S. District Court, Northern District of Ohio, covering a wide variety of subjects. Among other things, Chief Judge Oliver highlighted the Court’s participation in the award-winning Project Penalty Awareness Program, designed to inform youth of the harsh penalties imposed on those committing federal crimes, and noted the creation of the Court Reentry Program, designed to provide assistance to individuals at high risk of violating their conditions of supervised release. The State of the Court Luncheon was concluded by Chapter President Elect Kip Bollin at 1:30 p.m. Write an ArticleMembers of the Northern District of Ohio Chapter of the Federal Bar Association are invited to submit an article for an upcoming issue. Please note: it is generally required that authors be members of the FBA-NDOC in order for his or her article to be published in Inter Alia. 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The views expressed herein do not necessarily represent those of the FBA. This newsletter is published with the understanding that the FBA-NDOC is not engaged in rendering legal or professional services. © FBA-NDOC. Send any and all corrections, articles or other contributions you may have to: Stephen H. Jett, Partner Welcome New Chapter MembersNew FBA-NDOC Members (August 2010 to December 31, 2010) Thomas H. Au, Attorney at Law New Law Student Members through the Law School Initiative Case Western Reserve University School of Law Cleveland-Marshall College of Law
Upcoming EventsReception to Honor Judges Carr, Armstrong and Knepp - February 24, 2011 - The FBA-NDOC and the Toledo Bar Association invite you to a reception to honor Judges Carr, Armstrong and Knepp on February 24, 2011 from 4-6pm at the Toledo Club in Toledo, Ohio. Judge Carr recently completed his tenure as Chief Judge of the Northern District of Ohio but continues to serve on Senior Status. Magistrate Armstrong is presently on Recall Status and remains a vital part of the judiciary for the NDOH. Magistrate Knepp was recently installed as the third full-time magistrate to serve in the NDOH Western Division. Please join us in celebrating these judicial milestones and welcoming our newest judicial officer. Please click here for more information.
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