A whistleblower lawsuit filed by a state worker raises questions about the proof she needs to win her case.

A whistleblower lawsuit filed by a state worker raises questions about the proof she needs to win her case.

A federal lawsuit filed by a former Geauga County health department employee claiming retaliation for blowing the whistle on her employer has drawn statewide interest from numerous groups ranging from crime victim advocates to organizations representing local governments. The case also has the attention of the Ohio Attorney General’s Office, which believes it could have an impact on pending lawsuits filed by the state and dozens of local governments against the manufacturers and distributors of opioids.

Rebecca Buddenberg has based her civil lawsuit claims partially on federal law and in part on Ohio statutes that allow for civil damages  based on criminal acts. The federal district court judge hearing the case has paused the proceedings to ask the Ohio Supreme Court for its interpretation of state law. The Court will hear oral arguments next week on whether a lawsuit based on R.C. 2307.60 requires a person accused of a “criminal act” to be convicted of a crime first.

Worker Claims Retaliation for Whistleblowing
Buddenberg was a fiscal officer for the Geauga County Board of Health. In October 2016, she reported unequal pay practices and potential ethical violations by County Health Commissioner Robert Weisdack. After the report, Weisdack allegedly began to retaliate against Buddenberg, including changing her previously negotiated work hours and eliminating her position. Buddenberg resigned in May 2017. In March 2018, she filed a federal lawsuit in the U.S. District Court for the Northern District of Ohio against Weisdack, members of the health board, and others.

The health commissioner and the other defendants asked the judge to dismiss  the case, claiming that Ohio courts have ruled that lawsuits based on injuries suffered from a criminal act require a conviction before they can proceed. The commissioner notes no one has been charged with, let alone convicted of, a crime based on Buddenberg’s claims.

The  judge refused to dismiss the case, writing that the Ohio General Assembly amended R.C. 2307.60 in 2007 to create a “presumption of civil liability” when a defendant has been convicted, but the laws didn’t make a criminal conviction a requirement. The federal court also noted that in its 2016 Jacobson v. Karforey decision, the Ohio Supreme Court clarified that R.C. 2307.60 allows for a civil lawsuit to be filed for injuries stemming from any “criminal act.” But the Supreme Court went no further in defining what constitutes a “criminal act” and what a plaintiff must prove to win a case based on R.C. 2307.60.

In Buddenberg v. Weisdack et al., the federal court also noted that R.C. 2921.03 allows for a civil lawsuit to be filed based on the “commission of the offense” of retaliation for discharge of duties, which Buddenberg also claimed in her suit. However, the law doesn’t mention whether a criminal conviction is required to pursue civil damages.

The Ohio Attorney General’s Office has filed an amicus brief, stating it doesn’t take a position on either side of the case. The office is asking the Ohio Supreme Court to find that R.C. 2307.60 doesn’t require a criminal conviction in a lawsuit seeking damages for injuries stemming from a criminal act. The attorney general disclosed that Ohio and local governments have made claims based on R.C. 2307.60 in lawsuits against the opioid manufacturers and distributors.

Oral Argument Details
Along with Buddenberg, the Court will hear four other cases during its Wednesday, Nov. 13 session. Oral arguments begin at 9 a.m. at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

Case Previews Published
In addition to the information provided in this article, the Supreme Court’s Office of Public Information today released in-depth previews of the cases.

A Franklin County man was sentenced in 2013 to three years in prison for robbery. In 2017, after an Ohio Supreme Court decision about courts imposing postrelease control (PRC), the man asked that his PRC sanction be set aside because the trial court didn’t include required information in its sentencing entry. The court denied his request. In State v. Harper, the Franklin County prosecutor contends that the man wants the Court’s 2017 ruling applied retroactively to his PRC sanction, but that’s not appropriate for this type of minor omission. The man responds that his case doesn’t involve an important legal issue and the case is moot because he has completed his sentence.

A father alleges that an anesthesiologist at a Westerville hospital intubated his son incorrectly, causing significant health issues including permanent brain damage. When the father filed a medical negligence lawsuit in July 2015, the hospital and the anesthesiology group that employed the doctor received the legal documents within the mandated one-year timeframe, but the doctor didn’t. In Moore v. Mount Carmel Health System, the doctor and the anesthesiology group state that the father’s lawsuit can’t go forward because he didn’t meet the deadline for serving the documents on the doctor. The father counters that a state law, referred to as the “savings statute,” gave him another year to serve the doctor, who received the documents within that period.

The Cleveland attorney in Disciplinary Counsel v. Adelstein objects to the state professional conduct board’s recommended discipline for rule violations she acknowledged related to mismanaging her client trust account. The board recommends a one-year suspension with six months stayed. But she and the investigating organization had agreed to a fully stayed suspension. She argues the board didn’t give the appropriate weight to a physical ailment, which she divulged during the disciplinary process, and to her mental health conditions, which she didn’t disclose.

In the midst of 2008 national recession, the Ohio General Assembly enacted a series of laws that expedited foreclosures and sales of abandoned properties with delinquent taxes. While tax foreclosures traditionally occurred in county common pleas courts, the new laws allowed county boards of revision to conduct the foreclosures and authorized the boards to transfer real estate to a county land bank. The land bank could transfer the properties to new owners once back taxes were paid. In Feltner v. Cuyahoga County Board of Revision, a Cleveland man who owed $65,000 in delinquent property taxes is challenging the constitutionality of the laws after the county foreclosed on his property — valued at $145,000 — and transferred it to the land bank without him receiving any compensation.