Tuesday, Jan. 28, 2020
Donna Lunsford et al. v. Sterilite of Ohio LLC et al., Case no. 2018-1431
Fifth District Court of Appeals (Stark County)
State of Ohio v. John E. Nelson, Case no. 2019-0049
Second District Court of Appeals (Champaign County)
City of Brook Park v. Joseph G. Rodojev, Case no. 2019-0056
Eighth District Court of Appeals (Cuyahoga County)
Michael A. Pivonka et al. v. Maureen Corcoran, director of Ohio Department of Medicaid et al., Case no. 2019-0084
Eighth District Court of Appeals (Cuyahoga County)
In re: Application of Cynthia M. Rodgers, Case no. 2019-1094
Board of Commissioners on Character and Fitness
Did Ohio Company’s Method of Drug Testing Invade Employees’ Privacy?
Donna Lunsford et al. v. Sterilite of Ohio LLC et al., Case no. 2018-1431
Fifth District Court of Appeals (Stark County)
ISSUES:
- Do employees of a private employer in Ohio have a reasonable expectation of privacy as far as whether they report to work under the influence of drugs or cheat on a drug test?
- Without allegations that a private employer’s manner of drug testing isn’t job-related and consistent with business necessity, can an at-will employee make a claim against the employer for invasion of privacy?
- Does requiring employees to provide a monitored urine sample to independent laboratory personnel as part of an employer’s random drug testing policy constitute an invasion of the employees’ common law right to privacy as a matter of law?
- Does Ohio law allow an invasion of privacy lawsuit against independent third-party laboratories or their trained staff when the employee signs a consent form?
BACKGROUND:
Sterilite, a plastic housewares company, implemented a substance abuse policy in September 2016. The policy stated that the purpose was “to promote a healthy, safe and productive workplace for all employees.” According to the policy, employees would be subject to random drug testing. The company also would order drug testing when it had reasonable suspicion that an employee may be impaired by drugs or alcohol, or as part of an investigation of a workplace accident.
Sterilite’s policy stated:
- Urinanalysis would be used to test for illegal drugs or improper use of prescription or over-the-counter drugs
- Employees had up to 2.5 hours to produce a valid sample
- Failing to produce a sample in the timeframe would be considered refusal to undergo a drug test
- Refusing to undergo the drug test would subject the employee to immediate termination.
The company hired U.S. Healthworks Medical Group of Ohio to collect and test urine samples.
Massillon Employees Selected for Drug Tests
In October and November 2016, employees of the Sterilite manufacturing plant in Massillon – including Peter Griffiths, Donna Lunsford, and Laura Williamson – were selected for random drug tests. Also in October, employee Adam Keim underwent drug screening based on the company’s reasonable suspicion standards.
Griffiths, Keim, Lunsford, and Williamson reported to the testing location, which was a private restroom at the plant used exclusively for drug screenings. Each signed a consent form provided by U.S. Healthworks. Sterilite instructed U.S. Healthworks to collect urine using a “direct observation” method, which required each employee to produce a sample in full view of a monitor who was the same sex as the employee.
The employees said they weren’t advised ahead of time of the direct observation method, and they had to bare their genitals and urinate in front of the monitor, who watched their groin area. Keim and Williamson didn’t provide a sample in the allowed timeframe and were fired the day of their drug tests.
Employees Contest Drug Screening Process, Allege Invasion of Privacy
In December 2016, the four employees filed a lawsuit in Stark County Common Pleas Court against Sterilite of Ohio, Sterilite, and U.S. Healthworks. The complaint stated that the employees had undergone drug screenings in the past without issue, but the new direct observation method was “highly offensive to a person of ordinary sensibilities.” It also said Lunsford experienced intense embarrassment and humiliation because she had to reveal surgical scars in her genital area. The lawsuit raised multiple legal claims, including the tort of invasion of privacy.
Before trial, the companies filed motions to dismiss the employees’ claims of invasion of privacy, wrongful discharge in violation of Ohio public policy, a class-action request, and two other counts. In May 2017, the court granted the request to dismiss those claims.
The employees appealed the dismissals. The Fifth District Court of Appeals determined the employees had a valid claim for invasion of privacy and reversed the trial court decision, returning the case to the lower court for additional proceedings.
Sterilite and U.S. Healthworks appealed separately to the Ohio Supreme Court, which accepted both appeals.
Supreme Court’s 1956 Ruling Defines Invasion-of-Privacy Claims
The employees, Sterilite, and U.S. Healthworks each emphasize the importance of Housh v. Peth, a 1956 Ohio Supreme Court decision. The Court’s syllabus in Housh states:
“An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.”
This case focuses on the last type – “the wrongful intrusion into one’s private activities ….” The parties refer to this invasion of privacy claim as “intrusion upon seclusion.”
Certain Intrusions Are Permitted as Condition of Employment, Employer Maintains
Sterilite’s brief argues, “Housh did not define the right of privacy as the right to be free from any and all intrusions – even objectionable ones – that arise from a person’s choice to accept employment and submit to an employer’s job-related inquiries.”
An at-will employment relationship, such as Sterilite’s, allows the employer and the employee to end employment at any time for any reason, the company notes. Given this at-will relationship, Sterilite states, an employee’s expectation of privacy is diminished when an employer has a legitimate job-related inquiry. With drug screenings by a private employer, an employee has the choice to submit to testing or to reject the requirement and leave the job, Sterilite asserts.
The company adds that its employees accept alcohol and drug testing as a condition of their continued employment. It maintains that Ohio courts have ruled mandatory drug testing isn’t an employee policy that can be challenged in court as invasion of privacy because whether employees are reporting to work under the influence of drugs is related to their employment. Sterilite states that its policy exists to maintain workplace safety and productivity.
In addition, the employees consented to the test when they signed the form on the day of their screenings, and they made no objections at that time, Sterilite argues. It contends that even without knowing the test would involve direct observation of them providing a urine sample, the employees had a diminished expectation of privacy because they knew it was a urine test.
Nor was their consent secured under duress given that they could lose their jobs if they didn’t undergo the drug test, because the company engaged in no coercion, Sterilite asserts.
The reason for the direct observation drug testing is to ensure that employees aren’t substituting or adulterating their urine samples, the company states. Sterilite maintains that the method didn’t exceed the bounds of the company’s legitimate business interest in detecting employee drug use and ensuring the integrity of the samples, so there was no invasion of privacy. Arguments about particularized suspicion and probable cause don’t apply here, the company argues. Such claims apply only to the government, which is held accountable to these standards under the U.S. Constitution’s Fourth Amendment prohibition against unreasonable search and seizure.
Nothing Harassing or Malicious Took Place During Drug Testing, Lab Contends
U.S. Healthworks maintains that it and its staff did nothing malicious, nothing intended to harass or antagonize, and nothing otherwise designed to invade the privacy of Sterilite’s employees. Because employer drug testing has a legitimate purpose, various Ohio courts have supported the goal of maintaining safe work environments, U.S. Healthworks contends. The group makes other arguments similar to Sterilite’s to dispute any invasion of privacy claims in this case.
U.S. Healthworks also contests the exposure of third-party laboratories to liability because they don’t choose the urine collection methods that employers want to use and only are following the instructions of their clients.
Direct Observation During Tests Crossed Line, Employees Argue
Griffiths, Keim, Lunsford, and Williamson respond that the issue in this case isn’t whether employers can conduct drug screenings, but the manner in which Sterilite did theirs. They contest “Sterilite’s authorization or tolerance of its agent’s routine, across-the-board use of the ‘direct observation’ method when collecting urine samples ….”
Although an employer may have the privilege or right in some ways to intrude on the privacy of its employees, those acts may be illegal based on the manner of the intrusion, the employees argue. The method Sterilite used was an unreasonable invasion of privacy because it caused “outrage or … mental suffering, shame or humiliation to a person of ordinary sensibilities” by forcing them to bare their genitals to strangers as a condition of continued employment, the employees’ brief states, quoting Housh. They maintain that this method was used without advance notice, when there were other less-offensive techniques available, and with no reasonable evidence that the individual workers would compromise the specimen-gathering process.
The employees stress that “there is scarcely anything more private than the act of urination.” The direct observation collection method Sterilite used was an affront to their right to privacy, the employees argue. The brief mentions additional circumstances that make this method humiliating for an employee – such as for someone who is menstruating or has a sexually transmitted infection. In keeping a workplace safe and ensuring employees don’t come to work drunk or high, an employer doesn’t have “unfettered discretion” to intrude unreasonably on employees’ most private affairs, the employees contend.
They note they weren’t informed they’d be subject to direct observation when providing a urine sample until after they signed the consent forms from U.S. Healthworks. Such consent therefore wasn’t knowing or voluntary, they argue.
If the direct observation method is to be allowed at all, the employees recommend that it be used only in cases in which there is reasonable suspicion that a specific employee has reason to compromise or tamper with the collection process. They ask the Court to find that, without reasonable suspicion, the direct observation method is unreasonable.
Pointing out that the common pleas court dismissed the case without a trial, the employees argue they are entitled to have a jury decide whether the requirements of Housh for invasion of privacy are supported by the evidence in their case.
They also dispute U.S. Healthworks’ claim about its liability as a third-party lab. The employees maintain that longstanding Ohio case law demonstrates that agents, such as the drug testing lab, can be liable for carrying out the duties of principals, such as the employer.
Employment Group Raises ‘Bodily Privacy’ in Brief
The Ohio Employment Lawyers Association has filed an amicus curiae brief supporting the current and former employees of Sterilite. The association’s brief emphasizes a person’s “basic right to bodily privacy” in Ohio workplaces and describes Sterilite’s method as “an affront to employee dignity.”
The association also discusses federal drug-testing procedures for commercial airline pilots, the U.S. Coast Guard, and nuclear power plant workers. Although direct observation methods of urine collection are employed in those professions in a few limited circumstances, the association notes that the federal government’s standard practice for drug testing in these safety-sensitive jobs is less intrusive than Sterilite’s.
–Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Sterilite of Ohio LLC et al.: Daniel Rudary, 330.374.7477
Representing U.S. Healthworks Medical Group of Ohio Inc.: Daniel Richards, 216.687.3256
Representing Peter Griffiths, Adam Keim, Donna Lunsford, and Laura Williamson: S. David Worhatch, 330.650.6000
Do Caps on Prison Sentences for Community-Control Violations Apply to All Non-Felony Violations?
State of Ohio v. John E. Nelson, Case no. 2019-0049
Second District Court of Appeals (Champaign County)
ISSUE: Do statutory caps on the prison sentences courts may impose for community-control violations apply to all community-control violations that aren’t felonies?
BACKGROUND:
In July 2016, John Nelson pled guilty to trafficking in cocaine, attempted aggravating trafficking in drugs, and two counts of corrupting another with drugs. The trial court sentenced Nelson to four years of community control with conditions. The court’s judgment entry stated that if he violated his community control, he would receive a 34-month prison sentence for the offenses.
In January 2018, Nelson’s probation officer testified to the court that he informed Nelson he couldn’t have contact with his girlfriend because she drank and Nelson had a problem with alcohol. However, Nelson acknowledged he continued to see his girlfriend. Also, in December 2017, Nelson was arrested after he kicked in a door at his aunt’s Urbana residence, where he was living. His aunt testified he was highly intoxicated.
The court revoked Nelson’s community-control sanction and imposed the 34-month prison sentence, concluding that he continued to violate the no-contact order, which led to him committing misdemeanor acts of property destruction and reckless behavior.
Nelson appealed to the Second District Court of Appeals, arguing that a state law limits the length of prison sentences that can be imposed for certain community-control violations. The appeals court rejected the argument and upheld the imposition of the prison sentence.
He appealed to the Ohio Supreme Court, which accepted the case.
Caps Apply Because His Violations Weren’t Felonies, Man Argues
Nelson’s initial offenses of trafficking and corrupting are fourth- and fifth-degree felonies, and the limitations in R.C. 2929.15(B)(1)(c) on prison sentences for violations of community control apply when the underlying offenses were fourth- or fifth-degree felonies (with a few exceptions). The statute limits sentences for community-control violations to 90 or 180 days when the violations are technical violations or non-felony offenses, Nelson states.
A 1993 Ohio Supreme Court decision concluded that a “technical violation” in the parole context means conduct that isn’t criminal, he notes. He adds that when the General Assembly enacted these provisions, the purpose was to reduce the number of low-level felony offenders in prison, to save money, and to provide drug addiction treatment to offenders in their communities. But he indicates that some state appellate courts are incarcerating individuals for non-criminal community-control violations that fall under the caps in R.C. 2929.15(B)(1)(c). He contends that the law’s language and context show that the 180- and 90-day caps apply to any violations that aren’t felony crimes, and none of his violations were felonies.
Some Violations Fall Outside Statute, State Maintains
The Champaign County Prosecutor’s Office responds that some community-control violations are neither misdemeanors nor “technical.” The office maintains instead that there are violations of community control that are more serious than a “technical” violation, but that don’t rise to the level of a crime. Its brief states that some conditions of community control are “substantive rehabilitative requirements” designed specifically for the defendant to encourage more productive behavior. These requirements aren’t “technical,” the prosecutor argues.
In Nelson’s case, the prosecutor contends, his violations were more serious than a technical violation. The court’s no-contact order was tailored to him because he acknowledged that drinking was his main problem and a “gateway” to misconduct, and his girlfriend’s presence in his life contributed to his drinking. When the trial court imposed the full prison sentence, it concluded that Nelson’s contact with his girlfriend resulted in the property damage and reckless behavior offenses. The prosecutor argues the statutory caps don’t apply to Nelson’s case because his violations were neither technical nor misdemeanors, so the trial court had the discretion to impose the full prison sentence.
Prosecutors’ Association Files Friend-of-the-Court Brief
The Ohio Prosecuting Attorneys Association has filed an amicus curiae brief supporting the Champaign County prosecutor. The prosecutor and the association will share the prosecutor’s 15 minutes for oral argument before the Supreme Court.
–Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing John E. Nelson from the Ohio Public Defender’s Office: Peter Galyardt, 614.728.0171
Representing the State of Ohio from the Champaign County Prosecutor’s Office: Jane Napier, 937.484.1900
Must General Reliability of Devices to Catch Speeders Be Established in Every Case?
City of Brook Park v. Joseph G. Rodojev, Case no. 2019-0056
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Are the results of any speed measuring device, using either radar or laser technology, admissible in court without expert testimony establishing, or the court taking judicial notice of, the scientific reliability of the principles underlying the technology?
BACKGROUND:
Joseph Rodojev was driving east on Interstate 480 in May 2017 when he was stopped by a Brook Park police officer. The officer indicated that his speeding device showed Rodojev was traveling 75 mph in a 60-mph zone. The driver received a speeding ticket.
Rodojev contested the ticket, and his trial was held before a Berea Municipal Court judge. The driver said he was having a sneezing fit that made his nose bleed right before he was stopped by the police. The officer stated that he used an LTI 20/20 laser speed detection device to clock Rodojev’s speed, he was certified to operate the device, and it was working properly at the time of the stop.
The judge found Rodojev guilty of speeding, and Rodojev appealed to the Eighth District Court of Appeals.
Appeals Court Reviews 60-Year-Old Supreme Court Ruling
The appeals court upheld the conviction. Its opinion discusses the Ohio Supreme Court’s 1958 decision in E. Cleveland v. Ferell, which stated there was no longer a need for expert testimony or taking judicial notice on the reliability of the scientific principles underlying the use of radar speeding devices. A court takes judicial notice when it accepts evidence that typically is based on well-known or proven facts. The Supreme Court added, though, that a court still must determine the sufficiency of the evidence about the accuracy of the particular device used and the qualifications of the person using it.
The Eighth District noted the admissibility of scientific evidence today is governed by the state’s Rules of Evidence, but courts often use the Ferell analysis when deciding whether results from speeding devices are admissible. In this case, the Eighth District determined that Rodojev failed to object to the admissibility of the speed results from the laser device used, and the officer’s testimony offered sufficient evidence to establish the particular device’s accuracy and his qualifications.
The Eighth District wrote that courts quickly accepted the general reliability of DNA testing, X-rays, and photographs, but have refused to accept the reliability of radar devices that measure speed. The appeals court added that laser devices to track speed now have been around for decades and employ the same scientific principles as radar-based devices.
Noting that its analysis conflicts with In re Z.E.N. (2018) from the Fourth District Court of Appeals, the Eighth District asked the Supreme Court to decide “whether the admissibility of any speed measuring device hinges on the use of either expert testimony or judicial notice establishing the scientific reliability of the science used by the devices in general,” calling the guidance “long overdue.”
Seven Cities Submit Brief Supporting Brook Park
Several Ohio cities – Athens, Barberton, Columbus, Delaware, Lima, New Albany, and Upper Arlington – weigh in on this issue in a joint amicus curiae brief to the Supreme Court. The brief notes that law enforcement began using radar speed-measuring devices in 1949 and laser-based devices in the 1990s, and approximately 41 million speeding tickets are issued nationwide each year. The cities ask the Court to rule that neither expert testimony nor judicial notice are necessary every time an updated version of these old technologies is added to the market.
Driver Counters City Failed to Show Device’s Overall Reliability
Rodojev emphasizes that Ferell involved radar-based devices and predated the Rules of Evidence. By simply following the evidence rules, the city of Brook Park easily could have shown the reliability of the laser-based technology had it asked the court to take judicial notice of a 1993 Berea Municipal Court case that the city now cites in its brief to the Supreme Court, Rodojev maintains. This shows that asking a court to take judicial notice of information establishing the reliability of a speed-measuring device imposes no undue burden on the government, he argues.
Because the city didn’t adhere to the evidentiary rules by offering expert testimony or asking for judicial notice, the only remedy is to vacate the conviction, Rodojev contends. He adds that he had no obligation to object at his trial to the “lack of evidence” about the laser device.
His brief concludes that the “sound” approach in the evidentiary rules “guard[s] against unreliable technologies creeping into evidence without robust judicial gatekeeping while simultaneously ensuring that the reliability of established technologies can be easily shown.”
City Points to 1993 Municipal Court Decision on Device’s Reliability
The city waived participation in oral argument before the Court, but filed a brief on the issue. As far as the 1993 case in which the municipal court heard expert testimony establishing the accuracy and reliability of the LTI 20/20 device, the city acknowledges it didn’t ask the court to make the 1993 ruling part of the record in Rodojev’s case. However, the city argues, the municipal court’s judicial notice in 1993 established the device’s reliability for this case.
The city distinguishes between the radar-based device at issue in Ferell and the laser technology used in this case. Given the municipal court’s 1993 decision and the police officer’s testimony, Rodojev’s conviction should stand, the city concludes.
In their amicus brief, the other Ohio cities focus on the multiple state appellate courts that have heard arguments on the reliability of both radar and laser speed-measuring technologies and have found them to be scientifically reliable. The cities suggest the Supreme Court find the Eighth District’s decision reflects judicial notice of all these appellate court cases as demonstrating the general scientific reliability of the radar and laser devices.
Cuyahoga County Supports Reliability of Speed-Measuring Devices
The Cuyahoga County Prosecutor’s Office also filed an amicus brief supporting Brook Park. The office maintains that speed-measuring devices have been subject to “undue scrutiny” compared with other evolving technologies, such as DNA testing, GPS tracking, and fingerprinting. There is no reasonable doubt regarding the scientific reliability of these devices, the prosecutor argues.
–Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Joseph G. Rodojev: Andrew Mayle, 419.334.8377
Representing the city of Brook Park: Peter Sackett, 216.780.5611
Can Medicaid Recipients File a Class Action against State for Recouping Too Much Money from Their Personal-Injury Lawsuits?
Michael A. Pivonka et al. v. Maureen Corcoran, director of Ohio Department of Medicaid et al., Case no. 2019-0084
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- Can a Medicaid recipient who resolved a personal-injury lawsuit file a lawsuit in common pleas court claiming the Ohio Department of Medicaid collected too much money to adequately reimburse the Medicaid program for paying the injured recipient’s medical expenses?
- Must any lawsuit claiming the Ohio Department of Medicaid collected too much money to adequately reimburse the Medicaid program be filed in the Ohio Court of Claims?
- Does Ohio law require a Medicaid recipient to use an administrative appeals process to claim the department recouped too much money that a recipient might have been awarded from a personal-injury lawsuit?
- Can Medicaid recipients claiming the state collected too much money from them form a class under the rules for filing class-action lawsuits?
BACKGROUND:
Under Medicaid’s rules for the joint federal and state funded program, the program pays for the medical care of Medicaid recipients even in cases where another person caused the recipient’s injuries. In those instances, Medicaid recipients must agree that if they file lawsuits against those who caused their injuries, the Ohio Department of Medicaid is entitled to claim part of any settlement or award granted to the injured persons to reimburse the program for medical expenses it paid.
In 2005, Michael Pivonka was a Medicaid recipient who was injured by another person’s negligence . Medicaid paid for his injuries. Pivonka reached a settlement with the other party , and the Medicaid department collected $7,108 of his settlement that it claimed it was entitled to for paying Pivonka’s medical bills. In 2013, Lisa Rijos received a jury verdict for injuries suffered as a result of another person’s negligence. Medicaid had paid her medical expenses, and recouped $703 of her jury award.
Citing the 2013 U.S. Supreme Court’s Wos. v. E.M.A. decision, Pivonka and Rijos filed a class-action
lawsuit against the state Medicaid department. The two claimed that under Wos, Medicaid could recover only the amount that it actually paid for medical expenses. The two claim R.C. 5160.37 is unconstitutional because it allows Medicaid to take too much of the money they received from the negligent parties. They assert that thousands of other Ohioans were harmed when the department unjustly enriched itself by recovering more money from injured victims than it was entitled to receive.
The department opposed the lawsuit. But in December 2017, the Cuyahoga County Common Pleas Court granted class certification, and allowed the case to proceed. The department appealed the decision to the Eighth District Court of Appeals, which affirmed the trial court’s decision in December 2018.
The state appealed the Eighth District’s decision to the Ohio Supreme Court, which agreed to hear the case.
Recipients Can’t Sue in Common Pleas Court, State Asserts
The Medicaid department argues that under Ohio law, a common pleas court doesn’t have jurisdiction to consider a lawsuit filed by Medicaid recipients who believe the department over-collected funds from personal-injury lawsuits. The state maintains that the law calls for an administrative appeals process to be the “sole” means for disputing the department’s collection efforts. Alternatively, the state argues that if the Supreme Court believes a lawsuit can be filed in court, the only court that would have jurisdiction over the matter is the Ohio Court of Claims.
The department explains that R.C. 5160.37 governs the process for the state to recover the cost of medical assistance it provided to a Medicaid recipient and details the administrative appeals process a recipient can use when the recipient believes the department is seeking an excessive amount of money. The state also notes that R.C. 5160.37(P) indicates the process is the sole remedy available to a party who claims the department received more than it should.
Even if R.C. 5160.37 didn’t strip the common pleas court of power to hear the case, the Court of Claims Act did, the department argues. R.C. Chapter 2743 governs the court of claims and the types of lawsuits against the state that must be filed there. The class-action participants maintain their case is a suit in “equity,” seeking to recover the specific funds taken by Medicaid that the program wasn’t allowed to collect. The department maintains that regardless of how the recipients frame their argument, they are actually seeking money damages from the state out of the Medicaid department’s general fund. Lawsuits seeking money damages from the state must be filed in the Court of Claims, the state concludes.
Recipients Didn’t Meet Rules for Establishing Class, State Asserts
The state maintains the trial court and Eighth District wrongly concluded that Pivonka and Rijos could form a class under Ohio Rules of Civil Procedure. The class must comply with Rule 23, and the state maintains the pair didn’t meet both the “commonality” and “typicality” standards. To form a class, there must be a legal issue that is common to all the recipients, and the named parties forming the class, Pivonka and Rijos, must have legal issues that are typical of all the proposed class members.
The state argues the trial court prematurely agreed there was a common issue. The state maintains if the trial court agrees with the recipients’ argument that R.C. 5160.37 is unconstitutional, and the state can’t collect any portion of the lawsuit award, then all the recipients would have a common issue. But if the court rules that the law is flawed and the state is entitled to some recovery, but not as much as it received, then there is no common class because every class member’s case would be different based on how much the state attempted to recover, the state argues.
The state also argues Pivonka’s and Rijos’ cases aren’t similar or typical of all potential class members, noting that Medicaid recovered from Pivonka’s settlement agreement and Rijos won her award through a jury verdict. The claims by all the recipients will vary based on the facts in each individual’s case, which makes the lawsuit ineligible to be a class action, the state concludes.
Recipients Granted Right to Argue Before Court after Missing Deadline
Attorneys for Pivonka and Rijos were informed that they waived their right to orally argue before the Supreme Court because their merit brief wasn’t filed by the Court’s deadline. The firm maintains it was four minutes late in filing by mistake and that justice would be served by allowing their participation. The Court agreed to allow the parties to argue, but Court rules don’t allow for their brief to be accepted. In an earlier filing, the recipients asked the Court to affirm the trial court’s decision to certify the class and allow the case to proceed.
Trial Court Has Jurisdiction, Appeals Court Maintains
In its opinion agreeing with Pivonka and Rijos, the Eighth District noted the Medicaid recipients aren’t just contesting the amounts taken by the department from the personal-injury awards, but more broadly that the state law was amended over the years to give the department the ability to claim more money from a damage award than it is entitled to collect. The recipients are claiming the law is unconstitutional. A department’s administrative appeals process doesn’t decide whether a law is constitutional, giving the trial court the jurisdiction to consider the case, the appeals court ruled.
The Eighth District also affirmed the trial court’s position that recipients met the requirements to be certified as a class. It noted the trial court found the case turns purely on a legal issue of whether the department had any legal right to collect any of the funds from the recipients’ tort cases against those who caused the injuries. Because of the low incomes of the members of the class and the small amounts of recoveries in many cases, the trial court found the matter was best suited for a class-action case, and the appeals court agreed. Since class-action lawsuits are within the jurisdiction of the common pleas court, the recipients had the right to file in Cuyahoga County, and not in the court of claims, the Eighth District concluded.
–Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Maureen Corcoran, director of Ohio Department of Medicaid et al. from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Representing Michael A. Pivonka et al.: Patrick Perotti, 440.352.3391
Muskingum County Bar Applicant Challenges Denial of Right to Take Exam
In re: Application of Cynthia M. Rodgers, Case no. 2019-1094
Board of Commissioners on Character and Fitness
A 2019 Capital University Law School graduate from Muskingum County is challenging the assessment that she doesn’t have the character and fitness to be a lawyer and that she not be permitted to take the Ohio bar exam until 2024.
Two members of the Muskingum County Bar Association interviewed Cynthia M. Rodgers of Dresden and concluded that she possesses the character and fitness to sit for the bar exam. However, the Supreme Court’s Board of Commissioners on Character and Fitness initiated its own investigation of Rodgers, and a three-member panel conducted a hearing in May 2019. The panel expressed concern that the 59-year-old Rodgers had been involved in almost 60 civil actions during her lifetime and disclosed many unpaid debts, including an estimated $340,000 in student loans.
Based on the panel hearing, the board recommended that Rodgers shouldn’t be permitted to take the bar exam in 2019, but should reapply for a character and fitness review five years later, in 2024.
Board Questions Legal Filings
Rodgers worked at Muskingum County Children Services from 1981 until 1985 then left the post to raise a family and return to school. She received an associate degree from Ohio University in 1991 and pursued a master of arts degree from OU from 1993 to 1995, but didn’t complete the program. In 2012, she received a bachelor’s degree from OU, majoring in philosophy pre-law.
Rodgers graduated from Capital’s graduate-level paralegal program in 2014, and obtained a legal intern license. She worked in Capital’s legal clinic, interned at the Gahanna City Prosecutor’s Office, and Southeastern Ohio Legal Services until she graduated law school in 2019.
Rodgers reported only working two years between 1985 and 2001, and stated she was injured in a tree-trimming accident and became disabled. Since then, she listed her employment as the administrator father’s estate from 2004 to 2014, and in similar roles for two of her brothers. She also served as a “volunteer research telecommuter and paralegal” for Miller Law Offices in Columbus from 2014 until 2016.
The board notes that during her adult life she has filed lawsuits regarding wrongful death, personal injury, medical malpractice, automobile sales, property law issues, and bankruptcy in various courts, ranging from municipal court to federal court. Several of the cases were filed in her role as administrator of her father’s and two brothers’ estates. The board maintains that Rodgers appears to be a person who would rather file a lawsuit than resolve an issue by negotiation or other means. It notes that she freely admitted for the most part she “didn’t know what she was doing” but felt that something had to be done.
The most recent lawsuit involved a claim for unpaid minimum wages by Columbus attorney Mark J. Miller. The board reports that Miller agreed to pay Rodgers mileage for commuting from her Muskingum County home to his Columbus office. She claimed she was entitled to payment, and Miller filed a complaint seeking to have the case dismissed and Rodgers declared a vexatious litigator. The matter was settled, and Miller agreed to pay Rodgers $16,500.
The board concludes that Rodgers filed multiple legal actions with little regard for their merit, or the expense and inconvenience they caused others.
Debt Levels Raise Board Concerns
The board reports that Rodgers had a number of debts, some of which had been outstanding for many years. It notes that Rodgers and her husband amassed almost $900,000 in student loan debt. Rodgers expressed that she didn’t have any idea of how much she has borrowed, but the board estimates it is about $340,000. The loans have been consolidated, and the couple entered a percentage of income repayment plan.
Rodgers states that because of the disability from the tree injury, she is not able to work full time and if she becomes a lawyer, she intends to work part time for legal aid. The board asserts that Rodgers openly neglected financial responsibilities and knowingly incurred a substantial amount of student loan debt that she admits probably will never be paid.
Rodgers’ conduct represents an ongoing lack of integrity, abuse of process, and neglect of financial responsibilities, the board concludes. It notes that Rodgers was able to function at a high level at Capital’s legal clinic under the supervision of lawyers, but asserts the practice of law requires character, fitness, and financial responsibility, which Rodgers failed to demonstrate she possessed.
Applicant Took Actions Based on Advice from Lawyers
Rodgers responds to the board’s conclusions by noting that many of the lawsuits and legal claims she made were undertaken with the assistance of lawyers. She states most of them were initiated through her role as an estate administrator and were filed to protect the interests of her family members. She wrote that, while in paralegal and law school, she reviewed many of the cases she filed earlier in her life and realized she made many errors.
Rodgers also maintains that none of her student loans are in default and that she signed an agreement in 2001 with the U.S. Department of Education that will allow her to make income-based payments of her student loans for 10 years in a public service job and have the balance of her loans forgiven.
Rodgers admits she is not a typical bar exam applicant, having been married for 37 years, raised three daughters who graduated from Ohio State University, and dealt with hardships out of her control, including the injury to her leg. Rodgers maintains that while she has made errors in the past, a five-year sanction isn’t warranted. She produced letters of recommendation from Capital professors and staff attesting to her abilities, and is in good standing with all her creditors.
Rodgers notes that bar applicants who have been found to engage in dishonesty, fraud, deceit, or misrepresentation have received less than five-year disciplinary suspensions. She is urging the Court to allow her to take the July 2020 bar exam.
Bar Association Not Participating in Oral Argument
The Muskingum County Bar Association did not file a merit brief in the matter and isn’t permitted to participate in oral argument.
–Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Cynthia M. Rodgers, representing herself: 740.575.6870
Representing the Muskingum County Bar Association, Jillian Von Gunten: 740.450.7950
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.