Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, December 12, 2023

State of Ohio v. Kenneth A. Grad, Case No. 2023-0213
Ninth District Court of Appeals (Medina County)

Michael Berkheimer v. REKM LLC dba Wings on Brookwood et al., Case No. 2023-0293
Twelfth District Court of Appeals (Butler County)

State of Ohio v. Katrina Hale, Case No. 2023-0621
Fifth District Court of Appeals (Licking County)

Do Scientific Studies Published After Trial Qualify as New Evidence?

State of Ohio v. Kenneth A. Grad, Case No. 2023-0213
Ninth District Court of Appeals (Medina County)


  • In a request to a trial court for permission to file a motion for a new trial, what must a defendant prove to demonstrate that scientific evidence is newly discovered?
  • Do scientific studies published after a trial constitute newly discovered scientific evidence even if the basis for those discoveries was generally known at the time of the trial?

Kenneth and Laura Grad took their 41-day-old son to a podiatrist because his foot seemed swollen. The podiatrist persuaded the Grads to take the infant to the hospital. He had a sore on his foot, dryness around his mouth, and a cut on his scrotum. Laura Grad provided the doctor with a family history.

An X-ray taken at Akron Children’s Hospital showed that the child’s left leg was fractured. Additional X-rays indicated that the child had 26 fractures, which included his skull, ribs, legs, arms, and fingers. The injuries were in various stages of healing. Kenneth Grad disclosed that he accidentally bumped the child’s head one time into a dresser.

The child’s blood was tested for a genetic disorder called osteogenesis imperfecta – referred to as brittle bone disease – which causes bones to break easily. The test came back negative. Laura Grad later told the doctor at the hospital that she had a vitamin D deficiency, which can affect bone development.

Father Charged With Harming Child
Kenneth Grad was charged in 2008 with five counts of child endangering and three counts of felonious assault. In 2013 and 2014, the Medina County Common Pleas Court denied the father’s request to test the child more extensively for genetic and metabolic disorders.

The case went to trial in December 2014. The defense argued that the child’s physician at the hospital, Dr. Daryl Steiner, only had the child tested for one variant of osteogenesis imperfecta, didn’t order tests for any other genetic disorders, and didn’t test for a vitamin D deficiency. Steiner testified that vitamin D testing wasn’t necessary because it doesn’t affect infants before they are three to six months old.

The jury convicted Grad on all counts. He was sentenced to 24 years in prison.

Grad appealed to the Ninth District Court of Appeals, which in December 2016 upheld the verdict. He appealed to the Supreme Court of Ohio, which declined to accept the case.

He later filed a petition for postconviction relief, which the trial court dismissed. The Ninth District affirmed.

Father Asks Court to Allow Motion for New Trial
In October 2021, Grad asked the trial court for permission, or “leave,” to file a motion for a new trial because he had new evidence. Typically, a request for a new trial based on new evidence must be filed within 120 days after the verdict. If that deadline has passed, the defendant must first ask the court for permission to submit the motion.

In his request, Grad identified scientific studies from 2016, 2017, 2019, and 2021. Grad said the studies proved that genetic and metabolic conditions could cause unexplained fractures in infants. Because the studies were new evidence not available at the time of his 2014 trial, the court should hold a hearing to determine whether the evidence entitled him to a new trial, Grad maintained. His other points included finding out that the costs of genetic testing had dropped to a fraction of what they were during his trial, learning of a family member’s recent diagnosis relevant to the case, and publication of a news media investigation about mistaken diagnoses by Steiner.

The trial court denied Grad’s request in January 2022. He appealed the denial to the Ninth District, which upheld the trial court ruling. Grad appealed to the Supreme Court of Ohio, which agreed to review the case.

Studies Were New Evidence That Supported Request for Another Trial, Father Argues
If a defendant provides documents to the trial court that on their face show the discovery of the new evidence that couldn’t be presented at trial, then the court must hold a hearing to determine whether there is proof it wasn’t possible to know about and submit the evidence earlier, Grad explains.

He contends that in his case the trial court confused two separate steps in the process. The purpose of the hearing is for the court to decide whether he was unavoidably prevented from discovering the new evidence earlier, Grad argues, while the evaluation of the merits of whether he is entitled to a new trial occurs later in the process. Just like the trial court, the Ninth District also skipped ahead to analyzing the merits of the scientific evidence, Grad maintains.

He also disputes the courts’ analyses of the studies. The studies were rejected because they were based on the theories of some medical professionals at the time of his trial and who were listed as possible witnesses for the trial, Grad states. He counters that scientific evidence begins as theory first. Theories are tested over time to determine whether they are credible, he notes. The studies he submitted were conducted and published after his trial and they contradict medical evidence presented by the prosecutor during his trial, he argues.

He asserts that scientific evidence reflecting a change in medical understanding and with a strong probability of changing the trial outcome qualifies as newly discovered evidence, even if the basis for the discoveries were in discussion earlier in the medical community. Grad emphasizes that evaluating the studies should be done at a hearing where the record can be developed.

Studies Only Confirmed Previously Known Views, State Maintains
The Medina County Prosecutor’s Office asserts that Grad knew at the time of his 2014 trial of the science that became the basis for his 2021 motion for leave. The prosecutor maintains that because Grad was aware at trial of the underlying rationales for the studies, he couldn’t have been unavoidably prevented from filing his motion within 120 days of the verdict.

The prosecutor adds that the authors of the studies were possible witnesses for Grad. Grad’s lawyer made a strategic decision to not have them testify and instead focused on the cross-examination of Steiner, the child’s doctor, the prosecutor argues.

The opinions and theories of the authors didn’t change between the trial and Grad’s claim of new evidence in 2021, the prosecutor contends. The studies only confirm prior theories and are cumulative of former evidence, which doesn’t warrant a new trial, in the prosecutor’s view.

The prosecutor maintains that Ohio courts have only granted hearings or new trials if the scientific studies are a leap in the medical community’s understanding of the science. Nothing in Grad’s request for leave indicated a shift in mainstream medical opinion on diagnosing bone disorders or vitamin D deficiency, so a new trial isn’t justified, the prosecutor concludes.

Additional Briefs Filed on Each Side
The Innocence Network filed an amicus curiae brief supporting Grad. The group notes that “science and law are often at odds: science is constantly developing, often as a theory that is proved or disproved over time, whereas law provides predictability and seeks finality based on facts ascertainable at any given time.” The group rejects the view that discoveries that prove or disprove a scientific theory are not new evidence and can never support a request for leave to file a motion for a new trial.

An amicus brief supporting the Medina County prosecutor’s position was submitted by the Ohio Attorney General’s Office, which will share time with the prosecutor during oral arguments before the Court. The attorney general argues that scientific studies like the ones that Grad submitted aren’t new evidence because they only provide additional information about evidence that could have been admitted at trial. Given that science is constantly evolving, a case cannot be retried based on every advancement in scientific research, the attorney general maintains.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Kenneth A. Grad from the Cuyahoga County Public Defender's Office: Ricky Ferrara,

Representing State of Ohio from the Medina County Prosecutor’s Office: Stefanie Zaranec,

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Are Sellers Responsible for Injury From Chicken Bone Found in ‘Boneless Wings?’

Michael Berkheimer v. REKM LLC dba Wings on Brookwood et al., Case No. 2023-0293
Twelfth District Court of Appeals (Butler County)

ISSUE: Should a jury, not a judge, determine whether a consumer should reasonably expect, anticipate, and guard against a substance in food that the seller specifically claimed wasn’t in the food?

Michael Berkheimer was a regular diner at the Wings on Brookwood restaurant in Butler County. In April 2016, he, his wife, and several friends were at the restaurant, and he ordered his usual – boneless wings tossed in parmesan and garlic sauce. Berkheimer had a routine of cutting the wings into pieces and eating them with a fork. He ate the first two pieces of a wing without incident. After the third piece, he felt “something go down the wrong pipe.”

Berkheimer went to the bathroom and attempted to vomit and clear his throat. After 20 minutes, he still felt discomfort and left the restaurant. Later that night, he began to run a fever, and the next day, when he attempted to eat, he immediately vomited. He went to the emergency room, where a physician examined his esophagus. The doctor removed a chicken bone that had lodged in and torn Berkheimer’s esophagus. The thin bone was about two inches long. The tear led to an infection, which required two surgeries. The tear and infection also damaged his heart and lungs.

In 2017, Berkheimer filed a lawsuit in Butler County Common Pleas Court against REKM, the owners of Wings on Brookwood. He also sued the chicken suppliers Gordon Food Service and Wayne Farms. Berkheimer claimed that Wayne Farms advertised its boneless chicken items as deboned by hand to ensure precision and accuracy. Gordon Foods labeled the product purchased from Wayne Farms as boneless, skinless chicken breast. Wings on Brookwood advertised, prepared, and served “boneless wings.”

The three sellers asked the trial court to dismiss the case at its earliest stage, arguing in the pleadings that even in dishes advertised as “boneless,” the presence of bones is “a natural enough occurrence that a consumer should reasonably expect and guard against” bones in a meat dish. The trial court agreed and dismissed the case. Berkheimer appealed to the Twelfth District Court of Appeals, which reversed the decision and returned the case to the trial court, stating that more facts needed to be developed to render a decision.

After more than two years of discovery, the trial court granted summary judgment to the sellers, again finding that while one would hope not to find a bone in a boneless wing, bones are a natural part of a chicken, and a consumer needs to be on guard against the possibility of encountering one.

Berkheimer again appealed to the Twelfth District, which affirmed the decision.

Berkheimer appealed to the Supreme Court of Ohio, which agreed to hear the case.

Ohio Courts Using Outdated Test to Decide Food Injury Cases, Diner Argues
Berkheimer explains that courts across the nation have relied on two tests to determine fault in food injury cases. He claims there is confusion among Ohio courts because while they state they are using the more modern “reasonable expectation test,” they are actually packaging the outdated “foreign-natural test” into their decision-making. He alleges that by relying on the foreign-natural test, courts allow food sellers to avoid responsibility for injuries where their products aren’t what they claim.

The foreign-natural test comes from a 1936 California Supreme Court decision, where sellers can be liable for injuries when foreign objects, such as metal, are found in food products, Berkheimer explains. But there is no liability for food products containing substances natural to that type of food when it is in its original state, such as a chicken bone in a chicken breast.

In 1960, Ohio adopted the “reasonable expectation test” in the Supreme Court’s 1960 Allen v. Grafton decision, Berkheimer notes. But the wording of that decision wasn’t clear, he asserts, which has led some courts to believe the state uses a combination of the reasonable expectation test and the foreign-natural test. Under the reasonable expectation test, a court considers the surrounding circumstances, including how the food was prepared, how it was consumed, and what representations the seller made. Then, the court asks whether a consumer reasonably should have expected and guarded against a specific injury from the substance at issue.

Berkheimer argues that Ohio courts should rely only on the reasonable expectation test and that what is reasonable isn’t a decision to be made by a judge at the summary judgment stage. Rather, a jury should consider whether a consumer should reasonably expect the danger, he argues. Berkheimer notes that much has changed in food sales since the Allen decision, including the number of food sellers that advertise products as boneless, gluten-free, lactose-free, and in other ways where natural substances have been removed. Those products are often sold at a higher price than the products in their natural state, Berkheimer asserts. Courts should consider that sellers want to command higher prices for their products but also escape any liability for injuries caused when they fail to live by the claims they make.

He argues that the trial court and the Twelfth District included the words “reasonably expect” in their decisions to indicate they were using the reasonable expectation test. But their decisions suggest that they actually applied the foreign-natural test when they concluded that he was responsible for guarding against a bone in a boneless wing, Berkheimer maintains. Under a true reasonable expectation test, a jury might come to a different conclusion, he concludes.

Sellers Maintain Courts Used Proper Test
The owners of Wings on Brookwood and the two food producers filed separate briefs but made similar points. The restaurant argues that the Twelfth District only discussed the foreign-natural test but clearly used the reasonable expectation test to decide in the restaurant’s favor. The restaurant presented several cases in the past years where food servers weren’t liable for natural substances, such as bones and fruit pits, that weren’t expected to be in the dish. The restaurant noted two cases where a restaurant wasn’t found liable for a chicken bone found in a boneless chicken sandwich and another where a pork bone was found in a sausage breakfast sandwich.

In an ideal world, boneless chicken wings would not contain bones, Wings notes, but courts cannot ignore the common experience of life and develop rules that make sellers ultimately liable for the natural substances in the food products they sell. Wings maintains that under the reasonable expectation test, whether an object is natural to the food is considered an “important factor.” In this case, an important factor of what a consumer of boneless chicken wings reasonably expects is that bones are natural to chicken, and the consumer should be on guard against a possible bone, the restaurant argues. The trial court correctly applied the reasonable expectation test and concluded that Berkheimer should have reasonably been on guard and not swallowed a bone nearly two inches in length.

Wayne Farms notes that it engages in multiple levels of inspection and that it exceeds the national standard of “minimal bone tolerances.” In the first four months of 2016, during the time of Berkheimer’s injury, Wayne Farms sold 1.2 million pounds of boneless skinless chicken breasts to Gordon Food Service. The two companies received only seven complaints of bones in the product.

Based on how Berkheimer described eating the wings by cutting them up into small pieces, the producers maintain a reasonable person should have anticipated and guarded against such a large bone in a small, bite-sized piece of chicken. The producers assert the lower courts properly applied the reasonable expectation test, considered the fact that chicken meat contains chicken bones and that, under the circumstances, Berkheimer should have guarded against swallowing a bone. The producers note that Ohio courts have held that food sellers have a duty to remove harmful or unnatural sources from food that a consumer wouldn’t ordinarily anticipate or guard against.

The sellers argue that Berkheimer isn’t truly asking the Supreme Court to clarify to lower courts how to apply the reasonable expectation test, and they maintain courts are using it as they should. Rather, Berkheimer wants an unreasonable rule that always requires a jury to decide what is reasonable. The producers argue judges should still be able to determine the merits of food injury cases at the early stages.

Friend-Of-The-Court Brief Submitted
An amicus curiae brief supporting Berkheimer’s position was submitted by the Ohio Association for Justice.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Michael Berkheimer: Robb Stokar,

Representing REKM LLC dba Wings of Brookwood: Samuel Gradwohl,

Representing Gordon Food Service: Jared Wagner,

Representing Wayne Farms LLC: Patrick Byrnes,

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Could Stop Permit Search of Vehicle Passenger Who Was Exiting Store?

State of Ohio v. Katrina Hale, Case No. 2023-0621
Fifth District Court of Appeals (Licking County)

ISSUE: Can a police officer conduct a search of a person who was recently a passenger in a parked vehicle, when the officer's purpose was to find out if the vehicle's driver had a suspended license?

In August 2021, Licking County law enforcement was surveilling an area known for drug trafficking and spotted Terrance Cunningham driving a minivan. The officers radioed Licking County Sheriff’s Detective Benjamin Martens, who was driving a patrol cruiser at the time. Martens was told Cunningham had stopped at a nearby convenience store and parked.

Martens observed the minivan parked at the store. He conducted a records search while in his cruiser and found that Cunningham had a suspended driver’s license. He pulled his cruiser in behind the minivan and approached it on foot, finding Cunningham standing outside the parked vehicle.

Katrina Hale was inside the convenience store when Martens arrived. Hale is seen on Martens’ bodycam video approaching the passenger side of the minivan, placing her hands through the open window of the vehicle, then walking back toward the entrance of the store. Before she could enter, Martens directed Hale to walk over to him. She indicated she wanted to use the restroom in the store, and Martens informed her she was not free to leave. He directed her to sit on the bumper of his cruiser and told her to place the two small purses she had on the hood of the cruiser.

In response to questioning, Cunningham stated there was a handgun and ammunition that belonged to Hale in the minivan. Martens searched Cunningham and found cocaine in one of his pockets. The officer then turned to Hale and indicated he wanted to check her purses for weapons. He found methamphetamine in one of the purses.

Hale was indicted on two counts of methamphetamine possession, one count of methamphetamine trafficking, and improper handling of a firearm in a vehicle. Hale sought to suppress the evidence, arguing it was obtained through an illegal search that violated her rights under the Fourth Amendment of the U.S. Constitution. The trial court ruled the evidence related to the drugs would be suppressed but not the evidence related to the firearm in the vehicle. The trial court noted that at the time of her initial detention, Hale was not a passenger of the minivan, and the only offense for which Martens had reasonable suspicion was to determine if Cunningham was unlawfully operating the minivan.

The Licking County Prosecutor’s Office appealed the decision to the Fifth District Court of Appeals. The Fifth District reversed the trial court’s decision to suppress the drug-related evidence against Hale.
She appealed to the Supreme Court of Ohio, which agreed to hear the case.

No Court Decision Supports Right to Search Former Passenger of Parked Car, Woman Asserts
Hale maintains the Fifth District error stems from concluding that for the purpose of conducting warrantless searches, Hale was still a passenger and never “left” the minivan. Hale notes that the appeals court considered her close proximity to the van and her admission that she was a passenger so, she can be considered a passenger. The appeals court found prior U.S. Supreme Court rulings have permitted the search of passengers of vehicles when the driver was lawfully arrested, and even searches of former passengers who got out of the vehicle after it was stopped.

Hale asserts that the Fifth District cited U.S. Supreme Court cases in which the passenger was searched after the officer actually stopped a vehicle and pulled it over. She maintains there has never been a U.S. Supreme Court decision that has addressed her type of encounter. Unlike other cases, Hale was in a parked minivan for some time and not stopped by the police. And She was in a store when the officer pulled up. She maintains no U.S. Supreme Court case has sanctioned an officer’s search of a former passenger, who was exiting a nearby building, when the officer approaches a parked car with no occupants.

Martens testified at the suppression hearing that he already knew Cunningham didn’t have a valid license when he approached him. He had no information about Hale or reason to believe she was involved in any illegal activity, Hale notes. All of Martens’ suspicions were based on information he obtained after he illegally detained her and forced her to sit on the bumper, and all of the evidence he obtained from that seizure should be suppressed, she concludes.

Officer Justified in Search of Passenger, Prosecutor Maintains
The prosecutor cites the U.S. Supreme Court’s 1977 Pennsylvania v. Mimms and 1997 Maryland v. Wilson decisions that authorize an officer during a lawful traffic stop to seize the driver and passengers in order to exercise command of the situation. While those cases involved stops of vehicles that were being driven, the prosecutor notes other courts have extended the holdings of those cases to parked cars and people associated with parked vehicles.

The prosecutor argues that Hale was clearly connected to the minivan, noting she was sticking her hands through the passenger window as Martens was searching Cunningham, and she was constantly in close proximity to the van. When Cunningham indicated to Martens that there was a gun in the car and that it belonged to Hale, the officer was justified in searching Hale’s purse because it was capable of holding a gun, the prosecutor notes. Officers can take reasonable steps to protect themselves during lawful stops, which includes searching the purse to determine if Hale had taken the gun out of her minivan.

The prosecutor notes that under questioning, Hale admitted to being a passenger in the van and that she owned it. She also told the officer there was marijuana in the van. Based on his detainment of Hale, Martens was justified in searching her purses and the vehicle for weapons, and he lawfully discovered the illegal drugs she possessed, the prosecutor asserts.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Katrina Hale from the Ohio Public Defender’s Office: Craig Jaquith,

Representing the State of Ohio from the Licking County Prosecutor’s Office: Kenneth Oswalt,

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