No. 2011-1120

In the Supreme Court of Ohio

APPEAL FROM THE COURT OF APPEALSEIGHTH APPELLATE DISTRICT

CUYAHOGA COUNTY, OHIO

CASE No. 10-094908

RONALD LURI,Appellant/Cross-Appellee,

V.

REPUBLIC SERVICES, INC., et al.,Appellees/Cross-Appellants.

MERIT BRIEF OF APPELLANT RONALD LURI

ROBIN G. WEAVER (0020673)STEPHEN P. ANWAY (0075105)SQUIRE, SANDERS & DEMPSEY, L.L.P.4900 Key Tower127 Public SquareCleveland, OH 44114Tel: (216) 479-8500Fax: (216) 479-8780E-mail: rweaver(a ssd.com

sanway^cr^ssd.com

Attorneys for Appellees/Cross-AppellantsRepublic Services, Inc.; RepublicServices of Ohio Hauling, LLC; RepublicServices of Ohio I, LLC, Jim Bowen, andRon Krall '

IRENE C. KEYSE-WALKER (0013143)(COUNSEL OF RECORD)BENJAMIN C. SASSE (0072856)TUCKER ELLIS & WEST LLP1150 Huntington Building925 Euclid AvenueCleveland, Ohio 44115-1475Tel: (216) 592-5000Fax: (216) 592-5009E-mail: ikeyse-walkerntuckereIlis com

bsassektuckerellis.com

Attorney for Appellant/Cross-AppelleeRonald Luri

SHANNON J. POLK (0072891)RiCHARD C. HAaER (0046788)HABER POLK KABAT, LLP737 Bolivar Road, Suite 4400Cleveland, OH 44115Tel: (216) 241-0700Fax: (216) 241-0739E-mail: spolk(a^haberpolk.com

rhaber^a haberpolk.com

MICHELLE PIERCE STRONCZER (0066531)PIERCE STRONCZER LAW, LLC8931 Brecksville Rd.P.O. Box 470606Cleveland, OH 44147-0606Tel: (440) 262-3630E-mail: shelley.stronczerk ierceleeal.com

Additional Counselfor Appellant/Cross-Appellee Ronald Luri

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .................... .................................,...........,.........:....................... m

1. INTRODUCTION..........................................................................................:.......:. 1

II. STATEMENT OF THE FACTS .... ........................................................................... 2

A. The Parties .....................................:............................................................... 2

B. Luri's Unlawful Termination ......................................................................... 3

C. Post-Filing Efforts to Conceal Unlawful Retaliation .................................... 5

D. The Jury Verdicts and Post-Trial Proceedings . ............................................. 6

E. Luri L ................:.........:....:............................................................................. 7

F. Luri II . ...........................................:............................................................... 9

III. ARGUMENT ..............................................:.....................................................:.....11

Proposition of Law No. 1 ............................................................................:...........11

Punitive damage awards represent a jury's determination ofthe amount required to punish and deter a specific defendant'smalicious misconduct. Consistent with those jury findings,reviewing courts must consider each defendant's punitivedamage award independently for the application of "caps"under R.C. 2315.21(D) .........................................................:.......................11

A. The Plain and Unambiguous Language of R.C.2315.21(D)(2)(a) Caps Each of the Corporate PunitiveDamage Awards at $7 Million ..............................:.:.................................... 12

B. The Majority's Creation of a Joint Liability "Exception" IsUnsupported by Law or Policy ..................................................:................. 15

C. The Majority's Creation of "Joint" Liability for a SingleCapped Punitive Damage Award Improperly Dilutes theIndividualized "Punish and Deter" Purpose of PunitiveDamages . ....................................:................................................................ 19

IV. CONCLUSION ...................................................................................................... 22i

PaEe

CERTIFICATE OF SERVICE .................:.......................................:....:............................ 24

APPENDIX Appx. Page

Notice of Appeal to Ohio Supreme Court (June 30, 2011) ................................................. 1

Joumal Entry and Opinion, Eighth Appellate District (May 19, 2011) (Luri II) ................ 5

Journal Entry and Opinion, Eighth Appellate District (Oct. 23, 2009) (Luri I) ................ 27

Journal Entry, Cuyahoga County Common Pleas Court (March 2, 2011) ....:................... 42

Journal Entry, Cuyahoga County Common Pleas Court (Sept. 25, 2008) ........................ 44

Journal Entry, Cuyahoga County Common Pleas Court (Sept. 25, 2008) .... .................... 45

Journal Entry, Cuyahoga County Common Pleas Court (Sept. 18, 2008) ........................ 46

Journal Entry, Cuyahoga County Common Pleas Court (July 3, 2008) ........................... 47

R.C. 2315.21 .......................:...:.......................................................................................... 48

R.C. 4112.02(I) .....:.......................................................................:.....................:.........:.... 52

ii

TABLE OF CONTENTS

PaEe

Cases

Ahern v. Ameritech Corp.(2000), 137 OhioApp.3d 754 .....................:.......................................................... 16

Arbino v. Johnson & Johnson(2007), 116 Ohio St.3d 468.., ............................................................:.............. 13,19

Armbruster v. Quinn(C.A.6, 1983), 711 F.2d 1332, abrogated on other grounds, Arbaugh v. Y&HCorp. (2006), 546 U.S. 500 ............:....................................................................... 16

Barnes v. Univ. Hosps. of Cleveland(2008), 119 Ohio St.3d 173 ..............:..................................................:..........:......... 8

BMW of North America, Inc. v. Gore(1996), 517 U.S. 559 ........................................................................:....................... 8

Bowling v. Heil Co.(1987), 31 Ohio St.3d 277 ...........:............................................:............................. 15

Dardinger v. Anthem Blue Cross & Blue Shield(2002), 98 Ohio St.3d 77 ....................:......................................:...................... 20, 22

Faieta v. World Harvest Church,l0th Dist. No. 08AP-527, 2008-Ohio-6959 ............................................... 13, 15, 16

Havel v. St. Joseph,S.Ct. No. 2010-48 ..................................................................................................... 1

Luri v. Republic Services, Inc.,8th Dist. No. 92152, 2009-Ohio-5691 ..........................:........:............................. 7, 8

Luri v. Republic Servs., Inc.,193 Ohio App.3d 682, 2011-Ohio-2389 ..................:.................................:..... passim

Minix v. Canarecci(C.A.7, 2010), 597 F.3d 824 .....:.............:.........:....:................................................ 12

Pang v. Minch(1993), 53 Ohio St.3d 186 ....................... .................. ......................... ............ 15, 18

iii

PaEePapa v. Katy Industries, Inc.

(C.A.7, 1999), 166 F.3d 937 ................................................................................... 16

Portage Cty. Bd. of Commrs. v. Akron(2006), 109 Ohio St.3d 106 .................................................................................... 12

Rice v. CertainTeed(1999), 84 Ohio St.3d 417 .....:..........:..................................................................... 19

State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn.(1996), 74 Ohio St.3d 543 ...................................................................................... 12

State Farm Mut. Auto Ins. Co. v. Campbell(2003), 538 U.S. 408 ................................................................................................ 8

United States v. Best Foods(1998), 524 U.S. 51 ................................:.....................................:....................16-17

Wightman v. Consol. Rail Corp.(1999), 86 Ohio St.3d 431 ..:...................:..............................................................: 20

Statutes

R.C. 2315.18 ..................:......................................................:.............................................. 7

R.C. 2315.21 ..........................:....................................................................................... 7,20

R.C. 2315.21(B)(1) .........................................:.................................................................... 1

R.C. 2315.21(C)(1) ....................................................:....................................................... 20

R.C. 2315.21(D) ...................................................:........:........:.....................:.......... 9, 10, 21

R.C. 2315.21(D)(2)(a) .. .............................................................................................. passim

R.C. 4112.02(1) .........................................................................:.......................................... 1

iv

PageOther Authorities

Restatement of the Law 2d, Torts (1965), Section 433B(2), Comment d ......................... 15

v

I. INTRODUCTION

This appeal arises out of a jury verdict in favor of Plaintiff-Appellant Ron Luri on

his R.C. 4112.02(I) claim for unlawful retaliation. The limited issue to be briefed' is the

proper calculation of punitive damage "caps" for an award based on misconduct so

highly reprehensible that it "speaks to an award in the full amount authorized by the

legislature" in R.C. 2315.21(D)(2)(a). (App. Op., Appendix ("Appx.") 22, ¶38.) More

specifically, this Court accepted jurisdiction of the panel split on how the "cap" is to be

calculated for three of the five punitive damage awards returned by the jury in this case.

Both the applicable statute and the facts needed for the calculation are

straightforward. R.C. 2315.21(D)(2)(a) instructs courts to limit the judgment on punitive

awards to "two times the amount of the compensatory damages awarded to the plaintiff

from that defendant." (Appx. 49.) The parties agreed upon the jury interrogatories and

verdict forms that provided the numbers for the calculation. (Tr. 1561, 1712, Supp. 102,

103.) Those interrogatory answers and completed verdicts established:

That each of the three corporate and two individual Defendantsunlawfully retaliated against Ron Luri, causing $3.5 million incompensatory damages;

' In a cross-appeal, and in a separate appeal from a certified conflict (S.Ct. No. 2011-1097), Defendants-Appellees assert that R.C. 2315.21(B)(1) - the constitutionality ofwhich has never been placed at issue in this case - is constitutional. This Court acceptedjurisdiction of that portion of the Defendants-Appellees' cross-appeal and the certifiedconflict, but held both without briefing, pending the resolution of Havel v. St. Joseph,

S.Ct. No. 2010-48.

. By clear and convincing evidence, that each of the three corporateand two individual Defendants acted with actual malice toward Luri;and

The amount of punitive damages that the jury deemed necessary topunish and deter the malicious conduct of each of the fiveDefendants.

(Supp. 1-15.)

Only the three corporate punitive damage awards are before this Court. Applying

the plain and unambiguous language of Ohio's punitive damage cap, judgment on those

awards is limited to two times the $3.5 million compensatory damages that the jury

awarded "to the plaintiff from that defendant." This Court therefore should adopt the

calculations of the dissenting opinion and order judgment on punitive damage awards of

$7 million against each of the three corporate Defendants.

II. STATEMENT OF THE FACTS

A. The Parties.

Plaintiff-Appellant Ron Luri is a career waste management industry employee

who has worked as a General Manager in the Cleveland area since at least 1991. He

served as the General Manager for the three Cleveland Division facilities of Defendant-

Appellant Republic Services of Ohio Hauling, LLC ("Ohio Hauling") from 1998 until his

unlawful termination in April 2007. All three facilities showed continuous financial

improvement under his stewardship, and were on track for their best financial

performance ever in 2007. (Tr. 557-69, 591, 888-93, Supp. 49-52, 58, 79-80.)

2

In addition to Ohio Hauling, Luri's Complaint named four other defendants who

participated in the unlawful retaliation: (1) Defendant-Appellee. Republic Services of

Ohio I, LLC ("Republic Ohio") and its Area President, James Bowen (Luri's direct

supervisor); and (2) Defendant-Appellee Republic Services, Inc. ("Republic") and its

Regional Vice President, Ron Krall (Bowen's direct supervisor). While the jury awarded

punitive damages against all five Defendants - Republic, Republic Ohio, Ohio Hauling,

Krall, and Bowen - only the punitive damage awards against Republic, Republic Ohio

and Ohio Hauling are at issue in this appeal.

Luri's Unlawful Termination.

The events leading up to Luri's unlawful termination began in August 2006, when

Bowen was promoted to Area President of Republic Ohio and, with the "buy-in and

approval" of corporate officers (including Republic Vice President Krall), drafted and

implemented an "action plan" for Ohio Hauling's various divisions that identified

employees who needed to be "retrain[ed]" or "replace[d]," and that targeted older

workers for termination. (Tr. 384-86, 393-97, 741-43, 1267-68, Supp. 24-25, 26-27, 73-

74, 90.) In November 2006, Bowen told Luri to fire his three oldest workers and, at the

same time, told the General Manager of the Akron/Canton Division to eliminate positions

held by four of his oldest workers. (Tr. 573-74, 577-78, 741-45, 1484-88, Supp. 53, 54,

73-74, 99-100.) Luri refused Bowen's directive, explaining that firing older workers for

no reason, "and suddenly coming up [with] a reason for firing him and then replacing him

with a younger employee would put the company in a bad position or possible lawsuit."

(Id. 574-75, Supp. 53-54.)

After Luri voiced his objections, Bowen "all of a sudden" became critical of Luri's

"communication skills" and "management style." (Tr. 570-72, 579, Supp. 52-53, 55.)

Bowen began creating a paper trail (his "Ron Luri file") to assert a fictional, "he didn't

conduct enough meetings" basis for terminating a top performing manager. Included in

the file were false statements regarding "action plans" allegedly discussed with Luri and

false reports of other employees' allegedly negative comments about Luri. (Tr. 435-36,

444, 579-80, 585-94; 597-613, 1121-23, Supp. 33, 35, 55, 56-58, 59-63, 85.) Bowen was

assisted in those endeavors by Krall, who commissioned a survey to purportedly identify

"employee issues" at Luri's Cleveland Division, and who approved Bowen's

fictionalized "Improvement Directives" as a "good start." (Tr. 359-62, 436, 444-56,

1121, 1217-21, Supp. 18-19. 33. 35-38, 85, 86-87.)

In February 2007, Bowen forwarded Luri a memorandum purporting to "recap" a

non-existent discussion from the day before, falsely stating that Bowen and Luri had

collectively decided to "flip flop" the position of Luri's oldest employee (Frank Pascuzzi,

one of the three Luri had refused to terminate) and a much younger employee, and

instructing Luri to make sure that Pascuzzi "voluntarily" asked to be reassigned "as soon

as possible." (Tr. 607-10, Supp. 62.) Interpreting the e-mail as a suggestion to create a

pretext for terminating Pascuzzi, Luri instead worked with Pascuzzi so that he could keep

working with no change in pay. (Tr. 614-19, Supp. 63-65.) Luri also responded to

4

Bowen's complaints about his management style (receiving no response), and followed

Bowen's numerous "directives" and "action plans" to the best of his ability throughout

February, March, and April. During that time no one criticized his performance and

Bowen neither followed up nor checked on his progress. (Tr. 611-14, 1465-67, Supp. 63,

94.)

On April 12, 2007, Bowen e-mailed Krall, seeking permission to terminate Luri's

employment. (Tr. 1230-31, Supp. 88-89.) Krall approved the request, copying the

Republic entities' Human Resources Manager "to make sure that we're not missing

anything here." (Id.) Shortly thereafter, Luri was summoned and terminated. Krall was

present when Bowen blurted out the real reason for Luri's termination ("he said, `Plus

you didn't fire Frank Pascuzzi"'), and cut off Luri when he attempted to challenge his

discharge. (Tr. 624, Supp. 66.)

Soon thereafter, Luri interviewed with another waste management company,

which was looking for someone in the Cleveland area. But Defendants prevented Luri

from being hired by refusing to waive the restrictions in his covenant not to compete.

(Tr. 475-76, 625-27, 704, Supp. 43, 66-67, 69.)

C. Post-Filing Efforts to Conceal Unlawful Retaliation.

After Luri filed suit, Bowen attempted to conceal his unlawful conduct by

backdating an October 2006 memo, after supplementing it to make it appear that Luri had

performance issues before he opposed age discrimination. (Exhs. 35, 37; Tr. 414-21,

493-97, 550, 779-84, 1351, Supp. 112-13, 30-31, 45-47, 76-77, 91.) He then produced

5

the altered document in discovery (Tr. 422, Supp. 32). Bowen also created and

backdated a handwritten set of notes describing a non-existent plant visit that allegedly

yielded unfavorable comments about Luri's management style, and instructed employees

to create documents supporting false allegations. (Id., Exhs. 15, 34, 34A, 39; Tr. 436-47,

458-62, 473, 785-86, 996-99, Supp. 107-111, 114-15, 33, 39-40, 42, 77, 82-83.) Ohio

Hauling's General Manager was one of those who participated in the effort to cover up

unlawful retaliation by creating and then supplementing (to make "more specific") a

document used to make the unsupported claim that Luri had falsified expense reports.

(Exhs. 34, 34A; Tr. 443-47, 978-79, Supp. 108-09, 35-36, 81.)

D. The Jury Verdicts and Post-Trial Proceedings.

The eight-day jury trial did not go well for Defendants. Sixteen witnesses

testified, including a forensic computer expert who conclusively established Bowen's

post-filing alteration of evidence. Cross-examinations of Defendants' witnesses

repeatedly exposed duplicitous testimony and the false "paper trail" created by Bowen,

assisted by Krall and others.

The case was submitted to the jury with interrogatories and verdict forms agreed

upon by the parties after Defendants insisted that the jury consider punitive damages

individually as to each of the five Defendants. (Tr. 1557-61, 1712, Supp. 101-02, 103.)

On July 3, 2008 the juryreturned verdicts and consistent interrogatory answers awarding

Luri $3.5 million in compensatory damages, and punitive damages against Republic

($21.5 million), Republic Ohio ($10.75 million), Ohio Hauiing ($10.75 million), Ronald

6

Krall ($83,394), and James Bowen ($25,205); and attorney's fees. ( 'Rogs and Verdicts,

Supp. 1-15; JE (7/8/08), Appx. 47..)

Fourteen days after the trial court entered judgment on the verdicts, Defendants

filed a Motion for Judgment Notwithstanding the Verdict ("JNOV") and a Motion for

New Trial/Remittitur. In those motions, Defendants asserted, for the first time, that the

Chapter 4112 action was a "tort" action subject to non-economic and punitive damage

"caps" in R.C. 2315.18 and R.C. 2315.21.Alternatively, Defendants alleged that the

corporate punitive damage awards were excessive and violative of due process under the

United States Constitution.

Luri moved for prejudgment interest (PJI) and submitted his attotney fees and

costs; Defendants stipulated to their "bad faith" negotiations (to avoid discovery on

same) and to Luri's "lodestar" fee calculation. (JE (9/25/08), Appx. 44.)

E. Luri L

The events leading up to the Defendants' first appeal are described in Ronald Luri

v. Republic Services, Inc., 8th Dist. No. 92152 ("Luri r') (Appx. 27-41). On September

17, 2008, two days before the scheduled hearing on Luri's PJI and attorney fee motions,

the trial court faxed all counsel its entry denying Defendants' post-trial motions.. (Luri I,

Appx. 31-32, ¶9; JE (9/18/08), Appx. 46.) During the September 19 hearing, the trial

judge informed the parties that she was going to supplement the September 17 journal

7

entry with "Barnes'n findings. (Luri I, Appx. 33-34, ¶13.) Defendants then orally

requested, and were granted, until October 3, 2008 to submit proposed "Barnes" findings.

(Id., Appx. 34, ¶14.) The trial judge journalized her intent to supplement the September

17 order and Defendants' extension in a journal entry issued September 22, 2008. (Luri

I, Appx. 34, ¶15; JE (9/22/08), Appx. 45.)

On September 25, the trial court entered an order awarding PJI, attorney fees and

costs. (Luri I, Appx. 34, ¶16; JE (9/25/08), Appx. 44.)

On October 1, two days before the expiration of their requested extension of time,

Defendants filed a premature notice of appeal and instructed the trial court that it no

longer had jurisdiction to enter its Barnes findings. (Luri I, Appx. 34-35, ¶¶17-18.)

Defendants then argued in their appellate brief and brief opposing Luri's Motion to

Dismiss the premature appeal that the trial court had "erred" by not making the very

Barnes findings that Defendants had prevented by their premature appeal - an argument

the Court of Appeals described as "disingenuous at best." (Id., Appx. 35, ¶17; 36, ¶20.)

The appeal was dismissed only after full briefing and a few days before the scheduled

oral argument. The trial court entered its Barnes findings on March 2, 2010. (JE

(3/2/10), Appx. 42-43.)

z Barnes v. Univ. Hosps. of Cleveland (2008), 119 Ohio St.3d 173, instructing appellatecourts that are reviewing due process challenges to punitive damage awards to makefactual findings consistent with the "guideposts" in BMW of North America, Inc. v. Gore(1996), 517 U.S. 559 and State Farm Mut. Auto Ins. Co. v. Campbell (2003), 538 U.S.408.

8

F. Lurill.

Following their appellate "trial run," Defendants obtained new counsel, who filed

a second appeal asserting "errors" never raised at trial or in the first appeal.

While rejecting the bulk of Defendants' challenges as waived and invited, the

Eighth District Court of Appeals held that the three corporate punitive damage awards

were subject to post-trial reduction. To determine the reduction, the court concluded that

R.C. 2315.21(D)(2)(a) applied to the awards and that Defendants' reprehensible and

malicious conduct3 "speaks to an award of punitive damages in the full amount

authorized by the legislature" in R.C. 2315.21(D). (Id., Appx. 22-23, ¶38.)

The majority, however, declined to cap each of the three corporate awards at $7

million. Instead, the majority combined the three corporate punitive damage awards into

a single award and "capped" that single award at $7 million. The majority offered no

' The court concluded that the reprehensibility of Defendants' conduct, "weighs heavilyin favor of a large punitive damage award" because after Luri objected to discrimination:

Bowen devised a plan to terminate him, fabricated evidence,and submitted this evidence during discovery to justify hisactions. Krall then used this fabricated evidence for the samejustification. After terminating Luri from a job in aspecialized, consolidated industry, appellants refused to waivethe non-compete clause in his employment contract, whichfurther hampered Luri's ability to support himself and hisfamily.

(Id., Appx. 21-22, ¶35.) The record further supported the trial court finding of "repeatedretaliatory and discriminatory conduct" and that Luri suffered "significant" harm. (Id.,Appx. 21-22, ¶¶35, 36.)

9

statutory analysis to support its consolidation of the three jury awards, stating only that

"Luri advanced a single-employer theory of liability to impute wrongdoing to multiple

business entities in this case" and "can collect at most $3.5 million in compensatory

damages" from all of the Defendants. (Id., Appx., 18-19, ¶3 1.)

The partial dissent explains that Defendants had argued "that because the trial

court determined that they were jointly and severally liable to Luri in the amount of $3.5

million, this is the amount `awarded to the plaintiff."' (Id., Appx. 25, ¶47.) But as the

dissent correctly points out, that interpretation of R.C. 2315.21(D):

* * * omits key terms of the statute * * * which calculates thepunitive damages as "two times the amount of thecompensatory damages awarded to the plaintiff from thatdefendant." (Emphasis added.) Arbino v. Johnson &Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d420 ("The statute limits punitive damages in tort actions to amaximum of two times the total amount of compensatorydamages awarded to a plaintiff per defendant"). Thedetermination of joint and several liability does not alter thisanalysis, as plaintiff has been awarded compensatorydamages "from that defendant." There is no provision forlimiting the awards where there are joint and severaltortfeasors.

(Id., Appx. 26.)

10

III. ARGUMENT

Proposition of Law No. 1

Punitive damage awards represent a jury's determinationof the amount required to punish and deter a specificdefendant's malicious misconduct. Consistent with thosejury findings, reviewing courts must consider eachdefendant's punitive damage award independently for theapplication of "caps" under R.C. 2315.21(D).

An "award of punitive damages in the full amount authorized by the legislature"

(Appx. 22-23, ¶38) produces the following punitive damage judgments in this case:

. Republic: $7 million (reduced from $21.5 million)

. Republic Ohio: $7 million (reduced from $10.75 million)

• Ohio Hauling: $7 million (reduced from $10.75 million)

Although it is not entirely clear, it appears that the majority did not disagree;

rather, they concluded that "[w]hile there may be cases" where the plain and

unambiguous language of the statute applies, "that is not the case here[.]" (Appx. 18-19,

¶31.) The "exception" adopted by the majority is joint and several liability - i.e., because

"Luri advanced a single-employer theory of liability to impute wrongdoing to multiple

business entities" and "can collect at most $3.5 million in compensatory damages" (id.),

the three corporate damage awards must be combined into a single award.

A"joint liability" exception to the plain language of R.C. 2315.21(D)(2)(a) is

unsupported by the statute, common law or policy, and should be rejected by this Court.

The fact that a plaintiff can "collect" only a single compensatory award does not alter the

statutory language capping punitive damages at two times the compensatory damages

11

awarded against "that defendant." Nor does joint liability for compensatory damages

affect individual liability for individually assessed punitive damages at common law.

See, e.g., Minix v. Canarecci (C.A.7, 2010), 597 F.3d 824, 830 ("Although the principle

of joint and several liability prevents Minix from recovering duplicative compensatory

damages, it does not affect the defendants' individual liability for punitive damages,

which are assessed separately against each defendant"). Nor is the creation of a"joint

liability" exception to the plain language of R.C. 2315.21(D)(2)(a) supported by any

public policy or societal interest when, as here, the evidence, jury interrogatory answers,

and jury verdicts establish: ( 1) that each of the three corporate Defendants participated in

the unlawful retaliation; (2) each of the three corporate Defendants acted with actual

malice; and (3) Defendants themselves insisted on individualized punitive damage

awards.

A. The Plain and Unambiguous Language of R.C.2315.21(D)(2)(a) Caps Each of the Corporate PunitiveDamage Awards at $7 Million.

"Following a primary rule of construction, we must apply a statute as it is written

when its meaning is unambiguous and definite." Portage Cty. Bd. of Commrs. v. Akron

(2006), 109 Ohio St.3d 106, ¶52, citing State ex rel. Savarese v. Buckeye Local School

Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545. The method for calculating punitive

damage caps is set forth in plain and unambiguous language, and without exception or

qualification. R.C. 2315.21(D)(2)(a) provides (emphasis added):

12

(2) Except as provided in division (D)(6) of this section, all ofthe following apply regarding any award of punitive orexemplary damages in a tort action:

(a) the court shall not enter judgment for punitive orexemplary damages in excess of two times the amount of thecompensatory damages awarded to the plaintiff from that

defendant, as determined pursuant to division (B)(2) or (3) ofthis section.

See Arbino v. Johnson & Johnson (2007), 116 Ohio St.3d 468, ¶86 (emphasis added)

("The statute limits punitive damages in tort actions to a maximum of two times the total

amount of compensatory damages awarded to a plaintiff per defendant"). See, also,

Faieta v. World Harvest Church, 10th Dist. No. 08AP-527, 2008-Ohio-6959, ¶¶86-91

(concluding that "two times the amount of the compensatory damages awarded to the

plaintiff from that defendant" is "plain and unambiguous").

Determining punitive damages awards "in the full amount authorized by the

legislature" (Appx. 22-23, ¶38) required a simple, two-step process.

First, the court of appeals had to determine the amount of the compensatory

damages the jury awarded "to the plaintiff from that defendant." The answer is found in

Jury Interrogatory No. 2 (Supp. 9). That Interrogatory asks: "Which defendants do you

find by a preponderance of the evidence have unlawfully retaliated against the plaintiff?"

(Id.) To assist the jury in its completion of that interrogatory, the trial court explained:

It lists all the Defendants out, and you would check which

ones you believe owe compensatory damages. If you don'tbelieve they owe, then don't check that box.

13

(Tr. 1774; Supp. 104 (emphasis added).) The jury found that each of the five Defendants

unlawfully retaliated against Luri, establishing that each Defendant is "that defendant"

against whom the jury awarded compensatory damages. Interrogatory No. 3 (Supp. 10)

states the "amount of compensatory damages" ($3.5 million) "to be awarded to the

plaintiff on his retaliation claim" and the jury's Compensatory Damages Verdict (Supp.

1) awards $3.5 million to "plaintiff RONALD LURI * * * and against the Defendant(s)"

who retaliated against Luri, as described in the interrogatories. The jury therefore

awarded $3.5 million to Luri from Republic, Republic Ohio, Ohio Hauling, Krall and

Bowen.

Second, the court of appeals had to determine whether any of the five punitive

damage awards set forth in Interrogatory No. 6 (Supp. 14) and the five Punitive Damage

Verdicts (Supp. 2-6) exceeded two times $3.5 million and, if so, reduce that Defendant's

award accordingly. Because each of the three corporate punitive damage awards

exceeded $7 million, the court of appeals should have reduced the jury's $21.5 million

punitive damage award against Republic by $14.5 million; reduced the jury's $10.75

million punitive damage award against Republic Ohio by $3.75 million; and reduced the

jury's $10.75 punitive damage award against Ohio Hauling by $3.75 million.

The dissenting judge correctly calculated the "full amount authorized by the

legislature" to be $7 million against Republic, $7 million against Republic Ohio, and $7

million against Ohio Hauling. This Court therefore should reverse the majority, adopt the

reasoning of the partial dissent, and order the entry of judgment accordingly.

14

B. The Majority's Creation of a Joint Liability "Exception"Is Unsupported by Law or Policy.

Neither the plain language of R.C. 2315.21(D)(2)(a) nor the nature and purpose of

joint and several liability supports the majority's creation of a joint liability exception to

the statutory calculation of punitive damage caps. As the dissent points out, joint liability

constitutes, by operation of law, an award of compensatory damages for the entire harm

to the plaintiff "from that defendant" (Appx. 25-26, ¶47.) See, also, Bowling v. Heil Co.

(1987), 31 Ohio St.3d 277, 286 (noting that joint and several liability for an indivisible

injury caused by concurrent wrongful acts "has long been a part of the common law in

Ohio"); Pang v. Minch (1993), 53 Ohio St.3d 186, 198 (quoting Comment d to Section

433B(2) of the Restatement of the Law 2d, Torts (1965), to explain the "injustice" of

allowing a wrongdoer not to bear "the full responsibility" for injury he or she inflicted

simply because "the harm he has inflicted has combined with similar harm inflicted by

other wrongdoers"). That a plaintiff can only "collect" those damages once has no

bearing on the calculation of a punitive damage cap that is two times the compensatory

damages "awarded" to the plaintiff "from that defendant."

The Tenth District rejected a similar attempt to dilute the compensatory "base" for

calculating a punitive damages cap in Faieta, 2008-Ohio-6959. The defendant in that

case argued that "two times the amount of the compensatory damages awarded to the

plaintiff from the defendant" referred to the compensatory damages after those damages

were "capped" pursuant to the non-economic damage cap statute. Id., ¶88. The Tenth

15

District rejected the argument, affirming the trial court's application of the plain and

unambiguous language of R.C. 2315.21(D)(2)(a), which caps punitive damages at two

times the compensatory damages "awarded" to the plaintiff from that defendant. Id.,

¶¶89-91. Because statutory caps are only applied after the jury has "made an award" of

compensatory damages, punitive damages are limited to two times the uncapped

compensatory damages "awarded" to the plaintiff from that defendant. Id., ¶¶90-91.

Nor does Luri's assertion of the "single employer" doctrine affect the analysis.

The single employer doctrine is a form of joint and several liability applicable in

employment actions - the doctrine "makes the affiliated corporation * * * jointly

responsible for the [discriminatory] acts of the immediate employer." Armbruster v.

Quinn (C.A.6, 1983), 711 F.2d 1332, 1337, abrogated on other grounds, Arbaugh v. Y&H

Corp. (2006), 546 U.S. 500. While the majority characterizes the doctrine as "imput[ing]

wrongdoing to multiple business entities," joint liability under the single employer

doctrine will apply when, as here, evidence shows that a parent corporation "directed the

discriminatory act, practice, or policy of which the employee of. its subsidiary was

complaining." Papa v. Katy Industries, Inc. (C.A.7, 1999), 166 F.3d 937, 940-42.

Accord Ahern v. Ameritech Corp. (2000), 137 Ohio App.3d 754, 767-68 (rejecting

argument of parent company that it could not be responsible for damages awarded for age

discrimination because plaintiff "was not one of its employees"; the argument "ignores

the evidence supporting its role in the events which led to [plaintiff's] termination from

his employment"). See also United States v. Best Foods (1998), 524 U.S. 51:

16

As Justice (then-Professor) Douglas noted almost 70 yearsago, derivative liability cases are to be distinguished fromthose in which "the alleged wrong can seemingly be traced tothe parent through the conduit of its own personnel andmanagement" and "the parent is directly a participant in thewrong complained of." * * * In such cases, the parent isdirectly liable for its own actions.

524 U.S. at 64-65 (citations and footnote omitted). That is what the evidence established

in this case.

Republic, and its Regional Vice President Krall, demonstrated a "top down"

corporate culture of intimidation and retaliation. Although he knew it was against the

law to discriminate on the basis of age and retaliate against those who opposed that

discrimination, Krall and Republic provided "buy-in and approval" for an action plan that

targeted older workers for termination and helped to create a pretext for Luri's

termination by initiating a spurious "survey" of Cleveland Division employees. He also

participated in the decision to terminate Luri for opposing age discrimination, was

present when Bowen told Luri the real reason he was being terminated (because he would

not "fire Frank Pascuzzi"), and cut Luri off when,he objected. (Tr. 363-64, 370-71, 384-

86, 393-97, 573-74, 577-78, 624, 739-45, 1217-18, 1221, 1230-33, 1267-68, 1484-88,

Supp. 19, 21, 24-25, 27, 53, 54, 66, 73-74, 86, 87-90, 99-100.) Republic's human

resources director confirmed that a determining factor in Luri's termination was his

refusal to follow Bowen's staffing directives. (Tr. 730-32, Supp. 70-71.) Finally,

Republic also interfered with Luri's attempt to secure a comparable position with another

company. (Tr. 625-27, Supp. 66-67.)

17

Republic Ohio, through Area President Bowen, concocted a false paper trail to

cover up the retaliatory motive for Luri's termination. Bowen confirmed, in front of both

Krall and Luri, that Luri was being terminated because he refused to fire Frank Pascuzzi,

and tried to conceal his reprehensible conduct by altering and back-dating evidence to

make it appear that Luri had performance issues before he opposed age discrimination.

He also created notes describing a non-existent visit to the Cleveland Division, and

instructed others to create evidence. (Tr. 414-22, 435-49, 456-63, 473, 493-97, 550, 598-

600, 608-09, 779-86, 996-99, 1351, 1384, 1484, Supp. at 30-32, 33-36, 38-40, 42, 45-47,

59-60, 62, 76-77, 83, 91, 92, 99.)

Ohio Hauling, through General Manager Al Marino and others, not only

participated in the retaliation, but also assisted in the creation, alteration, and

supplementation of evidence to carry out and conceal unlawful retaliation. (Tr. at 443-

47, 978-79, 997-1002, Supp. 35-36, 81, 83-84.)

In short, well-established law confirms that each of the wrongdoers participating

in the retaliation causing an indivisible harm to Ron Luri, "may justly be required" to

"bear[] full responsibility" for the totality of compensatory damages caused by their

unlawful acts. Pang, 53 Ohio St.3d at 198 (citation omitted). The majority's conclusion

that the jury's $3.5 million compensatory damage award does not represent the

compensatory damages awarded "to the plaintiff from that defendant" is thus in error and

should be reversed.

18

C. The Majority's Creation of "Joint" Liability for a SingleCapped Punitive Damage Award Improperly Dilutes theIndividualized "Punish and Deter" Purpose of PunitiveDamages.

Applying the plain and unambiguous language of R.C. 2415.21(D)(2)(a) also

comports with the individualized nature of punitive damages. The majority's dilution of

the three corporate punitive damage awards (by combining them into a single, "joint"

award) ignores the jury's specific, individualized consideration, per Defendants'

insistence, of: (1) the actual malice of each Defendant; and (2) the individualized

punitive damage award necessary to punish and deter that Defendant's reprehensible

conduct. It further confuses the plaintiff-focused, "make-whole" remedy of

compensatory damages from the defendant-focused, "punish and deter" purpose of

punitive damages.' See Arbino, 116 Ohio St.3d at 488, ¶97:

[P]unitive damages "are not compensation for injury. Instead,they are private fines levied by civil juries to punishreprehensible conduct and to deter its future occurrence."Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 350, 94S.Ct. 2997, 41 L.Ed.2d 789. "The purpose of punitivedamages is not to compensate a plaintiff, but to punish anddeter certain conduct." Moskovitz v. Mt. Sinai Med. Ctr.(1994), 69 Ohio St.3d 638, 651, 635 N.E.2d 331.

4 Punitive damage awards in actions under R.C. Chapter 4112 have a similar purpose.See Rice v. CertainTeed ( 1999), 84 Ohio St.3d 417, 419-21 (allowing punitive damages inemployment actions consistent with the purpose to be accomplished by the "totality ofOhio's anti-discrimination scheme," including "deterring socially inimical businesspractices").

19

R.C. 2315.21 codifies the defendant-focused nature of punitive damages by

allowing a punitive award only when the plaintiff proves by clear and convincing

evidence that "that defendant" engaged in or ratified reprehensible acts. See R.C.

2315.21(C)(1) (emphasis added):

(C) * * * [P]unitive or exemplary damages are notrecoverable from a defendant in question in a tort actionunless * * *:

(1) The actions or omissions of that defendant demonstratemalice or aggravated or egregious fraud, or that defendant asprincipal or master knowingly authorized, participated in, orratified actions or omissions of an agent or a servant that sodemonstrate.

(Appx. 49.)

Because they are designed to punish and deter a specific defendant's conduct,

punitive damage awards are necessarily tailored to individual conduct. See Dardinger v.

Anthem Blue Cross & Blue Shield (2002), 98 Ohio St.3d 77, 102 (emphasis added) (the

"focus" of a punitive damage award "should be the defendant, and the consideration

should be what it will take to bring about the twin aims of punishment and deterrence as

to that defendant"); Wightman v. Consol. Rail Corp. ( 1999); 86 Ohio St.3d 431, 439

(affirming a punitive damage award where the trial judge believed a deterrent effect was

necessary for Conrail "because it was unwilling to accept responsibility for the collision"

and its trial strategy reflected a "corporate attitude" which "needs to be changed").

Like the trial judge in Wightman, the jury in this case believed a"deterrent effect

was necessary" for each of the corporate DefPndants that was umvillir.g to accept

20

responsibility for its unlawful retaliation, and that pursued a trial strategy reflecting a "top

down" corporate culture determined to make an example of Ron Luri after he resisted a

policy that targeted older employees for elimination. Nothing in R.C. 2315.21(D), this

Court's punitive damage jurisprudence, or public policy support diluting those awards

because there were multiple bad actors.

At trial, Defendants took full advantage of the common law and statutory focus on

each Defendant's conduct by insisting that the jury return individualized - not "joint" -

findings of actual malice and punitive damage awards. Specifically, the trial court was

prepared to give an interrogatory that would have the jury "state the amount of punitive

damages to be awarded to Plaintiff on his retaliation claim against any of the

Defendants." (Tr. 1559, Supp. 101.) Counsel for defense objected that "we need each

Defendant that's named as a Defendant in this case to be separated out so that we know

whether the jurors are finding liability against that particular Defendant or not."

(Tr. 1559-60, Supp. 101-02.) Defendants' objections prevailed. After a short break, the

court reports:

We went off the record for awhile, and counsel has conferredand have come up with an agreed upon set of interrogatories.We're going to have separate punitive damages for threecorporate Defendants.

(Tr. 1561, Supp. 102, emphasis added.)

On appeal, however, the corporate Defendants sang a different tune, arguing that

because they were jointly and severally liable to Luri, they could only be liable for a

21

single, "joint" punitive damage award capped at $7 million. (Appx. 25-26, ¶47.) This

Court has explicitly cautioned that parties "must decide their issues, incorporate them

into their strategy, and be responsible for the results[.]" Dardinger, 98 Ohio St.3d at 93,

¶148. The individualized punitive damage awards requested by Defendants and awarded

by the jury are based on each Defendant's reprehensible conduct, must be paid by each

offending Defendant, and must be capped at $7 million each to represent the full amount

authorized by the legislature in R.C. 2315.21(D)(2)(a).

IV. CONCLUSION

A $7 million punitive damage judgment against each of the three corporate

Defendants comports with the plain and unambiguous language of R.C.

2315.21(D)(2)(a); the evidence proving each corporate Defendant's participation in

unlawful retaliation and reprehensible conduct; jury interrogatories and verdict forms that

found individual misconduct and actual malice as to each of the Defendants (per

Defendants' insistence); the purpose of punitive damages to punish reprehensible conduct

and to deter its future occurrence; the purpose of Ohio's anti-discrimination statutes to

deter socially inimical business practices; and the inescapable logic that a punitive

damage award designed to fulfill the twin aims of punishment and deterrence as to that

defendant must necessarily take into account the full amount of compensable harm

caused by that defendant's unlawful conduct.

22

For all of these reasons, this Court should vacate that portion of the majority

decision consolidating the three corporate punitive damage awards and remand for entry

of judgment consistent with the partial dissent.

Shannon J. Polk (0072891)Richard C. Haber (0046788)HABER POLK KABAT, LLP737 Bolivar Road, Suite 4400Cleveland, OH 44115Tel: (216) 241-0700Fax: (216) 241-0739E-mail: spolkAhaberpolk.com

rhaberLaDhaberpolk. com

Michelle Pierce Stronczer (0066531)PIERCE STRONCZER LAW, LLC8931 Brecksville Rd.P.O. Box 470606Cleveland, OH 44147-0606Tel: (440) 262-3630 (direct)E-mail: shelley.stronczera,piercele al.com

Respectfully submitted,

I^Irene C. Keyse-Walker (00`13143)Benjamin C. Sasse (0072856)TUCKER ELLIS & WEST LLP1150 Huntington Building925 Euclid AvenueCleveland, OH 44115-1414Tel: (216) 592-5000Fax: (216) 592-5009E-mail: ikeyse-walker(a^tuckerellis.com

bsassegtuckerellis. com

Attorneys for Appellant/Cross-Appellee Ronald Luri

23

CERTIFICATE OF SERVICE

A copy of the foregoing has been served this 28th day of November, 2011, by U.S.

Mail, postage prepaid, upon the following:

Robin G. Weaver Attorneys for Appellees/Cross-AppellantsStephen P. Anway Republic Services, Inc.; Republic ServicesSQUIRE, SANDERS & DEMPSEY ofOhio Hauling, LLC; Republic Services of4900 Key Tower Ohio I, LLC, Jim Bowen, and Ron Krall127 Public SquareCleveland, OH 44114

O e of the Attorneys for Ap`pellant/Cross-Appellee Ronald Luri

011547.000001.1350663.1

24

APPENDIX

No.201j -112 0(Related to Pending otice of Certified

Conflict, Supreme Court Case No. 2011-1097)

In the Supreme Court of Ohio

APPEAI., FROM TIIH COURT OFAPPEALSEIGI l'tI IAPPELLATE DISTRICT

CLYAHOGACOIJNTY, OHIO.

CASE No.10-094908

RONALD LURI,Appellant,

REPUBLIC SERVICES, INC., et al.,Appeltees.

NOTICE OFAPPEALOFAPPELLANTRONAI.D LURI

RoBIN G WEAVER (0020673)STSPIEN P. ANwnX (0075105)SQUIRE, SANDERS & DEMPSEY, L.L.P.4900 Key Tower127 Public SquareCleveland,OH 44114Tel: (216) 479•8500 .Fax: (216) 479-8780E-mail: rweaverCa ssd.com

sanway@ssd.com

--^ktder7t,.^'s7 ^ ",r°!lees-R^publicServices, Ine.; Republic Services of OhioHauling, LLC; Republic Services of Ohio

I; LI,C, Jim Bowen, and Ron Krall

J11N 3020#1

GLERK OF GOURT-SI1PR€NfEt6tiRi OF-OMtIO=

TPF.Ne C. KEYSE-WALKER (0013143)(COUNSEL OF RECORD)BENJAMIN C. SASSP (0072856),TUCKER ELLIS & WEST LLP1150 Huntington Building925 Euclid AvenueCleveland, Obio 44115-1475Tel: (216) 592-5000Fax: (216) 592-5009E-mail: ike^se-walker@tuckerellis.com

bsasse(a)tuckerellis.com

Attorney forAppe(lantRanald Luri

CLE?lttIF.G0ll4fSUPREMEG01lRT0^ FON1Yp ^j

APPX. "t

2

SHnNNON J. Pouc (0072891)RiCHARD C. HABIIt (0046788)HABER POLK KABAT, LLP737 Bolivar. Road, Suite 4400

_Cleveland, OH 44115Tel: (216) 241-0700Fax: (216) 241-0739E-niail:slrolkC?ahaberpolk com

rhahei("a7haberpolk.com

MICHELLEPIERCE STRONCZER (0066531)PIERCE STRONCZER LAW, LLC6900 South Edgerton Rd., Suite 108Cleveland, OH 44141-3193Tel: (440) 262-3630E-mail:shelley.stronczerna uiercelegal corn

Additional Counsel forAppelZant.RonaldLuri

APPX. 2

NOTICE OF APPEAL OF APPELLANT RONALD LURI

Appellant Ronald Luri hereby gives notice of appeal to the Supreme Court of Ohio

from the judgment of the Cuyahoga County Court of Appeals, Eighth AppeIlate District,

entered in Court of Appeals Case No. 10-94908 on May 19, 2011. _

This is case, is one of public or great general interest.

Shannon J. Polk (0072891)Richard C. Haber (0046788).Ht1BER POLK KABAT, LLP737 Bolivar Road,. Suite 4400Cleveland, OIi 44115Tel: (216) z41-0700Fax: (216) 241-.0739E-maii: spolk(alhaberpolk com

rhaber(@habWolk.com

Ivlichelle Pierce Sttonczer (0066531)PIERCE STRONCZER LAW, LLC6900 South Edgerton Rd., Suite 108Cleveland, OI3` 44141-3193Tel: (440) 262-3630 (direct)E-mail: sheRey-stronczer(@piercelegal.com

Respectfully submitted,.

Irene C. Keyse-Walker (113143)(COUNSEL OF RECORD)Benjaniin C. Sasse (0072856)TUCKER.ELI.IS & WFST LLP1150 Huntington.BuiIding925 Fuclid AvenueCleveland, OH 44115-1414Tel: (216) 592-5000Fax:.. (216) 592-5009E-mail; ikeyse-wallcer(cr^tuckerellis com

bsasseno tuckerellis com

Altorneys forAppellee Ronald Luri

APPX. 3

CERTIFICATE OF SERVICE

A copy of the foregoirig has been served this 29th day of June, 2011, by U.S. Mail,

postage prepaid, upon the following:

Robin O WeaverStephen P. Anway

Attoriteys forAppellees Republic Services,Inc.; Republic Services of Ohio.llauling,LLC; Republic Services of Ohio I, LLC, JimBorven, and Ron Krall

SQUIRE, SANDERS & DEMPSEY, L.L.P.4900 Key Tower127 Public SquareCIeveland, OH 44114

" 011547.000001.1278372.1 .

One of the Attorneys fofAppellantRonald Lurt

.2

APPX. 4

[Cite as Luri P. Republic Serva, Inc., 193 Oho App.3d 682, 2011-Ohio-2389:1

Court of Appeals of OhioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 94908

LURI,

APPELLEE,

REPUBLIC SERVICES, INC. ET AL.,

APPELLANTS.

JUDGMENT:AFFIRMED IN PAR,T, REVERSED IN PART,

AND RENIANDED

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No. CV-633043

APPX. 5

BEFORE: Celebrezze, J., Kilbane, A.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: May 19, 2011

Haber Polk Kabat, L_L.P.,Shannon J. Polk, and Richard C. Haber;Tucker Ellis & West, L.L.P.,Irene C. Keyse-Walker, and Benjamin C. Sasse;And Pierce Stronezer Law, L.L.C., andMichelle Pierce Stronczer, for appellee.:

Squire, Sanders & Dempsey, L.L.P.,Stephen P. Anway, and Robin G. Weaver,for appellants.

FRANK D. CELEBREZZE Jr., Judge:

{¶ 1) Appellants, Republic Services, Inc. ("Republic"), Republic Services

of Ohio I; L.L.C. (`°Republic Ohio"), Republic Services of Ohio Hauling, L.L.C.

("Ohio Hauling"), James Bowen, and Ronald Krall, appeal from an adverse

judgment and the largest retaliatory discharge jury award in Ohio history -

over $46 million. We affirm the jury's verdict, but reuiand for imposition of

statutory punitive-damage limits.

{1[2} Appellee Ronald Luri was employed as the general manager in

charge of the Cleveland division of Ohio Hauling. His direct supervisor,

Bowen, was employed by Republic Ohio. Luri also reported to Bowen's

supervisor, Krall, who was employed by Republic.

APPX. 6

{¶3} According to Luri, sometime in November 2006, Bowen

approached him with an action plan that called for, among other things, the

termination of three employees. Luri testified that Bowen instructed him to

fire Frank Pascuzzi, George Fiser, and Louis Darienzo, Luri's three oldest

employees: Luri testified that he informed Bowen that Pascuzzi had strong

performance evaluations, and terminating him without reason could result in

a discrimination lawsuit. He also informed Bowen that Pascuzzi had a

medical condition that could result in a disability-discrimination suit. Luri

testified that he refused to fire the three individuals.

{1(4} Thereafter, Luri's performance evaluations were worse than in

;previous years, and Bowen instituted "improvements directives" for Luri to

complete, including conducting weekly meetings and providing more

information to Bowen. . Appellants claim that these directives were not

accomplished, and as a result, Luri was terminated on ApriI27, 2007.

{¶5} Luri then filed suit on August 17, 2007, alleging claims of

retaliatory discharge under R.C. 4112.02(I). After receiving notice of the

litigation as a named party, it appears from the evidence presented at trial

that Bowen had altered at least one piece of evidence to justify Luri's

termination. Luri claims that as many as three pieces of evidence were

altered or fabricated and submitted to him during discovery.

APPX. 7

t1[6} Appellants twice moved to bifurcate the trialpursuant to the

Ohio Tort Reform Statutory provisions in R.C. 2315 et seq., as well as Civ.R.

42(B). The oom•t denied these motions, and trial commenced on June 24,

2008. This lengthy trial concluded with a jury verdict finding against all

defendants and awarding Luri $3.5 million in compensatory damages, jointly

and severally against all defendants, and $43,108,599 in punitive damages.'

Appellants moved for remittitur, a new trial, and for judgment

notwithstanding the verdict. These motions were all denied. Luri sought

an award for attorney fees and for prejudgment interest on the compensatory

damages froirt the date of his termination. The trial court awarded Luri over

$1 million in attorney fees and prejudgment interest on the entire

compensatory-damages award.

Law and Analysis

Bifurcation

{¶ 7) Appellants first argue that the trial court "erred by failing to

apply B.C. 2315.21(B)(1), which requires mandatory bifurcation." Appellants

assert that bifurcation is mandatory upon motion.z This court disagrees.

' The jury awarded punitive damages as follows: $21,500;000 against Republic, $10,750,000against Republic Ohio, $10,750,000 against Ohio Hauling, $83,394 against Krall, and $25,205 againstBowen.

?. R.C. 2315.21(B)(1) states, "In a tort action that is tried to a jury and in which a plaintiff

makes a claim for compensatory damages and a claim for punitive or exemplary damages, upon themotion of any party, the trial of the tort action shall be bifurcated ***"

APPX. 8

{1[8} In Barnes u. Uniu. Hosps. of Cleveland, Cuyahoga App. Nos.

87247, 87285, 87710, 87903, and 87946, 2006-Ohio-6266, ¶ 34, affirmed in

part and reversed in part on other grounds 119 Ohio .St.3d 173,

2008-Ohio-3344, 893 N.E.2d 142, we held that a court retains discretion to

determine whether bifurcation is appropriate even in the face of R.C.

2315.21(B) and its mandatory language. Generally, a court's jurisdiction is

set by the legislature, but as the Ohio Supreme Court noted, "the Modern

Courts Amendment of 1968, Section 5(B), Article IV, Ohio Constitution,

empowers this court to create rules of practice and procedure for the courts of

this state. As we explained in Proctor v. Kardassilaris, 115 Ohio St.3d 71,

2007-Ohio-4838, 873 N.E.2d 872, Section 5(B), Article IV 'expressly states

that rules created in this manner "shaIl not abridge, .enlarge; or modify any

substantive right."' Id. at 117. `Thus, if a rule created pursuant to Section

5(B), Article IV confficts with a statute, the rule will control for procedural

matters, and the statute -will control for matters of substantive law.' Id."

Erwin u. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 28.

Since bifurcation is a procedural matter, the trial court retains discretion in

determining whether such an action is warranted.

APPX. 9

{¶ 9} This determination is further buttressed by this court's decision

in Havel v. Villa St. Joseph, Cuyahoga App. No. 94677, 2010-0hio-5251,3 in

which we held that R.C. 2315.21(B)(1) is an unconstitutional usurpation of

the judiciary's ability to control procedural matters because it conflicts with

Civ.R. 42(B).4 Id. at ¶ 9. The Fifth District Court of Appeals has agreed

with this determination. Hyers v. Brown, Stark App. No. 2010-CA-00238,

2011-Ohio-892; Plaugher v. Oniala, Stark App. No. 2010 CA 00204;

2011-Ohio=1207, ¶19-20. However, the Tenth District, in Hanners v. Ho 4Vah

Genting H'ire & Cable SDN BHD, Franklin App. No- 09AP-361,

2009-Ohio-6481, ¶ 30, held that R.C. 2315.21 is substantive law in a

proceduraI package. This interpretation deprives courts of the power

granted under the constitution of this state. "If then the courts are to regard

the constitution; and the constitution is superior to any ordinary act of the

legislature; the constitution, and not such ordinary act, must govern the case

to which they both apply." Marbury v. Madison (1803), 5 U.S. (1 Cranch)

137, 178, 2 L.Ed. 60.

This issue is currently before the Ohio Supreme Court to resolve a conflict between districts.See Hacel v. Vi11a St Joseph, 127 Ohio St:3d, 1530, 2011-Ohio-376, 940 N.E.2d 985.

° This Civil Rule states, "[T]he court, after a hearing, in furtherance of convenience or toavoid prejudice, or when separate trials will be conducive to expedition and economy, may order a

separate triaLof any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue orof any number of claims ***."

APPX. 10

{¶ 10} Appellants also argue that their motion was unopposed and

therefore should have been granted whether based on R.C. 2315.21 or Civ.R.

42(B). However, under the above cases, the trial court retains discretion to

decide the issue. To constitute an abuse of discretion, the ruling must be

unreasonable, arbitrary, or unconscionable. Blakemore u. Blakemore (1983),

5 Ohio St.3d 217, 450 N.E.2d 1140.

{¶11} Barnes found that "[t]he issues surrounding compensatory

damages and punitive damages in this case were closely intertwined.

[Appellant's] request to bifurcate would have resulted in two lengthy

proceedings where essentially the same testimony given by the same

witnesses would be presented. Knowing that bifurcation would require a

tremendous amount of duplicate testimony, the presiding judge determined it

was unwarranted." Id., 2006-Ohio-6266, at ¶ 35.

{¶ 12} Here, the malice evidence required for punitive damages was also

the evidence used to rebut appellants' arguments that Luri was terminated

for cause. The manufacture of evidence was intertwined in arguments

relating to both compensatory and punitive damages. Appellants also argue

that the trial court should not have allowed testimony about the financial

position of appellants, but it was Krall, while on cross-examination, who

introduced this line of questioning without prompting from Luri. Therefore,

APPX. 11

the trial court did not abuse its discretion in denying appellants' bifurcation

motion.

Application of Other Ohio Tort Reform Provisions

111131 In their second and third assignments of error, appellants argue

that the trial court committed plain error when it failed to apply various

provisions of R.C. Chapter 2315. First, appellants claim that the trial court

failed to instruct the jury pursuant to R.C. 2315.18(C).6 However, appellants

never requested such an instruction and specifically agreed to their propriety

before submission to the jury.6

.{¶ 14} We must first determine whether. these provisions apply to an

action based on R.C. 4112. In analyzing whether the punitive-damages caps

within R.C. 2315.21 applied to a claim of a breach of fiduciary duty under

R.C. 1751.09, Ohio's Southern District Court determined that they do not

apply based on the language in R.C. 1701.59 and the intent of the legislature.

Kramer Consulting, Inc. u. McCarthy (Mar: 8, 2006); S.D.Ohio

No. C2-02-116_ While the same reasoning would appear to apply to claims

under R.C. 4112, the same court later held that "an action brought under

Ohio Rev. Code 4112 is a`tort action' as it is `a civil action for damages for

injury or loss to person or property.'" Geiger v. Pjizer, Inc. (Apr- 15, 2009),

Appellants' statement of this error reads, "The trial court erred in failing to subnut an instructionregarding noneconomic damages, as requiredby R.C. 2315.18(C)."

APPX. 12

S.D.Ohio No. 2:06-CV-636, 2009 WL 1026479, quoting Ridley v. Fed. Express,

Cuyahoga App. No. 82904, 2004-Ohio-2543, Ij 89, citing former R.C.

2315.21(A)(1). This finding would include such actions within the umbra of

Ohio's tart-reform provisions.

{q15} The Ohio Supreme Court has also noted the types of actions to

which R.C. 2315.18 does not apply and held them to include "tort actions in

the Court of Claims or against:political subdivisions. under R.C. Chapter

2744, *** actions for wrongful death, medical or dental malpractice, or

breach of contract. R.C. 2315.18(A)(7) and (Ii)(1) through (3)." Arbino v.

Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶

27, fn, 3. Absent from this list are actions based on statutory remedies,

including, among others, diserimination suits. When coupled with the

holdings above, R.C. 2315 et seq. applies to retaliatory-discharge actions

brought under R.C. 4112, and the trial court was required to apply its

pxrovisions if appropriately asked.

{¶16} R.C. 2315.18(C) provides, "In determining an award of

compensatory damages for noneconomic loss in a tort action, the trier of fact

shall not consider any of the following:

{¶ 171 "(1) Evidence of a defendant's alleged wrongdoing, misconduct, or

guilt;

6Appellate counsel for appellants would like it known that they were not trial counsel.

APPX. 13

{¶ 18} "(2) Evidence of the defendant's wealth or financial resources;

111191 "(3) All other evidence that is offered for the purpose of punishing

the defendant, rather than offered for a compensatory purpose."

{1120} Because appellants never r.equested instructions based on R.C.

2315.18, we review this assigned error under a plain-error analysis. "In

appeals of civil cases, the plain-error doctrine is not favored and may be

applied only in the extremely rare case involving exceptional circumstances

where error, to which no objection was made at the trial court, seriously

affects the basic fairness, integrity, or public reputation of the judicial

process, thereby challenging the legitimacy of the underlying judicial process

itself." Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099,

syllabus= - Therefore, to constitute plain error, the error must be "obvious and

prejudicial error, neither objected to nor affirmatively waived;" and"if

permitted, would have a material adverse effect on the character and public

confidence in judicial proceedings." Ilinkle v. Cleveland Clinic Found., 159

Ohio App-3d 351, 2004-Ohio-6853, 823 N.E.2d 945, ¶ 78.

{1[21} Here, appellants collaborated with the court and Luri in crafting

the jury instructions given. Several courts of appeals have held that an

agreed-upon jury uistruction that forms the basis for error on appeal is

invited error. See State u. Briscoe, Cuyahoga App. No. 89979,

2008-Ohio-6276, ¶ 33 (objection to an agreed jury instruction on appeal

APPX. 14

constituted invited error, which was not grounds for reversal); Merkl u.

Seibert, Hamilton App. Nos. C-080973 and C-081033, 2009-Ohio-5473, 1 48

("Not only did Merkl fail to object to the court's instruction, but she

collaborated with the court and defense counsel on its wording and

specifically agreed tathe instruction as given- Merkl cannot take advantage

of an error that she invited or induced the court to make").

{11221 Appellants did not submit such a limiting instruction or even

mention R.C. Chapter 2315 when proposing jury instructions. Appellants'

initial proposed jury instructions for compensatory damages stated, "[Y]ou

will decide by the greater weight of the evidence an amount of money that

will reasonably compensate [Luril for the actual damage proximately caused

by the conduct of [appellants]. In deciding this amount, if any, you will

consider the nature, character, seriousness, and duration of any emotional

pain, suffering or inconvenience [Luri] may have experienced." The amended

proposed instructions are substantially the same. Appellants never raised

this issue before the trial court when it could have been addressed, and their

oversight should not result in reversal. See Friedland v. Djukic, Cuyahoga

App. Nos. 94319 and 94470, 2010-Ohio-5777, ¶ 40.

APPX- 15

{¶ 231 Similarly, appellants' issue with the failure of the court to provide

a jury interrogatory detailing findings on noneconomic damages was invited.7

The invited-error doctrine equally applies here where the jury instructions,

verdict forms, and jury interrogatories were approved by appellants without

even suggesting the now complained-of error. See Siuda u. Howard,

Hamilton App. Nos: C-000656 and C-000687, 2002-Ohio-2292.

{¶24} R.C. 2315.18(D) states, "If a trial is conducted in a tort action to

recover damages for injury . or loss to person or property and a plaintiff

prevails in that action, *** the jury in a jury trial shall return a general

verdict accompanied by answers to interrogatories, that shall specify all of the

following: (1) The total compensatory damages recoverable by the plaintiff; (2)

[t]he portion of the total compensatory damages that represents damages for

economic. loss; (3) [t]he portion of the total compensatory damages that

represents damages for noneconomic loss."

{¶ 25} In Faieta u. World Harvest Church, Franklin App. No. O8AP-527,

2008-Ohio-6959, ¶ 84-85, the Tenth District Court of Appeals noted that

"defendants not only failed to object to the jury interrogatories and verdict

forms, they invited the alleged error. Defendants drafted verdict forms and

interrogatories and submitted them to. the trial court. Like those actually

' Appellants' assigned error states, "The trial court erred by failing to provide theinterrogatory required by R.C. 2315.18(D) and by fai]ing to apply 1he cap on noneconomic

APPX. 16

submitted to the jury, defendants' drafts asked the jury to determine the

amount of damages awarded to `plaintiffs' collectively, not individually, and

they did not ask the jury to apportion each type of damages between each

defendant."

[126) In the present case, appellants submitted interrogatories and

agreed upon the final versions submitted to the jury. Those interrogatories

did not separate past and future economic damages, nor economic and

noneconomic damages. Appellants' failure to raise the issue and their

proffering of the relied-upon interrogatories invited the error.

{1271 Appellants never sought the application of Ohio tort-reform

provisions during trial, apart from bifurcation. It was only in postverdict

motions that appellants asked the trial court for their application. This error

on appellants' part should not serve as the basis for obtaining a new trial

when it could have so easily been addressed and corrected.if properly raised.

{q 28} By failing to request an interrogatory distinguishing noneconomic

damages, the trial court could not apply the damages limits:set forth in R.C.

2315.18(B)(2),8 which appellants requested in their posttrial motions. This

compensatory damages in R.C. 2315.18(13)(2)."

8 u

[T]he amount of compensatory damages that represents damages for noneconomic loss thatis recoverable in a tort action under this section to recover damages for injury or loss to person or

property shall not exceed the gi-eater of two hundred fifry thousand dollars or an amonnt that is equalto three times the economic loss, as detemuned by the trier of fact, of the plaintiff in that tort action to

a maximum of three hundred fifty thousand dollars for each plaintiff in that tort action or a maximum

APPX. 17

failure was precipitated.by appellants' submission of interrogatories and jury

instructions.that did not provide for such details. Appellants failed to raise

these issues at the proper-time, and their nescience should not result in a new

trial. Accordingly, these assignments of error are overruled.

Punitive-Damage Caps

{¶29} Appellants next argue that, when presented with a proper

posttrial motion, the trial court "fail[ed] to apply the Ohio Tort Reform

provision in R.C. 2315.21(D)(2)(a), which require[d] the trial court to apply a

cap on punitive damages equal to twice the amount of compensatory

damages."

(1[30} R.C. 2315.21(D)(2)(a) provides, "In a tort action, the trier of fact

shall determine the liability of any defendant for punitive or exemplary

damages and the amount of those damages. *** Except as provided in

division (D)(6) of this section, all of the following apply regarding any award

of punitive or exemplary damages in a tort action: (a) The court shall not

enter judgment for punitive or exemplary damages in excess of two times the

amount of the compensatory damages awarded to the plaintiff from that

defendant, as determined pursuant to division (B)(2) or (3) of this section."

{¶ 31) Our holding above, that Ohio tort reform provisions apply to

discrimination actions, means that upon proper motion, the trial court was

of five hundred thousand dollars for each occurrence that is the basis of that tort action."

APPX. 18

required to limit the award of punitive damages to two times the amount of

compensatory damages. In this case, the trial court was not prevented from

applying.this provision by appellants' failure to ca}rit to the court's attention

when it had the ability to address such a request. This is because the trial

court could apply the limit without engaging in the type of guessing game

required in applying the compensatory-damage provisions. See Srail v. RJF

Internatl. Corp. (1998), 126 Ohio App.3d 689, 702, 711 N.E.2d 264.

Therefore, the trial court erred in failing to limit the amount of punitive

damages to $7 million. Luri argues that the amount of punitive damages

should be calculated for each defendant, meaning that each would be subject

to punitive damages up to.$7 million. While there may be cases where Luri's

calculation would apply, that is not the case here, where Luri advanced a

single-employer theory of liability to impute wrongdoing to multiple business

entities in this case. Because Luri can collect at most $3.5 million in

compensatory damages, the trial court should have limited the amount of

punitive damages to $7 million. Its failure to do so necessitates reversal and

remand.

APPX. 19

Due Process

{¶32} In their fifth assignment of error, appellants argue that the

award of $43 million in punitive damages violates their due process rights

under the federal and state constitutions.9 While our holding above limits

this argument, it does not completely dispose of it.

{133} In &MW v. Gore (1996), 519 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d

809, the Supreme Court attempted to outline the permissible bounds of

punitive-damage awards under the Due Pro.cess Clause of the United States

Constitution. It recognized, "Punitive damages may properly be imposed to

further a -State's legitimate interests in punishing unlawful conduct and.

deterring its repetition. In our federal system, States necessarily have

considerable flexibility in determining the level of punitive damages that they

will allow in different-classes of eases and in any particular case. Most

States that authorize exemplary damages afford the jury similar latitude,

requiring only that the damages awarded be reasonably necessary to

vindicate the State's legitimate interests in punishment and deterrence."

(Citations omitted.) Id. at 568. -

{¶ 34) The court set forth three factors it used to analyze the

punitive-damages award before it: The reprehensibility of the conduct, the

' This assigned error states, `°The trial court en'ed by failing to reduce the punitive damagesbecause they are violative of the U.S. Constitution and Ohio law."

APPX. 20

disparity between the harm or potential harm suffered and the amount of the

award, and the difference between the award and the civil penalties

authorized or, imposed in comparable cases. Id. at 575. See also State Farm

Mut. Auto. Ins. Co: v. Campbell (2003), 538 U.S. 408, 123 S.Ct. 1513, 155

L.Ed:2d 585. The Ohio Supreme Court has directed this court to apply the

Gore factors to independently determine whether an award is excessive.

Barnes, 2006-Ohio-6266, at ¶ 40.

{¶35} Appellants demonstrated reprehensible conduct in this case.,

After Luri refused to engage in what he thought was discriminatory conduct,

Bowen devised a plan to terminate him, fabricated evidence, and submitted

this evidence during discovery to justify his actions. Krall then used this

fabricated evidence for the same justification. After terminating Luri from a

job in a specialized, consolidated industry, appellants refused to waive the

noncompete clause in his employment contract, which further hampered

Luri's ability to support himself and his family. This conduct weighs heavily

in favor of a Iarge punitive-damage award and is the most important factor in

the Gore analysis. See Gore, 517 U.S. at 575. The trial court also found

that. this conduct demonstrated a. pattern of repeated retaliatory and

discriminatory conduct. Nothing in the record demonstrates to this court

that this finding was incorrect. From an action plan calling for the

termination or demotion of some of appellants' oldest employees, to

APPX. 21

fabricating evidence in an attempt to justify Luri's termination, there is

evidence in the record supportiiig a pattern of conduct justifying substantial

punitive damages.

{¶36} The harin suffered by Luri was also significant in this case.

Appellants would have this court determine that a ratio of compensatory to

punitive damages of one-to-one is appropriate in this case because the harm

was economic, and Luri was a well-paid executive who was not economically

vulnerable. While Luri did earn a substantial salary, as the trial court

noted, citing Wightrnan v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 715

N.E.2d 546, a"punitive damages award is more about a defendant's behavior

than the plaintiffs loss."

{137) Here, comparable jury verdicts imposed where a pattern of

persistent conduct was shown demonstrate that a two-to-one ratio is not

beyond the bounds of due process. Merrick v. Paul Revere Life Ins. Co.

(D.Nev.2008), 594 F.Supp.2d 1168; 1190; Burns v. Prudential Sees., Inc., 167

Ohio App.3d 809, 2006-Ohio-3550. This court has also upheld a five-to-one

ratio in an employment-discrimination case. Griffin v; MDK Food Seru., Inc.,

155 Ohio App.3d 698, 2004-Ohio-133, 803 N.E.2d 834, ¶ 49, 57.

{4138; In this case, appellants' behavior speaks to an award of punitive

damages in the full amount authorized by the legislature. On remand, the

APPX. 22

trial court should feel free to enter an amount of punitive damages up to the

bounds imposed by R.C. 2315.21.

Prejudgnient Interest

{l(39} Appellants finally argue that the trial court erred in awarding

prejudgment interest on the full amount of compensatory damages when that

amount included pay Luri would not have yet earned, or "future damages."ro

{¶40} R.C. 1343,03(C)(1) states, "Interest on a judgment, decree, or

order for the payment of money rendered in a civil action based on tortious

conduct and not settled by agreement of the parties, shall be computed from

the date the cause of action accrued to the date ori which the inoneyis paid if,

upon motion of any party to the action, the court determines at a hearing held

subsequent to the verdict or decision in the action that the party required to

pay the money failed to make a good faith effort to settle the case and that

the party to whom the money is to be paid did not fail to make a good faith

effort to settle the case."

{¶41} This statute encourages the "settlement of meritorious claims,

and the compensation.of a successful party for losses suffered as the result of

the failure of an opposing party to exercise good faith in negotiating a

settlement." Lovewell v. Physicians Ins. Co. of Ohio (1997), 79 Ohio St.3d

19 This assigned enor. states, "The trial comt erred by awarding prejudgment interest onfront-pay compensatorydamages"

APPX. 23

143, 147, 679 N.E.2d 1119. "Therefore, an injured party in a tort action is,

under appropriate circumstances, entitled to recover interest from the date

the-eause of action accrues." Andre v. Case Design, Inc., 154 Ohio App.3d

323, 2003-Ohio-4960, 797 N.E.2d 132, ¶ 7.

{¶ 42} Appellants did not request that the jury parse the amount of

compensatory damages into any categories. As with the application of

provisions of Ohio's tort-reform statutes, appellants invited this error by

subniitting instructions and interrogatories that did not separate out future

damages. Appellants' error will not- induce this court "to speculate

concerning the specifics of the jury's award." Srail, 126 Ohio App.3d at 702.

This assignment of error is overruled. -

Conclusion

(¶ 43) Appellants caused a great many of the supposed errors

complained of in this case, which should not result in reversal. Fiowever,. on

proper motion, the trial court should have applied the damages caps set forth

in R.C_ 2315.21(D)(2)(a). Accordingly, this case must be remanded.

{¶ 44} This cause is affirmed in part and reversed in part, and the cause

is. remanded to the lower court for further proceedings consistent with this

opinion.

Judgment affirmed in part

and reversed in part,

APPX. 24

and cause remanded.

GALLAGHER, J., concurs.

KILBANE, A.J., concurs in part and dissents in part.

IiILBANE, A.J., concurs in part and dissents in part.

{¶45) I respectfully dissent from the majority's determination that the

trial court should have limited the amount of punitive damages to $7 million.

I would conclude that plaintiff is entitled to $7 million in punitive damages

from each defendant rather than $7 million in total punitive damages.

{146} R.G. 2315.21(D) sets forth certain limits on punitive damages and

provides:

(2) Except-as provided in division (D)(6) of this

section, all of the following apply regarding any award of

punitive or exemplary damages in a tort action:

(a) The court shall not enter judgment for punitive or

exemplary damages in excess of two times the amount of

the compensatory damages awarded to the plaintiff from

that defendant, as determined pursuant to division (B)(2) or

(3) of this section.

{547} The.defendants maintain that because the trial court determined

that they were jointly and severally liable to Luri in the amount of $3.5

APPX. 25

million, this is the amount "awarded to the plaintiff." Therefore, defendants

claim that plaintiffs recovery of punitive damages is limited to two times this

amount or a total of $7 million in punitive damages. -This interpretation

omits key terms of the statute, however, which calculates the punitive

damages as "two times the aniount of the compensatory damages awarded to

the plaintiff from that defenda,nt :" (Emphasis added.) Arbino v: Johnson &

Johnson, 116 Ohio St.3d468, 2007-Ohio-6948, 880 N.E:2d 420 ("The statute

limits punitive damages in tort actions to a maximum of two times the total

amount of compensatory damages awarded to a plaintiff per defendant").

The determination of joint and several liability does not alter this analysis, as

plaintiff has been awarded compensatory damages "from that defendant."

There is no provision for limiting the awards where tliere are joint and

several tortfeasors. I therefore dissent insofar as the majority has limited

plaintiffs recovery to punitive damages in this matter to.$7 million.

APPX. 26

[Cite as Luri v. Republic Servs., Inc., 2009-Ohio-5691.1

EIGHTH APPELLATE DISTRICTCOUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo.92152 ,

RONALD LURI

PLAINTIFF-APPELLEE

vs.

REPUBLIC SERVICES, INC., ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT:DISMISSED

Civil Appeal from theCuyahoga County Gourt of Common Pleas

Case No_ CV-633043

BEFORE: Kilbane, P.J., Stewart,.J:", and Boyle, J.

RELEASED: October 23, 2009.

JOURNALIZED:

APPX. 27

ATTORNEYS FOR APPELLANTS

David A. PosnerJames A. Stater, Jr.Thomas D. WarrenBaker & Hostetler, LLP3200 National City Center1900 East Ninth StreetCleveland; Ohio 44114-3485

AndrewS. PollisHahn Loeser Parks, LLP2800 BP America Building200 Public SquareCleveland, Ohio 44114-2301

ATTORNEYS FOR APPELLEE

Shannon J. PolkDaniel M. ConnellRichard C_ HaberHaber Polk, LLPEaton Center, Suite 6201111 Superior Avenue, EastCleveland, Ohio 44114

Irene C. Keyse-WalkerBenjamin C. SasseTucker Ellis & West, LLP1150 Huntington Building925 Euclid AvenueCleveland, Ohio 44115-1475

Appellee's Attorneys continued on page li

ATTORNEYS FOR APPELLEE (CONT_)l

APPX. 28

Michelle Pierce StronezerPierce Stronczer Law LLC6900 S. Edgerton Road, Suite 108.Cleveland; Ohio 44141-3193

N.B. This entry is an announcement of the court's decision. See App.R.. 22(B) and26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(C) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) daysof the announcement of the court's decision. The time period. for review by theSupreme Court of Ohio shall begin to run upon the journalization of this court'sannouncement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II,Section 2(A)(l).

MARY EILEEN KILBANE, P.J.,: .

APPX. 29

{¶ 1} Appellants, Republic Services, Inc. ("Republic"), Republic Services

of Ohio Hauling, LLC ("Ohio Hauling"), Republic Services of Ohio I, LLC

(''Ohio I"), Jim Bawen ("Bowen"), and Ron Krall ("Krall") (collectively known

as "appellants"), appeal the July 3, 2008 jury verdict in favor of Ronald Luri

("appellee"), with respect to his retaliation claim stemming from his unlawful

termination under R.C. 4112.02(I). The jury awarded Luri3.5 million

dollars in compensatory, damages and approximately '43 million dollars in

punitive damages.

{¶ 2} Appellants argue that the trial court erred by denying their

motion for judgment notwithstanding the verdict and their motion for new

trial. Appellants claim that the trial court erred in failing to reduce

allegedly excessive compensatory and punitive damages awards: Finally,

appellants -argue that the trial court erred in awarding excessive attorneys'

fees and in granting prejudgment interest. Appellants' six assignments of

error focus solely on the trial court's rulings on posttrial motions.

{13} Because appellants prematurely filed their notice of appeal,

thereby. depriving the trial court of its stated intention to issue a final

judgment entry supplementing its reasons for denying appellants' motion for

new trial or in the alternative for remittitur, we dismiss the instant appeal

for lack of a final appealable order under R.C. 2505.02 and Civ.R. 54.

APPX. 30

Procedural History

{¶ 41 On August 17, 2007, Luri filed the instant lawsuit alleging that

-he was retaliatorily discharged tinder R.C. 4112:02(I) after refusing to

terminate his three oldest employees. In his complaint, Luri also alleged

that appellants discriminated against him because of his age in violation of

both R.C. 4112.14(A) and Ohio public policy.

{¶5} On June 24, 2008, a jury trial commenced on Luri's retaliation

claim. At, trial, Luri proved that after he refused to fire the three targeted

employees on the basis of their age, his siupervisors retaliated against him for

engaging in protected activity under Ohio's Civil Rights statute, R.C. 4112, et

seq;, that such retaliation eventually led to his unlawful termination, and

that his supervisors attempted to justify their nefarious activity by

fabricating evidence and backdating documents in order to create a sham

"paper trail" justifying Luri s unlawful termination.

[1[61 On July 3, 2008, a jury found in favor of Luri.

{¶ 7} On•July 8, 2008, the trial court entered judgment in Luri's favor.

{¶ 8} On July 22, 2008, appellants filed a motion for judgment

notwithstanding the verdict, and a motion for new trial or in the alternative

for remittitur, alleging that the punitive damage awards against them

violated their right to due process.

{¶ 9} On September 17, 2008, the trial court faxed an entry to all

APPX. 31

counsel denying appellants' motion for new trial or in the alternative for

remittitur.

{¶ 10} On September 18, 2008, the trial court jaurnalized its entry

denying the motion for new trial or in the alternative for remittitur withaut

opinion.

{¶ 11} On September 19, 2008, the trial court convened a hearing on

pending posttrial motions. During this hearing, appellee's counsel, as the

prevailing party in accordance with Civ.R. 52 and Loc.R. 19, provided the

trial court with a proposed supplemental journal entry to accotnpany its

earlier ruling, augmenting the court's September 18, 2008 entry denying the,

motion for new trial or in the alternative for remittitur, to include an analysis

of the due process "guideposts" elucidated in BtVfW ofN. Am. v. Gore (1996),

517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809, based upon theOhio Supreme

Court's recent pronouncements in Barnes v. Univ. Hosps. of Cleveland. 119

Ohio St.3d 173, 2008-Ohio-3344, 893 N.E_2d 142. (Tr. 1849.)

{¶ 12} In Barnes, the Ohio Supreme Court held, inter alia, that trial

courts are required to analyze ajury's punitive damage award under BMW of

N. Am. when it stated: -

"This discretionary appeaI was accepted on the issues ofwhether *** the trial court is required to analyze thejury's punitive damage award under BMW of1V. Ani., ***.We answer yes ***." Barnes at 174.

APPX. 32

{¶ 13} Appellants' counsel professed that they never received the court's

facsimile denying their motions, yet the court produced: a copy of its

confirmation sheet faxing the entry to appellants' counsel. During the

hearing, appellants' counsel inquired of the court regarding its denial of

appellants' motion for new trial or in the alternative for remittitur:

"[Counsel for appellants]:

But I take it Your Honor did not consider the Barnes casein making that determination?

The Court:

Well, no. You're speculating what I did consider and Ithink svhat counsel's asking the Court to do is provide aIittle bit more edification pursuant to the Barnes case. Iconsidered every case that was cited within that.

So I basically just ruled on the motions, but I. think it isalways helpful if the prevailing party wants to submit amore detailed entry for the trial court to look at. Thatway, I can look through it and see which the Court agreeswith and maybe that.would provide you the edificationyou seek.

I read them all and I took them all "into consideration and

I wanted to have them ruled on before today's hearing so

that you would know that.

,.***

APPX. 33

So rather than have you come back in a couple of years,should you be appealing this case, and provide edificationon a case that's not as fresh in my mind, would I mindlooking at this? I. don't have any issue with that.

[Counsel for appellants]:

Thank you, your honor., Thank you." (Tr. 1852-1853.)

{¶ 14) At the conclusion of the hearing, pursuant to appellants' request,the trial court granted appellants a two-week extension or until October 3;2008, within which.to provide an alternative proposed supplemental entry oran opportunity to respond to appellee's proposed stipplemental entry.

{If 151 On September 22, 2008, the trial court memorialized the hearing

in the following joiurnal entry, which states in pertinent part:

"Hearing held September 19, 2008 on Pl Ronald Luri'sApplication for Attorney's Fees and Motion to Tax Costspursuant to. Rule 54 and Pl Ronald Luri's Motion. forPrejudgment Interest. On a previous date, court ruledupon defendants' motion for new trial or in the alternativefor remittitur . [sic]. Plaintiff, the. prevailing party,pursuant to Ohio Rule of Civil Procedure 52, and LocalRule 19, subinitted _ proposed findings to the Court.Defendants' counsel requested until October 3, 2008, to .submit proposed findings; without objection. Requestgranted. Upon receipt of said findings, Court shallincorporate a set of findings into the record as set forth inthe above referenced procedural rules *** 9/22/08 noticeissued." (Emphasis added.)

{¶1G) On September 25, 2008, the triaL court journaiized an entry

granting appellee's motion for attorneys' fees, motion for prejudgment

interest, and motion to tax costs without opinion.

{¶ 17) On October 1, 2008, instead of presenting the trial court with a

APPX. 34

supplemental journal entry containing its own proposed findings; appellants

filed their notice of appeal. In their brief, appellants argue, inter alia, that

the trial court's September 22, 2008 entry was made in error because the trial

court did not expressly conduct the Barnes analysis in the record, despite

the fact that appellants were fully apprised of the trial court's intent to do so

based upon their involvement at the posttrial motion hearing.

{¶ 18) On October 2, 2008, appellants filed an "opposition" to appeilee's

pi-oposed supplemental journal entry in common pleas court, aiguing, inter

alia, that their appeal divested the trial court of jurisdiction from placing its

findings in the record. This argument contains incorrect statements of fact,

given appellants'.prior agreement at the September 19, 2008 hearing that

they would submit their own proposed entry to the court by October 3; 2008,

pursuant.to Civ.R. 52 and Loc.R. 19, so the court could finalize ruling on all

posttrial motions. The trial court's subsequent journal entry states explicitly

that it will conclude its ruling on posttrial motions when it states:

"Defendants' counsel requested until October 3, 2008, tosubmit proposed findings, without objection. Requestgranted. Upon receipt of said findings, Court shallincorporate a set of fin.dings into the record." See, 9122t09journal entry, supra.

{![ 19} On November 5, 2008,appellee filed a motion to dismiss, or in the

alternative for limited remand. Appellee argues that the trial court's

APPX. 35

September 22, 2008 posttrial order expressly states the trial court's intent to

finalize ruling on appellant's motion for new trial or in the alternative far

remittitur. We agree.

{1[2111 On November 18, 2008, appellants filed a brief in oppositiotn to

appellee's motion to dismiss the instant appeal in this court. Appellants

refer to the trial court's September 19, 2008 hearing and the trial court's

September 22, 2008 journal entry, arguing that "[a)mong the. trial court's

errors was its failure to heed the Ohio Supreme Court's recent decision in

Barnes tsupra], which requires trial courts to explain.their reasoning for

upholding punitive damages in the face of constitutional challenges." Based

upon the above-cited exchange between the court and appellants' counsel in

which the trial. court stated that it considered Barnes, the trial court's

subsequent entry stating its intention to provide a written Barnes analysis at

the parties' joint request, and finally, the trial court's acquiescence to

appellants' request for a two-week extension to provide the court with its own

proposed supplemental entry for the court's consideration in the final

judgment entry, we find this argument to be disingenuous at best.

Analysis

{IW21} When an order contemplates further action, and the judge does

not certify any part of the order as final under Civ.R. 54(B), it is not final

under R.C. 2505.02. See Nwabara v. Willacy, Cuyahoga App. Nos. 79416

APPX. 36

and 79717; 2002-Ohio-1279, at 4, citing Vanest v. Pillsbury Co. (1997), 124

Ohio App.3d 525, 534, 706 N.E.2d 825, 831.

111221 A review of the record indicates that appellants deprived the trial

court of the opportunity to issue a final order by prematurely filing the

instant appeal. The trial court's September 22, 2008 journal entry granted

appellants' request to supplement the trial court's findings regarding its

previous entry denying the motion for new trial or for remittitur by October 3,

2008. Instead of doing so, appellants prematurely filed their notice of appeal

on October 1, 2008, arguing solely that the trial court erred in ruling on

posttrial motions, despite the fact that appellants were engaged with the trial

court in clarifying, and ruling on, those same motions.

{¶ 231 In their brief in opposition to appellee's motion to dismiss,

appellants argue they were concerned about the losing their 30 days within.

which to fil.e an appeal under App.R. 4(A), because under App.R. 4(B)(2),' the

trial court's September 25, 2008 order on the posttrial motions for attorneys'

fees, prejudgment interest, and the motion to tax costsdecided "all remaining

post-trial motions."Inexplicably, appellants argue that no party requested

findings of fact and conclusions of law under Civ.R. 52, and as a consequence,

iApp.R: 4(B)(2), provides: "In a civil case ***, if a party files a timelymotion foi * * * a new trial under Civ.R. 59(B), * * * the time for filing a notice ofappeal.begins to run as to all parties d3hen the order disposing of the motion isentered."

APPX. 37

the tolling provision within App.R. 4(B)(2) is inapplicable. We find this

argumerit unavailing, given appellants' own request for an extension to

provide a supplemental journal entry on the September 22, 2008 orders,

which were clearly not yet final based upon the record cited above.

{¶24} Under App.R. 4(A), a party has 30 days to appeal. a final

judgment. In a civil case, however, when certain postjudgment motions are

filed, the time for filing a notice of appeal does not begin to run until the order

disposing of all postjudgment motions is entered. App.R. 4(B)(2). One type

of postjudgment motion that tolls.the time for appeal is a motion for findings

of fact and conclusions oflaw under.Civ.R. 52. The parties invoked Loc.R. 19

and Civ.R. 52 on the record. Both rules allow the prevailing party in a civil

action to request findings of fact and conclusions of law; As the trial court

and appellee's counsel stated at the September 19, 2008 hearing:

"The Court:

"I was actually going. to say that the prevailing partywould have the ability to present the Court with a moredetailed entry and that's what you're doing here today?

[Counsel for appellee]:

I believe that's right your Honor, .yes. Yes, your honor.It'sour-

The Court:

You're citing. Rule 19 for some reason I thought it wasanother Rule of.Civil Procedure in our court. Is that

APPX. 38

maybe -

[Counsel for appellee]:

Local rule 19:

The Court:

Oh. Local rule. (Tr. 1850).

.^***

The Court:.

I.was going to ask you, in my mind it's somewhere in the50s, maybe 52, 1 think, that says that ***. (Tr. 1855:)

[Counsel for appellee]:

Your Honor, pursuant to that rule [Civ:R. 52], it's myunderstanding that the Defendants have an opportunityto submit their own journal entry to you as well orcomment on ours. So perhaps we could set a time framefor you to do so before you provide us that edification.

The Court:

How much time would you like, Counsels?

[CounseT for appellants]:

Your Honor, two weeks, please.

The Court:

Okay. No problem. I'lt hold it. (Tr. 1856-1857.)

{¶ 25} Based upon the statements of appellants' counsel at tr.

APPX. 39

1855-1857, their arguments about the propriety of App.R. 4(B)(2) are

misplaced, and clearly belied by the record.

11126) The September 22, 2008 order obviously contemplates further

action; it is not final under R.C. 2505.02. The trial judge did not include any

language certifying any part of the order as final under Civ.R. 54(B) and was

deprived of including such findings in the record when appellants brought the

instant appeal. The parties were in the midst of arguing posttrial motions

when appellants sought an extension to provide a proposed supplemental

entry clarifying one of those motions. Instead of so doing, appellants

prematurely filed the instant appeal. We therefore dismiss the. appeal for

lack of a final appealable order. Appellee's motion to dismiss is granted.

Appeal dismissed.

It is ordered that appellee recover from appellants costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

APPX. 40

MARY EILEEN KILBANE, PRESIDING JUDGE

MELODY J. STEWART, J., andMARY J. BOYLE, J., CONCUR

APPX. 41

RONALD LURIPlaintiff

Iil^i^lillllH^hII^IIN^III^'lif^inlllE illli61950229

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

I Case No: CV-07-633043

Judge: BRIDGET M MCCAFFERTY

REPUBLIC SERVICES INC. ET ALDefendant

JOURNAL ENTRY

COUNSEL WAS ORDERED TO SUBMIT PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW TO THE COURTBY 10/3Y1008. ON 10/1/2008, DEFENDANT'S COUNSEL FILED.tTS APPEAL. SAID APPEAL WAS DISMISSED. AS SUCH,COURT PROVIDES EDIFICATION-0F AS FOLLOWS:

PRIOR TO RULING ON THE DEFENDANTS' MOTION FORNEW TRIAL OR IN THE ALTERNATIVE FOR REMI"ITITUR,FILED 7/22T1008, THE COURTREVIEWED THE PUNITIVE DAMAGE AWARDS AS TO EACH DEFENDANT IN LIGHT OFTHE GUIDEPOSTS ENUMERATED IN BARNES V. UNIVERSITY HOSPITALS OF CLEVELAND, ET AL., (2008) 119 OHIOST. 3D 173. IN BARNES, THE COURT HELD THAT THE FOLLOWING MUST BE CONSIDERED IN REV IE W ING ANAWARD OF PUNITIVE DAMAGES:

1. DEGREEOF REPREHENSIBILITY OFTHECONDUCT2. RATIOOF PUNITIVE DAMAGES TO COMPENSATORY DAMAGES3. SANCTIONS FOR COMPARABLE MISCONDUCT.

DEGREEOFREPREHENSIBILITYTHE CRITICAL FACTORS SET FORTH BY THE BARNES COURT WERE FOLLOWED IN DETERMINING THE DEGREEOF:REPREHENSIBILITY OF EACH OF THE DEFENDANTS' CONDUCT. THIS COURT FINDS THAT THE HARM CAUSEDWAS PRIMARILY ECONOMIC AS OPPOSED TO PHYSICAL. THE EVIDENCE ESTABLISHED THAT THE ECONOMICHARM INFLICTED WASSIGNIFICANT; THAT THE DEFENDANTS BOTH PERSONALLY AND IN THEIR CORPORATECAPACITY ACTED WITH A RECKLESS DISREGARD FOR THE WELFARE OF THE PLAINTIFF; THAT THE PLAINTIFFWAS FINANCIALLY VULNERABLE; THAT THE CONDUCT THE DEFENDANTS ENGAGED IN BOTH PERSONALLYAND IN THEIR CORPORATE CAPACITY EVOLVED OVER A PERIOD OF TIME AND WAS COMPOSED OF REPEATEDACTIONS, AND FINALLY THAT THE HARM WAS THE RESULT OF INTENTIONAL MALICE AND DECEIT..

RATfOTHEPUNITIVEDAMAGES WEREAWARDEDAGAINST:MULTIPLEDEFENDANTSFOLLOWINGIURYDETERMINATIONS THAT EACH DEFENDANT ACTED WITH ACTUAL MALICE. THE REVIEW OF THE AWARDS FORPROPORTIONALITY AS TOBACH DEFENDANT ISAS FOLLOWS:REPUBLIC SERVICES: 6-1REPUBLIC SERVICES OF OHIO: LLC 3-1REPUBLIC SERVICES OF OHIO HAULING, LLC: 3-1RONALD KRALL- LESS THAN I-ilAMESBOWEN-LESSTHANI-I -

LARGE DtSPARITY BETWEEN PUNITIVE AND ACTUAL DAMAGES AWARDS IS ALLOWABLE BECAUSE A PUNITIVEDAMAGES A WARD IS MORE ABOUT A DEFENDANT'S BEHAVIOR THAN THE PLAINTIFF'S LOSS. WIGHTMAN V.CONSOLIDATED RAIL CORP., (1999) 86 OHIO ST.3D 431 "THE NUMBERS COMPOSING THE RATIO OF ACTUALDAMAGES TOPUNITIVE DAMAGES IS A DETERMINATION TO BE MADE BY THE TRIAL COURT IN THE FIRSTINSTANCE, SUBJECT TO APPELLATE REVIEW." BARNES AT 181. THIS COURT FINDS THAT IN LIGHT OF THE.

03/D2/2010Page 1 of2

APPX. 42

,L ^ . I.I'^'II,III,I^I^,1^^p1'll^^tl,Rl'I^I^II ^II'f

61950229

BEHAVIOR OF THE DEFENDANTS, THE RATIO IS NOT SO SIGNIFICANT AS TO OVERTURN THE FINDING OF THE

JURY. . . . . - ,

SANCTIONS FOR COMPARABLE MISCONDUCTTHE THIRD GUIDEPOST REQUIRES THE EVALUATION OF THE STATUTORY FINES AVAILABLE FOR SIMILARMALFEASANCE. THEBARNESCOURTSTATED: "HERETHETRIALCOURT,SUBJECTTOAPPELLATEREVIEW,MUST COMPARE OTHER SANCTIONS AVAILABLE UNDER OHIO LAW FOR THE WRONG DONE IN DETERMININGWHETHER THE PUNITIVE DAMAGE AWARD WAS EXCESSIVE." AT 182.

IN THE PRESENT MATfER THERE ARE NOT ANY CRIMINAL SANCTIONS FOR THE TYPE OF CONDUCT IN WHICHTHE DEFENDANTSENGAGEDi THE OHIO LEGISLATUREHAS,.THROUGHTHE REVISED CODE, AUTHORIZEDPUNITIVE DAMAGES. THE JURY HAS SPOKEN ON THIS ISSUE AND THE COURT DOES NOT FIND ANY BASIS FOROVERTURNINGTHE JURY'S DETERMINATION.

WHEREFORE, THIS COURT FINDS THAT PURSUANT TO THE ANALYSIS SET FORTH IN BARNES, THE PUNITIVEDAMAGE AWARDS RETURNED BY THE JURY DO NOT VIOLATE FEDERAL DUE PROCESS AS TO ANY OF THEDEFENDANi'SANDSUPPLEMENTS ITS JOURNAL ENTRY ACCORDINGLY.

IT IS SO ORDERED,

NOTICE VIA FACSIMILE.

RECEIVED FOR FILING

MAR 0 3 2010

GEP^A ^^.EEyV E ST,CLERK

9Y.(°PUTY

THE STATE OF OHtO 1, G ERALD E. FUERST, CLERK OFCoYafioDaCOUnty SS, THECOURTOFCOMMONPLEAS

WITHIN AND FOD SAID COUNTXHEHEBY CEHTIFYTiIAT THE ADOYE AND FOHF.G YMG IS THULY!^ '/`^M TNE--0JpCfL

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Page 2 of 2

APPX. 43

IH1^1^11^^1^IINI11kl1111111111111Na1f Ilill^53703099

RONALD LURIPlaindff

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

I Case No: CV-07-633043

REPUBLIC SERVICES INC ETALDefendant

Judge: BRIDGET M MCCAFFERTY

.iOURNAL ENTRY

P 1 RONALD LURI MOTION FOR PREIUDGMENT EVTEREST, FII,ED 7/22(08IS GRANTED. TIIE PARTIES STIPULATEDTO THE FACT TIiATPLAINTIFF MADE A GOODFATTH E,FFORT TO NEGOTIATEBEFORE TRIALANDDEFENDANTS'DIDNOTMAKEA GOODFAFSHEFFORTTONEGOTIATEBEFORETIt7AL: THEAGREEDUPONJURYIN'I'ERROGATORIES DID NOT SEPARATE PAST AND FUTURE DAMAGES. THE7URYAWARDEDCOMPENSATORYDAMAGES IN THEAMOUNI'OF$3.5MILLION. THEREFORE,PREJUDGMENTINTERESTISAWARDEDFROM8/17107THROUGH 718l08 AT THE STATUTORY RATE OF 8%.

P1 RONAI.D LURI PLAINTIFFS APPLICATION FOR ATTORNEY'S FEES AND MOTION TO TAX COSTS PURSUANT TORULE 54, F1I.ED7/22/08I5 GRANTED. THERE IS NODISAGREEMENT BIiIYTEEN THE PARTIES TIIATA LODESTARFIGURE OF $529,306:00APPLIES.

THIS COURT FINDS TIfATA MULTIPLIER OF 2.0IS APPROPRIATE IN TBIS CASE IN LIGHT OF THE FACTORS LISTEDIN DR1.5.AMTJLTIPLIER OF 2.0 IS APPROPRIATE BECAUSE OF THE EXTENSIVt TIMEAND LABOR REQUII2ED FORTHIS CASE. THE NOVELTY AND DIFIFTCULTY OF THE QUESTIONS INVOLYED: THE SICILLREQUISTTE TO PERFORMTHE LEGAL SERVICESPROPERLY Tfffi CASE RBQUBLED THEMAJORITY OF THE ATTORNEYS A.T1'BNITONDURING ITS PENDENCY, THEREBY PRECLUDING'iBE ATTORNEY'S FROMOTIIERR CASES. THEEXCEPTIONALJURY VERDICT OBTAINED BY THE ATTORNEY'S FOR THE PLAIDITIFF. LASTLY, THB EXPERIBNCB, REPUTATION,AND ABILITY OFTHE.PLAEMWS LAWYBRS. THEREFORE, PLAINlIFF IS AWARDED $I,058,612.00INATTORNEY'SFEES.

THE COURT FURTIIER FIIQDSTHAT PLAINIIFF IS ENTITLED TO LITIGATION EXPENSES AND COSTS PURSUANT TORULE 54 IN THE AMOUNT OF $37,838.78.

IT IS SO ORDERED.

NOTICB VIA FACSRIILE ANDE-MAE..

RECEIVPB OdR FILING

SEP: 2 5 2008

09/24/2008Page 1 of I

APPX. 44

53642573

RONALD LURIPlaintiff

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

I Case No: CV-07-633043

Judge: BRIDGET M MCCAFFERTY

REPUBLIC SERVICES INC. ET ALDefendant

JOURNAL ENTRY

HEARING HELD SEPTEMBER 19, 2008 ON P1 RONALDLURI'S APPLICAIION FOR ATFNYS FEES AND MOTION TOTAX COSTS PURSUANT TO RULE 54 ANDP1 RONALD LURI MOTION FOR PREJUDGMENT INTEREST. COURTORDERS A TRANSCRIPT OF SAID PROCEEDINGS AT STATE'S EXPENSE.

ON A PREVIOUS DATE, COURT RULED UPON DEFENDANTS MOTION FOR NEW TRIAL OR IN THE ALTERNATIVEFOR REMITPTI'UR. PLAINTIFF, THE PREVAILING PARTY, PURSUANT TO OHO RULE OF CIVIL PROCEDURE 52, ANDLOCAL RULE 19, SUBMITTED PROPOSED FINDINGS TO THE COURT. DEFENDANT(S) COUNSEL REQUESTED UNTILOCTOBER 3, 2006 TO SUBMIT PROPOSED FINDINGS, WITTIOUT OBJECTION. REQUEST GRANTED. UPON RECEIPT OFSAID FINDINGS, COURT SHALL INCORPORATE A SET OF FINDINGS INTO TBE RECORD AS SET FORTHIN THEABOVE REFERENCED PROCEDURAL RULES.

RECEIVED f OR FILING

SEP 22 2008

09119/2008Page 1 of I

APPX. 45

(nnilnigI^^imilluIIIIg IIIII53580249

RONALD LURIPiaintiff

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

i. Case No: CV-07-633043

Judge: BRIDGET M MCCAFFERTY

REPUBLIC SERVICES INC. ET ALDefendant

JOURNAL ENTRY

DEFENDANTS MOTION FOR NEW TRIAL OR IN THE ALTERNATIVE FOR REMITTITUR, FILED7f22/08, tS DENIED.

DEFENDANT(S) REPUBLIC SERVICES INC(DI), REPUBLIC SERVICES OF OIiIO HAULINC LLC(D2), REPUBLICSERVICES OF OHIO I LLC(D3), REPUBLIC SERVICES OF 0HI0(D4), REPUBLIC WASTE SHRVICES(D5), JIM BOWEN(D(5)AND RON YRACt:(07) MOTION FOtb JUDGMENT NOTWITHSTANDING THE VERDICT UNDER CIVIL RULE 50(B),FILED7/22/08IS DENIED.

NOTICE VIA FACSIMILE.

9;/ 7 -a?4a22 ^,ateJudge Sigaature `^

RECEIVED FOR FILlNG

SEP 18 ZWO

09/17/2008Page 1 of I

APPX. 46

RONALD.LURIPlaintiff

flIIIII IIIII^II^81IalIlIIIGIIi(B^IINIIII IIIII52384393

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

I Case No; CV-07-633043

iudge, BRIl)Gc M MCCAFFSR;^f

REPUBI,IC SERVICES INC. ET ALDefendant

JOURNAL ENTRY

81DISP.JURYTRIAL-FINAL

THE JURY IN'FHIS ACTION HAVING ON THE 3RD DAY OF JULY 2008, RENDERED A VERDICT IN FAVOR OFPLAINTIFF AND AGAINST ALL NAMED DEFENDANTS IN THE AMOUNT OF 3.5 MILLION DOLLARS INCOMPENSATORYDAMAGES.

THE JURY ALSO RENDERED A VERDICT IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANTS FOR PUNITIVEDAMAGES IN THE AMOUNT OF 43 MILLION AND ONE HUNDRED EIGHTTHOUSAND ANDFIVE HUNDRED ANDNINETY NiNE DOLLARS ( 43,108,599.00): TO BE APPORT[ONED AS FOLLOWS:

AGAINST DEFENDANT REPUBLIC SERVICES INC., AND IN FAVOR OF PLAINTIFF, IN THE AMOUNT OF TWENTYONE MILLION FIVE HUNDRED THOUSAND DOLLARS ( $2I,500,000.00);

IN T}IE AMOUNT OF TEN IvIILIdON SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($10,750,000.00) AGAINSTDEFENDANTREPUBLICSERVICESOFDHIOI, LLCANDINFAVOROFPLAINTIFF;

IN THE AMOUNTOF TEN MILLION SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS($10,750,000.00)AGAINSTDEFENDANTRBPUBLICSERVICESOFOHIOHAULING,LLCANDINFAVOROFPLAINTPF; _ - , . . . .

IN THE AMOUNT OF TWENTY FIVE THOUSAND AND TWO HUNDRED AND FIVE DOLLARS($25,205.00) AGAINST DEFENIIANT JAMES BOWEN AND IN FAVOR OF PLAINTIFF;

AND IN THE AMOUNT OF EIGHTY THREETHOUSAND THREE HUNDRED AND NTNETY FOUR DOLLARS ($83,394.00)FOR PLATNTIFF AND AGAINST DEFENDANT RONALDKRALL

.SUDGMENT IS HEREBYRENDERED IN FAVOR OFPLABVTTFF AND AGAINST DEFENDANTS AS REFERENCEDABOVE AT THE COST OF DEFENDANTS, FOR WHICH EXECUTION SHALL 1SSUE.

THElURYALSO FOUND'1'HAT ALL THE ABOVE REFERENCED DEFENDANTS ARE LIABLE FOR PAYMENT OFPLAINTIFF'S ATTORNEYS FEES. A7TORNEYS SHALL CONFERENCE CALL THE COURT WITH AN AGREED UPONHEARINGDATEANDBRIEFINGSCHEDULEFORSAIDHEARING.

IT IS SO ORDERED.FINAL.

COURTCOST ASSESSED TO THE DEFENDANT(S).

-gt dU! 06 2008f17/(YI/1IN10

APPX. 47

2315.21 Punitive or exemplary damages.

(A) As used In this section:

(1) "Tort action" means a civil action for damages for injury or loss to person or property."Tort action° includes a product liability claim for damages for injury or loss to person orproperty that is subject to sections 2307.71 to 2307.80 of the Revised Code, but does notInclude a civil action for damages for a breach of contract or another agreement betweenpersons. . . ^

(2) "Trier of fact" means the jury or, in a nonjury action, the court.

(3) "Home" has the same meaning as in section 3721.10 of the Revised Code.

(4) "Employer" Includes, but is not limited to, a parent, subsidlary, affiliate, division, ordepartment of the employer. If the employer is an individual, the individual shall beconsidered an employer under this section only if the subject of the tort action is relatedto the individual's capacity as an employer.

(5) "Sntall employer" means an employer who employs not more than one hundredpersons on a full-time permanent basis, or, if the employer is ctassified as being in themanufacturing sector by the North American industrial classification system, "smallemployer" means an employer who employs not more than five hundred persons on afull-time permanent basis.

(B)(1) In a tort action that is tried to a jury and in which a plaintiff makes a claim forcompensatory damages and a daim for punitive or exemplary damages, upon the motionof any party, the trial of the tort action shall be bifurcated as follows:

(a) The initial stage of the trial shall relate only to the presentation of evidence, and adetermination by the jury, with respect to whether the plaintiff is entitled to recovercompensatory damages for the injury or loss to person or property from the defendant.During this stage, no party to the tort action shall present, and the court shall not permita party to present, evidence that relates solely to the issue of whether the plaintiff isentitledto recover punitive or exemplary damages for the injury or loss to person orproperty from the defendant.

(b) If the jury determines In the initial stage of the trial that the plaintiff is entitled torecover compensatory damages for the injury or loss to person or property from thedefendant, evidence may be presented In the second stage of the trial, and adetermination by that jury shall be made, with respect to whether the plaintiffadditionally is entitled to recover punitive or exemplary damages for the injury or loss toperson or property from the defendant.

(2) In a tort action that is tried to a jury and in which a plaintiff makes a claim for bothcompensatory damages and. punitive or exemplary damages, the court shall instruct thejury to retum, arid the jury shall return, a general verdict and, if that verdict is in favor ofthe plaintiff, answers to an interrogatory that specifies the total compensatory damagesrecoverable by the plaintiff from each defendant..

(3) In a tort action that is. tried to a, court and in which a plaintiff makes a claim for bothcompensatory damages and punitive or exemplary damages, the court shall make its

APPX. 48

determination with respect to whether the plaintiff is entitled to recover compensatorydamages for the injury or loss to person or property from. the defendant and, if thatdetermination is in favor of the plaintiff, shall make findings of fact that specify the totalcompensatory damages recoverable by the plaintiff from the defendant.

(C) Subject to division (E) of this section,. punitive or exemplary damages are notrecoverable from a defendant in question in a tort action unless both of the followingapply:

(1) The actions or omissions of that defendant demonstrate malice or aggravated oregregious fraud, or that defendant as principal or master knowingly authorized,participated in, or ratified actions or omissions of an agent or servant that sodemonstrate.

(2) The trier of fact has retumed a verdict or has made a determination pursuant todivision (B)(2) or (3) of this section of the total compensatory damages recoverable bythe plaintiff from that defendant.

(D)(1) In a tort action,. the trier of fact shall determine the'liability of any defendant forpunitive or exemplary damages and the amount of those damages.

(2) Except as provided in division (D)(6) of this section, all of the following applyregarding any award of punitive or exemplary damages in a tort action:

(a) The court shall not enter judgment for punitive or exemplary damages in excess oftwo times the amount of the compensatory damages awarded to the plaintiff from thatdefendant, as determined pursuant to division (B)(2) or (3) of this section.

(b) If the defendant Is a small employer or individual, the court shall not enter judgmentfor punitive or exemplary damages in excess of the lesser of two times the amount of thecompensatory damages awarded to the plaintiff from the defendant or ten percent of theemployer's or Individual's net worth when the tort was committed up to a maximum ofthree.hundred fifty thousand dollars, as determined pursuant to division (B)(2) or (3) ofthis section.

(c) Any: attomeys fees awarded as a result of a claim for punitive or exemplary damagesshall not be considered for purposes of determining the cap on punitive damages.

(3) No award of prejudgment interest under division (C)(1) of section 1343.03 of theRevised Code shall include any prejudgment interest on punitive or exemplary damagesfound by the trier of fact.

(4) In a tort action, the burden of proof shall be upon a plaintiff in question, by clear andconvincing evidence, to establish that the, plaintiff is entitled to recover punitive orexemplary damages.

(5)(a) In any tort action, except as provided in division (D)(5)(b) or (6) of this section,punitive or exemplary damages shall not be awarded against a defendant if thatdefendant files with the court a certified judgment, judgment entries, or other evidenceshowing that punitive or exemplary damages have already been awarded and have beencollected, in any state or federal court, against that defendant based on the same act orcourse of conduct that is alleged to have caused the.injury or loss to person or propertyfor which the plaintiff seeks compensatory damages and that the aggregate of those

APPX. 49

previous punitive or exemplary damage awards exceeds the maximum amount ofpunitive or exemplary damages that may be awarded under division (D)(2) of this sectionagainst that defendant in the tort action.

(b) Notwithstanding division (D)(S)(a) of this section and except as provided in division(D)(6) of this section, punitive or exemplary damages may be awarded against adefendant in either of the following types of tort actions:

(i) In subsequent tort actions involving the same act or course of conduct for whichpunitive or exemplary damages have already been awarded, if the court determines byclear and convincing evidence that the plaintiff will offer new and substantial evidence ofpreviously undiscovered, additional behavior of a type described in division (C) of thissection on the part of that defendant, other than the injury or loss for which the plaintiffseeks compensatory damages. In that case, the court shall make speclfic findings of factin the7ecord to support its conclusion. The court shall reduce the amount of any punitiveor exemplary damages otherwise awardable pursuant to this section by the sum of thepunitive or exemplary damages awards previously rendered against that defendant in anystateor federal court. The court shall not inform the jury about the court's determinationand action under division (D)(5)(b)(i) of this section.

(ii) In subsequent tort actions Involving the same act or course of conduct for whichpunitive or exemplary damages have already been awarded, if the court determines byclear and convincing evidence that the total amount of prior punitive or exemplarydamages awards Was totally insufficient to punish that defendant's behavior of a typedescribed in division (C) of this section and to deter that defendant and othets fromsimilar behavior in the future. In that case, the court shall make specific findings of factin the record to support its conclusion. The court shall reduce the amount of any punitiveor exemplary damages otherwise awardable pursuant to this sectidn by the sum of thepunitive or exemplary damages awards previously rendered against that defendant In anystate or federal court. The court shall nofinform the jury about the court's determinationand adion under division (D)(5)(b)(ii) of this section.

(6) Division (D)(2) of this section does not apply to a tort action where the alleged injury,death, or loss to person or property resulted from the defendant acting with one or moreof the culpable mental states of purposely and knowingly as described in section 2901.22of the Revised Code and when the defendant has been convicted of or pleaded guilty to acriminal offense that is a felony, that had as an element of the offense one or more of theculpable mental states of purposely and knowingly as described In that section, and thatis the basis of the tort action.

.(E) This section does not apply to tort actions against the state in the court of ciaims,including, but not iimited to, tort actions against a state university or college that aresubject to division (B)(1) of section 3345.40 of the Revised Code, to tort actions againstpoliticat subdivisions of this state that are commenced under or are subject to Chapter2744. of the Revised Code, or to the extent that another section of the Revised Codeexpressly provides any of the following:

(1). Punitive or exemplary damages are recoverable from a defendant in question in a tortaction on a basis other than that the actions or omissions of that defendant demonstratemalice or aggravated or egregious fraud or on a basis other than that the defendant inquestion as principal or master knowingly authorized, participated in, or ratified actionsor omissions of an agent or servant that so demonstrate.

APPX. 50

(2) Punitive or exemplary damages are recoverable from a defendant in question in a tortaction irrespective of whether the plaintiff in question has adduced proof of actualdamages.

(3) The burden of proof upon a plaintiff in question to recover punitive or exemplarydamages from a defendant in question in a tort action is one other than clear andconvincing evidence.

(4) Punitive-or exemplary damages are not recoverable from a defendant in question in atort action.

(F) If the trier of fact is a Jury, the court shall not instruct the jury with respect to thelimits on punitive or exemplary damages pursuant to division (D) of this section, andneither counsel for any party or a witness shall inform the jury or potential jurors ofthose limits.

(G) When determining the amount of an award of punitive or exemplary damages againsteither a home or a residential facility licensed under section 5123.19 of the Revised Code,the trier of fact shall consider all of the following:

(1) The ability of the home or residential facility to pay the award-of punitive orexemplary damages based on the home's or7esidentiai facility's assets; income, and networth;

(2) Whether the amount of punitive or exemplary damages is sufficient to deter futuretortlous conduct; -

(3) The financial ability of the home or residential facility, both currently and in thefuture, to provide accommodations, personal care services, and skilled nursing care.

Effective Date: 11-07-2002; 04-07-2005

APPX. 51

4112.02 Unlawful discriminatory practices.

It shall be an unlawfut discciminatory practice:

(I) For any person to discrlminate in any manner against any other person because that personhas opposed any unlawful discriminatory practice deflned in this section or because that-personhas made a charge,-testified, assisted, or participated in any manner in any investigation,proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code..

APPX. 52