Ohio Supreme Court Protects Jury Verdicts: The Unanimity Rule in Eastley v. Volkman

Published June 7, 2012 · Ohio Supreme Court

Winning a jury verdict is only half the battle. Every family that has sat through a trial and heard the jury rule in their favor then faces the same question: can the other side take it away on appeal? On May 22, 2012, the Ohio Supreme Court answered part of that question in Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, a wrongful-death case that began with a prescription overdose at a Portsmouth pain clinic. The decision clarifies how Ohio appeals courts review jury verdicts, and it reaffirms a constitutional protection that every verdict winner should understand.

The case

Steven Hieneman was 33 years old when he died on April 20, 2005, from the combined effects of oxycodone, Xanax, and Valium that a doctor at a pain-management clinic had prescribed the day before. His mother, as administrator of his estate, brought a wrongful-death action against the doctor and against the woman who operated the clinic. I explained who can bring these claims in my post on Ohio wrongful-death claims.

In February 2008, a jury found that the doctor's malpractice and the clinic operator's negligence had caused Mr. Hieneman's death and awarded $500,000. The clinic operator appealed to the Fourth District Court of Appeals, arguing that the evidence did not support a finding that she personally was negligent.

Here is where it gets interesting. Two of the three appellate judges agreed with her that the verdict was against the "manifest weight of the evidence." But the third judge concluded she had forfeited that argument by not filing certain post-trial motions. Because Ohio's constitution requires all three judges to agree before a jury verdict can be reversed on the weight of the evidence, the verdict stood. The clinic operator then appealed to the Supreme Court.

What "manifest weight of the evidence" means

Lawyers use two different phrases when they attack a verdict, and the difference matters.

Sufficiency of the evidence asks whether there was any evidence at all on each element of the claim, enough to let the case go to the jury. It is a question of law.

Manifest weight of the evidence asks something different: even if there was some evidence, did the greater amount of credible evidence point the other way, so that the jury clearly lost its way and created a miscarriage of justice? Answering that question requires the appeals court to weigh the evidence and consider witness credibility, acting as what the courts call a "thirteenth juror."

In Eastley, the Supreme Court held that the standard it adopted in a 1997 criminal case, State v. Thompkins, applies to civil jury verdicts too. It also held that a party does not need to file a motion for directed verdict, a motion for a new trial, or a motion for judgment notwithstanding the verdict to raise a manifest-weight challenge on appeal, as long as the evidence is in the record. The Court sent the case back to the Fourth District to apply the correct standard, without saying how that court should rule.

The protections that survive

That procedural holding cuts both ways; it makes it easier for either side to raise a manifest-weight argument. But the opinion also spells out, in one place, the safeguards Ohio law places around a jury's verdict. For families who have won at trial, these are the rules that matter:

1. Unanimity. Article IV, Section 3(B)(3) of the Ohio Constitution provides that no judgment from a jury trial can be reversed on the weight of the evidence "except by the concurrence of all three judges hearing the cause." Two appellate judges who disagree with the jury are not enough. One judge who believes the jury got it right preserves the verdict, which is exactly what happened in the court of appeals in Eastley.

2. A strong presumption in favor of the verdict. The Court repeated the long-standing rule that every reasonable presumption must be made in favor of the judgment, and that when the evidence can be read more than one way, the appeals court must adopt the reading that supports the verdict.

3. Only one reversal. A court of appeals may reverse a jury verdict on the weight of the evidence only once in the same case. If the family wins a second trial, that verdict cannot be reversed again on that ground.

4. The remedy is a new trial, not judgment for the defendant. When an appeals court does find a verdict against the manifest weight, it sends the case back for a new jury, not a loss. The Court emphasized that "reversal on the manifest weight of the evidence and remand for a new trial are not to be taken lightly."

Why this matters for injury and wrongful-death cases

Defendants and their insurers frequently tell injured families that a jury verdict is just the beginning, that the appeal will take years, and that the verdict will probably be thrown out. The pressure is designed to produce a cheap settlement after a hard-won trial.

Eastley is a useful corrective. An appeals court cannot simply substitute its view of the evidence for the jury's. All three judges have to agree the jury clearly lost its way, with every presumption running toward the verdict. In practice, that is a high bar. Earlier this year I wrote about a Tuscarawas County jury's $3 million verdict for a truck driver's widow that survived appeal; the appeals court in that case refused to second-guess the jury on a hotly contested factual question. That is how the system is supposed to work.

The decision also carries a lesson for how a case should be tried. Because the manifest-weight question turns on the "greater amount of credible evidence," the goal at trial is not just to get the case to the jury but to build a record that an appeals court cannot plausibly call a miscarriage of justice. That means thorough medical testimony, careful witness preparation, and documentary proof on every element, including the negligence of each defendant separately.

What this means for you

• A verdict in your favor is hard to take away on the facts. The constitution requires a unanimous appellate panel, and the presumption runs your way.
• The appeal is a reason to prepare, not to panic. Do not let a defendant's talk of appeal pressure you into settling a verdict for a fraction of its value without advice.
• The record is built at trial. The protections in Eastley reward cases that were tried thoroughly. Pick a lawyer who will try your case, not hand it off at the courthouse door.
• Wrongful-death cases involving prescription drugs are provable. Mr. Hieneman's family proved that both the prescribing doctor and the person running the clinic were responsible. Those cases require expert testimony and a careful look at how the clinic operated, and they can be won.

You can read more about my background and how I handle cases on our about page, and about our wrongful-death practice.