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From Products Liability Law Daily, June 10, 2013

USSCt: U.S. High Court Declines Request to Review Jury Trial Right Conflict

By Susan Lasser, J.D.

The U.S. Supreme Court has denied a petition by the spouse and personal representative of a driver who died in a motor vehicle rollover accident that had asked the High Court whether the 7th and 14th Amendments and the Supremacy Clause mandated that a federal court disregard the interpretation by a state’s highest court of its procedural law when that interpretation would abrogate a litigant’s federal right to a jury trial, in conflict with a majority of its sister jurisdictions (Schwering v. TRW Vehicle Safety Systems, Inc., Dkt. No. 12-1297, filed April 25, 2013, cert. denied June 10, 2013).

Background. Kenneth Schwering was a passenger in a 2001 Ford Explorer Sport driven by his wife, Beverly Schwering. On December 28, 2002, the couple was involved in a rollover traffic accident. Both Schwerings were wearing seatbelts at the time of the accident, but Beverly Schwering was killed and Kenneth Schwering sustained injuries.

In 2003, Kenneth Schwering filed a complaint in Ohio state court on his own behalf and as personal representative of his wife’s estate against Ford Motor Company and TRW Safety Systems, Inc., asserting products liability and negligence claims. The complaint alleged that the design of the seatbelt system in the Explorer was unreasonably dangerous and that the system was defective, creating an unsafe condition that caused Schwering’s wife’s death and his own injuries. Over five years later, the case proceeded to trial and a jury was sworn in. During the trial, Schwering called Steven Meyer as an expert witness on restraint systems. Meyer testified that he had tested an alternative design of the restraint system that would have prevented Beverly Schwering’s death. Ford objected and moved to strike this testimony, arguing that Schwering had not disclosed that Meyer had tested an alternative design on the same model of car involved in the accident. Ford also argued that Meyer had deceived Ford and the court during earlier depositions by denying any recollection of having performed tests on a vehicle like the Schwerings’ Explorer.

The trial court initially granted Ford’s motion to strike and instructed the jury to disregard Meyer’s testimony. However, Ford moved for a mistrial, contending surprise, undue prejudice, and discovery violations. Schwering also moved for a mistrial, on the basis that the court’s exclusion of the proffered testimony prevented him from receiving a fair trial. The trial court eventually declared a mistrial. Before the second trial began, however, Schwering filed a notice of voluntary dismissal without prejudice.

Second complaint. Schwering later filed suit in the United States District Court for the Southern District of Ohio, asserting the same products liability and negligence claims against TRW and Ford on behalf of himself and his wife’s estate. Ford and TRW sought dismissal of the federal action, arguing that Schwering’s voluntary dismissal in state court did not occur “before the commencement of trial” as required by the Ohio Rules of Civil Procedure, and, therefore, the dismissal could not have been “without prejudice.” Schwering objected to their motions to dismiss, arguing that the mistrial rendered the first trial a nullity, thereby allowing him to unilaterally dismiss the case without prejudice under the state’s civil procedure rules because trial had not yet “commenced.”

Certified question. Because the federal district court found no state law on whether the declaration of a mistrial reinstated the right to voluntarily dismiss claims without prejudice, it certified the question to the Ohio Supreme Court, asking whether a plaintiff may voluntarily dismiss claims without prejudice pursuant under the Ohio Rules of Civil Procedure when a trial court declares a mistrial after the jury has been empaneled and sworn and the trial has “commenced” under the civil procedure rules (Schwering v. TRW Vehicle Safety Systems, Inc., OhioSCt, April 4, 2012, Lanzinger, J.). The Ohio Supreme Court held that a plaintiff cannot voluntarily dismiss a claim without prejudice when a trial court declares a mistrial after the jury has been empaneled and trial has commenced. The federal district court then dismissed the case. Although Schwering argued on appeal that the federal district court should not have followed the Ohio high court’s ruling because it denied him his right to a jury trial, the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal (Schwering v. TRW Vehicle Safety Systems, Inc., 6thCir, January 29, 2013, Per Curiam).

Petitioner’s reasons in support of petition. Although the U.S. High Court ultimately disagreed, Schwering had offered three reasons for the Court to grant his petition. First, he argued that the sanctity of his federal right to a jury trial under the 7th and 14th Amendments “is beyond question.” Second, he asserted that federal courts must disregard state pronouncements that frustrate federal constitutional rights. Schwering stated that while the courts below were correct as to the general rule that a federal court with diversity jurisdiction is bound to follow a state supreme court’s interpretation of its own laws—the reasoning upon which the Sixth Circuit Court of Appeals based its determination—those courts had “ignored the wealth of federal law, … which requires that same court to contravene such a pronouncement when it purports to nullify a federal statutory right.”

Finally, Schwering argued that the Ohio Supreme Court’s ruling upon which the U.S. Court of Appeals for the Sixth Circuit relied conflicted with a majority of other state jurisdictions. According to his petition, Schwering stated that at the time he opted for a voluntary dismissal, he did not have the benefit of any guidance from state laws or any state appellate court regarding the effect of a mistrial. Thus, his petition continued, “he was not only permitted but directed by Ohio law to consult foreign jurisdictions.” He argued that “when a federal litigant has been forced to act without a procedural compass from his home jurisdiction, Due Process demands that the federal court likewise disregard the State court’s after-the-fact pronouncement,” and to do otherwise would be a revocation of an essential right without notice. Schwering argued that if the Sixth Circuit “followed this logic,” then federal precedent would have authorized a survey of “Ohio’s sister courts,” and such a review would have found that a majority of the courts that had addressed the issue (including the Sixth Circuit) agreed that a mistrial wiped the procedural slate clean for the purpose of a voluntary, unilateral dismissal.

The case number is 12-1297.

Attorneys: Richard L. Denney (Denney & Barrett, P.C.) for Petitioner, Kenneth M. Schwering, Individually and as Personal Representative of the Estate on Behalf of Beverly D. Schwering.

Companies: TRW Vehicle Safety Systems, Inc. and Ford Motor Co., Inc.

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