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Cl,Erk of Cqurt Supreme Court of Ohio Table of Contents IN THE SUPREME COURT OF OHIO No. 09-0868 TASER INTERNATIONAL, INC. And CITY OF AKRON, On Appeal from the Summit County Court of Appellees Appeals, Ninth District V. Court of Appeals Case No. 24233 CHIEF MEDICAL EXAMINER OF SUMMIT COUNTY, OHIO a/k/a LISA KOHLER, M.D. Appellant APPELLEE TASER INTERNATIONAL, INC.'S MEMORANDUM IN RESPONSE TO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION Dean Holman William A. Nolan (Atty. #0041891) Medina County Prosecutor [email protected] [email protected] Counsel of Record William L. Thome BARNES & THORNBURG LLP [email protected] 21 East State Street, Suite 1850 Assistant County Prosecutor Columbus, Ohio 43215-4219 73 Public Square 614.628.0096, 614.628.1433(fax) Medina, Ohio 44256 330.723.9536, 330.764.8400 (fax) John R. Maley (pro hac vice) [email protected] Counsel for Appellant Chief Medical Examiner BARNES & THORNBURG LLP 11 South Meridian Street Patricia Ambrose Rubright Indianapolis, Indiana 46204 [email protected] 317.231.7464, 317.231.7433(fax) Michael J. Defibaugh [email protected] Counsel for Appellee Assistant Directors of Law TASER hiternational, hic. City of Akron 161 South High Street, Suite 202 Akron, Ohio 44308 330.373.2030, 330.375.2041(fax) ED Counsel for Appellee City of Akron j (;^^ j2 CL,ERK OF CQURT SUPREME COURT OF OHIO TABLE OF CONTENTS APPELLEE TASER INTERNATIONAL, INC.'S STATEMENT OF POSITION AS TO WHETHER A SUBSTANTIAL CONSTITUTIONAL QUESTION IS INVOLVED, AND WHETHER THE CASE IS OF PUBLIC OR GREAT GENERAL INTEREST ................. ...................................................................................1 A. Any Constitutional Issues Were Waived Below, And No Substantial Constitutional Question Is Presented .............................................................................1 B. The Medical Examiner Waived Her Claimed Rule 702 Evidentiary Error Below, And The Issue Is Not One Of Public Or Great General Interest ..............2 C. The Standing Issue Was Waived Below, There Was No Abuse Of Discretion In Detennining That The Manufacturer Being Blamed By The Medical Examiner For Three Drug-Related Deaths Had No Standing, And The Issue Is Not Worthy Of Discretionary Review ...............................3 STATEMENT OF THE CASE ..................................................................................................4 A. Procedural History ..... ...............................................................................................4 1. Waiver Of Standing Issue .... ..............................................................................4 2. No Constitutional Issues Asserted .....................................................................6 3. The Evidentiary Ruling On Expert Testimony ..................................................6 B. The Decisions Below ....................................................................................................7 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ..................................................8 A. The Medical Examiner's Waived Constitutional Argument Fails Procedurally And On The Merits ...................................................................................8 B. The Trial Court Judge Did Not Abuse His Discretion hi Applying Ohio R. Evid. 702 And Requiring Reliable Scientific, Medical, Or Electrical Evidence From The Medical Examiner .......................................................10 C. The Trial Court Judge Did Not Abuse His Discretion In Determining That TASER Had Standing To Bring This Special Statutory Action ..........................11 CONCLUSION .... ..............................................................................................13 CERTIFICATE OF SERVICE ................................................................................................14 i APPELLEE TASER INTERNATIONAL, INC.'S STATEMENT OF POSITION AS TO WHETHER A SUBSTANTIAL CONSTITUTIONAL QUESTION IS INVOLVED, AND WHETHER THE CASE IS OF PUBLIC OR GREAT GENERAL INTEREST The Summit County Medical Examiner presents neither a substantial constitutional question, nor a case of public or great general interest, having waived each of the three issues she asks this Court to review. Moreover, the asserted evidentiary and procedural issues - by the Medical Examiner's own admission - were to be reviewed deferentially by the Court of Appeals for abuse of discretion. This Court should not invoke its limited resources to review discretionary trial court decisions waived below. A. Any Constitutional Issues Were Waived Below, And No Substantial Constitutional Question Is Presented. Throughout the trial court proceedings the Medical Examiner never asserted a constitutional issue: not in her Answer, not by motion, and not by any other means. Constitutional arguments cannot be raised for the first time on appeal in civil matters. See Ritenauer v. Lorain Country Club Ltd. (Sept. 12, 2001), 9th Dist. No. 01 CA007811 (civil litigant will have "waived the right to contest an issue on appeal if that issue was not raised at the appropriate time in the trial court"). TASER filed a complaint, first amended complaint, and second amended complaint in this action. In answering each complaint, the Medical Examiner never raised any constitutional issues. Moreover, through trial and entry of judgment, the Medical Examiner never raised any constitutional issues. The Medical Examiner thus waived the constitutional issue she now asks this Court to exercise its discretion to review. Moreover, in the Court of Appeals the Medical Examiner did not develop the argument sufficiently to seek the Court of Appeals review. The Medical Examiner offered nothing beyond a bare-bones, three-paragraph "constitutional" argument in the Court of Appeals. On the merits, "all statutes are presumed constitutional, and the party challenging a statute bears the burden of 1 proving otherwise ... beyond a reasonable doubt." State v. Boczar, 113 Ohio St.3d 148, 2007- Ohio-1251, 863 N.E.2d 155, at ¶9. The Medical Examiner did not and cannot meet her heavy burden to demonstrate unconstitutionality. B. The Medical Examiner Waived Her Claimed Rule 702 Evidentiary Error Below, And The Issue Is Not One Of Public Or Great General Interest. The Medical Examiner asks this Court to exercise discretionary review over a routine expert witness evidentiary issue: whether she should have been allowed to testify under Evid. Rule 702 as to the speculative and unscientific basis for blaming TASER's product for death. At trial, however, she waived this issue by failing to make an offer of proof as to what the purported testimony would have been. As the Court of Appeals properly ruled, "Because Dr. Kohler did not place an offer of proof on the record with respect to her own testimony and the testimony of [her deputies], and because neither the legal theory of admissibility nor the substance of the excluded testimony is apparent from the context, the trial court's decision to exclude the testimony under Evid. R. 702 cannot be assigned as error." Furthermore, the trial court's evidentiary decision under Ohio R. Evid. 702 was reviewable deferentially for abuse of discretion. Rule 702 requires expert opinions to be based on "reliable scientific, technical, or other specialized information." Medical examiners, of course, are offering medical expert opinions regarding death causation, Vargo v. Travelers Ins. (1987), 34 Ohio St.3d 27, 30, 516 N.E.2d 226, and are held to evidentiary requirements as well. State v. Harrison (May 12, 1993), 1st Dist. No. C-920422. By their own admissions, the Medical Examiner and her staff lacked scientific, medical, or engineering bases to opine that TASER devices caused or contributed to these deaths. Furthermore, the Medical Examiner and her staff admittedly lacked an understanding of the physiological effects of TASER devices on humans. In weighing the evidence and exercising his discretion as the gatekeeper under 2 Rule 702, Judge Schneiderman determined that the Medical Examiner and her staff did not satisfy Rule 702's requirements. Ohio trial courts routinely make such evidentiary decisions involving expert witnesses under Rule 702, and those decisions are routinely reviewed deferentially by the Court of Appeals. This particular discretionary evidentiary issue in this particular case involving these particular witnesses simply is not of public or great general interest. C. The Standing Issue Was Waived Below, There Was No Abuse Of Discretion In Determining That The Manufacturer Being Blamed By The Medical Examiner For Three Drug-Related Deaths Had Standing, And The Issue Is Not Worthy Of Discretionary Review. Ohio R.C. 313.19 "outlines a special statutory procedure allowing judicial review of a coroner's verdict." LeFever v. Licking Cty. Coroner's Office, 5th Dist. No. 06-CA-13, 2006- Ohio-6795, at ¶17. "R.C. 313.19 does not limit who may initiate judicial review of a coroner's verdict." LeFever, 2006-Ohio-6795 at ¶24. hi addressing three drug-related deaths, the Medical Examiner publicly blamed a TASER® electronic control device as causing or contributing to each death, which findings were widely reported. TASER was then sued by the families of two of the decedents. TASER brought an action under Ohio R.C. 313.19 seeking to correct the Medical Examiner's determinations and proceeded on amended complaints. Although the Medical Examiner originally pleaded standing as a defense to the original Complaint and moved to dismiss, that motion was denied and amended complaints were subsequently filed. The
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