Sherrod et al v. Williams et al

Filing 338

DECISION AND ENTRY OVERRULING [DOC. 334] DEFENDANT WAL-MART STORES EAST, L.P.'S MOTION TO CERTIFY A STATE LAW QUESTION TO THE SUPREME COURT OF OHIO. Signed by Judge Walter H. Rice on 07/14/2021. (jmb)

Case: 3:14-cv-00454-WHR Doc #: 338 Filed: 07/16/21 Page: 1 of 5 PAGEID #: 20675

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TRESSA SHERROD, et a!.,
Plaintiffs,
Case No. 3:14-cv-454

V.

OFFICER SEAN WILLIAMS, et

JUDGE WALTER H. RICE

a!.,
Defendants.

DECISION AND ENTRY OVERRULING DEFENDANT WAL-MART

STORES EAST, L.P.'S MOTION TO CERTIFY A STATE LAW
QUESTION TO THE SUPREME COURT OF OHIO (DOC. #334)

John Crawford, III, was shot two times by Beavercreek police officer Sean

Williams inside the Beavercreek Wal-Mart store. He was taken to the hospital, but
died of his injuries within minutes after his arrival. The executrix of his estate,

along with several family members, filed suit against Williams, another officer, the
Beavercreek Chief of Police and the City of Beavercreek. All of those claims have
been settled.

Plaintiffs also filed suit against Wal-Mart, alleging claims of negligence,
premises liability, survivorship, wrongful death, and loss of consortium. On

January 28, 2019, the Court granted summary judgment in favor of Wal-Mart on
the wrongful death claim. Doc. #273. Plaintiffs later filed a motion for

reconsideration, which the Court overruled. Doc. #326. On April 9, 2021, the

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Court, pursuant to Fed. R. Civ. P. 54(b), entered final judgment on the wrongful
death claim. Doc. #327. Plaintiffs have filed their Notice of Appeal. Doc. #331.

This matter is currently before the Court on Defendant Wal-Mart Stores East,
L.P.'s Motion to Certify a State Law Question to the Supreme Court of Ohio, Doc.
#334. Plaintiffs have filed a memorandum in opposition. Doc. #335, and Wal-Mart
has filed a reply. Doc. #337.

Wal-Mart suggests that, while the Sixth Circuit Court of Appeals is
considering the Court's dismissal of the wrongful death claim, the Supreme Court

of Ohio could resolve an issue of first impression concerning damages on the
pending survivorship claim.

Ohio law caps noneconomic damages in tort actions at:
the greater of two hundred fifty thousand dollars or an amount that is
equal to three times the economic loss, as determined 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 of five hundred thousand dollars for each occurrence that is
the basis of that tort action.

Ohio Revised Code § 2315.18(B)(2). There are two exceptions, which are set

forth in the next subsection of the statute. The cap does not apply if the
noneconomic losses of the plaintiff are for either of the following:
(a) Permanent and substantial physical deformity, loss of use of a
limb, or loss of a bodily organ system;
(b) Permanent physical functional injury that permanently prevents
the injured person from being able to independently care for self
and perform life-sustaining activities.
Ohio Revised Code § 2315.18(B)(3).

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Wal-Mart acknowledges that, on their face, both exceptions appear to apply
to John Crawford, III. One of the bullets tore through most of Crawford's liver,
resulting in the "loss of a bodily organ system." In addition, the bullet wound
resulted in a "permanent physical functional injury" that permanently prevented

him from being able to independently care for himself and perform life-sustaining
activities. Wal-Mart nevertheless argues that these exceptions to the caps for

noneconomic damages are meant to benefit only those individuals who suffer longterm permanent injuries, not someone like Crawford, who died within several

minutes of being shot.^
Wal-Mart notes that there appears to be no case law specifically addressing
this subject. Pursuant to Ohio Supreme Court Practice Rule 9.01(A), Wal-Mart

therefore asks this Court to certify the following question to the Supreme Court of
Ohio:

Does a claim for a few minutes of conscious pain and suffering.
Immediately preceding a decedent's death, fall within the
exception to the damage caps on noneconomic recovery under
R.C. § 2315.18(B)(3)(a)?

Plaintiffs object to Wal-Mart's request for certification. They point out that
nothing in the language of the statute requires the plaintiff to suffer from his

catastrophic injuries for a minimum period of time. They object to Wal-Mart's
attempt to amend the statute "by judicial fiat." Doc. #335, PagelD#20652.

^ There is a question of fact as to whether Crawford endured any conscious pain
and suffering prior to succumbing to his injuries.

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Plaintiffs also argue that Wal-Mart's request is untimely, having been filed only
after the Court issued a dispositive ruling on the survivorship claim.
The parties, however, have failed to address the threshold question of
whether Wal-Mart's request for certification satisfies the requirements of Ohio
Supreme Court Practice Rule 9.01(A). That Rule provides that a federal court may,
in its discretion, certify a question of law to the Ohio Supreme Court if "there is a
question of Ohio law that may be determinative of the proceedings and for which
there is no controlling precedent in the decisions of [the] Supreme Court."
The parties appear to agree that the issue to be certified is a "question of
Ohio law. .. for which there is no controlling precedent in the decisions of the
Supreme Court." However, because this is not a question of Ohio law "that may
be determinative of the proceedings," certification is not appropriate.
"A question which may be determinative of a proceeding is one which would
form the basis of the Court's disposition of one or more of a plaintiff's causes of

action." Professionals Direct ins. Co. v. Wiies, Boyie, Burkhoider & Bringardner

Co., LPA, No. 2:06-cv-240, 2008 WL 3925634, at *2 (S.D. Ohio Aug. 25, 2008)
(Smith, J.) (citing Super Suiky, inc. v. U.S. Trotting Ass'n, 174 F.3d 733, 744
(6th Cir. 1999)). See also Stevens v. City of Coiumbus, No. 2:20-cv-1230, 2020

WL 7021422, at *2 (S.D. Ohio Nov. 30, 2020)(Marbley, J.) (holding that
certification is warranted only if the question may be "outcome-determinative of
the proceeding").

4

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In this case, unless and until a jury finds that Crawford suffered conscious
pain and suffering prior to succumbing to his injuries, and that Wal-Mart is liable in
tort, there is no need to reach the question of whether the exception to the
statutory cap on noneconomic damages applies. Given that resolution of this
question is not "determinative of the proceedings," the Court OVERRULES WalMart's Motion to Certify a State Law Question to the Supreme Court of Ohio, Doc.
#334.

Date: July 14, 2021

(j.
WALTER H. RICE
UNITED STATES DISTRICT JUDGE