On November 10, 2020, the Ohio 9th District Court of Appeals heard oral argument on (1) the appeal byOberlin College and Dean of Students Meredith Raimando seeking to overturn the compensatory and punitive damage awards totalling, after reduction under Ohio tort reform law, $25 million, plus over $6 million in attorney’s fees, bringing the judgment to over $32 million, and (2) the cross-appeal by Gibson’s Bakery and two members of the Gibson family (including the widow of the late David Gibson) seeking to restore the full $33 million punitive damages award, arguing the tort reform reduction was unconstitutional, which would add back about $15 million to the judgment.
One of the Judges who sat on oral argument, Julie Shafer, was not reelected on November 3, and I thought perhaps a decision would be rendered by the court before she left the bench in early February, 2021. But that didn’t happen.
I wondered what the court would do once a judge who heard oral argument no longer was on the court, whether the two remaining judges would decide the case, or a third judge would be added. You would think that if the two remaining judges agreed on the outcome, there would be no need to have a third judge — but I don’t know what is the norm in this court for such a circumstance.
We just found out, the court appointed a “new panel” by adding one more judge. This appeared on the court docket today (h/t a reader):
| 05/18/2021 | N/A | (MAGISTRATE’S ORDER) EFFECTIVE UPON THE DATE OF FILING THIS ORDER, THIS MATTER IS NOW ASSIGNED A NEW PANEL: JUDGE DONNA CARR, JUDGE JENNIFER HENSAL, AND JUDGE BETTY SUTTON. THE NEW PANEL WILL CONFERENCE ABOUT THE CASE AND A DECISION WILL BE ISSUED IN DUE COURSE. SEE JOURNAL. |
Judge Betty Sutton has been added to the panel:
Judge Betty Sutton graduated from Kent State University and received her Juris Doctor degree from The University of Akron School of Law.
As an attorney for nearly 30 years, Judge Sutton brings a breadth of experience with her to the Ninth District Bench. She has worked in private practice representing people and workers primarily in civil litigation, including labor and employment law matters.
Judge Sutton also brings significant prior public service experience to the Court. While still in law school, Judge Sutton was elected to serve as an at-large Councilwoman for the City of Barberton. She then served two years on the Summit County Council, before being elected in 1992 to the Ohio House of Representatives, where she served as the Vice Chair of the Judiciary and Criminal Justice Committee and as a member of the Civil Justice Committee. Judge Sutton was, at the time of her election, the youngest woman ever elected to serve in the Ohio House. She served in the Ohio House for eight years, leaving in 2000, when term limits prevented her from running again.
Judge Sutton returned to private practice, where she worked with the law firm of Faulkner, Muskovitz & Phillips, LLP until 2006, when she won election to the United States House of Representatives in Ohio’s 13th Congressional District. Judge Sutton served in the U.S. House until 2013, during which time she served on a number of committees including the Judiciary and Rules Committees. Judge Sutton’s election to Congress made her the only Ohioan to ever serve as a legislator at the city, county, state, and federal levels of government.
In 2013, Judge Sutton was appointed by former President Barack Obama to serve as the Administrator of the Saint Lawrence Seaway Development Corporation, where she oversaw the safe, efficient, and reliable U.S. operations of this international waterway.
In 2020, prior to joining the Court of Appeals on February 9, 2021, Judge Sutton worked on toxic tort claims with Bevan & Associates Co. LPA Inc.
Judge Sutton is a member of the Akron, Lorain County, Medina County, Wayne County, and Ohio State Bar Associations.
Judge Sutton is married and has two step-children, six grandchildren, and a rescue dog, named Cleo.
According to her Ballotpedia profile:
Betty Sutton is a judge of the Ohio Ninth District Court of Appeals. She assumed office on February 9, 2021. Her current term ends on February 8, 2027.Sutton (Nonpartisan, Democratic Party) ran for election for judge of the Ohio Ninth District Court of Appeals. She won in the general election on November 3, 2020. She advanced from the Democratic primary on April 28, 2020.Based on an analysis of bill sponsorship by GovTrack, Sutton was a “far-left Democrat.”[1]
I know, I know, you’re all freaking out over that. But not so fast. This case does not fit neatly along partisan lines, or even left-right. The two other judges are Republicans.
So, it looks like there will not be a second oral argument. Judge Betty Sutton can watch the video, and read the papers.
I assume this same panel will decide the related case in which certain Ohio media interests aligned with Oberlin College are trying to unseal confidential Facebook records of Allyn Gibson. That case never went to oral argument, and was to be decided on the papers.
I am not predicting an outcome, and as I’ve stated many times, the appeal holds much more risk to the Gibsons than the trial.
Whichever way this interim appeal turns out, expect the losing party to seek to have the case heard by the Ohio Supreme Court. My understanding, which admittedly is limited (and which I need to figure out), is that while there is an appeal as of right to the Ohio Supreme Court, the court only accepts civil “cases of public or great general interest.” Assuming that is the standard, this case would seem to fit.
[Featured Image: The late David Gibson hugs his grandson after punitive damages verdict][Photo credit Bob Perkoski for Legal Insurrection Foundation]
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