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Using the civil justice system to hold perpetrators accountable for criminal acts

Attorney David BetrasAs many of you know, I am representing Cameron Morgan, the 23-year-old woman who was punched in the face and then dragged into the street by Andrew Walls in Akron on Feb. 26. The incident garnered nationwide media attention hours after video of the racially motivated attack went viral.

Since then, Walls has admitted to being a member of the Proud Boys, an organization identified as an extremist hate group by the Southern Poverty Law Center and as a terrorist entity by the Canadian government. In what I can only characterize as a sad commentary on the current state of our society, Cameron and her father David, who is a Youngstown native, have been attacked by the Proud Boys and their supporters.

Despite being the targets of threats, intimidation tactics and racial slurs, Cameron and David remain resolute: Walls, along with anyone and everyone who aided and abetted him, must be held accountable for their actions.  In addition to the criminal offenses, Walls already faces the possibility that he will be charged under state and/or federal hate crime statutes — as he should be. Part of that accountability will include me keeping my promise to sue everyone who is any way responsible for the assault “into oblivion.”

Fortunately, a little-known and seldom-used provision of Ohio law empowers me to do exactly that. Section 2307.60 of the Ohio Revised Code enables “Anyone injured in person or property by a criminal act… [to] recover full damages in a civil action … ” including punitive damages, exemplary damages and attorney’s fees. For those of you who did not go to law school and are wondering: Exemplary damages are awarded when a defendant’s conduct is found to be willfully malicious, violent, oppressive, wanton or grossly reckless. Anyone who has seen the disturbing video will agree that Walls’ actions certainly check all those boxes. Here is one of the best features of the law: According to the Ohio Supreme Court decision in Buddenberg v. Weisdack, a civil cause of action for injuries based on a “criminal act” may be brought under this provision, even if the offender has not been convicted criminally.

In other words, I do not have to wait for Walls’ case to move through the criminal courts. I may sue him now — and believe me, I will. The other important thing to know about the provision is that I can also use it to sue others who may have committed criminal acts and are in some way related to the incident, even if they are never charged with or convicted of a crime. All I need to do to prevail in a civil proceeding is prove that the defendant committed a criminal offense that harmed my client.

I have in the past written about the many ways trial lawyers have made our nation and world safer by filing lawsuits that forced corporations to remove dangerous cars, drugs, medical devices and other products from the marketplace. Now, thanks to a courageous young woman and her father, I will have the opportunity to use the civil justice system to punish racism, hate and violence. The prospect makes me proud to be an attorney and a citizen of the greatest country in the world.

The Cameron Morgan Attack: Hate and those who spread it, are tearing our nation apart.

During my 30-plus year career as a criminal defense and personal injury attorney I have viewed many disturbing images: autopsy photos, disfiguring injuries resulting from dog bites, surveillance cam footage of a murder, third degree burns suffered in an industrial accident. You name it, I have seen it. But few of those images have been […]

From exploding Pintos to out of control Teslas, trial lawyers fight to make cars safer

Attorney David BetrasOn August 10, 1978, three teenage girls, sisters Lyn and Judy Ulrich and their cousin Donna traveling to volley practice on Route 33 in Goshen, Indiana were incinerated when the gas tank in their 1973 Ford Pinto exploded after the vehicle was rear-ended by a van. Technically speaking, they were killed in an auto accident. In reality, however, they were murdered by corporate greed.

That is because Ford executives, including President Lee Iacocca, knew the Pinto was a four-wheeled death trap. Rushed into production in 1970 after only two years of development and testing, the Pinto was Ford’s response to the influx of foreign-made subcompact cars into the American market that began in the late ‘60s. During the design process company engineers sounded alarms about the gas tank which was, for a number of reasons, vulnerable to rupture in low-speed rear-end collisions. They were also concerned because a large empty space behind the backseat allowed the entire back third of the car to crumple, wedging the body and frame tightly against the car doors, making them virtually impossible to open.

Fixing the lethal combination of an exploding gas tank and jammed doors would have cost the company $15 per Pinto. Iacocca’s response: “Safety doesn’t sell.” Not surprisingly, the boss’ attitude permeated the company when attorneys representing people injured and killed in the exploding cars unearthed what became known as the “Pinto Memo.” Prepared to help Ford block new fuel system safety standards being proposed by the National Highway Transportation Safety Administration (NHTSA), the memo’s authors estimated it would cost Ford $11 per vehicle or $137 million to comply with the new regulations. They weighed that against the $50 million in litigation and settlements costs the company would incur if the cars were not made safer. Their conclusion: “the implementation costs far outweigh the expected benefits.

Picture of Tesla that rear ended a fire truck.And so the company continued to manufacture and sell the deadly vehicles for more than a decade. During that time between 500 and 900 people were burned to death. The Pinto was not pulled from the market until the cost of settling lawsuits filed on behalf of the victims and the attendant negative publicity made the car unprofitable.

I was reminded of the Pinto debacle when I read a New York Times article about a series of accidents caused by Tesla’s autopilot system. The story focused on the death of 22-year-old Naibel Benavides who was killed when a Model S in autopilot mode traveling 66 MPH on a city street ran a stop sign and slammed into the parked Chevy Tahoe in which she was sitting. The car’s brakes were never applied.

While a Tesla is as different from a Pinto as the Wright Brothers’ plane is from an F-16, the cause of the crashes that killed the Ulrich’s and Ms. Benavides are the same: placing pursuit of profit ahead of people. Unlike Ford, GM, and other carmakers who use technology to restrict their systems to divided highways where there are no stop signs, traffic lights or pedestrians, Tesla allows drivers to use autopilot anywhere and everywhere. The results are predictable and tragic: the number of accidents involving Tesla’s system is skyrocketing.

And I suspect that lawsuits filed by victims are the only thing that will stop the carnage.

Every time I think of the victims we represent or read reports about companies who place no value on human life, I am reminded of why I went to law school, why I go to work every day, and why we should all fight to preserve the civil justice system that makes our world a safer place to live.

Libel, slander and why Facebook can’t be held accountable for outrageous statements posted by users

Attorney David BetrasIn his most recent blog post/Mahoning Matters column, BKH Managing Partner David Betras defines defamation, libel, and slander and explains why it is virtually impossible for public figures to win defamation suits and the legal shield that protects Facebook and other social media sites from being helped accountable for statements posted by users…

As I have noted in previous columns, the rights enumerated in the U.S. Constitution are not absolute.

For example, the Supreme Court ruled in 1919 that yelling “fire” in a crowded theater is not protected speech under the First Amendment. Not surprisingly, this one exception has given rise to many questions and hundreds of cases regarding what type of expression is shielded by the Bill of Rights. For example, can a person in that hypothetical crowded theater stand up and accuse another of a crime or pass out a leaflet that impugns someone else’s character?

As is often — and often maddeningly — the case with issues involving the Constitution, the answer is, “It depends.”

In this instance, it depends on the laws governing defamation which is defined as a false statement presented as a fact that injures or damages a third party’s reputation. There are two types of defamation: slander, an untrue statement made orally; and libel, an untrue statement made in writing. And, since the dawn of the computer age and the internet, that includes email and social media posts.

While defamation is not considered a crime at the federal level or in Ohio, both libel and slander are civil torts which means victims can sue for damages. To win in court a plaintiff must prove:

1.) The statement was reported as fact to another person;
2.) The statement was false;
3.) The plaintiff suffered damages;
4.) The person making the statement was negligent.

Seems pretty straightforward, except we are talking about the law so nothing could be further from the truth. And speaking of the truth, it is an absolute defense to defamation because if what is said or written is true, it cannot be false, and therefore, it can be neither libelous nor slanderous no matter how much damage it may cause.

Here is another fun fact: Public figures have virtually no chance of winning defamation suits thanks to New York Times v. Sullivan, a unanimous 1964 Supreme Court ruling that established the “absent malice” standard. Under this legal principle, the target of a defamatory statement must prove the person or entity that wrote or uttered it did so with knowledge of or reckless disregard for the fact that it was untrue.

Who qualifies as a public figure? Politicians, celebrities, business, labor, and community leaders, and, well, me. This means Mahoning Matters can publish just about anything they want to about me and there is not much I can do about it.

Finally, consider this scenario: two neighbors who are not public figures have a contentious relationship. Neighbor A posts on Facebook that Neighbor B beats his wife and kids and kicks his dog. The statement is false, but people believe it and ostracize Neighbor B, he is fired from his job and suffers other torments.

Neighbor B can sue Neighbor A, but can he sue Facebook for providing a platform for the lies?

No, because Section 230 of the Communications Decency Act (CDA 230) holds that Facebook and other computer service providers are not considered publishers of content posted by users and are not responsible for it.

So while Neighbor B may be able to wring a few bucks out of Neighbor B, he will not be getting a check drawn on Mark Zuckerberg’s multi-billion dollar account

David Betras: I’ve never filed a frivolous lawsuit…

Medical MalpracticeFrivolous, adjective: not having any serious purpose or value.

My decades-long legal career has been filled with interesting cases, challenging litigation, and high-stakes trials. But in all my years as a member of the bar, there is one thing I have never done: file a frivolous lawsuit.

That makes me an anomaly in the eyes of the insurance industry, the American Medical Association, the U. S. Chamber of Commerce, and others who claim frivolous lawsuits filed by ambulance-chasing attorneys clog our courts, are responsible for skyrocketing insurance premiums and health care costs, force doctors to practice “defensive medicine” and generally make the world a horrible place to live.

At least that is what they say when they are pushing the passage of tort “reform” legislation that slams the courthouse door in the face of Americans seriously injured or killed because someone else was negligent or reckless.

Along with venting my resentment at having my life’s work denigrated and dismissed as frivolous, a number of things motivated me to once again note that restricting access to the civil justice system makes the world a more dangerous place for our families: The drive to enact tort reform laws is continuing unabated in state legislatures across the nation.

Iowa, Missouri, Texas and Florida, where I will soon be licensed to practice, are among the states attacking victim’s rights. Here in Ohio, an effort to reverse a Draconian cap on non-economic damages is being blocked by the special interest groups and Republicans who imposed the limit in 2004.

A new report issued by the Center for Law and Justice at New York Law School thoroughly debunks many of the myths obscuring the truth about medical malpractice in the U.S. This free-to-download, 172-page publication provides a comprehensive review of the latest statistics about litigation, cost, access to doctors, insurance and patient safety.

I found the following facts to be especially compelling:

  • Experts agree that when cases are filed, they are not “frivolous.” Among the experts is Victor Schwartz, General Counsel of the American Tort Reform Association who admitted in 2011 that “It is ‘rare or unusual’ for a plaintiff lawyer to bring a frivolous malpractice suit…”
  • Litigation and settlements enhance patient safety. Tort reform laws put patients at risk.
  • Neither “tort reforms” nor “caps on damages” lower insurance premiums for doctors.
  • Stripping away patients’ legal rights will not reduce health care costs and may actually increase them.

Finally, a case being litigated by our office underscores how serious and difficult our work is.

While I am unable to discuss the matter in detail, it involves a client who was horribly injured during a medical procedure some time ago. Since agreeing to represent the victim, we have devoted hundreds of hours and tens of thousands of dollars to trial prep and gone toe-to-toe and face-to-face with insurers, defense attorneys and health care providers determined to trivialize our client’s life-altering, lifelong injuries.

Whenever I look at the photos of this client or the hundreds of others we have represented over the years I am reminded of the fact that “frivolous” is the last word that can be used to describe what we do.

BKH’s new procedures for office visits will keep clients, employees safe

As an essential business, Betras, Kopp & Harshman has been open and serving clients during the COVID-19 crisis. We will continue to be here for you throughout the emergency.

On Monday, May 4 we are instituting the following procedures for office visits:

Anyone visiting the office must schedule an appointment in advance by calling 330-746-8484 or 800-457-2889.

All visitors must enter and leave our office at 6630 Seville Drive in Canfield via the building’s lower entrance. To access that entrance please turn left just after pulling into our driveway from Seville.

All visitors must wear face masks while in the building.

Visitors will have their temperature taken upon entering.

Visitors whose temperatures are above normal will not be permitted to enter the premises.

Visitors will be asked to cleanse their hands with hand sanitizer before proceeding to their appointment.

Strict social distancing protocols will be observed during all meetings/conferences.

Only people who are meeting with an attorney or staff member will be permitted to enter the premises. No spouses, significant others, children, other family members, or friends will be permitted in the office during your visit. If you are accompanied by a companion(s), we ask that they wait in the car.

If you are not feeling well on the day of your meeting or are exhibiting the following symptoms please call us to cancel and reschedule your appointment:

We are taking these precautions to protect you and our employees as we continue to provide the legal representation you need and deserve.

Finally, we want to remind you that we are able to meet with you remotely via Skype, Facetime, or teleconference.

Be well, stay safe, and remember, we’re all in this together.

Legally Speaking on WFMJ Today: Fans suing NFL over blown calls

In this episode of Legally Speaking on WFMJ Today, Managing Partner David Betras discusses the lawsuits filed against the NFL by fans distressed over the blown pass interference call that marred the 2018 NFC Championship game between the L.A. Rams and the New Orleans Saints.

You may view the segment on our YouTube channel or on the Betras, Kopp & Harshman Facebook page.

Federal suits have been dismissed, but a state court judge in Louisiana has allowed a suit filed in that state to move forward. David outlines whether or not the plaintiffs have a valid case.

One outgrowth of the bad call: pass interference can now be reviewed. According to a new rule implemented by NFL owners, offensive and defensive pass interference, including non-calls, will now subject to review. Coaches can challenge those calls in the first 28 minutes of each half.

Don’t forget, David and other members of the BKH team discuss the hottest legal topics on  WFMJ Today every Friday at 6:40 A.M. Don’t miss the interesting and informative segments.