Masterson v. BrodyMasterson v. Brody
Law Office of John T. Forristal and John T. Forristal, for appellees.
The Law Office of Donald Gallick, LLC, and Donald Gallick, for appellant Zachary Brody.
MICHELLE J. SHEEHAN, J.:
{¶ 1} This appeal involves allegations of errors in a civil trial for wrongful death claims stemming from a prior criminal case. During Labor Day weekend in
{¶ 2} In 2016, Mark Masterson, Phil Masterson‘s brother and the administrator of his estate (“plaintiff estate” or “plaintiff” hereafter), filed a wrongful death lawsuit against Brody, Parris, Knoth, several other members of their group, and certain corporate entities related to the Island Club. The trial court granted summary judgment in favor of the corporate entities. The claims against Brody, Parris, and Knoth were tried to a jury.
{¶ 3} In 2021, following an extensive trial, the jury awarded substantial compensatory and punitive damages to plaintiff against Brody, Parris, and Knoth. Brody and Knoth appealed separately from the judgment in 8th Dist. Cuyahoga Nos. 111043 and 111048.1
I. The trial court erred by denying the motion to bar recovery per
O.R.C. 2307.60(B)(2) and then refused to instruct the jury on the affirmative defense provided by the statute.II. Brody was denied his constitutional right to a fair trial and due process due to misconduct and inflammatory statements by plaintiff‘s counsel.
III. The trial court erred in denying Brody‘s Civil Rule 50 motion on the negligence claim since no medical testimony was produced.
IV. The trial court erred in allowing an expert witness to testify remotely, over objection, without finding that the witness was unavailable and without qualifying the witness as an expert.
V. The trial court erred by denying defendant opportunity to present testimony on “net worth” before allowing the jury to award punitive damages.
{¶ 5} After a thorough review of the record and applicable law, we find no merit to the issues raised and affirm the trial court‘s judgment.
Events Leading to the Victim‘s Death
{¶ 6} The Island Club is located in the village of Put-in-Bay on South Bass Island. The Island Club consists of dozens of cabins, many of which are rented to short-term visitors to the island. Brody and his friends rented two cabins, cabin 90 and 92, to spend the Labor Day weekend drinking and partying on the island. A member of the group, Matthew Brotzki, signed the rental agreement for cabin 90, where Brody and most of the codefendants stayed; Knoth stayed in cabin 92, but
{¶ 7} The only witnesses to the events following Masterson‘s arrival at cabin 90, which ultimately resulted in his death, were the defendants. The defendants were evasive and uncooperative when testifying on cross-examination in the instant wrongful death trial. As a result, many details of the events were not able to be ascertained.
{¶ 8} It is unclear how Masterson, who stayed at a different part of the island, ended up at cabin 90. A taxi driver told the police that he picked up Masterson and another individual from a bar and dropped them off at cabin 67 around 2:30 a.m. Masterson appeared highly intoxicated. By all accounts, Masterson arrived in the area of cabin 90 on a golf cart with an unidentified man.
{¶ 9} Brody was asleep at the time Masterson arrived, but Parris and Knoth were among those still awake and drinking on the deck. Knoth acknowledged that he invited Masterson and his companion to join them and drink. Around 5 a.m., only Knoth and Parris remained on the deck with Masterson and the unidentified man.
{¶ 10} At one point, Parris was done drinking and went inside. Tension then developed between Knoth and Masterson. According to Knoth, he asked Masterson and his companion to leave. They refused and became aggressive, calling him “little bitch” and “faggot,” and told him to “quit being a pussy.” Knoth went inside the
{¶ 11} Parris claimed that when he went outside to check on the situation after being told about Masterson being aggressive, Masterson approached him in a menacing manner, saying “what‘s up” and, to diffuse the tension, Parris responded “chicken butt” jokingly. Masterson backed off, and Parris went inside the cabin.
{¶ 12} Parris and Knoth then went to wake up Brody, who was known to be a good fighter and trained in martial arts, to confront Masterson. According to Parris, he said to Brody “there‘s these two guys out here and they‘re not leaving. Can you help me get them to leave?”
{¶ 13} Plaintiff and the defendants disputed as to what occurred next. Plaintiff believed that when Brody came out of the cabin, he ambushed Masterson from behind with the help of Parris. While Parris distracted Masterson, Brody put him in a chokehold, choked him to near unconsciousness, and then beat him viciously.
{¶ 14} Brody, on the other hand, claimed that his friends felt threatened and he tried to deescalate the situation. He successfully convinced the unidentified man to leave, but Masterson refused to leave. Brody claimed Masterson started the fighting by punching him in the head first. He put Masterson in a chokehold but he escaped the chokehold, and the two engaged in a mutual fight. Brody admitted that after the fight, he dragged Masterson, semiconscious at the time, by the ankle down the steps of the deck and placed him in the wood-line behind the cabin.
{¶ 16} Parris, who had been cleaning up the cabin in preparation for their departure that morning, washed Masterson‘s blood off the deck. When he was cleaning up the yard area behind the deck, he could hear Masterson breathing in the wood-line. Parris admitted he found Masterson‘s wallet and gave it to Brody, who removed the identification from the wallet and threw it in a trash can.
{¶ 17} After Brody moved Masterson to the wood-line, he woke up Dustin McCullough, who was also staying in cabin 90, and took him to see Masterson. According to Brody, Masterson had moved himself 15 to 20 feet away from where Brody initially placed him and was still breathing. Brody asked him if he was okay, and Masterson mumbled profanities at him. According to McCullough, Brody then kicked Masterson with his boot and Masterson groaned after being kicked. According to Brody, he checked on Masterson one last time before he left. Masterson was still alive and again mumbled profanities at him.
{¶ 18} It was disputed as to whether other members of the group staying in cabin 90 knew about the incident immediately, but everyone in that cabin left on the first ferry, leaving the island around 8 a.m. Knoth, who stayed at cabin 92 that weekend, went back to sleep for several hours before he left the island later in the morning.
{¶ 20} By the time Brody returned that evening, Masterson was deceased. To conceal Masterson‘s body, Brody grabbed a grill cover to cover it and moved it further into the woods behind cabin 94, where it was eventually discovered by Masterson‘s family, who looked for him all over the island the next day. For her involvement, Partlo later served six months in jail.
{¶ 21} According to Knoth, when he learned a body was found behind the cabins, he and Brotzki went to the police together. He denied any responsibility for Masterson‘s death, claiming he was inside cabin 90 when Brody assaulted Masterson on the deck. He denied seeing Masterson lying in the wood-line and claimed he did not know Brody had dragged Masterson to the woods until after he left the island. In the statement Knoth gave to the police, Knoth stated Parris handed him a shirt to dispose of. When asked at trial if Parris gave him Masterson‘s bloody undershirt to dispose of, Knoth claimed Parris handed him something “wadded up” and he threw it in a trash can, but was not sure if it was a shirt.
{¶ 22} Parris also denied any responsibility, claiming he too stayed inside the cabin when Brody assaulted Masterson. He claimed he did not recall handing Knoth Masterson‘s bloody undershirt but admitted that he cleaned Masterson‘s
{¶ 23} The next day (Tuesday), Brody, Parris, and Partlo met at Partlo‘s apartment to create a cover story for Masterson‘s death. They tried to reach Knoth, but unbeknownst to them, Knoth had gone to the Perrysburg police department to give a statement about the incident.
{¶ 24} When Masterson failed to return home on Monday, his family called the police and also drove to Put-in-Bay to look for him that night, but could not find him. The family, including Masterson‘s parents, returned to the island to search for him again the next day. They received a call from the Island Club in the afternoon informing them a wallet missing an identification was found in the trash can around cabin 90. The family then went to search the area. Mark Masterson, the victim‘s brother, found a bloody undershirt in the backyard behind cabin 90. Soon after he spotted a foot sticking out from underneath a tarp. Masterson‘s mother passed out when Mark Masterson showed her the bloody shirt. When found by his family, Masterson did not have shoes or clothing on, except for his shorts, which were pulled down to the ankle.
{¶ 25} Masterson‘s injuries were severe. Both his death certificate and coroner‘s report were admitted as exhibits. The death certificate lists “blunt
{¶ 26} Brody was subsequently charged with one count of involuntary manslaughter, a first-degree felony, and two counts of tampering with evidence, a third-degree felony. He entered a plea of guilty to these counts, and the trial court imposed maximum, consecutive sentences for a total of 16 years in prison. Brody appealed his sentence, and the Sixth District affirmed the trial court‘s judgment in State v. Brody, 6th Dist. Ottawa No. OT-12-022, 2013-Ohio-1708. Knoth was not charged. For his part, Parris was convicted of falsification, a first-degree misdemeanor.2
{¶ 27} In 2016, Mark Masterson, Phil‘s brother, filed the instant wrongful death complaint as the administrator of Phil Masterson‘s estate, along with several family members including his parents, three brothers, and a sister, as well as Phil Masterson‘s fiancée Ayako Hobbs. Before trial, the trial court granted motions filed by the defendants to dismiss the individual claims of the named plaintiffs, leaving the administrator of Phil Masterson‘s estate the only plaintiff at the time of trial. In addition to Brody, Parris, Knoth, several other members of the fraternity group staying in cabin 90, Sarah Partlo, and several corporate entities related to the Island Club were also named as defendants.
{¶ 28} The complaint, which was not clearly drafted, set forth eight causes of action against the corporate and individual defendants. Four of the counts were alleged against the individual defendants. Count 1 alleged a common law negligence claim. Count 4 alleged all the individual defendants were involved in assaulting Masterson and none of them took any action to provide assistance to a disabled person to prevent further harm. Count 5 alleged all the individual defendants knew Brody was prone to violence and breached a duty to Masterson by failing to protect him from Brody. Count 7 alleged the defendants knew Masterson was near death but failed to seek assistance for him and thereby breached the duty imposed in
{¶ 29} As to damages, the complaint sought wrongful death damages and damages for Masterson‘s pain and suffering prior to his death. Plaintiff requested compensatory and punitive damages.
{¶ 30} The trial court subsequently dismissed the intentional tort claim against the codefendants except Brody. Ultimately, the claims tried and considered by the jury were a battery claim against Brody, negligence claims against Brody, Knoth, and Parris, and a claim predicated on
Jury‘s Award of Compensatory and Punitive Damages and the Trial Court‘s Reduction of the Jury Award
{¶ 31} The jury returned verdicts in favor of plaintiff estate against the three defendants. In its answers to the interrogatories, the jury found that (1) Brody committed battery and Brody, Knoth, and Parris were negligent and also violated
{¶ 32} The compensatory damages in this case include damages on the survivorship claim for the deceased‘s conscious pain and suffering and damages on the statutory wrongful death claim. Regarding the survivorship claim for Masterson‘s conscious pain and suffering, the jury assessed $3 million dollars. Regarding the wrongful death claim, the jury awarded over $11 million dollars: (1) $1.1 million dollars for loss of support from the decedent‘s reasonably expected earning capacity; (2) $3,357,000 for the loss of the decedent‘s society, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training and education; and (3) $6.4 million dollars for mental anguish.
{¶ 33} After the jury returned the compensatory verdicts, the trial proceeded to the punitive-damages phase. The trial court instructed the jury on the elements of punitive damages. The parties made closing arguments without presenting new evidence. After deliberation, the jury assessed punitive damages of $10 million dollars: $6 million dollars against Brody, $3 million dollars against Parris, and $1 million against Knoth, in accordance with the fault apportionment among the defendants.
{¶ 34} The trial court subsequently reduced the award of $3 million dollars for the survivorship claim to $250,000, pursuant to the damages cap set forth in
{¶ 35} Brody and Knoth separately appealed from the judgment. Brody raises five assignments of error in his appeal, which we now address in the order presented.
R.C. 2307.60(B)
{¶ 36} Under the first assignment of error, Brody argues the trial court erred in denying his motion for a jury instruction and failing instruct the jury pursuant to
{¶ 37} In 2016, Brody filed a motion arguing that
{¶ 38} When the presentation of testimony was concluded, Brody‘s counsel asked the trial court for a jury instruction regarding
{¶ 40}
(B) (2) Recovery on a claim for relief in a tort action is barred to any person or the person‘s legal representative if any of the following apply:
(a) The person has been convicted of or has pleaded guilty to a felony, or to a misdemeanor that is an offense of violence, arising out of criminal conduct that was a proximate cause of the injury or loss for which relief is claimed in the tort action.
(b) The person engaged in conduct that, if prosecuted, would constitute a felony, a misdemeanor that is an offense of violence, an attempt to commit a felony, or an attempt to commit a misdemeanor that is an offense of violence and that conduct was a proximate cause
of the injury or loss for which relief is claimed in the tort action, regardless of whether the person has been convicted of or pleaded guilty to or has been charged with committing the felony, the misdemeanor, or the attempt to commit the felony or misdemeanor.
(Emphasis added.)
{¶ 41} As evidence of Masterson‘s “criminal act,” Brody points to the testimony of the codefendants that Masterson became aggressive after drinking for a while on the deck; taunted, threatened, and intimidated Knoth; refused to leave when being told the party was over; and pounded on the cabin door. As the trial court properly determined, none of the cited testimony is sufficient evidence to show that Masterson‘s conduct, even if the testimony was found credible, constituted “a felony, a misdemeanor that is an offense of violence, an attempt to commit a felony, or an attempt to commit a misdemeanor that is an offense of violence,” and that the conduct was the proximate cause of Masterson‘s death.
Misconduct by Counsel
{¶ 42} Under the second assignment of error, Brody argues misconduct and inflammatory statements by plaintiff‘s counsel deprived him of a fair trial and a new trial is warranted.
{¶ 43}
{¶ 44} Brody, however, never filed a motion for a new trial pursuant to
{¶ 45} Specifically, Brody maintains that, when plaintiff‘s counsel cross-examined him and his codefendants, counsel frequently interrupted them without letting them complete their answer, made statements without asking questions, argued with them, and asked compound questions. Brody also alleges plaintiff‘s closing argument was replete with improper inflammatory remarks.
{¶ 46} When reviewing the claim of improper conduct of counsel, we must consider the claim in the context of the whole trial. Secrest v. Gibbs, 11th Dist. Lake No. 2003-L-083, 2005-Ohio-2074, ¶ 77, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). We are also mindful that a trial is by nature adversarial in nature and tension and acrimony is inevitable, and “[w]e cannot, nor should we attempt to make the courtroom a quarantine from the feelings which drive competent, zealous advocacy and * * * it is incumbent upon us to pay careful heed to charges of inflammatory or prejudicial conduct without overmanaging the process.” Secrest at ¶ 77.
{¶ 47} In this case, Brody, Parris, and Knoth were the only witnesses to the events leading to Masterson‘s death. To make its case in chief, plaintiff‘s counsel
{¶ 48} “Great leeway is granted to both parties on cross-examination.” State v. Brooks, 176 Ohio App. 3d 210, 2008-Ohio-1726, 891 N.E.2d 797, ¶ 18 (10th Dist.) Furthermore, trial judges enjoy wide latitude to impose reasonable limits on cross-examination based on concerns about harassment or prejudice. State v. Cash, 193 Ohio App. 3d 224, 2011-Ohio-1404, 951 N.E.2d 486 (2d Dist.), citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
{¶ 49} As our review of the trial transcript reflects, the defendants were often evasive, failed to answer questions asked, and frequently claimed an inability to recall when asked about details of the events. Their testimony would also contradict their prior depositions and contradict one another‘s testimony. Plaintiff‘s counsel‘s frustration was palpable throughout the trial. On many occasions counsel appeared to be exasperated by the elusiveness of the testimony and would turn hostile, sarcastic, hyperbolic, and even theatrical.
{¶ 50} The transcript reflects that objections were frequently made during plaintiff‘s counsel‘s cross-examination of the defendants and the trial court sustained many of the objections. For example, when counsel tried to ask a codefendant a hypothetical question, the trial court sustained an objection and reminded counsel “just stick with the facts.” When plaintiff‘s counsel interrupted Brody‘s testimony on several occasions, the trial court would admonish counsel and instruct counsel to allow the witness to finish his answer. When counsel argued
{¶ 51} “‘[T]here is a fine line between zealous and overzealous advocacy that attorneys should not cross.‘” Musial Offices, Ltd. v. Cuyahoga Cty., 8th Dist. Cuyahoga No. 108810, 2021-Ohio-2325, ¶ 30, quoting Cleveland Indus. Square, Inc. v. Dzina, 8th Dist. Cuyahoga Nos. 85336, 85337, 85422, 85423, and 85441, 2006-Ohio-1095, ¶ 55. Our review of the trial transcript indicates the trial court exercised reasonable control and supervision over plaintiff‘s counsel‘s cross-examination of Brody (and the codefendants) and guarded against improper overzealous advocacy by counsel. In light of Brody and the codefendant‘s evasiveness when asked to provide details of the events leading to Masterson‘s death, we find that counsel‘s cross-examination, while zealous, was not so outrageous or heinous as to deprive Brody a fair trial resulting in an excessive jury award.
{¶ 52} Brody also complains plaintiff‘s counsel committed misconduct when making closing argument. As an example, he points to counsel‘s comparison of the defendants to Joe Lovitz, a comedian who portrayed a habitual liar on Saturday Night Live, and counsel‘s inflammatory personal remarks about Brody‘s counsel.
{¶ 53} As a general rule, great latitude is afforded counsel in presenting closing argument to the jury and “[t]he assessment of whether the permissible bounds of closing argument have been exceeded is, in the first instance, a discretionary function to be performed by the trial court.” Pang v. Minch, 53 Ohio St. 3d 186, 194, 559 N.E.2d 1313 (1990), paragraphs two and three.
Civ.R. 50 Motion Based on Lack of Medical Expert Testimony
{¶ 56}
{¶ 57} It is long settled that a motion for a directed verdict tests the sufficiency of the evidence rather than the weight of the evidence or the credibility of witnesses, and, if there is substantial competent evidence to support the nonmoving party upon which evidence reasonable minds might reach different conclusions, the court should deny directed verdict. Wagner v. Roche Laboratories, 77 Ohio St. 3d 116, 119, 671 N.E.2d 252 (1996). A motion for a directed verdict must be denied “where substantial evidence upon which reasonable minds may differ supports the nonmoving party‘s side of the case.” Hall v. Kreider Mfg., 10th Dist. Franklin No. 03AP-272, 2003-Ohio-6661, ¶ 6, citing Posin v. A.B.C. Motor Court Hotel, 45 Ohio St. 2d 271, 74, 344 N.E.2d 334 (1976). We review de novo a trial court‘s order granting or denying of a motion for directed verdict. Groob v. KeyBank, 108 Ohio St. 3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 14.
{¶ 59} The testimony reflects that Masterson was still conscious after being beaten by Brody. When Brody took McCullough to see Masterson, Masterson had moved about 15 feet and he mumbled profanities at Brody. Before Brody left the island, he checked on Masterson again and Masterson again mumbled profanities. When Brody returned to the island later in the afternoon, Masterson was deceased but, according to Brody, he had moved himself yet again before he died. The testimony thus reflects a long lapse of time between Masterson‘s initial injuries and his eventual death, from which the jury can infer that he may have survived if he had received medical care.
{¶ 60} Construing the evidence presented at trial under the standard for directed verdict, i.e., most strongly in favor of plaintiff, we agree with the trial court that there was substantial evidence presented at trial to support proximate causation upon which reasonable minds may differ as to whether Masterson would have
{¶ 61} Accordingly, the trial court properly denied Brody‘s motion for directed verdict predicated on a lack of expert testimony for proximate causation. The third assignment of error is without merit.
Remote Testimony by the Expert on Economic Damages
{¶ 62} Under the fourth assignment of error, Brody argues that “[t]he trial court erred in allowing an expert witness to testify remotely over objection, without finding that the witness was unavailable and without qualifying the witness as an expert.”
{¶ 63} Regarding the remote testimony of plaintiff‘s expert Dr. Stan Smith, who testified about damages in this case, the trial court allowed the expert to testify by Zoom, over the objection of Brody‘s counsel. The transcript reflects that before the testimony began, the trial court addressed the jury as follows:
Ladies and Gentlemen of the jury, the law and the rules of court do allow some witnesses to appear by videoconference, particularly experts who have schedules that can be unpredictable, just like ours, and particularly people who are out-of-state, as I understand this witness is.
So he will be testifying, as you can see, by Zoom. This witness is no more or less important than witnesses who appear live. It is just because of scheduling, we are doing it for that reason.
So his testimony should be judged the same way you judge the testimony of any witness who appears like before you.
{¶ 65} Notably, in one of the cases cited by Brody, State v. Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, this court found testimony by a two-way video link preserved the reliability elements of confrontation. Marcinick at ¶ 22. In State v. Oliver, 2018-Ohio-3667, 112 N.E.3d 573 (8th Dist.), the other case cited by Brody to support his claim, this court found testimony by Skype not in violation of the Confrontation Clause because the witness was subject to cross-examination and the jury was able to observe the witness‘s demeanor. Oliver at ¶ 22.8
{¶ 67} Brody also claims the trial court erred in allowing plaintiff‘s expert witness to testify because he was never qualified as an expert witness. Brody‘s counsel argued at trial that the expert must be “certified” in order to be qualified as an expert pursuant to
{¶ 68}
{¶ 69} “‘The determination of whether a witness possesses the qualifications necessary to allow expert testimony lies within the sound discretion of the trial court.‘” Georgetown of the Highlands Condominium Owners’ Assn. v. Nsong, 2018-Ohio-1966, 113 N.E.3d 192, ¶ 56 (8th Dist.), quoting State v. Wages, 87 Ohio App. 3d 780, 786, 623 N.E.2d 193 (8th Dist. 1993). Moreover, “a formal declaration is not required where the witness is in fact qualified to render expert testimony pursuant to
Net Worth Evidence for Punitive Damages
{¶ 70} Under the fifth assignment of error, Brody claims the trial court did not afford him an opportunity to present evidence regarding his net worth before the jury on the issue of punitive damages.
{¶ 71}
{¶ 72} The transcript here reflects that, after the jury returned the verdict and awarded compensatory damages against each of the three defendants, the trial court inquired if counsel wished to present evidence in the punitive damages phase of the trial. Brody‘s counsel replied that “[o]ther than net worth, no, that‘s all we would get into.” The codefendants’ counsel then proceeded to make closing argument before the jury deliberated on punitive damages; the matter regarding net worth evidence was not brought up again by any defense counsel at trial.
{¶ 73} Post jury verdicts, Knoth filed a motion to reduce the punitive damages pursuant to
{¶ 74} Brody argues he was not afforded an opportunity to present evidence of his net worth to the jury. Our review of the transcript reflects that the trial court proceeded to the punitive-damages phase of the trial without the defendants presenting evidence regarding their net worth. No objection was raised by the defendants, however. More importantly,
{¶ 76} Having reviewed the record and applicable law, we find no merit to the five assignments of error raised by Brody and therefore affirm the judgment of the trial court.
{¶ 77} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
SEAN C. GALLAGHER, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR