YOUNGSTOWN – An attorney representing the executor of an estate seeking millions of dollars from Youngstown in a wrongful death lawsuit asked a judge to prohibit the city from gathering its own evidence or calling witnesses because the city already missed deadlines to do both.

David Moore, one of the attorneys representing Cheryl Durig of Newton Falls in the lawsuit, wrote he filed the Friday motion in response to the city’s Nov. 7 notice of disclosure of an expert witness and statements the city’s legal counsel made during a Jan. 14 status conference in the Mahoning County Common Pleas Court case.

Moore wrote: “The primary purpose for this motion is to avoid further unjustified delays and prejudice to plaintiff. That purpose will be defeated and the prior orders of this court, as well as the decisions of both the 7th District Court of Appeals and the Ohio Supreme Court, will have been for naught if the city is now permitted to conduct its own discovery or introduce or offer any testimony, other evidence, or commentary from or regarding any lay or expert witness that the city intends to call at trial on behalf of the city, including but not limited to Walter Jarosh and David Sturtz.”

Jarosh is a certified arborist and Sturtz is the city’s former forester.

The city is preparing a response to Moore’s filing and has until April 3 to submit it to the court.

The wrongful death lawsuit was filed June 14, 2019, by Durig, the executor of Thomas Morar’s estate. Morar, of Youngstown, was injured June 17, 2017, while riding a motorcycle on Oak Street Extension on the city’s East Side when a tree fell on him. Morar died April 2, 2019, at the age of 80.

The city has unsuccessfully sought to include a motion in the case for “statutory immunity,” a common defense used by governments in Ohio that gives them immunity from liability as a defense in many court cases in which it is performing a government or proprietary function.

The Ohio Supreme Court in a 7-0 decision Oct. 16 ruled Youngstown failed to timely introduce the defense.

The Supreme Court on July 24, 2024, accepted the city’s appeal of a 2-1 decision on Dec. 7, 2023, by the 7th District Court of Appeals that concluded Thomas J. Pokorny, a visiting judge, was correct when he ruled April 28, 2022, that the city could not raise statutory immunity as a defense. Pokorny ruled the defense was untimely as it was filed two years and nine months after the city was sued in the wrongful death claim.

The case is now back in common pleas court in front of visiting Judge W. Wyatt McKay, a retired Trumbull County Common Pleas Court judge assigned Nov. 22 by Ohio Supreme Court Chief Justice Sharon L. Kennedy to now oversee the matter.

McKay had a Friday pretrial hearing on this case with the next one scheduled July 9.

Moore, of the Austintown law firm of Anzellotti, Sperling, Pazol & Small, wrote in his motion: “As the history of this case shows, much of the city’s conduct in this matter has consisted of improper and/or untimely actions and inaction that have resulted in unjustified delays and prejudice to plaintiff. The city has repeatedly forced plaintiff and her counsel to waste their time and resources by having to revisit and respond to issues that the court has already decided — sometimes more than once — against the city. And the fact that plaintiff had to respond to the city’s two meritless appeals as well as having had to prepare and file this motion is further evidence of prejudice to her.”

Moore added: “But for the fact that the city now believes it has a clean slate to get a ‘second bite at the apple’ by conducting its own discovery and having its own facts and expert witnesses testify at trial, plaintiff would not have brought this motion. In addition, it appears that the city believes there should be no consequences for providing its years-late, unseasonable supplemental discovery responses.”

Moore wrote Durig was prepared to try this case twice in 2022 and now.

Moore wrote: “If the court should now permit the city to conduct its own discovery and call its own fact and expert witnesses at this trial, this case will most likely be delayed even further, plaintiff will again be forced to expend additional time and resources to her prejudice, and the court’s prior orders and the finding of the 7th District Court of Appeals and the Ohio Supreme court will be rendered meaningless.”

Moore wrote Pokorny denied the city’s motion to extend case management dates and deadlines, including the Sept. 15, 2021, discovery cutoff date; the city never identified any trial witnesses in its original discovery responses; the city waited until this past Nov. 7 to identify Jarosh as a potential expert witness; and the city waited until Jan. 13-14 to supplement or correct its original discovery responses even though it was asked to do so years ago.

Moore wrote: “The city now wishes to be given the opportunity to have fact and expert witnesses testify at trial on its behalf and to have reopened discovery so that the city can conduct discovery of its own for the first time. This motion respectfully asks the court to deny the city’s wishes.”

The two sides had an unsuccessful Feb. 14, 2022, mediation. Before that, Durig sought a $5 million settlement, which the city refused.

The $5 million offer was early in the case and Durig will seek much more in the case, Ilan Wexler, another attorney representing Durig, said after the Supreme Court decision.

A decision against the city could put it in serious financial jeopardy with it unable to use statutory immunity as a defense. It also doesn’t have insurance coverage for any financial ruling against it or for a settlement because of a separate legal matter with its former insurance company.

Durig sued Youngstown in common pleas court for economic damages, pain and suffering, and wrongful death arising out of the accident. Morar was on a ventilator from the time of the accident until his death.

The Durig lawsuit states the city was aware the tree that fell on Morar was in poor condition and despite being on city property, Youngstown officials did nothing to address it.

The city was served June 25, 2019, and filed its answer Aug. 2, 2019, without raising any defenses regarding immunity from liability under state law.

The city filed a motion Dec. 17, 2021, in opposition to Durig’s motion for summary judgment and for the first time raised the immunity defense.

Pokorny held a Jan. 12, 2022, hearing on motions and granted the city time to file a response to Durig’s motion for partial summary judgement. But he didn’t permit the city to file its own summary judgment motion and said the city should have raised the immunity defense well before then.

The city waited until March 18, 2022, to file a motion to amend its answer, which Pokorny rejected April 28, 2022, as being untimely. On that date, James Vivo, the city’s first assistant law director who was handling the case, was replaced by attorneys with the Roetzel & Andress law firm in Akron as outside legal counsel.

The city has paid $186,619 in legal fees to Roetzel & Andress for this case as of November.

Pokorny’s decision was appealed May 6, 2022, by the city and subsequently rejected by the 7th District. The appeals court also rejected the city’s reconsideration of its decision on Feb. 29, 2024. The city appealed April 15, 2024, to the Supreme Court, which accepted it July 24, 2024.

The Supreme Court decision stated it found “no abuse of discretion by the trial court in denying the city’s motion for leave to amend its answer.”

The city contended Pokorny failed to properly give it credit for periods of inaction by the assignment of a visiting judge and interruptions related to the COVID-19 pandemic.

The Supreme Court decision states: “Even if those periods are discounted, the record still shows that a substantial part of the delay was attributable to the city. Moreover, none of the events that delayed the proceedings prevented the city from asserting a defense of political subdivision immunity or moving more promptly to amend its answer.”

City officials accepted a $150,000 settlement Sept. 23, 2024, from U.S. Specialty Insurance Co. (USSIC), its former insurance company, which sued Youngstown contending it wasn’t responsible for any financial claims in the Durig case because it wasn’t notified of its existence for almost five years.

U.S. District Court Judge John R. Adams ruled Sept. 14, 2023, that USSIC was not responsible for coverage because of the city’s “significant missteps and mistakes that cannot be undone,” as well as the city’s “extreme incompetence.”

The city appealed the decision to the U.S. Court of Appeals for the Sixth District on Oct. 13, 2023, and settled for the $150,000 almost a year later.

Any amount awarded in the wrongful death lawsuit above that $150,000 settlement amount – not including the legal fees in the USSIC case – would be the sole responsibility of the city.