YOUNGSTOWN — An attorney defending Youngstown in a wrongful death lawsuit argued that a motion seeking to prohibit the city from gathering its own evidence or calling witnesses is “inconsistent” with court rules and “exceeds the proper bounds of judicial relief and should be denied.”

Jessica Sanderson, an attorney hired by the city for this case, argued: “There is no trial date, no discovery cutoff and no scheduling order prohibiting additional discovery. The next status conference is set for July 9, and, based on the court’s statements at the March 20 status conference, a trial date is not expected to be set until that time. There are therefore several months in which discovery can be completed both before and after the July status conference, well in advance of any eventual trial.”

David Moore, one of the attorneys representing Cheryl Durig of Newton Falls — the executor in the lawsuit seeking millions of dollars from the city — in the lawsuit, filed a March 20 motion seeking to prohibit the city from using expert witnesses. The city had filed a Nov. 7 notice of disclosure of an expert witness.

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 Sturz is the city’s former forester.

In Sanderson’s response on Friday she wrote Durig is asking the “court to take the extraordinary step of excluding defendant’s disclosed expert and fact witnesses notwithstanding the absence of any trial date and despite months of unused discovery opportunities.” She added that Durig “chose to pursue a sweeping motion in limine designed to prevent defendant from presenting any defense at all, relying on a mischaracterization of the procedural history and appellate record as purported justification.”

Sanderson wrote Durig “distorts the procedural history of the case in her motion. To be clear, there was never any specific expert report deadline set by the court before the case was appealed.”

The wrongful death lawsuit was filed June 14, 2019, by Durig, the executor of Thomas Morar’s estate. The lawsuit alleges 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, which denies the allegations, 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 couldn’t 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 back in common pleas court in front of visiting Judge W. Wyatt McKay, a retired Trumbull County Common Pleas Court judge.

Moore wrote in his March 20 motion: “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 fact 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 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.

Sanderson wrote in her response that the city identified Sturtz as a witness on Dec. 17, 2021, after Pokorny gave the city an extension to that date, and Jarosh as an expert eight days after jurisdiction was returned to common pleas court.

Sanderson also wrote that Durig did not provide any expert report before the Sept. 15, 2021, deadline and “no depositions were requested or completed by any party during the discovery period.”

Durig filed a motion for partial summary judgement on Oct. 15, 2021, which was denied, and for the first time included an affidavit of arborist expert Mark Webber attached to it, Sanderson wrote.

Sanderson wrote: “Under plaintiff’s own theory, expert testimony disclosed outside the Sept. 15, 2021, discovery deadline would be untimely. Plaintiff therefore cannot invoke the deadline as a basis to exclude defendant’s expert while simultaneously relying on an expert disclosed even later under the same framework.”

Sanderson added: “Taken to its logical conclusion, plaintiff’s position would undermine both parties’ ability to present their cases and would not advance a just or merits-based resolution of this matter. If the relief plaintiff seeks against defendant were applied consistently by this court, it would effectively entitle defendant to judgment as a matter of law given that plaintiff bears the burden of proof.”

Sanderson said the testimony of Jarosh and Sturtz “goes to the core of the city’s defense. Their testimony will address both the factual circumstances underlying plaintiff’s claims and highly specialized arborist and forestry issues necessary for the jury to understand how and why the events at issue occurred and why the city did not breach any duty owed to plaintiff’s decedent.”

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.

The city 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 contends 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 disputes that claim.

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, including Sanderson.

Sanderson wrote in her Friday filing: “The taxpayers have already suffered consequences as a result of the litigation decision of the city’s prior law department. Those actions and inactions should not continue to reverberate now that the case has returned to this court following a lengthy and justified appeals process.”

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.”

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.

The city has spent more than the USSIC settlement to pay the legal fees to Roetzel & Andress to date.

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.