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The Canton Repository
By Tim Botos
Posted May 12, 2013 at 12:01 AM
A $200 mistake cost Dr. Morris Kinast his right to a jury trial. So later this month, the process of defending the doctor will continue in a civil bench trial, before a solitary judge. The ongoing legal saga illustrates the breadth, depth and limitations provided by the Seventh Amendment of the Bill of Rights.
A $200 mistake cost Dr. Morris Kinast his right to a jury trial.
So later this month, his legal team will continue the process of defending the doctor in a civil bench trial, before a solitary judge. It’s not what his lawyers wanted. They preferred a jury decide if Kinast is to blame for the 2009 suicide of Christian Berry, an 11-year-old boy from Alliance.
The ongoing legal saga illustrates the breadth, depth and limitations provided by the Seventh Amendment of the Bill of Rights.
In 50 words, the amendment makes clear the importance of a jury in civil cases. Experts agree that framers wanted to protect citizens against possible judicial corruption by allowing common people to also issue verdicts.
But keep this in mind: The amendment does not “guarantee” a right to a jury trial. Instead, it says “the right … shall be preserved.” Kinast, a pediatric neurologist at Neurocare Center in Jackson Township, now knows that all too well.
Nationally, scholars and experts have debated the topic of the vanishing trial, as more and more cases reach a conclusion without seeing a courtroom. They blame increased use of summary judgment, which enables a judge to dismiss a case based on apparent lack of merit or facts, and on judges’ encouraging settlements to clear their dockets.
In the 2011 annual report of the Ohio Supreme Court, justices noted that only 2 percent of civil cases in the U.S. ever reach a jury. It reported the rate in Ohio was even less, about 1.3 percent, and it has declined every year for the past decade.
Lawyers for Kinast did not return phone calls seeking comment for this story. Canton lawyer Brian Zimmerman, who represents the family and estate of Berry, would not directly comment on facts of the case.
However, hundreds of pages of documents filed in Stark County Common Pleas Court and the Ohio Supreme Court, provide an outline of how this case has unfolded. And in the end, it was a simple $200 filing fee. which a local judge ruled wasn’t paid on time, that cost the 65-year-old Kinast his right to a jury trial.
It’s one of the saddest cases I’ve ever been involved with,” Zimmerman said. “It breaks my heart every time I think of it.”
The lawsuit alleges that Christian Berry began to see Kinast in 2007. Along the way, the doctor prescribed Paxil (paroxetine hydrochloride) for the boy.
For a decade prior, the antidepressant drug had been linked to suicidal thoughts and hostile behavior in adolescents and young adults. The studies had prompted the U.S. Food and Drug Administration to place a warning on the drug. It reads: “Anyone considering the use of Paxil or any other antidepressant in a child or adolescent must balance this risk with the clinical need. Patients who are started on therapy should be observed closely for clinical worsening, suicidality, or unusual changes in behavior. Families and caregivers should be advised of the need for close observation and communication with the prescriber. Paxil is not approved for use in pediatric patients.”
It was Oct. 1, 2009, when 11-year-old Christian Berry took his life.
Two years later, his family filed a civil suit in Stark County Common Pleas Court. They claimed the doctor and Neurocare Center were negligent “by failing to properly evaluate, diagnose and treat (Berry’s) neurological condition.” Along with the complaint, they included affidavits from two medical experts backing up their claim.
The case was assigned to Judge Frank Forchione.
The doctor’s lawyers denied liability by Kinast and requested a jury hear the case, if it got that far in the legal process. At the end of November, the court issued an order, stating: “All required court cost deposits for jury demands must be paid within five (5) days of the demand. Should costs for a jury demand not be paid, the Court will strike the jury demand. The fact that one party has made a jury demand does not act as a valid jury demand unless the court costs have been paid as required by this order.”
For the next 13 months, both sides continued filing motions and gathering facts, proceeding toward an trial date of Jan. 29 this year. All the while, though, Kinast’s lawyers had not paid $200 in court costs for a jury.
So, on Jan. 14, Berry’s lawyers asked the judge to strike the jury demand, because the costs were not paid. The next day, Kinast’s lawyers paid the money to the court. However, Forchione ruled that it was too late.
No jury trial, he said.
Kinast’s lawyers appealed to the Ohio Supreme Court. They said the judge denied the doctor’s Seventh Amendment right to a jury trial, a right they pointed out also is guaranteed by the Constitution of Ohio.
In their pleas, two lawyers representing the doctor also asked the state Supreme Court to disqualify Forchione from presiding over the case. They accused him of being prejudiced against them, based not only on his decision but his “tone” and “mannerisms” toward them during a courtroom session in discussing the late fees. They contended it’s impossible for their client to get a fair trial before the judge.
“In my experience, the only possible way in which inherently sympathetic/tragic death and injury cases can be fairly resolved is by jury trial,” wrote lawyer Steven Hupp, who added that the Berry family offered to settle the case for $2 million.
The Supreme Court rejected the claims.
A pretrial before Forchione, back in Stark County, is set for May 20.
When contacted about the case, Forchione pointed out that Kinast’s law firm had missed a similar filing deadline in a case before Judge Lee Sinclair several years ago. Forchione said he made the same ruling as Sinclair.
“All I did was follow the law,” he said.
Besides, technically, the Seventh Amendment doesn’t apply to state and local courts, said one legal expert. “There are very few parts of the Bill of Rights that haven’t been incorporated, but the Seventh Amendment is one of them,” explained Michael Green, a civil-procedure law professor at William & Mary College in Virginia.
That means the U.S. Supreme Court has never made a decision that expanded the Seventh Amendment to the state or local courts, as it has done with so many of the others, including the right to bear arms.
“The Seventh Amendment is a federal-court argument … not state,” Green said.
Zimmerman said he’d have no problem trying the case before a jury, but added the other side didn’t follow the rules.
“There are requirements,” he said. “You have to pay the court costs … then you’re entitled to (jury trial) by the Constitution. Even the Second Amendment … I mean, I don’t have the right to get a free gun. I have to pay for it. I have to register it.”