On April 4, 2012 the Supreme Court of Ohio decided Schwering v. TRW Vehicle Safety Systems, Inc., 2012-Ohio-1481. In this 7-0 decision written by Justice Lanzinger, the Court held that a plaintiff may not voluntarily dismiss a claim without prejudice pursuant to Civ.R. 41(A)(1)(a) when a trial court declares a mistrial after the jury has been empaneled and sworn and the trial has begun. Justice Pfeifer concurred in judgment only.
Kenneth Schwering was injured and his wife was killed when their Ford Explorer rolled over during a traffic accident. Schwering sued Ford Motor Company and TRW Safety Systems, Inc. in the Hamilton County Court of Common Pleas, asserting products-liability and negligence claims. A jury was empaneled and sworn in the case on May 28, 2009.
Schwering called an expert witness on safety-restraint systems during his case-in-chief. The expert testified to a safer, alternative design that in his opinion would have saved Mrs. Schwering’s life. Ford objected and moved to strike this testimony because Schwering did not disclose that his expert had tested an alternative design. The motion was granted and Ford moved for a mistrial, contending surprise, undue prejudice, and discovery violations. Schwering moved for a mistrial as well, saying that by excluding the expert’s testimony, he was denied a fair trial. The trial judge reversed his ruling on the motion to strike and declared a mistrial. Before a second trial could begin, Schwering filed a notice of voluntary dismissal without prejudice pursuant to Civ.R. 41(A)(1)(a).
Schwering brought the same action again, this time in the U.S. District Court for the Southern District of Ohio. Both Ford and TRW filed motions to dismiss, arguing that Schwering’s voluntary dismissal did not occur before trial began as required by Civ.R. 41(A)(1)(a), and thus the dismissal was not without prejudice. The federal court found no state law on point and certified this question to the Supreme Court of Ohio– “whether a plaintiff may voluntarily dismiss claims without prejudice pursuant to Civ.R. 41(A)(1)(a) when a trial court declares a mistrial after the jury has been empaneled and sworn and the trial has commenced for purposes of Civ.R. 41(A)(1)(a).”
The Supreme Court of Ohio answered no.
The Court first looked at the differences between the Ohio Rules of Civil Procedure and the federal rules. Ohio Rule 41 allows a plaintiff to dismiss a claim voluntarily without prejudice and without a court order by filing a notice of dismissal at any time before the commencement of a trial. On the other hand, the federal rules allow voluntary dismissal only before an opposing party serves either an answer or motion for summary judgment. The Court, noting that the Ohio rule is more liberal in allowing a longer time frame for dismissing without prejudice, stated that there are still limitations on a plaintiff’s ability to dismiss a claim without prejudice.
Turning to the facts of the case, Ford and TRW argued that trial had commenced, while Schwering argued that the mistrial rendered the trial a nullity. While courts from other jurisdictions have held that a mistrial is in legal effect no trial at all, Ford pointed out that in Ohio, evidentiary rulings established during trials are routinely applied in a subsequent trial should a mistrial of the first be ordered. Justice Lanzinger wrote that it “would be incongruous to recognize evidentiary rulings established during a first trial, while at the same time holding that the first trial never ‘commenced’ for purposes of Civ.R. 41(A).”
The Court next addressed policy reasons behind Ohio’s Civ.R. 41(A). The rule was adopted to ensure that parties could not continuously try and retry claims indefinitely until the most favorable result was achieved. . Civ.R. 41(A) was enacted to lessen that concern.
Finally, the Court turned to the express language of Ohio Civ.R. 41(A)(1)(a). The rule clearly states that the commencement of trial cuts off the ability of a plaintiff to unilaterally dismiss without prejudice. A civil jury trial commences when the jury is empaneled and sworn. Thus, in this case, the trial had commenced when the plaintiff dismissed his case.
A plaintiff may not voluntarily dismiss a claim without prejudice pursuant to Civ.R. 41(A)(1)(a) when a trial court declares a mistrial after the jury has been empaneled and the trial has commenced.
Student contributor: Jason Persinger