of both the plaintiff's case in our case and then also arm and are at through a motion for a new trial and when we distill the case down it came down to a retaliation claiming a breach of contract claim stemming from the terminations of the plaintiff as a medical director and i would like to address both issues but the court submitted a letter on the issue of the impact of three seven zero nine thirteen and i'd like to address that first our position is and always been that the medical director in any health history is not classified and that is because if you look at thirty seven zero nine eleven the medical director position in the health district is only created if the commissioner is not a licensed physician i mean when you read that statute it says the board of health shall appoint a medical director when the health commissioner who is in charge of all the public health is not a licensed physician so our position is that this is essentially an offshoot of the health commissioner position who is clearly an unclassified position now also in the public sector the court may no you don't normally enter to a contract with a classified employee because you don't have to those rights are actually embedded in title one twenty four so you have essentially a perpetual employment and separation only for cause so what situations arise when you're going to have a contract is when the person is unclassified and in this case in the rain county this medical rector had been under contract for years when he was the corner he volunteered in did work as a medical director when he left the coroner's office t enter into a series of contracts with him so he isn't classified my colleagues in their response to the course question agree he was classified what he was he was not classified that he's unclassified in other words in my colleague at the trial that this particular contract was simply void and that goes back to the davidson vs sheffield case which we think is very important because that arose from lorain county and it was an opinion from the one district which this whole one that they did in sheffield which said that it's a perpetual contract in other words it's automatically renewable what we call evergreen in the commercial setting which was the similar situation that they had in sheffield and what the court analyzed at that point was that type of contract is inconsistent with the legislative process of creating these two different classifications that you it is prohibited to create a classified status through contract so this particular contract be void as a matter of wa what about the provisions that say that they can hire i mean so when they hire people what positions of these people well you're correct in thirty seven zero nine thirteen your honor it says on the recommendation of the health commissioner certain individuals may be hired including nurses and aides and even physicians because sometimes medical assistance through clinics and so forth are done by help the board of health must hire a medical director in the event the health commissioner is not a licensed physician so that the demarcation is clear if the if the health commissioner says i need a physician for to read up on this clinic or i need to hire a nurse for something like that that is a recommendation in the board may or may not do that that physician that could be hired under that statute would be in a classified steps because that's at the recommendation of the health commissioner to help run some aspect of the health district but this situation the medical directors position is not created under that statute that position is not created as a result of a recommendation of health commission that's created by statutory mandate and in this case and for decades in the marine county the health commissioner was not a licensed physician so there had to be the appointment of a medical director who we believe was in unclassified but even if we were to look at this contract and make the argument that it would somehow be binding in it's in how it was written and the manner in which the plaintiff could be terminated we believe that the evidence at the trial established that there was there was a caucus and in fact this all relates back to these two independent investigations one stemming from claims against the plaintiff that was investigated at the recommendation of the prosecutor by an outside source that investigation ended we know on the report was completed on december seventh two thousand and twelve the evidence is clear on that because that's the date of the report it's received by the district on december thirteenth the plaintiff is advised of the outcome of that on the next day on the fourteenth of december fourteenth in a for whatever reason twenty three days later he makes a call to the ex husband of the central complaining witness which creates this next investigation because that person that stephanie charles she found out immediately from her ex husband that the call of the maid she was offended she reported it as a retaliation which then created a separate investigation and everyone testified at the trial that determination was based upon the retaliatory conduct created by the phone call and had nothing to do with anything involving the original investigation because the original as much as the plaintiffs were upset with it thought it was done poorly in took too long and he should have been notified about it he was not disciplined as a result of that and his termination was only related to his what about  phone call that was of magnitude would be a reason for paranoia well that would then was in issue in the case of course the i'm just wondering about why your retaliation goes far beyond just things that may happen to you in the workplace this particular call was fifty two minutes long the person receive the call dave charles was so offended by that he called his ex wife immediately  was and questions that he was going to actually give to the board had he met with them three days later i mean the sequence was he makes the call on sunday night on january sixth anticipating he's going to show up at the board meeting on wednesday january ninth and what he was looking for was negative bad information about the central complaining witness so he then writes letters how would he be thinking the woman's husband was going to give the whole thing as to why your client made something of that phone call a part of the part of the plant's whole case in the attack on which was really an attack on stephanie charles was that she was a woman that had been engaged in extramarital relationships they brought in witnesses that challenged and attacked her character he accused her in exhibit y of false allegations collusion false accusations a shameful attack to be in the play a plaintiff in other words he was going to go to this meeting on january ninth and essential position but there was also testimony that no it wasn't really done it hadn't been completely resolved he was still supposed to he was going to be presented with the report which he had not yet received and he was going to be able to address the board i mean there's testimony in the other side there is your honor and but our other position with respect to this is that the retaliation claim presupposes that the plaintiff was in some sort of protective status when he made that phone call and other words he would have to show that he had made a complaint that he was participating in an investigation at that time and that we knew about it in other words if we look at the prongs to prove retaliation he has to be in protective status we have to know that he's in protective status which we didn't because we interpreted that call based upon the complaint of the central complaining witness has retaliated against her he claims that that's somehow protected status but that's not how we interpret it that he was the jury did hear and he was also investigating and you also have even the husband saying that you know he asked me once about is this something that she would make up and i said no it you know ye and then we talked about other things but actually the husband said your honor trial that he must've been asked thirteen or fourteen times by the plaintiff whether she was the person would lie also the husband said in his deposition which he confirmed at the actual trial that this was not a flattering conversation at all about his ex wife i mean this was this was a this was a search for negative information about her because the inquiry was a she the type of person that would lie and make up stories that was the approach because he wanted to take that to the board and my point is is that he knew this that seven charles was the person that did this but my point is you're there retaliation claim in there are many complaint was centered not on that phone call it was centered on a meeting that happened on january eleventh our whole defense of the case was built on the fact that the retaliation claim supposedly stemmed from a singular meeting that he had with three gentlemen on behalf of the board in which they told him about this situation in the problems created by the phone call in the tribe for judge that the trial judge decided that everything should be open now he was in protective status even though in his summary judgment ruling he clearly set forth that the phone call was not a situation in which he was in protective status and because of that situation he was it was not a situation in which he is the trial judge in the motion for summary judgment order said that the phone call was not a situation where the plaintive was in protected status in other words that was not protected of changes that have a trial comes out it happens all the time things develop in the trial and you correct yourself that's true except in this particular case and i see my time is up often is here in this particular case from opening statement through every witness that we brought up before the court said that we established that the only reason that he was disciplined was because of this phone call and then at the end the plaintiff is later wrote that back in and we have always maintained that he was not a protective says and that phone call was inappropriate that the retaliation should fail during the first place because of the law that guides retaliation under ohio law which is similar to federal law and the fact that there was no proof no just cos when you come back i'm going to ask you this and i also read your your opponent would have the benefit of your comments you having nothing to say about it to your i think there's a very specific under ohio tort law there is a very specific set of circumstances  you can have noneconomic damages extend to three fifty but that doesn't apply to a political subdivision a political subdivision is guided under twenty seven forty four or five c that particular provision of ohio law says that if the claim for non economic losses against a political subdivision the most that can be awarded is two hundred fifty thousand dollars so that again if the if the if there is a judgment against a political subdivision in tort which the situation would be that a judgment in what if there is a judgment against the political subdivision such as the health district ok the most the judgement can be for non economic loss i can this case for damages is two hundred fifty thousand dollars there is no additional capital added when the defendant is a political subdivision but i guess the question that i have for me is that there was economic loss there was three hundred twenty five whatever the exact figure was in the economic laws that was awarded and the only reason it wasn't included in the second portion of the verdict is because the judge instructed the jury that if you were awarded konami damages under the first question don't repeat them in the in the tort portion right yes so then why isn't it the case with economic damage different caps that if there's no economic laws then it's two fifty but if there is economic loss then it's three fifty or something like that no if there's if there is economic loss that can be an unlimited amount in other words if there's a clear economic loss even i thought that there were two different limits on the nominal konami portion not with respect to a political subdivision only with respect to anybody that's not a political s that's it that's regulated by a different that's a title twenty three that's a different tort section ok so you're relying on twenty seven zero five years twenty seven forty four point zero five c twenty seven forty four point zero five c yes and that has a limit that is it's a single limit and it has  it doesn't matter whether you've suffered any economic loss correct it has to do with non economic loss which would be this particular situation that we're dealing with here that section owners reads there shall not be any limitation on compensatory damages that represent actual loss to a person ok i would be economic loss however except in wrongful death actions damages that arise  that do not represent the actual loss of a person who is awarded those damages shall not exceed two hundred fifty thousand dollars so that's that's the statutory cap for political subdivision such as help district good morning your honor is made please the court my name is david kopel i represent the plaintiff happily cross apolo i'm going to address the issue on the economic damages and the remit or i believe that the proper reduction was not two hundred fifty thousand dollars it was three hundred fifty thousand dollars addressing twenty seven forty four point zero five twenty don't you i'm sorry twenty seven one twenty seven forty four point zero five which is what mr beck just addressed that statute does not prohibit or does not limit damages in causes of bashing that are causally connected to one's employment so the statute doesn't apply to a case involving know it's my fourth brief it's my fourth brief pender hand is two thousand and nine ohio nine for nine or will be is two thousand and ten ohio nine hundred thirteen and  union is one five nine ohio up third forty three so i would submit that that statute doesn't apply i would also submit that the statute that has been under discussion that limits noneconomic damages to either two hundred fifty or three hundred fifty thousand dollars the three hundred fifty thousand dollar limit would be the proper limit because in this case we do have three hundred fifty damages in the amount of three hundred fifty s three hundred sixty five thousand dollars mr beck in his brief supplemental brief makes a i think a decent point when he when he makes the argument that there were a merger there was a merger of the breach of contract claim and retaliation claim i don't completely agree with that but there wasn't fact the merger of the types of damages economic damages that we were seeking arising from the of contract claim and the retaliation claiming that was lost wages back pay front pay lost benefits so it's i believe it's very clear that the economic damages were three hundred sixty five thousand dollars and under the statute non economic damages are three times the amount of economic the images or three hundred fifty thousand dollars whichever of the two maximum of three hundred fifty thousand dollar and that was initially the contract itself says it was pursuant to thirty seven zero nine eleven i don't think that makes him classified or on classified i think that statute makes gives him a contract and gives him contract rights there's no limits in that statute that prevents or prohibits the health district from giving the medical director a continuing in definite their concert on the nine eleven thirty seven zero nine retain a medical director as you don't think that the others that it applies at all the last sentence of the others well i think i think it does if if if the medical director is and is to be considered either classified or unclassified our first position is these neither he simply contracted any cases of and i neither know like there any law regarding being something other than the one and the other  i have not seen any cases to that extent so if that's not if this court finds that he has to be one of the other then i would submit that the statute thirty seven zero nine thirteen would put him in the classified civil service which means either by contract he can his his rights are that he has a continuing indifferent definite contract that can only be terminated by or with cause or pursuant to the statute he has a continuing indefinite contract that can only be terminated with cause so either way you look at it from my perspective he can only be terminated with cause and in this case i think the jury very clearly found that he was terminated without cause i think the jury found that his call to charles was participating in any investigation under the ohio revised code and i think there was other acts that dr engaged in and participated in and there were other instances of retaliation that the health district imposed upon him but i think the big issue because mr beck has kids basically stated he was fired for making the phone call that that is the determining factor under the retaliation climb i do want to make a point with respect to my retaliation claim to there's i think a significant difference between the federal statute title seven and ohio revised code forty one twelve zero two why if a close reading of the federal statute compared to the ohio revised code in my view would lead this court to conclude that any participation in any investigation is subject to protected status in other words there's an argument under the federal statute that it has to be an equal employment opportunity commission investigation that's because employee is protected if you is participating in any investigation that can be o c o c r c and in employment based employee based investigation i wanted to make that point because i think ohio law is broader than federal law that's why we brought the ohio claim because he was participating in an investigation it was ongoing dave kovel told him you're coming back to talk to the board gerry in this told him you'll be back it'll be over in a month dr mattis was preparing to participate and to cap further discussions with the board it was ongoing so i think the retaliation claim under ohio law is much broader than what my colleague in the defense side has suggested and there clearly was no retaliation in the phone call because there was no impact on stephanie made that phone call they the health district is has made that point from day one that was the reason for his discharge so it was the phone call and that was the determining factor and the jury found that that phone call was not retaliatory it was not inappropriate it was not misconduct and the so the flip side to that coin is the determining factor for participating in any investigation is the jury as those questions that the jury was not asked any questions it was simply the jury was given instructions there were no in iraq the tories there were no no there were no jury in the torso the jury was not asked those kind of questions  your first position is that he's neither classified classified and therefore therefore the contract as it was written by the prosecutor's office for a continuing indefinite period of time with very specific provisions as to how dr madison can be terminated for cause applies on its face it was written by all parties relied on this contract all parties proceeded as if this contract was in place as if it was applicable my my second position is if if in fact this court determines you can't have it both ways it's either their classified or the un classified then the statute thirty seven zero nine thirteen puts him in the classified civil service and based on that he can only be that related job has to be competitive no no because there's another statute which indicates when his job has to be assistants he just said he had the authority you under just being a mayor to hire employees but there wasn't a specific statute saying the mayor shall appoint it in ministry to the assistant as we have in this case where thirty seven zero nine eleven states if the health commissioner is not a medical director are doesn't hold a medical degree then he the board shall appoint a medical director so apply do you agree then that to fifty is correct no no i don't i don't my first position in the statute that we're referring to and that would be twenty three fifteen point eighteen my first position is that that statute is a jurisdictional limit that only applies to common police courts and that's bits stated in the statute so the first thing i'm really asking this court is to reinstate the jury verdict of one million dollars back in whole we believe the the the power police court perhaps didn't have jurisdiction to enter a judgment in excess of the three fifty but the federal court there's no there's no limit on the federal court's jurisdiction my second position is if the statute to the extent of the plies it is a three fifty my clients and top the three fifty because the economic damages were three hundred sixty five thousand dollars ok but if there's a separate statute applicable municipalities that applies then the numbers if if it applies than yes because that statute if it applies then it would be two fifty but that statute does not apply to a situation that arises out of a relates the statute that has the two fifty in the three fifty but i understand it to be thing that that only applies in state court that it doesn't apply in federal court are you saying that that's i am saying that if you have any cases that would support i don't have any i know the federal courts have applied that statute i don't i have not seen a single federal court that has applied that statute in light of an argument that's in the statute that says it's a jurisdictional question so i will acknowledge that courts have applied the statute i'm making an additional argument that i haven't seen before so it's a but the court you're referring to is the general is the trial court of general jurisdiction the the ohio lorain county court of common pleas that's the general gist that's yes that is correct that is correct but that's where we initially filed and it was removed to federal court so we're really we're talking about two different statutes and i think twenty three fifteen eighteen that has the two fifty three fifty distinction first my argument is it doesn't apply because it's jurisdictional to the common pleas court the second argument is we have economic damages in excess of three hundred sixty five thousand dollars so the cap would be three fifty the statute that mr breckon raised moments ago the my response to that and we're talking about twenty seven forty four point zero five is that it does not apply to causes of action we also are seeking reversal of the trial court's decision on the motions for summary judgment we believe that based on all of the evidence of reasonably prudent jury could have determined that there were fact issues with the first amendment well would there be any word damages but because wouldn't those be the answer to that is there wouldn't be any additional economic damages or non economic damages but if the first amendment claim was reversed we would have the opportunity to seek our attorney fees under forty two u s c i think it's one nine hundred eighty eight but but there is an attorney feet component to the first amendment climb so we are seeking reversal of the summary judgment motion and i see my time is up thank you thank you  would apply to this with respect to the the contract again we've taken a position that he was classified and what we did was we proved cause and they never proved the pretext piece of the case in other words when you look at this this investigation with respect to the retaliation the phone call was outsourced and he had a hearing in front of an independent labor more year who also found that this conduct this call was misconduct and he defined misconduct of a breach of duty breach of policy and so the board all testified that we fired him based upon the phone call in the conclusion reached by the independent fact finder so this wasn't the board going off on a lark or something you mean they actually relied upon facts that were determined by an independent fact finder because that was the sequence he was told about this situation in late january there was a full day administrative hearing before  labor lawyer on all of these allegations and the fact finder found that the phone call was misconduct it was based on that finding that the court that the the health district then discharged him and my position was in the reason i thought we were t him as a matter of law was that there was no issue of any establishing any type of pretext everybody admitted it putting the plaintiff he actually made the phone call and the what was in dispute i suppose is the nature of that but again the board relied upon not only its own understanding of what happened but the specific findings of the fact finder so we feel that there was cause for this terminations on the contract claim and of course we've always taken the position that it was not in protected status at the time that he made the phone call in fact his complaint doesn't even say that the complaint doesn't even relate that it was only at the in the middle of the defense case that judge nugent reopened it and said well i think this is all open for discussion i think it's all possible investigation and you can argue that to the jury but by that time our feet had already been planted because we had definitively said our whole defense was based upon the phone call the investigation in and