Appeals

The attorneys at Markovits, Stock & DeMarco have a substantial body of experience in the deeply specialized field of appellate practice.  MSD’s appellate experience includes successful appeals experience before the US Supreme Court – a fact underscored by having obtained a rare summary reversal at the US Supreme Court – as well as almost every federal circuit and appellate court within the United States.

MSD attorneys advise clients on all issues related to appellate practice.  Our appellate lawyers, who include an Ohio State Bar Association certified appellate law specialist as well as a former clerk to the Supreme Court of Ohio, handle appeals in every substantive and procedural area of civil law.  From preservation of error at the trial level to post-trial motion practice and appeals of right and discretionary review at the Supreme Court level, we recognize that appellate issues present unique challenges and require the special experience that our attorneys possess.

Clients have retained us specifically to take over appeals after both favorable jury verdicts and adverse lower court decisions, as well as to complement their trial team on trials with a high level of risk exposure.

  • Mitchell v. Esparza, Case No. 02-1369 (United States Supreme Court). Obtained summary reversal of Sixth Circuit decision on Eighth Amendment capital sentencing issue.
  • Cleveland Bar Association v. CompManagement, Inc., Case No. 04-0817 (Ohio Supreme Court).  Represented the State of Ohio as amicus in landmark workers’ compensation lawsuit.
  • Arthur Anderson LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896 (2009):  In a case involving allegations of a fraudulent tax shelter and accounting and legal malpractice, the Supreme Court of the United States resolved the issue of the rights of non-parties to arbitration clauses to enforce them against parties, which had divided the circuits.
  • Williams v. Duke Energy International, Inc., 681 F.3d 788 (6th Cir. 2012):  In a case brought as a class action by a utility’s ratepayers for selective payment of illegal rebates to certain ratepayers, the United States Court of Appeals for the Sixth Circuit reversed a district court’s dismissal of the excluded ratepayers’ claims that the utility violated the RICO statute, the Robinson-Patman Act, and the state corrupt practices act.
  • State of Ohio ex rel. Bd. of State Teachers Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 865 N.E.2d 1289 (2007):  The Supreme Court of Ohio upheld the appellate court’s issuance of the extremely rare writ of procedendo commanding the trial judge to proceed with a trial on claims he mistakenly believed the previous jury had resolved.
  • Chesher v. Neyer, 477 F.3d 784 (6th Cir. 2007):  The Sixth Circuit affirmed the district court’s rejection of qualified immunity defenses raised by the Hamilton County (Ohio) coroner, his chief deputy, the coroner’s administrative aide, a staff pathologist, and a pathology fellow in connection with the Hamilton County Morgue photo scandal.
  • State of Ohio ex rel. CNG Fin’l Corp. v. Nadel, 111 Ohio St.3d 149, 855 N.E.2d 473 (2006):  The Supreme Court of Ohio affirmed the appellate court’s refusal to issue a writ of procedendo commanding the trial judge to halt injunctive proceedings and decide an arbitration issue.
  • Smith v. North American Stainless, L.P., 158 Fed.Appx. 699 (6th Cir. 2006):  Rejecting a steel manufacturer’s “up-the-ladder” immunity defense, the United States Court of Appeals for the Sixth Circuit reversed the district court’s dismissal of a wrongful claim brought by the widow and estate of a steel worker killed on the job.
  • Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. 2005):  The United States Court of Appeals for the Tenth Circuit reversed the district court’s dismissal of Procter & Gamble’s Lanham Act claims, paving the way for a $19.25 million jury verdict in its favor.
  • Roetenberger v. Christ Hospital, 163 Ohio App.3d 555, 839 N.E.2d 441 (2005):  In this medical malpractice action for wrongful death, the Ohio court of appeals reversed the jury verdict in the physician’s favor due to improper arguments by his attorney and instructional error by the trial court.
  • City of Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 768 N.E.2d 1136 (2002):  In this landmark decision on public nuisance law, the Supreme Court of Ohio held that a public-nuisance action could be maintained for injuries caused by a product — in this case, guns — if the design, manufacture, marketing, or sale of the product unreasonably interferes with a right common to the general public.
  • Norgard v. Brush Wellman, Inc., 95 Ohio St.3d 165, 766 N.E.2d 977 (2002):  In an employee’s intentional tort action alleging that his employer subjected him to long-term beryllium exposure, the Supreme Court of Ohio ruled that a cause of action for an employer intentional tort accrues when the employee discovers, or by the exercise of reasonable diligence should have discovered, the workplace injury and — here’s the ground-breaking part of the holding — the wrongful conduct of the employer.
  • Wallace v. Ohio Dep’t of Commerce, 96 Ohio St.3d 266, 773 N.E.2d 1018 (2002):  In overturning the dismissal of a suit against the state fire marshal for negligently inspecting a fireworks store that caught fire killing nine people, the Supreme Court of Ohio held for the first time that the common-law public-duty rule cannot be applied in cases against the state in the Ohio Court of Claims.