IN THE SUPREME COURT OF OHIO

STATE OF OHIO, ex rel.David A. Jelinek

Appellant/Relator,

vs.

CHARLES A. SCHNEIDER, JUDGE, et al.

Appellees/Respondents,

and

ABBOTT LABORATORIES, et al.

Appellees/Intervening Respondents.

Case No. 2010-0824

On Appeal From the Franklin CountyCourt of Appeals, Tenth Appellate District

Court of AppealsCase No. 08-AP-957

MERIT BRIEF OF APPELLEES/INTERVENING RESPONDENTS

VORYS, SATER, SEYMOUR & PEASE LLPLisa Pierce Reisz (0059290), Counsel of Record52 East Gay Street, P.O. Box 1008Columbus, Ohio 43216-1008Tel: (614) 464-6297 / Fax: (614) 719-4829Counselfor Appellees/Intervening RespondentsAbbott Laboratories, Karl V. Insani, andGregory A. Lindberg

WINSTON & STRAWN LLPJames F. Hurst (of counsel)Derek J. Sarafa (of counsel)Samantha L. Maxfield (of counsel)35 West Wacker DriveChicago, IL 60601-9703Tel: (312) 558-5600 /Fax: (312) 558-5700Counsel for Appellees/Intervening RespondentsAbbott Laboratories, Karl V. Insani, andGregory A. Lindberg

LAW OFFICES OF RUSSELL A. KELMRussell A. Kelm (0011034)Joann W. Detrick (0041512)37 W. Broad Street, Suite 860Columbus, Ohio 43215Tel: (614) 246-1000 / Fax: (614) 246-8110Counsel for Appellant/Relator David A.Jelinek

FRANKLIN COUNTY PROSECUTOR'SOFFICEPatrick Piccininni (0055324)373 South High Street, 13th FloorColumbus, Ohio 43215Tel: (614) 462-3520 / Fax: (614) 462-6012Counselfor Appellees/Respondents CharlesA. Schneider, Judge, and Franklin CountyCommon Pleas Court

CLERK OF COURTSUPREME COURT OF OH1Q

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ................... ........................................................................................................1

STATEMENT OF FACTS ..............................................................................................................2

1. Factual Background . ................................................................................................2

II. Abbott's Motion For Summary Judgment . ..............................................................3

III. The Apri12002 Trial . ...............................................................................................3

IV. Jelinek's Appeal Of The Trial Court's Grant Of JNOV Or A New Tria1 ................4

V. The Two Mistrials ....................................................................................................6

VI. Reassignment Of The Case To Judge Schneider . ....................................................7

VII. The Mandamus Action .............................................................................................8

ARGUMENT ................................................................................................................................... 9

1. The Court Of Appeals Correctly Denied Jelinek's Request ForExtraordinary Relief By Holding That Constructive Discharge Was NotPart Of Its Mandate In Jelinek II ............................................................................11

A. The scope of the retrial was properly decided on an issue-by-issue basis, which resulted in the exclusion ofconstructive discharge ....................................................................11

B. The issues of constructive discharge and age discriminationare not intertwined, and therefore, separate treatment of theconstructive discharge issue was appropriate . ...............................16

C. Jelinek is not entitled to extraordinary relief . ................................19

1. Jelinek has an adequate remedy at law that prohibitsthe grant of extraordinary relief . ........................................20

2. Writs of procedendo, prohibition, and mandamusare not appropriate remedies ..............................................20

CONCLUSION ..............................................................................................................................23

TABLE OF AUTHORITIES

Page(s)

CASES

Berthelot v. Dezso,(1999), 86 Ohio St.3d 257, 714 N.E.2d 888 ......................................................................20, 22

Bland v. Graves,(1993), 85 Ohio App.3d 644, 620 N.E.2d 920 .........................................................................12

Conti v. Spitzer Auto World Amherst,(Mar. 29, 2008), 9th Dist. No. 07CA009121, 2008-Ohio-1320, 2008 WL 754759 .......... 18-19

Drehmer v. Fylak,163 Ohio App.3d 248, 2005-Ohio-4732, 837 N.E.2d 802 ...........................................11, 12, 14

Eastham v. Nationwide Mut. Ins. Co.,(Aug. 5, 1992), lst Dist. No. C-910623, 1992 WL 188616 .....................................................12

Fornicoia v. Haemonetics Corp.,(W.D. Pa. Jan. 26, 2006), No. 99-1177, 2006 WL 197116 ............................................... 17-18

Guyv. Q.HG.,(Jan. 29, 2007), 5th Dist. No. 2006CA00111, 2007 Ohio App. LEXIS 394 ..................... 16-17

Joyce-Couch v. DeSilva,(Dec. 27, 1993), 12th Dist. No. CA93-08-056, 1993 WL 536603 ..........................................12

Mauzy v. Kelly Servs., Inc.,(1996), 75 Ohio St.3d 578, 664 N.E.2d 1272 ..........................................................................17

Moore v. City of Columbus,(1994), 98 Ohio App.3d 701, 649 N.E.2d 850 .........................................................................12

Pleasant v. EMSA Correctional Care, Inc.,(Aug. 31. 2004), lOth Dist. No. 03AP-1161, 2004 WL 1925832 ............................................15

Scott v. Condo,(May 3, 2002), lst Dist. No. C-010123, 2002-Ohio-2148, 2002 WL 832210 ....................1, 11

State ex rel. Brickner v. DeCessna,(Sept. 18, 1996), 6th Dist. No. WD-96-045, 1996 WL 532316 ...............................................20

ii

State ex rel. CNG Fin. Corp. v. Nadel,111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473 ........... ...............................................21

State ex rel. Danziger v. Yarbrough,(Dec. 20, 2006), 6th Dist. No. S-06-034, 2006-Ohio-6811, 2006 WL 3754718 .....................22

State ex rel. LTV Steel Co. v. Gwin,(1992), 64 Ohio St.3d 245, 594 N.E.2d 616 ............................................................................22

State ex rel. Newberry v. O'Neill,(Sept. 1, 2004), 2d Dist. No. 2003 CA 84, 2004-Ohio-4686, 2004 WL 1950443 .............20, 22

State ex rel. Safety Nat'l Cas. Corp v. Cook,(Jun. 12, 2006), 6th Dist. No. L-06-1041, 2006-Ohio-3066, 2006 WL 1667712 ....................21

State ex rel. Sherrills v. Court of Common Pleas of Cuyahoga County,(1995), 72 Ohio St.3d 461, 650 N.E.2d 899 ......................................................................20, 21

State ex rel. Smith v. O'Connor,(1995), 71 Ohio St.3d 660, 646 N.E.2d 1115 ....................................................................20, 22

State ex rel. Tubbs Jones v. Suster,(1998), 84 Ohio St.3d 70, 701 N.E.2d 1002 ......................................................................20, 22

Tabatha N. S. v. Zimmerman,(Apr. 4, 2008), 6th Dist. No. L-06-1252, 2008 WL 901466 ....................................................15

Trauth v. Dunbar,(1983), 5 Ohio St.3d 68, 448 N.E.2d 1368 ..............................................................................11

Valentine v. Harris,(May 11, 1994), 1st Dist. No. C-920977, 1994 WL 176916 ...................................................16

Young v. Russ,(Sept. 28, 2007), 11th Dist. No. 2006-L-031, 2007 WL 2822004 ...........................................15

OTHER AUTHORITIES

Ohio App. R. 12(A)(2) ...............................................................................................................3, 15

Ohio App. R. 16(A) ...................................................................................................................3, 15

iii

INTRODUCTION

In continuing to argue that he did not bring a separate "claim" for "constructive

discharge," Appellant/Relator David Jelinek misses the point of the Court of Appeals' decision

entirely - the court found that the decision to exclude constructive discharge from the retrial was

correct "regardless of whether constractive discharge is a technically distinct claim" because it

was treated as distinct throughout the history of the litigation. (A-8 (emphasis added).) 1 As the

court explained, the issues of constructive discharge and age discrimination were presented to the

jury separately, the trial court's judgment treated the issues separately, Jelinek treated the issues

separately on appeal, and, not surprisingly, the appellate court in Jelinek II treated the issues

separately. All along, Jelinek not only failed to challenge this characterization but, in fact,

contributed to it.

The result of this separate treatment is that Jelinek never appealed the judgment

entry on the constructive discharge theory, and therefore, the "the mandate in Jelinek II did not

order the retrial of realtor's constructive discharge theory." (A-8.) Accordingly, Judge Schneider

was correct in limiting the scope of the retrial to exclude that theory.

This outcome is entirely consistent with prevailing case law. An appellate court is

entitled to order a retrial of only those issues that resulted in an error. This determination is

made on an issue-by-issue basis, not a claim-by-claim basis as Jelinek repeatedly argues, because

oftentimes "error as to one issue need not attach to others, and issues tried without error must be

allowed to stand." Scott v. Condo (May 3, 2002), 1st Dist. No. C-010123, 2002-Ohio-2148,

2002 WL 832210, at ¶5. This was certainly the case here because the facts and circumstances

` The citation A-_ refers to the relevant page(s) of the Appendix which accompanies AppellantJelinek's Merit Brief filed with the Supreme Court of Ohio on August 16, 2010.

1

relating to whether the decision to reassign Mr. Jelinek was based upon his age was separate and

distinct from the issue of constructive discharge, i.e., whether the working conditions in the new

territory were so intolerable as to give him no other option but to quit his job.

For these reasons, the Court of Appeals' decision affirming Judge Schneider's

limitation on the scope of the retrial was correct. This Court should affirm.

STATEMENT OF FACTS

1. Factual Background.

After Jelinek's primary care district manager ("PCDM") position at Abbott

Laboratories was eliminated company-wide, Jelinek and six other PCDMs - ages 29 to 47 -

needed to be reassigned. (A-34-35; A-124.) Abbott decided to offer all of the PCDMs other

positions within the company. (A-124.) At the appointed time for Jelinek's meeting to discuss

his future, he showed up (without notice) to the meeting with well-known plaintiff's lawyer Russ

Kelm. (A-126-127.) Because he refused to conduct the business meeting without his lawyer

present, the parties instead communicated in writing regarding Jelinek's future with the

company. (A-127.) Jelinek was offered, and he accepted, a sales representative position in Lake

County, Indiana, which was the only position available in his district. (A-127.) Jelinek worked

in the district for four days - spending much of the time taking pictures of dilapidated buildings

that he would later introduce as evidence at trial - then resigned from Abbott, claiming he had

been "constructively discharged." (A-35; A-127-128; A-140-142.)

Abbott offered to try to fmd Jelinek another position with the company, but

Jelinek refused, instead preferring litigation. (A-35.) On April 23, 1998, Jelinek filed his initial

complaint, which was later amended and re-filed, raising claims of promissory estoppel,

2

retaliation, spoliation of evidence, violation of public policy, age discrimination, and

construcfive discharge. (A-24-31.) Throughout the history of this litigation, the trial court, the

Court of Appeals, Abbott and even Jelinek have treated constructive discharge as an issue

separate from the determination of age discrimination.

II. Abbott's Motion For Summary Judgment.

Before the first trial, Abbott filed a motion for summary judgment as to all claims.

(A-33.) The trial court granted Abbott's motion for summary judgment, and Jelinek appealed.

(Id.) Recognizing that Ohio law requires assignments of error to be stated and briefed with

sufficient detail, see Ohio App. R. 12(A)(2) & 16(A), Jelinek asserted four assignments of error

- one addressing age discrimination and another, separate assignment of error, addressing

constructive discharge. (Id.) Jelinek's first assignment of error asserted that, "The trial court

erred in granting Defendants' Motion for Summary Judgment against Plaintiff's claim of age

discrimination." (Id.) Jelinek's third assignment of error asserted that, "The trial court erred in

granting Defendants' Motion for Summary Judgment against Plaintiffs claim of constructive

discharge." (Id.) On September 13, 2001, the Court of Appeals issued an opinion reversing the

trial court's judgment as to age discrimination, promissory estoppel and constructive discharge,

which were subsequently tried by a jury in April 2002. (A-47.)

III. The April 2002 Trial.

On April 29, 2002, after a three-week trial, the jury returned a verdict in favor of

Jelinek on his claim of age discrimination. However, the jury found against Jelinek, and in favor

of Abbott, on constructive discharge and promissory estoppel. Specifically, the jury answered

"No" to the following interrogatory regarding constructive discharge: "If you found for Plaintiff

3

on his claim of age discrimination with respect to his transfer to Lake County, Indiana, did

Plaintiff prove by a preponderance of the evidence that the transfer resulted in working

conditions that were so intolerable that a reasonable person would have been compelled to resign

from his employment with Abbott?" (A-73.)

Abbott filed a motion, on June 6, 2002, requesting that the trial court grant a

JNOV, or conditionally order a new trial. The trial court granted Abbott's motion for JNOV, and

the judgment entry filed by Judge Bessey on June 23, 2003, stated in part:

It is further ORDERED, ADJUDGED AND DECREED that

judgment be and hereby is entered in favor of defendants Abbott

Laboratories, Karl V. Insani and Gregory A. Lindberg (collectively

"defendants") and against plaintiff David A. Jelinek on his

constructive discharge claim.

It is further ORDERED, ADJUDGED AND DECREED that

judgment notwithstanding the verdict ("JNOV") be, and hereby is,

entered in favor of defendants and against plaintiff David A.

Jelinek on plaintiff s age discrimination claim.

IN THE ALTERNATIVE, it is hereby ORDERED, ADJUDGED

AND DECREED that defendants' motion for new trial on

plaintiffs claim of age discrimination is hereby conditionally

granted should the JNOV in favor of Abbott Laboratories, Karl V.

Insani or Gregory A. Lindberg be vacated or reversed on appeal.

(A-116-117.) The JNOV ruling did not disturb the jury's finding against Jelinek on constructive

discharge. (A-82-84.)

IV. Jelinek's Appeal Of The Trial Court's Grant Of JNOV Or A New Trial.

Jelinek appealed the trial court's grant of JNOV and conditional grant of a new

trial and asserted eight assignments of error. (A-132-133.) Jelinek did not separately appeal the

judgment entry of the jury's decision in favor of Abbott and against Jelinek on the issue of

4

constructive discharge. (Id.) The only issue Jelinek appealed even tangentially related to the

jury's finding was an evidentiary one; specifically, that "[t]he trial court erred in excluding

certain evidence related to plaintiffs constructive discharge claim which resulted in an adverse

jury verdict on plaintiffs constructive discharge claim." (Id.) On October 27, 2005, in Jelinek

II, the Court of Appeals affirmed the trial court's grant of a new trial and reversed the trial

court's grant of JNOV as to Jelinek's age discrimination claim. The Court of Appeals also

specifically rejected Jelinek's assertion that he was entitled to a new trial on constructive

discharge based on purported evidentiary errors. It stated, "Under his fourth assignment of error,

plaintiff contends that the trial court erred in excluding evidence relating to his claim of

constructive discharge. ***[W]e overrule plaintiffs fourth assignment of error." (A-140; A-

142.)

The Court of Appeals consistently treated the issues of age discrimination and

constructive discharge as separate and distinct throughout its opinion in Jelinek II. In evaluating

Jelinek's assignment of error as to the trial court's grant of JNOV on age discrimination, the

Court of Appeals did not identify constructive discharge as an issue affected by the trial court's

erroneous judgment. (A-133-139.) It explained that the trial court's grant of JNOV was

defective because the evidence presented at trial was "legally sufficient" for the jury to conclude

that Abbott discriminated against Jelinek on the basis of age by transferring him to the Lake

County, Indiana territory. (A-135.) However, the Court of Appeals went on to hold that even

though the evidence was legally sufficient to support the claim, the trial court did not abuse its

discretion "in conditionally granting a new trial on the issue of age discrimination" on the

grounds that the verdict was not supported by the weight of the evidence. (A-137-139 (emphasis

5

added).) The Court of Appeals explicitly noted that "the jury found that plaintiff had failed to

prove that he had been constructively discharged," and then ordered a retrial only on the "issue

of plaintiff's age discrimination claim." (A-141; A-143-144.)

V. The Two Mistrials.

The case returned to the trial court for a retrial. Prior to the first retrial, the

Honorable John P. Bessey limited the scope of retrial to the issue of age discrimination,

excluding a retrial of the issue of constructive discharge. In his April 18, 2007 decision, Judge

Bessey explained that the "Court of Appeals' decision did not affect the jury's findings for

Defendants on the issue[] of constructive discharge . . . as the Court of Appeals specifically

rejected Plaintiffls request for a new trial based on the purported evidentiary errors concerning

Plaintiff s constructive discharge claim." (A-153.) Judge Bessey found that "the law of the case

doctrine also precludes a retrial on the issues of constructive discharge and promissory estoppel."

(Id.) Jelinek did not seek mandamus or other extraordinary relief in response to this ruling.

Accordingly, the case proceeded to trial, but the court declared a mistrial after Jelinek's counsel

acted in direct contravention of the court's decision on a motion in limine by suggesting during

voir dire that jurors use the internet to research the case and referencing the prior proceeding in

his opening statement.

The case was reset for trial on February 4, 2008. Prior to the trial, Judge Bessey

enforced his ruling on the scope of the trial. Once again, Jelinek did not seek extraordinary

relief. The trial began as scheduled, but the court was forced to declare another mistrial when

Jelinek's counsel violated three motion in limine rulings in his opening statement. The conduct

6

was so egregious that the trial court could no longer remain impartial, leading Judge Bessey to

recuse himself from presiding over the case.2

VI. Reassignment Of The Case To Judge Schneider.

The case was reassigned to Appellee/Respondent, Judge Schneider. In

preparation for the fourth trial, which has since been stayed pending resolution of this dispute,

Judge Schneider rendered a decision confining the scope of the new trial to Jelinek's age

discrimination claim and excluding retrial of the constructive discharge issue. (A-159-160.)

This decision was consistent with the Court of Appeals' mandate in Jelinek II and Judge

Bessey's decision in the previous two trials.

In his opinion, Judge Schneider reviewed the decision in Jelinek II and explained

that the Court of Appeals treated age discrimination and constructive discharge issues as "two,

separate matters" and made no mention of them "intertwining." (A-158.) Judge Schneider noted

that "the appellate court distinguished between the jury's finding that plaintiff was discriminated

against because of his age and the jury's finding that plaintiff did not show that working

conditions were so intolerable so as to constitute constructive discharge." (Id.) Judge Schneider

concluded that the Court of Appeals held that "the trial court's conditional grant of defendants'

motion for a new trial was proper, and this conclusion does not require overturning the jury's

finding that constructive discharge did not occur." (A-159.)

2 Contrary to Jelinek's implication that Judge Bessey was biased in favor of Abbott and recusedhimself accordingly, see Jel. Br. at 4, Judge Bessey explained that his recusal was based on

frustration with the unprofessional conduct of Jelinek's counsel.

7

VII. The Mandamus Action.

Although he had previously not sought extraordinary relief from Judge Bessey's

two rulings on the scope of retrial (which came to the same conclusion), Jelinek sought

extraordinary relief from the Court of Appeals to overturn Judge Schneider's ruling on the scope

of the upcoming trial. Jelinek filed a complaint seeking writs of procedendo, prohibition and

mandamus ordering Judge Schneider to conduct a new trial on the claim of constructive

discharge, allegedly in accordance with the Court of Appeals' mandate in Jelinek II. The

Magistrate held that the Court of Appeals' decision in Jelinek II left undisturbed the portion of

Judge Bessey's June 23, 2003 judgment entry in favor of Abbott on constructive discharge, and

therefore "Judge Schneider cannot be in violation of this court's mandate in Jelinek II and, thus,

relator's action here must fail." (A-173-174.)

Jelinek objected to the Magistrate's entry on five separate grounds - all of which

centered on Jelinek's argument that constructive discharge is not an independent claim and

therefore, when the Court of Appeals in Jelinek II ordered a new trial on Jelinek's age

discrimination claim, the mandate necessarily included constructive discharge. (A-5-6.) For the

sixth time, the issue of constructive discharge was resolved against Jelinek when the Court of

Appeals overruled Jelinek's five objections. (A-9-10.)

In its opinion, the Court of Appeals analyzed the mandate in Jelinek II in the

context of the trial court proceedings. The Court found that, in the trial court, Jelinek "presented

two distinct damage theories in connection with his age discrimination claim," one of which was

accepted by the jury (i.e., emotional distress) and one of which was expressly rejected by the jury

(i.e, constructive discharge). (A-6-7.) The Court also recognized that if Jelinek now disagrees

8

with the separate treatment of these theories (in contradiction to his own treatment of these

theories before the trial court), Jelinek never "challenge[d] the trial court's treatment of his

constructive discharge theory as a separate claim." (A-8.) In fact, Jelinek's assignments of error

in Jelinek II, "encouraged the court in Jelinek II to treat his constructive discharge theory as a

separate claim." (Id.)

Accordingly, the Court of Appeals held that "regardless of whether constructive

discharge is technically a distinct claim or only one of two alternative theories that relator

asserted in attempting to recover damages for age discrimination ... the way these issues were

presented and argued on appeal indicates that the mandate in Jelinek II did not order the retrial of

relator's constructive discharge theory." (Id.) The Court of Appeals concluded that Jelinek is

not entitled to extraordinary relief because there is no basis for any of the requested writs. (A-9.)

Jelinek now appeals the Court of Appeals' decision in hopes that this seventh and

final attempt to resurrect the constructive discharge issue will be resolved in his favor. For the

reasons discussed below, Jelinek's latest attempt is fundamentally flawed, and the Court of

Appeals was correct in deciding that Jelinek is not entitled to any of the requested writs.

ARGUMENT

The Court of Appeals' decision is correct because Judge Schneider's decision

limiting the scope of retrial to the issue of age discrimination and excluding constructive

discharge is in accord with the mandate in Jelinek H. In Jelinek II, the Court of Appeals'

explicitly rejected Jelinek's only assignment of error concerning constructive discharge, which

related to the exclusion of certain evidence. Thus, the Court of Appeals' October 27, 2005

decision did not disturb the jury's verdict on constructive discharge (as set forth in the special

9

interrogatory), and the mandate for a retrial of age discrimination did not include the issue of

constructive discharge.

The mandate did not include the issue of constructive discharge because that issue

was not affected by the defects that led to retrial. The defect upon which the Court of Appeals

ordered a retrial was that there was sufficient evidence for a jury to conclude that Abbott

discriminated against Jelinek on the basis of age when it made the decision to transfer him to his

new position. But that issue was separate from - and not affected by - the issue of whether the

working conditions in the new position were so intolerable that a reasonable person under the

circumstances would have felt compelled to resign. Indeed, the issues were so obviously

separate that, in the first trial, the jury found in favor of Jelinek on the issue of age discrimination

but against him on the issue of constructive discharge.

In Jelinek II, the Court of Appeals complied with settled law and ordered a retrial

of the only issue that led the trial court to conditionally grant a new trial, age discrimination.

This did not include constructive discharge. Despite the clarity of the mandate and its consistent

interpretation by Judge Bessey and Judge Schneider, Magistrate Macke and the Court of

Appeals, Jelinek refuses to accept that constructive discharge has been definitively adjudicated.

If, after the fourth trial in this action, Jelinek still believes that Judge Schneider erroneously

excluded constructive discharge from trial, he can appeal. However, Jelinek's plea for

extraordinary relief is unwarranted and was correctly denied by the Court of Appeals.

10

I. The Court Of Appeals Correctly Denied Jelinek's Request ForExtraordinary Relief By Holding That Constructive Discharge Was Not PartOf Its Mandate In Jelinek IL

A. The scope of the retrial was properly decided on an issue-by-issuebasis, which resulted in the exclusion of constructive discharge.

Jelinek's request for extraordinary relief in order to bring constructive discharge

within the scope of retrial is based on the fundamental misconception that a retrial's scope is

determined on a claim-by-claim basis, rather than an issue-by-issue basis. Jelinek spends much

of his merits brief arguing that he never asserted a constructive discharge claim in his complaint

- only age discrimination - and citing federal sex and race discrimination case law in arguing

that there is no independent cause of action for constructive discharge. These arguments are

misguided and betray Jelinek's misunderstanding of the dispute at hand, namely whether retrial

was ordered as to the issue of constructive discharge. Based on this false premise, Jelinek

appeals the Court of Appeals' March 25, 2010 decision and contends that the Court of Appeals'

remand on age discrimination in Jelinek II necessarily includes a retrial on all issues associated

with age discrimination, including constructive discharge.

This is not the law. An appellate court is empowered to order a retrial of only

those issues "which resulted in erxor." Scott at ¶5; see also Drehmer v. Fylak, 163 Ohio App.3d

248, 2005-Ohio-4732, 837 N.E.2d 802, at ¶23. The reason for determining the scope of retrial

on an issue-by-issue basis - not a claim-by-claim basis - is that "[e]rrors as to one issue need not

attach[] to others" (Trauth v. Dunbar (1983), 5 Ohio St.3d 68, 70, 448 N.E.2d 1368) and "any

issue tried without error must be allowed to stand" (Scott at ¶5 (emphasis added)). Therefore,

"[w]hen the jury has clearly decided an issue ... and the issue is unaffected by the particular

11

defect that the court finds with respect to a wholly separate issue, a retrial of all the issues is not

reasonably warranted. The issue or issues to be retried should be limited to those that were

affected by the defect according to the court's findings." Drehmer at ¶34.

Numerous Ohio cases have barred retrial of individual issues that were part of

broader claims, in some cases holding it to be an abuse of discretion to have a retrial on issues

that were not "affected by the defect" leading to the remand order. See, e.g., Drehmer at ¶35

(holding that it was an "abuse of discretion" to vacate entire judgment where the jury's finding

on one issue was not undermined by another finding that was against the weight of the evidence);

Moore v. City of Columbus (1994), 98 Ohio App.3d 701, 707-08, 649 N.E.2d 850 (holding that

trial court had no discretion to allow retrial on whether a police officer causing injury engaged in

"willful and wanton conduct" based on a remand on a negligence issue); Bland v. Graves (1993),

85 Ohio App.3d 644, 658, 620 N.E.2d 920 (ordering remand for retrial of only "testamentary

capacity" in a will contest where the separate issue of "undue influence" was not impacted by the

defect identified by the appellate court); Joyce-Couch v. DeSilva (Dec. 27, 1993), 12th Dist. No.

CA93-08-056, 1993 WL 536603, at * 1(finding abuse of discretion to hold a full trial on remand

because the defendant failed to appeal liability on the first trial and, thus, the remand should have

been limited to the damages issue reversed in the first appeal); Eastham v. Nationwide Mut. Ins.

Co. (Aug. 5, 1992), 1st Dist. No. C-910623, 1992 WL 188616, at *2 (affirming refusal to retry

the liability issue based on a remand relating to damages).

Complying with this well-established law, in Jelinek II, the Court of Appeals

consistently and correctly treated constructive discharge and age discrimination as separate and

distinct issues:

12

"Plaintiff appealed from this entry [in 2001] to this court, contending that the trialcourt erred in granting defendants' motion for summary judgment as to the claimsof age discrimination, promissory estoppel, constructive discharge, andretaliation and wrongful discharge in violation of public policy." (A-120.)

"On September 13, 2001, this court issued an opinion reversing the trial court'sjudgment regarding plaintiff's claims of age discrimination, promissory estoppel,

and constructive discharge." (A-120.)

• "[T]he jury deliberated and returned a verdict in favor of plaintiff . . . as toplaintiffs claim for age discrimination ... [and] found in favor of defendants andagainst plaintiff on plaintiff's claims of promissory estoppel and constructive

discharge." (A-130.)

• "The trial court ... entered judgment in favor of defendants Abbott, Mr. Insani,and Mr. Lindberg, and against plaintiff on his constructive discharge claim" andthen "entered a JNOV in favor of defendants and against plaintiff on his age

discrimination claim." (A-131.)

The Court of Appeals specifically noted that "the jury found that plaintiff had

failed to prove that he had been constructively discharged," and then ordered a retrial only on

age discrimination, finding that the trial court did not abuse its discretion "in conditionally

granting a new trial on the issue of age discrimination." (A-141; A-139.) It never ordered a

retrial on constructive discharge and, to the contrary, it rejected Jelinek's request for a new trial

on that issue based on purported evidentiary errors, stating that, "Under his fourth assignment of

error, plaintiff contends that the trial court erred in excluding evidence relating to his claim of

constructive discharge ....[W]e overrule plaintiff's fourth assignment of error." (A-140; A-

142.) Therefore, because constructive discharge is a separate issue that the jury conclusively

decided and Judge Bessey distinguished from age discrimination in his judgment entry - and

because the Court of Appeals has never reversed that issue - the law of the case doctrine bars the

retrial of the constructive discharge issue at this point.

13

The only possible question for this Court is whether the Court of Appeals'

decision, and therefore Judge Scbneider's decision, is erroneous because constructive discharge

was "expressly or implicitly" included in the mandate and was "affected by the defect" identified

by the Court of Appeals in its October 27, 2005 decision. Drehmer at ¶34. It plainly was not.

After the first trial, Abbott requested JNOV on age discrimination alone and not on constructive

discharge because the jury's verdict on age discrimination and award of damages explicitly

excluded constructive discharge. (A-73-74.) The trial court conditionally granted a new trial on

the issue of age discrimination based on a finding that the verdict on Jelinek's age discrimination

claim - specifically Jelinek's alleged demotion and the alleged failure to hire Jelinek to existing

sales positions - was not supported by the weight of the evidence. The trial court did not find

that the jury's determination of the constructive discharge issue was not supported by the weight

of the evidence. Therefore, Judge Bessey's judgment entry separately addressed age

discrimination and constructive discharge. It was in this context that the Court of Appeals

affirmed the trial court's grant of a new trial in Jelinek II and ordered a retrial on age

discrimination alone, excluding constructive discharge.

Even if the issues of constructive discharge and age discrimination were arguably

part of the same overall "claim for relief," the Court of Appeals treated the age discrimination

issue and the constructive discharge issue separately since they were treated as such in the trial

court. The Court of Appeals' evaluation of Jelinek's assignment of error regarding age

discrimination correctly did not include a discussion of constructive discharge because

constructive discharge was not part of the trial court's consideration in granting JNOV and

conditionally granting a new trial on age discrimination. In light of the trial court's judgment

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entry, the Court of Appeals treated age discrimination and constructive discharge as separate

issues throughout its opinion, ordered a retrial only on the "issue of Plaintiff s age discrimination

claim," and then pointedly rejected Jelinek's request for a new trial on constructive discharge.

(A-120; A-130-131; A-140-142; A-144.) Accordingly, there can be no argument that the

constructive discharge issue was "affected by the defect" identified by the Court of Appeals'

decision in Jelinek II

If Jelinek wanted to appeal the determination on the constructive discharge issue,

he would have needed to do so separately. As Jelinek admits, "[a]ssignments of error should

designate specific rulings which the appellant wishes to challenge on appeal." Jel. Br. at 11; see

also Ohio App. R. 12(A)(2) & 16(A). Contrary to Jelinek's bald assertion in his merits brief that

one jury interrogatory would not require a separate assignment of error, the case law clearly

allows for an appellant to set forth an assignment of error regarding one or more jury

interrogatories. See, e.g., Tabatha N.S. v. Zimmerman (Apr. 4, 2008), 6th Dist. No. L-06-1252,

2008 WL 901466, at *9 (setting forth an assignment of error as to a single jury interrogatory);

Young v. Russ (Sept. 28, 2007), 11th Dist. No. 2006-L-031, 2007 WL 2822004, at *4 (setting

forth an assignment of error as to the jury's answer to one jury interrogatory); Pleasant v. EMSA

Correctional Care, Inc. (Aug. 31. 2004), 10th Dist. No. 03AP-1161, 2004 WL 1925832, at *7

(setting for an assignment of error as to one purportedly incorrect jury interrogatory). Moreover,

throughout the course of this litigation, Jelinek has repeatedly asserted several, discrete

assignments of error that have treated constructive discharge and age discrimination separately.

(See A-33-34 (in appealing summary judgment, Jelinek had four assignments that treated

constructive discharge and age discrimination separately); A-132-133 (appealing grant of JNOV,

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asserting eight assignments of error); A-5 (appealing magistrate's decision, asserting five

assignments of error).) Jelinek never specifically challenged the ruling on constructive discharge

and cannot be allowed to do so now.

B. The issues of constructive discharge and age discrimination are notintertwined, and therefore, separate treatment of the constructivedischarge issue was appropriate.

The issues of age discrimination and constructive discharge are not intertwined

because they depend upon separate bodies of evidence and distinct legal standards, and therefore,

the Court of Appeals correctly held that Judge Schneider's decision did not violate its mandate in

Jelinek II, which treated constructive discharge and age discrimination as separate and distinct

issues. See, e.g., Valentine v. Harris, (May 11, 1994), 1st Dist. No. C-920977, 1994 WL

176916, at *3 (noting that plaintiff could receive a damages award for age discrimination even if

she failed to prove constructive discharge). Here, for age discrimination, Jelinek alleges that

Abbott discriminated against him when they relocated him to an allegedly inferior territory

where, among other things, he alleges his bonus would have been lower. That issue, however, is

"separate and distinct" from the constructive discharge issue, where Jelinek alleges that the

working conditions of the Lake County, Indiana territory were so intolerable that he had no

choice but to resign from his employment with Abbott. (A-141.) For that question, Jelinek

relied on evidence unrelated to his job, such as statistics about the crime rate in an area that

constituted only 10% of the new location.

The issues also have distinct legal standards. Compare Guy v. Q.HG. (Jan. 29,

2007), 5th Dist. No. 2006CA00111, 2007 Ohio App. LEXIS 394, at * 11 (absent direct evidence

of age discrimination, in order to establish a prima facie case of age discrimination, a plaintiff-

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employee must demonstrate that he or she (1) was a member of the statutorily protected class, (2)

was subject to adverse action, (3) was qualified for the position, and (4) was replaced by a person

of substantially younger age); with Mauzy v. Kelly Servs., Inc. (1996), 75 Ohio St.3d 578, 588-

89, 664 N.E.2d 1272 (in determining whether an employee was constructively discharged, the

courts apply an objective test, asking "whether the employer's actions made working conditions

so intolerable that a reasonable person under the circumstances would have felt compelled to

resign") (internal citations omitted). In his merits brief, Jelinek admits that he treated

constructive discharge "separately [from age discrimination] because it has its own unique case

authority on the issue." Jel. Br. at 10.

The trial court treated the issues separately by propounding separate special

interrogatories to the jury for age discrimination and constructive discharge. And the jury clearly

understood that the issues were distinct; indeed, they found in Jelinek's favor on age

discrimination, but against him on the issue of constructive discharge. (A-73.) In deciding

Abbott's motion for JNOV, the trial court farther distinguished between the issues by addressing

them individually in the judgment entry. (A-116-117.) Both the trial court and the Court of

Appeals have repeatedly outlined the different legal tests and facts relevant to these issues and

have never indicated that constructive discharge and age discrimination are so interwoven that

age discrimination cannot be tried independent of constructive discharge.

Jelinek relies on an unpublished federal case on sexual harassment discussing

Third Circuit law to rebut this point. Fornicoia v. Haemonetics Corp. (W.D. Pa Jan. 26, 2006),

No. 99-1177, 2006 WL 197116. Fornicoia is completely inapplicable to the instant case and, if

anything, supports Abbott's position. In Fornicoia, the district court specifically declined to

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extend a retrial on "sexual harassment" to also include a "retaliation claim" because those issues

were "separate and distinct," which is exactly the situation here - the age discrimination issue is

"separate and distinct" from the constructive discharge issue. Id at *2.

Jelinek focuses on the part of the decision in Fornicoia where the court found

plaintiff's claim that she was constructively discharged was "sufficiently intertwined with her

sexual harassment claim so as to require retrial of both." Id. But Jelinek's reliance on this

cherry-picked quote from Fornicoia is specious. First, the case addresses a completely different

legal situation from the instant case. In Fornicoia, the United States Court of Appeals for the

Third Circuit remanded the case for a new trial based on an erroneous jury instruction, which

caused the jury to find that plaintiff was sexually harassed but not constractively discharged. Id.

The court held that the erroneous instruction infected both the verdicts on sexual harassment and

constructive discharge so the issues rightfully could not be separated on retrial. Id at *3.

Therefore, the reason the claims of constructive discharge and sexual harassment were

considered "intertwined" was because they were both affected by the erroneous jury instruction -

a circumstance that obviously does not exist here since the ordering of the retrial was totally

unrelated to jury instructions. Id. at *2.

Second, the standards applicable to a sex discrimination action are different from

those applicable to an age discrimination action. As recognized by Ohio courts, in the context of

sexual harassment, as opposed to age discrimination, constructive discharge requires a more

detailed inquiry into the alleged acts of harassment, the objective feelings of the reasonable

employee in light of such harassment, and the intent of the employer. See, e.g., Conti v. Spitzer

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Auto World Amherst (Mar. 29, 2008), 9th Dist. No. 07CA009121, 2008-Ohio-1320, 2008 WL

754759, at ¶ 32. Such additional detailed inquiry is not required here.

Accordingly, the Court of Appeals was correct in concluding that the mandate in

Jelinek II excluded constructive discharge from the scope of retrial. Constructive discharge is a

separate issue from age discrimination, it was not affected by the defects of the original trial, and

age discrimination can be tried independently of constructive discharge without causing

confusion to the jury.

C. Jelinek is not entitled to extraordinary relief.

Beyond the fact that Jelinek has no legal right to a retrial of the constructive

discharge issue, Jelinek is not entitled to extraordinary relief by way of a writ of procedendo,

writ of prohibition, or writ of mandamus. First, all of the requested writs require the absence of

an adequate remedy at law.3 Jelinek has one - namely, the right of direct appeal. Second, writs

of procedendo, prohibition, and mandamus are not appropriate remedies in the instant case.

Therefore, even if the Court determines that Judge Schneider's decision on the scope of retrial is

in conflict with the Court of Appeals' October 27, 2005 decision, Jelinek nonetheless is still not

entitled to extraordinary relief.

' The Court of Appeals' March 25, 2010 decision did not address the argument that extraordinaryrelief is unwarranted because Jelinek has an adequate remedy at law. Rather, the courtconsidered the argument moot once it determined that Jelinek was not entitled to extraordinary

relief on other grounds. (A-9-10.) Abbott has not cross appealed, but instead presents this

argument pursuant to Ohio R. App. P. 3(C)(2).

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1. Jelinek has an adequate remedy at law that prohibits the grantof extraordinary relief.

Jelinek is not entitled to any of the requested writs because the right of direct

appeal is available to him. The issuance of a writ of procedendo, writ of prohibition and writ of

mandamus all require the absence of an adequate remedy at law. See State ex rel. Sherrills v.

Court of Common Pleas of Cuyahoga County (1995), 72 Ohio St.3d 461, 462, 650 N.E.2d 899

(procedendo); State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 74, 701 N.E.2d 1002

(prohibition); State ex rel. Smith v. O'Connor (1995), 71 Ohio St.3d 660, 663, 646 N.E.2d 1115

(mandamus). "One remedy at law is the right of appeal." State ex rel. Newberry v. O'Neill

(Sept. 1, 2004), 2d Dist. No. 2003 CA 84, 2004-Ohio-4686, 2004 WL 1950443 at ¶7.

Extraordinary relief is "not a substitute for appeal" and will not issue to review mere errors in

judgment. Id.; see also Berthelot v. Dezso (1999), 86 Ohio St.3d 257, 259, 714 N.E.2d 888;

State ex rel. Brickner v. DeCessna (Sept. 18, 1996), 6th Dist. No. WD-96-045, 1996 WL 532316,

at *1. Once a final judgment is rendered in the underlying action, Jelinek will have an

opportunity to appeal the decision to the Court of Appeals and raise the question of whether

Judge Schneider was correct in his determination of the scope of retrial. See O'Neill at ¶¶9-10

(denying extraordinary relief where trial judge's decision regarding the scope of trial could be

revisited on direct appeal).

2. Writs of procedendo, prohibition, and mandamus are notappropriate remedies.

Beyond the availability of direct appeal and Jelinek's inability to prove a clear

legal right to a retrial of constructive discharge, the requested writs of procedendo, prohibition

and mandamus should not issue as they are not appropriate remedies. First, writs of procedendo

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and prohibition are not appropriate remedies as they are not intended to redress the harm alleged.

Second, a writ of mandamus is not an appropriate remedy because Judge Schneider does not

have a clear legal duty to proceed with a retrial that includes the issue of constructive discharge.

A writ of procedendo is not appropriate because Judge Schneider has not refused

to render a judgment in the underlying proceeding or delayed proceeding to judgment. (See A-

9.) A writ of procedendo is "an order from a court of superior jurisdiction to one of inferior

jurisdiction to proceed to judgment," (Sherrills at 461) and is only appropriate where "a court has

either refused to render a judgment or has unnecessarily delayed proceeding to judgment" (State

ex rel. CNG Fin. Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473, at ¶ 20.)

Indeed, the opposite is true, as Judge Schneider issued a scheduling order and set a date for the

fourth trial with full intent to proceed and render a judgment in this matter (until, of course,

Jelinek filed this mandamus, thereby sidetracking the proceedings). Jelinek's request for a writ

of procedendo is misguided because, in fact, he is not seeking judgment but rather to alter which

questions are presented to the jury. (See A-9.) However, a writ of procedendo "will not issue to

control or interfere with ordinary court procedure," and Judge Schneider's ruling on the scope of

the retrial was made in the ordinary course of court proceedings. State ex rel. Safety Nat'l Cas.

Corp v. Cook (Jun. 12, 2006), 6th Dist. No. L-06-1041, 2006-Ohio-3066, 2006 WL 1667712, at

¶11.

Similarly, Jelinek is not entitled to a writ of prohibition because Judge Schneider

did not exceed his jurisdiction by excluding constructive discharge from the scope of the retrial.

A writ of prohibition is an extraordinary writ granted to "restrain inferior courts and tribunals

from exceeding their jurisdiction." Suster at 73. A writ of prohibition "will not lie to prevent an

21

anticipated erroneous judgment" unless the court's lack of subject matter jurisdiction is patent

and unambiguous. Suster at 74; see also State ex rel. Danziger v. Yarbrough (Dec. 20, 2006),

6th Dist. No. S-06-034, 2006-Ohio-6811, 2006 WL 3754718, at ¶19, 12 (a writ of prohibition is

"not an appropriate remedy for the correction of errors"); State ex rel. LTV Steel Co. v. Gwin

(1992), 64 Ohio St.3d 245, 248, 594 N.E.2d 616 (a writ of prohibition "cannot be used to review

the regularity of an act already performed"). There is no question that the trial court had subject-

matter jurisdiction. Judge Schneider's decision on the scope of retrial was made pursuant to the

dictates of the Court of Appeals' October 27, 2005 decision, as discussed above. The Court of

Appeals' mandate ordered a retrial only on the issue of age discrimination and specifically

rejected Jelinek's claim that he was entitled to a new trial on constructive discharge based on

purported evidentiary errors. Therefore, it would have been an unauthorized exercise of judicial

authority for Judge Schneider not to limit the scope of retrial to the issue of age discrimination,

excluding the issue of constructive discharge.

Finally, a writ of mandamus is not appropriate as Judge Schneider has not

proceeded contrary to the Court of Appeals' mandate and therefore has no legal duty to proceed

with a retrial on the issue of constructive discharge. The issuance of a writ of mandamus is an

appropriate remedy only when the relator "has a clear legal right to the requested relief," the

respondent "is under a clear legal duty to perform the requested act" and the relator has "no plain

and adequate remedy in the ordinary course of law." O'Neill at ¶6; see also O'Connor at 662.

Mandamus will not issue "as a substitute to review mere errors in judgment." Berthelot at 259.

As detailed above, Jelinek does not have a clear legal right to a retrial on the issue of

constructive discharge because there is no evidence that Judge Schneider has proceeded contrary

22

to the Court of Appeals' mandate. Therefore, Judge Schneider does not have a legal duty to

include constructive discharge in the scope of the retrial. Even if Jelinek could prove a that such

a legal duty existed, he has an adequate remedy at law available to him - the right of direct

appeal - that prohibits the issuance of a writ of mandamus in the instant case.

CONCLUSION

Overturning the Court of Appeals' March 25, 2010 decision and granting

Jelinek's request for a writ of procedendo, writ of prohibition, and writ of mandamus to force the

trial court to include constructive discharge in the scope of retrial would be contrary to the Court

of Appeals' mandate in Jelinek II and the prerequisite that Jelinek not have an adequate remedy

at law. Therefore, Abbott respectfully requests that this Court affirm the Court of Appeals'

decision and deny Jelinek's request for extraordinary relief.

Respectfully submitted,

z ^`--. AMichael G. Long (0011079)Lisa Pierce Reisz (0059290)Vorys, Sater, Seymour and Pease LLP52 East Gay Street, P.O. Box 1008Columbus, Ohio 43216-1008(614) 464-8353 Telephone(614) 719-4919 FacsimileE-Mail: lpreisz@vssp.com

Attorneys for Appellees/Intervening Respondents

Abbott Laboratories, Greg Lindberg and Karl

Insani

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OF COUNSEL:

James F. HurstDerek J. Sarafa,Samantha L, MaxfieldWinston & Strawn, LLP35 West Wacker DriveChicago, IL 60601-9703Tel. (312) 558-5230Fax: (312) 558-5700jhurst@winston.com

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Merit Brief of Appellees/Intervening

Respondents Abbott Laboratories, Gregory A. Lindberg and Karl V. Insani was served upon the

following by ordinary U.S. Mail, postage prepaid, this 15th day of September, 2010:

Russell A. Kelm, Esq.Joanne W. Detrick, Esq.37 West Broad Street, Suite 860Columbus, Ohio 43215

Patrick Piccininni, Esq.373 South High Street, 13th FloorColumbus, Ohio 43215

Lisa Pierce Reisz

24