# Kilbarger v. Anchor Hocking Glass Co.

> Ohio Court of Appeals · June 20, 1997 · 120 Ohio App. 3d 332

URL: https://www.frixlaw.com/law-library/cases/3769067

## Case

- **Full name:** KILBARGER, Appellant, v. ANCHOR HOCKING GLASS COMPANY, Appellee
- **Court:** Ohio Court of Appeals
- **Decided:** June 20, 1997
- **Citations:** 120 Ohio App. 3d 332; 697 N.E.2d 1080
- **Precedential status:** Published
- **Opinion:** Concurrence by Gwin
- **Judges:** Wise, Gwin, Hoffman
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3769067

## How later opinions describe it (automated extraction)

- finding no abuse of discretion under Rule 612 where party failed to conduct adequate discovery prior to trial

## Opinion text

Gwin, Presiding Judge,
concurring.
I concur in the judgment, but write separately to clarify certain issues.
In the first appeal on this case, I authored the opinion, which reversed the granting of a summary judgment in favor of appellee employer. In that opinion, we correctly held that the fact that appellant was unsuccessful in his workers’ compensation claim was not dispositive of the issue whether appellant had filed the claim fraudulently. However, we also held that appellee had the burden of proving fraud by clear and convincing evidence. I now believe that this was an error. I do not think that the appellee had a burden of proving anything.
In this case, the other judges discuss the burden of proof and the burden of production. Both cite
Wilson v. Riverside Hosp.
(1985), 18 Ohio St.3d 8 , 18 OBR 6, 479 N.E.2d 275 .
Wilson
dealt with a motion to dismiss pursuant to Civ. R. 12(B)(6). The
Wilson
court outlines what a plaintiff must , do to survive a Civ. R. 12(B)(6) motion. Here we are far beyond that stage. The parties here have tried this case.
I believe that the appellant had the burden of proving all the elements of his case, and here, he failed to prove that he was injured on the job.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3769067. Public record. Not legal advice.