Experience
Lien Claims
I have successfully litigated and mediated multiple lien claims in numerous construction-related cases throughout Ohio.
Litigation Relating to Change Order For a Construction Contract
We represented a general contracting company based out of Atlanta, Georgia in a complicated construction litigation matter in the United States District Court for the Southern District of Ohio. The case related to issues associated with change orders for the scope of work and contentions regarding the quality of workmanship. Following the conclusion of a two-week trial, we obtained a jury verdict in excess of $1,000,000 for our client. We were subsequently able to negotiate a favorable settlement of this matter and two related cases that were pending in State court.
Local Manufacturer v. Supplier of Electronic Component Parts
I served as lead counsel in 2010-2011 for local manufacturer in a case involving alleged breach of contract and breach of warranty against out-of-state supplier of electronic component parts. The case involved detailed analysis of product defects, compilation of extensive out-of-pocket damages, and formulation of claim for lost profits. I successfully negotiated resolution via mediation and then obtained enforcement of settlement in court when post-settlement difficulties arose.
Materials Supplier v. Brewing Company (In receivership)
I successfully represented our client, a beer brewing company, in enforcing its right of first refusal with respect to trademark rights in certain local beer brands. A receiver who took control of these trademarks from a defunct brewery sought to sell both the brewery and the trademarks to another entity, in violation of our client's rights. After objecting to the sale, I argued our client's position at a hearing in state court in Northern Ohio. The hearing involved the receiver, the bank, a competing buyer, and other creditors. After the argument, the client and I successfully negotiated a resolution whereby our client obtained the desired beer brands at a favorable price.
Mattlin Holdings LLC v. First City Bank, 2010 Ohio 3700 (Ohio App. 10th Dist. 2010)
Dinsmore & Shohl handled the defense on behalf of Defendants, Fifth Third Bank ("Fifth Third") and JP Morgan Chase ("Chase"). This is an important precedent for the banking industry in Ohio in that the appellate court refused to extend the discovery rule to toll the statute of limitations under O.R.C. § 1303.16(G) for a UCC conversion claim against two banks. In particular, the Appellants asserted a UCC conversion claim pursuant to O.R.C. § 1303.60 against both Fifth Third and Chase for the alleged conversion of a check in the amount of $795,486.00. Appellants’ conversion claims, however, were filed over four and one-half years after the alleged conversion by both Fifth Third and Chase. The Appellants argued, among others, that the discovery rule should toll the statute of limitations because Appellants did not discover the alleged conversion until after the statute of limitations had expired and because the Appellants had asserted fraud-based claims against other defendants, but not against Fifth Third or Chase. In response, Firth Third and Chase argued that the discovery rule does toll the statute of limitations and that even in cases where fraud-based claims are asserted, the UCC claims against other defendants cannot be coupled with such fraud-based claims for purposes of tolling the statute of limitations.
The Tenth District Court of Appeals upheld the trial court's dismissal of Fifth Third and Chase and held that the three-year statute of limitations for conversion under Section 1303.16(G) is not tolled by the discovery rule. Both the appellate court and trial court cited to and relied upon the holding of the U.S. District Court from the Northern District of Ohio in Metz v. Unizan Bank, (N.D. Ohio 2006), 416 F. Supp. 2d 568, 579. Both courts also cited to the holding in Loyd v. Huntington Nat'l Bank (N.D. Ohio 2009), 2009 U.S. Dist. LEXIS 51858.
Click HERE to view the Tenth District Court of Appeals decision.
MDL 1057: In re: Telectronics Pacing Systems, Inc., Accufix Atrial "J" Leads Product Liability Litigation
Served as local counsel for defendant product manufacturer where plaintiffs claimed personal injury from allegedly defect atrial leads in federal multidistrict litigation in the S.D. of Ohio.
MDL 1507: In re: Prempro Product Liability Litigation
Served as national coordinating counsel for manufacturer of generic hormone replacement therapy drugs in federal multidistrict litigation proceedings in the E. D. of Arkansas, as well as other state court consolidated proceedings.
MDL 926: In re: Silicone Gel Breast Implant Product Liability Litigation
Served as national coordinating counsel for Dow Corning Corporation, a leading silicone medical products manufacturer, in thousands of product liability cases pending in federal multidistrict litigation in the N.D. of Alabama, as well as in numerous state courts.
Metoclopramide Litigation
Lead Kentucky counsel in metoclopramide litigation from 2006 through present.
Michelle Dillion v. Mazda Motors of America, Inc.
Plaintiff asserted a claim against Mazda Motors of America, Inc. alleging violation of Ohio's Lemon Law and breach of warranty. Specifically, the Plaintiff alleged that the vehicle demonstrated a "pulling" or "drifting" concern that had not been corrected within a reasonable number of repair attempts. By utilizing effective cross-examination of the Plaintiff and persuasive testimony from Mazda's expert witness, we were able to obtain a complete defense verdict on behalf of our client.
Microsoft Windows Antitrust Class Action Litigation (Ohio and Kentucky Cases)
We served as counsel for Microsoft Corporation in Ohio and Kentucky class action antitrust cases involving the Windows operating system. We obtained dismissal of the Kentucky class action suit against Microsoft (Jefferson Circuit Court, July 21, 2000), which was affirmed by the Kentucky Court of Appeals in the first Windows antitrust case to be decided by a state appellate court, Arnold v. Microsoft Corp. (Kentucky Court of Appeals, November 21, 2001), and the Kentucky Supreme Court declined to hear a further appeal. We obtained dismissal of a similar Ohio state court suit (Hamilton County Court of Common Pleas, August 6, 2002), which was affirmed by the First District Court of Appeals, Johnson v. Microsoft Corp., 155 Ohio App. 3d 626 (2004), and by the Ohio Supreme Court, 106 Ohio St. 3d 278 (2005).
Motorcycle Manufacturer
We served as lead counsel on behalf of an international motorcycle manufacturer and distributor in a class-action lawsuit involving alleged violations of the consumer sales practices act. The case involved a situation in which the National Highway Traffic Safety Administration (“NHTSA”) had determined that certain design features of the product needed to be revised to comply with the motor vehicle safety standards for motorcycles, and ordered a recall of the affected vehicles. We were successful in having the majority of the claims dismissed through a Motion for Judgment on the Pleadings. Following the dismissal of the majority of the claims, we were able to negotiate a nationwide class action settlement resulting in a very favorable resolution for the client.
Multiple Cases Involving Allegations of Sexual Abuse
Represented Archdiocese of Cincinnati in case with allegations of sexual abuse by members of the clergy. Negotiated global resolution through a settlement fund and successfully prevailed in two Ohio Supreme Court cases, based on statutes of limitations defenses, thereby terminating most of such litigation in the state of Ohio.
Nash Finch Company Litigation
We were lead counsel for grocery wholesaler Nash Finch Company and its subsidiary Super Food Services, Inc. in "Fleming" suit brought against Nash Finch/Super Food by grocery retailers alleging breach of contract, fraud and other claims arising out of prices charged retailers for goods and services. Summary judgment for Nash Finch and Super Food on all claims was affirmed on appeal. Super Food Services v. Munafo, Inc., 2000 Ohio App. LEXIS 779. We have subsequently been lead counsel for Nash Finch and Super Food in numerous other cases from 2001 through the present in Ohio and Kentucky involving breach of contract, fraud, antitrust, consumer protection and related claims.
Naugle v. Large National Insurance Company
The firm represented Defendant a large national insurance company before the U.S. Court of Appeals for the Sixth Circuit. The issue was whether dismissal of claims under the Kentucky Unfair Claims Settlement Practices Act was proper where the insurer was not obligated to initiate settlement discussions and where the insurer did not attempt to settle for an unreasonable amount. The case was dismissed and the summary judgment of the lower court was affirmed.
Official Committee of Unsecured Creditors of Genesis Worldwide, Inc., et al. v. Three Cities Research, Inc., et al.
I played a lead role in successfully assisted our clients, two private equity funds and their investment advisors, in resisting a $62 million claim made against them. The case centered around the sale of the stock of Precision Industrial Corporation, a company which manufactured and serviced steel coil processing machinery. After the sale, and amid an industry downturn, the buyer defaulted on its loans and filed for bankruptcy. The buyer then claimed that it had substantially overpaid for the stock of Precision and that our clients had unfairly benefited as part of an alleged leveraged buyout. Filing an adversary proceeding in Bankruptcy Court, the Plaintiffs sought to recover most or all of the original sale price. They blamed the selling stockholders and their advisors for subsequent industry problems and technical issues which surfaced after the stock purchase. When settlement negotiations proved unsuccessful, I argued and prevailed in discovery motions in Court. I then lead the effort to obtain detailed accounting, engineering, and business data which ultimately vindicated our clients in demonstrating that the deal had been fair and reasonable. I worked with expert witnesses, including forensic accountants and business valuation experts, to gather and analyze the pertinent data. I personally took numerous key depositions of the critical fact and expert witnesses. When we presented our case in Court on summary judgment, we convinced Plaintiffs to dismiss their fraud claim, and admit that as to remaining claims, it was "impossible to say Plaintiffs were likely to succeed at trial." The Bankruptcy Court then approved a nuisance value settlement in an amount less than the remaining cost of defense, less than one-half of one percent of the amount claimed in the Complaint.
Official Committee of Unsecured Creditors, On Its Own Behalf And On Behalf of Dwight's Piano Company et al. v. Karen L. Hendricks et al., Adversary Proceeding Case No. 02-1158, U.S. District Court, Southern District of Ohio
Obtained Judgment in favor of former CEO of Baldwin Piano Company after a two-week trial in Federal Court in the Southern District of Ohio. The Committee of Unsecured Creditors alleged, among other things, that the CEO breached her fiduciary duties in the management of the Company and sought damages in excess of $28 million. Earlier in the case, we obtained the dismissal of approximately $24 million in unsatisfied secured and unsecured claims and administrative costs associated with the bankruptcy.
Oil Refinery v. Anonymous Defendant, N.D. Ohio
Successfully protected case over breach of warranty in specially manufactured goods.
OPW Fueling Components/PISCES Underground Piping Patent Litigation and Related Cases
We are lead counsel for OPW Fueling Components and its PISCES subsidiary in numerous cases involving underground piping patents. Our victory in the initial case permitted OPW to enter into a substantial new product line. We defeated a preliminary injunction motion, obtained a very expedited discovery and trial schedule per OPW’s need for prompt resolution, and prevailed at trial before the U.S. District Court in Philadelphia over contractual and patent challenges to OPW’s right to purchase certain patents and to enter into this business. Total Containment, Inc. v. Osborne, et al., No. 96 7241 (E.D. Pa. 1997). This led to further infringement and contract litigation in which we have represented PISCES (the OPW affiliate which purchased these patents) against several infringers and licensees, which have also been resolved favorably for PISCES. PISCES By OPW v. Total Containment, No. C-1-01-0063 (S.D. Oh. 2001); Environ Products v. PISCES By OPW, No. 02-865 (E.D. Pa. 2002-2003); PISCES By OPW v. Environ Products, No. C-1-02-292 (S.D. Oh. 2002-03); and PISCES By OPW v. Total Containment, No. CIV-02-0543 (S.D. Oh. 2002-04). This also led to currently pending infringement litigation involving these patents. PISCES By OPW v. Advanced Polymer Technology, No. C-1-04-178 (S.D. Oh. 2004-present).
Osborne v. Town Square Bank - Will distribution
Represented children of deceased in will distribution dispute, where one of our clients was executor of the will. Widow, the deceased's wife by a second marriage, received will bequests before trying to renounce will. The Court of Appeals ruled that the will couldn’t be renounced once the widow received bequests from under the will.
Papa John's International, et al. v. Gary McCoy
This is a case on appeal from the Floyd Circuit Court seeking a ruling on whether a franchisor with no involvement in its franchisee's day-to-day operations can be liable for torts allegedly committed by the franchisee's employees. We filed an amicus brief on behalf of the Kentucky Chamber of Commerce supporting Papa John's position. The case has been argued to the Kentucky Supreme Court and we are awaiting a decision.
Personal Injury Allegations
We defended an international automobile manufacturer against allegations of personal injury resulting from a defective product. The plaintiffs alleged that a door handle on a vehicle manufactured by our client was defective and it malfunctioned, causing an injury. The plaintiffs neglected to secure testimony from an expert witness regarding the vehicle’s design, manufacture or maintenance, and we filed a motion for summary judgment in federal court, claiming that the plaintiffs could not prove an identifiable defect in the product. The court granted summary judgment to our client, stating that “plaintiffs cannot establish a design or manufacturing defect without expert testimony.” The plaintiffs’ claims were dismissed with prejudice.
Plaintiff v. Liquid Natural Gas Pipeline Operator
Lead defense counsel for a liquid natural gas pipeline operator in litigation arising from a pipeline explosion at Ivel, Kentucky. Sixteen injuries, 45 claimants. Experience included defense of apex depositions.
Plaintiff v. Railroad
Fifteen trials defending railroad in Federal Employers Liability Act lawsuits for multiple allegations including occupational hearing loss and Carpal Tunnel Syndrome claims. Five recent trials and defense verdicts including a serious railroad truck-auto motor vehicle accident lawsuit.
Plaintiff v. Recreational Vehicle Manufacturer
Defense of a recreational vehicle manufacturer against claims of quadriplegic plaintiff operating recalled ATV. Experience included deposition preparation with Japanese apex witness in Japan and presentation of two Japanese witnesses for depositions.
Plaintiff v. Recreational Vehicle Manufacturer
Defense of a recreational vehicle manufacturer against claims of paraplegic plaintiff. Experience included preparation and presentation of Japanese apex witness for deposition, Hague Convention issues and response to attempts to take discovery worldwide.
Policyholder-Attorney v. Legal Malpractice Insurer, U.S. District Court
I served as lead, local trial counsel for insurer in successfully obtaining summary judgment in 2011 in a claim for coverage and bad faith involving underlying allegations of legal malpractice. In the only oral hearing in the case, I presented our position to the federal judge in a related-discovery motion that ultimately formed the basis for the summary judgment.
Premises Liability Litigation
Defended premises liability cases for auto parts client and major retailer.
Prime Contractor v. Owner and Project Engineer
Obtained multi-million dollar settlement for Prime Contractor in large, complex action against Owner and Project Engineer for delay, interference, breach of contract, and related claims. The case involved significant electronic and paper discovery, extensive deposition practice, extensive motion practice, multiple experts, complex case management methods, and varied methods of alternative dispute resolution.
Priscilla Parker v. Pediatric Acute Care, P.S.C.
Plaintiff Priscilla Parker was a long-time employee of Pediatric Acute Care who ultimately rose to the level of office manager position. At the company's holiday party, two female co-workers presented Parker with a “gag gift” consisting of a gift card to an adult store named Priscilla’s, which sold lingerie, adult sex toys and sexual movies. After the party, Parker complained numerous times about the gift to PAC’s co-owner. Meanwhile, Parker became increasingly unable to meet her job duties; she failed to pay important invoices such as health insurance premiums and insurance bills, made payroll errors, and failed to address problems with the office phone system. PAC terminated Parker’s employment in May, 2004. Parker alleged that she was subjected to a sexually hostile work environment and to retaliatory discharge for complaining about the “gag gift.” After the trial court dismissed the case on summary judgment, Parker appealed. The Kentucky Court of Appeals upheld dismissal of Parker’s claims. 28 WL 746677 (Ky. App. 2008). The Court of Appeals panel agreed that the single instance of the presentation of the gag gift was not sufficiently severe or pervasive to constitute unlawful sexual harassment under KRS 344. Further, the appellate court held that Parker’s retaliatory discharge claim also failed because “such an action must be predicated on a causal connection between the statutorily-protected activity and the termination of employment.” Because Parker did not offer proof sufficient to sustain her claim of a sexually hostile work environment, the Court determined that Parker could not proceed with her claim of retaliation for having complained about the incident. Accordingly, the Court affirmed summary judgment and the case was dismissed in its entirety.
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