Experience
Represent Medical Malpractice Insurer in Bad Faith Claim
In this case, the plaintiff’s estate claimed the medical malpractice carrier had acted in bad faith in handling and settling an underlying malpractice claim against the insured doctor. The plaintiff claimed that doctor ran a “pill mill” and improperly prescribed several narcotic medicines to the decedent who eventually overdosed. During this same time period the defendant doctor was cited by the state medical licensing board and thereafter restricted from prescribing medicines. The defendant doctor defended by claiming that he provided the decedent proper warning and that if taken as prescribed no overdose would have occurred. He retained two experts who were prepared to testify that the doctor complied with the standard of care and/or that his conduct did not cause the overdose. The case ultimately settled for less than the policy limits a little more than a year after it was commenced. The bad faith case followed, with the decedent’s estate claiming that the insurer had acted in bad faith by unduly delaying a claim where liability was reasonably clear and making offers less that the true claim value. After initial written discovery was exchanged, the insurer moved for summary judgment on the bad faith claim on several grounds, including that the doctor had not consented to settlement until the day of settlement and because the doctor’s liability for causing the overdose was not beyond dispute and absent such clear liability, an insurer was entitled to make no offer and proceed to trial without exposing itself to bad faith liability. The court ultimately concluded no additional discovery was needed to address these issues and entered summary judgment. The plaintiff filed a motion to vacate the order under Rule 59 and this, too, was denied. The case is currently pending before the Kentucky Court of Appeals.
Received Summary Judgment in Case Involving Allegations of Age Discrimination
We represented our client, Humana, in a matter involving a former employee, who alleged our client violated the Age Discrimination in Employment Act and Ohio’s nondiscrimination statute under theories of discrimination, retaliation, and disparate impact. We won summary judgment on all of the plaintiff’s claims. After thoroughly reviewing the company’s reduction-in-force procedures which resulted in the plaintiff’s termination, Judge Beckwith agreed the plaintiff could not “establish a prima facie case of age discrimination relative to his termination in the reduction-in-force because he has not provided additional direct, circumstantial, or statistical evidence tending to indicate that he was discharged because of his age.” (Gilster v. Humana Marketpoint, Inc., S.D. Ohio, Case No. 1:14 CV 961, 1/19/16).
Represent Client on Multiple Challenges from Other Company
We represented The Procter & Gamble Company (P&G) in a lawsuit filed by Definitive Solutions Company, Inc. (DSC) in the Hamilton County, Ohio Court of Common Pleas. DSC sued its former employees and their new employer, as well as P&G, when those employees left DSC. DSC asserted claims against P&G for breach of contract, promissory estoppel, tortious interference with business relationships, misappropriation of trade secrets, and civil aiding and abetting. After extensive discovery, P&G moved for, and was granted, summary judgment on each of DSC’s claims.
A bench trial on various claims DSC asserted against the other defendants was held in 2014. The trial court ruled against the former employees and awarded DSC damages. DSC ultimately settled with its former employees, and it appealed the trial court’s decision granting P&G summary judgment on the breach of contract and tortious interference claims.
On appeal, DSC claimed that P&G breached an agreement not to “directly solicit for employment” employees who had worked on its account and also that P&G had tortiously interfered with DSC’s relationship with the employees. The First District Court of Appeals rejected both of DSC’s arguments and affirmed summary judgment for P&G. The Court of Appeals found that the agreement between DSC and P&G prohibited solicitation for employment, not solicitation of another company to perform work. The Court also found nothing in P&G’s conduct that rose to the level of tortious interference.
See Definitive Solutions Co., Inc. v. Sliper, 1st Dist. Hamilton App. No. C-150281, 2016-Ohio-533.
Counsel to Startup Through Growth Into International Distributor of Products
We provide strategic and litigation counsel to our client from startup as a two-person operation through the growth of the company into a market leader with international product distribution via online and brick and mortar outlets. Our counsel has grown from trademarks to a global patent portfolio to tax consequences to importing and exporting matters.
Judgment for client in suit over payment of costs to relocate power lines
Successful defense of client in TRO hearing regarding allegations of fraud and embezzlement
Cyber Security Defense Verdict In FTC Administrative Action
Successfully defended LabMD at trial before the FTC Chief Administrative Law Judge. LabMD is the medical laboratory whose data security policies, practices and procedures allegedly violated section 5 of the FTC Act. After a lengthy trial the Administrative Law Judge dismissed the complaint. This is a landmark case because it is the first instance in which the FTC has prosecuted a HIPAA “Covered Entity” for violation of consumer privacy without being joined by HHS. It is also the first instance in which the FTC has been forced to take a case to trial involving data security and privacy. Thus this case established the adjudicatory framework for FTC cyber security administrative trials including the standard of proof and elements required to prove section 5 consumer harm in a cyber security case.
Labor & Employment – NLRA
Patent Law – Alleged Infringement
Ohio Willow Wood v. Alps South
John Luken served as lead appellate counsel for The Ohio Willow Wood Company (OWW), a manufacturer of prosthetic products, which came to Dinsmore after it had lost an infringement trial against a competitor, been enjoined from selling new products, held in contempt of the injunction, and ordered to pay nearly $20 million in damages to its chief competitor.
On behalf of OWW, Mr. Luken and the Dinsmore appellate team successfully obtained a stay of the contempt order from the Federal Circuit, which allowed OWW to begin selling its products again. After briefing and argument, the Federal Circuit reversed the lower court’s judgment and dismissed the complaint for lack of standing, thereby overturning the judgment against OWW. Mr. Luken also successfully opposed a petition for rehearing and rehearing en banc.
Class Action Lawsuit
Obtained beneficial settlement of shareholder class action lawsuit by City of Pontiac General Employees' Retirement System seeking to preclude the sale of assets in multi-million dollar transaction. In a related matter, successfully defended against a motion for preliminary injunction where management company sought to delay termination of a management agreement in light of the pending sale of assets.
Unique defense of medical monitoring case leads to case dismissal
Although the federal removal statute specifically says that FELA cases cannot be removed from state court to federal court, we filed a petition for removal anyway, on the grounds that the case could not be a FELA case since an essential element of a FELA case is “injury” and the plaintiffs alleged that they were only exposed, but had no injury. In other words, just because plaintiffs said the case was a non-removable FELA case did not necessarily make it one. We then moved to dismiss the case on the grounds that the FELA occupied the field for claims about workplace negligence, but since it required the existence of an injury and the plaintiffs affirmatively alleged that they had none, they had failed to state a claim. The judge agreed, refused to remand the case to state court, and dismissed the case for failure to state a claim.
Plaintiffs’ counsel filed a Notice of Appeal to the Fourth Circuit Court of Appeals, then abandoned it.
Client avoids potential multi-million dollar judgment with separate-case argument
We refused to make substantial offers, because, in our view, the malignant and non-malignant claims were two separate claims, which was the position that plaintiffs’ counsel had argued in earlier cases to defeat defenses of Release or Statute of Limitations. Since they were separate claims, any plaintiff who contracted cancer while his case was pending needed to file an amendment to the complaint or do something similarly substantial to preserve the cancer claim. Since they did not, the statute of limitations had expired and the cases were time-barred. Thus, for settlement purposes the plaintiffs’ claims were “worth” a few thousand dollars, instead of hundreds of thousands.
Plaintiff’s economist witness contradicts testimony during cross-examination
Psychologist’s documents lead to settlement of case for client over contract dispute
Initially, we argued our client was well within its rights not to enter in another contract with the plaintiff for another year as it had fulfilled its contract for the year and had no obligation to issue another. We moved for summary judgment, but the case continued to trial.
Because the plaintiff was claiming emotional distress, we carefully investigated the plaintiff and discovered that he had seen a psychologist for several years. We obtained his records, and found that all of the things plaintiff claimed were caused by the expiration of his contract actually were present long beforehand. Moreover, some of the problems shown in the records were among the reasons our client decided not to award another contract.
In opening statement, we used the records to show that plaintiff’s personal and professional issues began before his contract lapsed, despite being interrupted by multiple objections by plaintiff’s counsel. As a result of the discovery of these records, the case was settled.
Successful representation of client in elementary school disciplinary case.
We successfully represented our client, an elementary school, in a lawsuit challenging the principal’s decision to suspend two students. After a bench trial, a Hamilton County Court of Common Pleas judge found in favor of the school and dismissed the lawsuit. The Court ruled that the school had not abused its discretion in determining the manner in which the two students would be disciplined.
The First District Court of Appeals affirmed the decision in favor of our client, holding the school handbook was not a contract, and, even if it was, the school did not abuse its discretion. It was an important decision in several respects. It reaffirmed the broad discretion given to private schools in disciplinary matters. It was the first appellate court in Hamilton County to address the issue of student discipline in the private elementary school context. And it was the first court in Ohio to squarely answer the question of whether a grade school handbook constitutes a binding contract on the school. In answering that question in the negative, Judge DeWine’s majority opinion represents a significant victory for private schools moving forward and only increases the burden student/parent plaintiffs face in challenging a disciplinary decision.
See D.T. v. St. Gabriel Consol. School, 1st Dist. Hamilton App. No. C-150640, 2016-Ohio-784
Breach of Contract Claims
“Wrongful Living” Lawsuit
Breach of Contract Claim
Breach of Contract and Defamation Claims
Breach of Contract and Trade Secret Misappropriation Claims
Other Litigation Experience
Debbie Lydon has represented manufacturers, pharmaceutical companies, managed care organizations, hospitals, individual healthcare providers, employee leasing companies, staffing companies, importers, distributors, recruiters, insurance companies, publishers, accountants, fiduciaries, and others.
Representative matters:
The Procter & Gamble Company - Defense of Mass Tort Litigation, Regulatory, Transactional and Compliance Advice
Humana - Litigation Counsel
HealthSouth - Resolution of disputes with Ohio entities
Showa Denko KK - Defense of Mass Tort Litigation
Staffmark - Litigation Counsel
Yamaha Motor Corporation U.S.A. - Litigation Counsel
LasikPlus - Litigation Counsel and Risk Management
Shelter Insurance Companies - Litigation Counsel
Franciscan Health System - Litigation Counsel and Risk Management
Cincinnati Children's Hospital Medical Center - Litigation Counsel
Inova Health System - Litigation Counsel
Professional Risk Management Services - Litigation involving Psychiatrists
SST Bearing Corporation - Litigation Counsel
Riverhills Healthcare, Inc. - Outside and Litigation Counsel
Interlake Material Handling, Inc. - Litigation Counsel
Anonymous Hospitals - Defense of RICO, Health Care Fraud, Qui Tam and Malpractice allegations
Health Care Providers - Litigation counsel; advisor on various issues including regulatory matters, fraud & abuse, licensure, credentialing, risk management, criminal allegations, etc.
Fiduciaries - Litigation Counsel
Motor Vehicle Product Liability Litigation
Since 1986, representing numerous motor vehicle manufacturers in product liability cases in Kentucky and Indiana. Defect allegations defended against include seatbelts, airbag deployment, airbag non-deployment, no airbag, rollover propensity, roof intrusion, seatback deformation, fuel system, post-collision fire, electrical systems, unintended acceleration, absence of rear camera, and various claims relating to warnings. Significant experience in MDL practice and proposed class actions.
Successfully defended motor vehicle manufacturer at trial in March 2022. High exposure case involving three fatalities and one significant injury. Defect allegation involved frontal crashworthiness and bumper welds. Unanimous defense verdict.
Provide representation in claims regarding state and federal credit acts
Defense of company in partnership dispute
Our client had performed fabrication work for a former affiliate and, four years later, a dispute arose between the parties as to whether they entered into a partnership and the scope of the obligations owed between the parties contracted with a former affiliate (plaintiff) of CMC then contracted with another company while continuing to do business with both contractors. The former affiliate company brought a suit against our client in the Supreme Court of the State of New York. The plaintiff alleged, among other things, breach of contract, an action in accounting, conversion, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, tortious interference with prospective business relations, fraud, unjust enrichment, promissory estoppel, misappropriation, negligent misrepresentation, and economic duress.
This matter was removed from the Supreme Court of the State of New York to the U.S. District Court for the Southern District of New York. Our client then brought counterclaims for breach of contract and breach of fiduciary duty. In addition, our client added a Third Party compliant against the plaintiff’s parent company in Denmark.
After substantial litigation, the case was ultimately settled on a favorable basis to our client, CMC.
Pharmacy Litigation
Client is paid after golf course files Chapter 11 Bankruptcy
Bankruptcy workout resolution allows client to be paid 100%
Liens on partially developed subdivision lead to reduction in client’s loss
Collection matter turns into criminal case due to our discovery work
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