Litigation

Experience

Coal Producer v. Electric Utility

I served as the Coal Producer's party-appointed arbitrator in a dispute over the propriety of a claimed force majeure under a large-volume, long-term coal supply contract, and the liability for the cost of purchasing substitute coal for coal my client did not deliver.  After prevailing on a summary judgment motion regarding some of the technical coal mining force majeure issues, the case was settled very favorably to the client.  The utility accepted the propriety of the claimed force majeure, and a major portion of the contract was renegotiated.

Coal Supplier Claims

Argued, defended and prosecuted force majeure and breach of contract cases on behalf of coal suppliers.

Columbia Gas Transmission Corp. Condemnation Litigation (1990)

Co-counsel representing Columbia and its sister companies in defense of condemnation by the United States of America of over 16,000 acres of property to which Columbia held mineral rights in southern West Virginia. The government offered approximately $5 million as reasonable compensation for its taking of the property, a sum Columbia felt was grossly insufficient. Following several years of discovery and the resolution of many pretrial issues, the case was tried before a special commission appointed by the court in lieu of a jury due to the complexity of the case. After a three-week trial, the commission entered a verdict for Columbia of over $51 million, then the largest verdict in West Virginia history.

Commercial Foreclosures

I am regularly involved in commercial foreclosures throughout Ohio on behalf of numerous commercial interests.

Commercial Landlord / Tenant Representation

Litigated claims on commercial leases throughout Ohio on behalf of landlords and tenants at multiple commercial sites.

Commercial Receivership

I have overseen multiple commercial receivership filings on behalf of clients with liens/mortgages on commercial, income-producing property.

Cook Pallet, Inc. v. Meritor Heavy Vehicle Systems, LLC

Our firm won a defense verdict at trial for Meritor in an action for collection of $300,000 in unpaid monies on a vendor contract, and obtained a $30,000 verdict for Meritor on its counterclaim for conversion stemming from prior overpayments to the vendor.

Counsel to international online retailer

We provide clearance review, strategic counsel and litigation counsel to an international online retail that sources and manufacturers products overseas for online retail sale to customers in North America and Europe. The business began as a small retailer on ebay and has grown into a multi-million company. We provide clearance for patent and trademarks, register trademarks, file patents and provide counsel on litigation matters as well.

Criminal Prosecution

Served as Assistant Special Prosecutor for the State of Ohio in the successful prosecution of a bank’s owner and its officers for the misapplication of bank funds and for securities law violations which led to the collapse of a state charted savings and loan association

Defended Appliance Manufacturer in Product Liability Case

The plaintiff alleged that his house caught fire and sustained significant damage due to a fire that originated in a toaster that was manufactured by our client. Due to a lack of supporting physical evidence, the case was voluntarily dismissed by the plaintiff.

Defended ATV Manufacturer in Product Liability Case

Plaintiff alleged that the decedent died as a result of injuries that he sustained in an ATV accident and that the ATV was defectively designed. Because there were no witnesses to the accident and the operator was unable to testify, the federal court granted summary judgment to our client while finding that there was insufficient proof that a rollover had even occurred, much less that there was a defect which caused a rollover. The Sixth Circuit Court of Appeals affirmed.

Defended Manufacturer of Marine Steering Cables in a Product Liability Case

The plaintiff was injured when he ran his fishing boat onto the shore of a river. He sustained head injuries and his passenger was ejected. The plaintiff alleged that the boat’s steering cable failed causing him to lose control of the boat. After discovery and motion practice, we successfully negotiated a settlement for our client shortly before trial.

Defended Motor Vehicle Manufacturer in Product Liability Case

Plaintiff was injured in a collision with another driver’s vehicle. She alleged that her injuries were enhanced by the deployment of the airbag that was in the vehicle she was operating. Plaintiff was unable to show the existence of a defect even with her expert’s testimony and our client was awarded summary judgment.

Defended Retailer of Christmas Tree Lights in Product Liability Case

A fire in an apartment complex that resulted in multiple deaths allegedly started when a Christmas tree caught fire. The plaintiffs alleged that the lights on the tree were defective and that this defect caused the fire. The plaintiffs had purchased lights from several retailers over the years and filed suit against all of them. Because the plaintiffs could not show where the allegedly defective lights were purchased, the court granted summary judgment to our clients. The Kentucky Court of Appeals affirmed.

Defended Transportation Company in Highway Collision

Our client, a national transportation company, was awarded a verdict on its behalf in federal court. The case involved a question of who was at fault in a significant head-on collision. After several days of trial, the jury returned a verdict for our client.

Dispute Relating to the Release of Records in Case Involving the Death Of A Toddler

When a newspaper was denied access to records from the Cabinet for Health and Family Services relating to a case involving the death of a toddler, they turned to Dinsmore. The paper requested records from the Cabinet following the death of a 20-month old toddler, whose mother had been under investigation by the Cabinet. The Cabinet denied the requests, citing confidentiality provisions of HIPAA and personal privacy exemptions in the Kentucky Revised Statutes (KRS) Open Records Act. The Attorney General had previously upheld the Cabinet’s decision to withhold the records from another newspaper, and that case was headed to the Franklin Circuit Court on appeal. We moved to intervene in the circuit court action, and the motion was granted. The circuit court found that the Cabinet was obligated to provide the records, and had violated the Open Records Act because the state laws cited by the Cabinet did not forbid disclosure of the records. The Court also ruled that attorney’s fees and costs were to be awarded to the newspaper, citing another part of Kentucky’s open records law that says, “Any person who prevails against any agency in any action in the courts regarding a willful violation of [the Kentucky Open Records Law]…may be awarded costs, including reasonable attorney’s fees incurred in connection with the legal action.” The circuit court’s ruling was affirmed by the Kentucky Court of Appeals. This ruling results in not only financial savings for the client, but also establishes clear precedent for asserting that governmental agencies may be responsible for a private litigant’s attorney’s fees when successful in seeking to open government records for public review.

Doe v. Archdiocese of Cincinnati

Plaintiff brought suit against the Archdiocese of Cincinnati for breach of fiduciary duty, negligence, engaging in a pattern of corrupt activities, and respondeat superior. The trial court granted the Archdiocese's motion to dismiss because the claims were not timely and plaintiff failed to properly plead a claim arising under Ohio's corrupt practices act, which mirrors RICO. The Third District Court of Appeals for the State of Ohio reversed and the Supreme Court of Ohio granted cert and an appeal as of right because of a conflict in jurisdiction and constitutional issues presented in the case. The Supreme Court affirmed the dismissal, which resulted in the dismissal of numerous lawsuits pending in Southern Ohio, saving the client millions of dollars in defense costs. The case was also significant because it is the first ruling by the Ohio Supreme Court regarding the requirements for Ohio's corrupt practices act.

Douglas Industries, Inc. and JAIR United, Inc. v. Lear Siegler Services, Inc.

Our firm defended Lear against claims that it had failed to pay $2.5 million owed to the plaintiffs for repairs they allegedly completed and parts they allegedly supplied on Lear's behalf to the Kingdom of Saudi Arabia and the Royal Saudi Air Force for F-5 aircraft and J-785 engines under certain U.S. defense contracts. A favorable settlement was reached prior to trial.

Duramed Pharmaceuticals, Inc. v. Schein Pharmaceuticals

We were lead counsel for Schein Pharmaceutical in litigation brought by Duramed Pharmaceuticals concerning the conjugated estrogens drug sold as "Cenestin." After extensive discovery and motion practice, the case settled shortly before trial in 2000 with Duramed paying Schein $15 million and agreeing to pay an additional $15 million if certain profit milestones for Cenestin were met. Duramed Pharmaceuticals, Inc. v. Schein Pharmaceuticals, Case No. A9705498 (Hamilton County Court of Common Pleas)

Edward Hamilton v. Ohio Department of Health

Three Ohio AIDS patients filed a lawsuit against the director of the Ohio Department of Health (ODH) to prevent enforcement of proposed rules that would arbitrarily deny funding for potentially life-saving medications to Ohio residents infected with HIV or suffering from AIDS-related symptoms. Defendants claimed that ODH failed to follow statutory rule-making process and the proposed rules were unenforceable. Court agreed that public interest would be served by protecting the right of a public hearing, and issued preliminary injunction preventing ODH from implementing new rules pending resolution of the lawsuit.

Equipment Retailer

The plaintiff filed suit claiming that our client, a retailer of parts and equipment used in lawn maintenance, had violated anti-trust laws under the Robinson-Patman Act. Our client was awarded summary judgment in federal court and the Sixth Circuit Court of Appeals affirmed.

Fairmont General Hospital v. United Hospital Center

Mr. O'Neil and Ms. Bentz represented a hospital before the West Virginia Health Care Cost Review Authority, the Office of Judges, the Circuit Court of Marion County, and the West Virginia Supreme Court of Appeals in the successful prosecution of the hospital's application for a certificate of need to develop a $285,000,000 replacement hospital.

Farmer, Executrix v. Meuser, Executor - Will Contest

Represented several family members of the deceased, who challenged his will as being the product of lack of testamentary capacity and undue influence. The trial court instructed the jury that the appropriate standard to prove undue influence and testamentary capacity was the stricter standard of clear and convincing evidence, rather than the preponderance of the evidence standard typically applied in civil lawsuits. The Court of Appeals ruled in favor of our clients on this issue and decided that the proper standard of proof in undue influence and testamentary capacity cases is preponderance of the evidence rather than the stricter clear and convincing evidence.

Firearm Product Liability Litigation

Defended firearm manufacturers against design defect allegations.

Fortune v. Nalco Company et al.

Represented manufacturer of chemicals held in a storage tank on property owned by a coal company which overturned during a flood which occurred in Raleigh County, West Virginia. This matter was filed on behalf of fifty named Plaintiffs against several coal company Defendants, a logging company and our chemical company client. Plaintiffs filed this matter as a purported class action. Plaintiffs sought damages for medical monitoring and personal injuries including claims for wrongful death and lung cancer. Plaintiffs sought a multi-million dollar settlement. This matter settled for $20,000 on behalf of our client after we finished deposing Plaintiffs.

Franchise Disputes

Represented franchisors and franchisees in multiple business/franchise-related disputes, and acted as counsel on franchise litigation, arbitration and mediation.

Fultz & Thatcher v. Burrows Paper Corporation

We represented Defendant Burrows Paper Corporation in a lawsuit seeking in excess of $1 million for breach of contract.  The defense prevailed on summary judgment, and again on appeal, where a three-judge panel rendered a unanimous decision in our favor.

Furnace Manufacturer

The plaintiffs alleged that they suffered carbon monoxide poisoning as a result of a CO leak in their furnace. After testing of the furnace by the experts found no leak in the unit and no defect, we successfully negotiated a settlement.

Gaskill v. Robbins - Division of Marital Property

Represented client in division of marital property in what would become a landmark case in the Kentucky Supreme Court. The client was a sole practitioner in oral surgery, and following a divorce, the dispute centered around the distinction between personal goodwill and enterprise goodwill in the division of the oral surgery practice. The Supreme Court ruled that goodwill of a professional practice is divided into personal goodwill and enterprise goodwill, and only enterprise goodwill is considered marital property for division in a divorce.

Genesis Plastics and Engineering, LLC v. Lear Corporation

We represented Plaintiff Genesis Plastics and Engineering, LLC in a lawsuit seeking $500,000 to $1.5 million for breach of contract, tortious interference with contract, and fraud.  We were able to achieve an excellent outcome for the client by aggressively pursuing all available claims.  Thoroughness in the discovery process uncovered crucial evidence leading to the favorable outcome.  We also used a creative multi-media presentation during settlement negotiation to demonstrate our preparedness for trial and ability to convey the relevant facts of a complex commercial case so that a jury could readily understand and empathize with our client's position.  After completion of discovery and substantial motion practice the matter was resolved with a favorable settlement for our client.