LitigationExperience
Client avoids potential multi-million dollar judgment with separate-case argument
Our client, a national transportation company, was sued under the Federal Employers Liability Act (FELA) by many employees in “mass” asbestos complaints that first listed all of the plaintiffs, and then alleged general claims for malignant and non-malignant injury from asbestos exposure without specifying for each plaintiff what type of claim he had. Many of the plaintiffs had only non-malignant disease when the cases were filed, but while the cases were pending several plaintiffs developed what they thought was asbestos-related cancer. Several years later, their cases were set for trial, and plaintiffs’ counsel made exorbitant settlement demands for the plaintiffs with cancer.
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
We were brought into the defense of this contract and tort case fewer than 40 days before trial started. Plaintiff sought millions in damages, and we did not have an opportunity to depose plaintiff’s economic witness who was a professor of Economics at a local university. We investigated the professor and obtained a copy of the syllabus for an economics course he taught. We then got a copy of the textbook he used to teach the course, and showed in cross-examination that the method he used to put a value of millions on the plaintiff’s supposed business losses was grossly different from the methods that he taught his students to use for business valuation. As a result, the plaintiff’s damage claim was shown to be grossly inflated and the jury returned a verdict that was a fraction of what plaintiff had been seeking.
Psychologist’s documents lead to settlement of case for client over contract dispute
Our client was sued for not giving plaintiff another 1-year contract after having done so for a series of years. The plaintiff, a local kennel owner, claimed this led to the loss of his business and the loss of his family.
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 for intimidating behavior. 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
Our client claimed a breach of a purchase agreement involving industrial goods. Following several days at trial, a judge in the Hamilton County Court of Common Pleas entered a judgment favorable to our client, including a total award in excess of $500,000 that included compensation, late fees and legal costs.
Partial Summary Judgment and Evidentiary Motion lead to settlement for client
Our client, a national convenience store chain, was involved in litigation due to a slip and fall. The plaintiff alleged soft tissue injuries and more serious injuries that resulted in back surgeries as a result, and the amount sought by the plaintiff was very high. However, the treating physician was unable to substantiate the cause of the injury, and the plaintiff’s legal team failed to comply with deadlines with respect to expert witnesses. We were able to obtain partial summary judgment and an evidentiary motion to exclude portions of testimony by the plaintiff’s physician. As a result, we settled the case for a satisfactory amount for our client.
“Wrongful Living” Lawsuit
We successfully argued for our client, a hospital, before the Ohio Supreme Court that a “wrongful living” claim could not be presented in connection with resuscitation by a healthcare provider.
Breach of Contract Claim
We successfully prosecuted a breach of contract claim for our client after the defendant failed to pay for projects it had ordered. The issue was resolved favorably for our client through arbitration.
Breach of Contract and Defamation Claims
We successfully handled breach of contract and defamation claims involving competing accountants. The case was tried for three days in the Hamilton County Court of Common Pleas, after which a favorable settlement was reached.
Breach of Contract and Trade Secret Misappropriation Claims
We have represented a large physicians group in commercial litigation against several formerly-employed physicians based on breach of contract and misappropriation of trade secrets. One case was tried for five days in the Hamilton County Court of Common Pleas; we received a judgment favorable to our client for approximately $300,000. Other matters were also prosecuted successfully for the client.
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
We represent third party lenders in claims regarding the West Virginia Consumer Credit Protection Act, Federal Truth in Lending Act and various other federal acts.
Defense of company in partnership dispute
Seth Schwartz represented our client, a contractor materials company (CMC), a fabricator of stainless steel rebar, in a significant case in New York Courts, ultimately reaching a favorable settlement focused on preserving our client’s business opportunities.
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
Successfully defended a pharmacy against claims of negligence in connection with a prescription that allegedly caused kidney damage. Defense verdict as lead trial counsel.
Representation of a large commercial shopping center in appeal
Seth Schwartz served as lead counsel for a dispute relating to contractual payments and title insurance for a large commercial shopping center in Toledo, Ohio. Our client appealed a decision of the Federal District Court. This dispute involved contractual interpretation issues, extensive discovery, extensive motion practice concerning the interpretation of the overlapping land agreements and applicability of the title insurance policy. The parties reached an agreement to the satisfaction of our client.
Defend majority owner against fraud, breach of contract and conversion
Seth Schwartz and Rich Porotsky represented the majority owner of seven LLCs, which owned approximately $70 million in real estate. The minority shareholders brought claims for fraud, breach of contract and conversion against the majority shareholder. In addition, the minority shareholders brought a preliminary injunction against the majority shareholder, which requested the majority shareholder be removed as manager of the companies. The case proceeded to a two-day preliminary injunction hearing where our client, the majority shareholder, prevailed.
Client is paid after golf course files Chapter 11 Bankruptcy
A golf course filed a Chapter 11 Bankruptcy. Our client, a financial institution, had liens on all of the debtor’s assets. We fiercely litigated over whether the automatic stay should be modified so the bank could either start receiving monthly payments or foreclose on the property. Through litigation and negotiation, we were able to obtain a resolution which paid off the loan and benefitted our client.
Bankruptcy workout resolution allows client to be paid 100%
We were able to negotiate a settlement of a multi-faceted bankruptcy that allowed the borrower to get out of bankruptcy. The deal also turned non-performing loans into performing ones. This allowed our client, a financial institution, to be paid 100% on the loans over a mutually agreed upon period of time.
Liens on partially developed subdivision lead to reduction in client’s loss
Our client, a financial institution, had liens on a very partially developed subdivision. Most of the land was hilly with little access. There were significant disagreements about the valuation of the property, and there were two guarantors. Through creative problem solving and negotiations with the gurantors and debtor, we were able to negotiate the best possible result for our client, which reduced their potential loss by 60%.
Collection matter turns into criminal case due to our discovery work
In the course of enforcing a judgment from another state for our client, a motor sports company, we discovered hidden assets of the defendant. The discovery forced the defendant into bankruptcy, and we successfully objected to dischargability of the debts due to fraud. We established the defendant had obtained funds for race cars and racing purposes but had used the money for everything but the intended purposes. We also were able to uncover and recover a race car, and we worked with government investigators prosecuting the defendant. As a result, we were able to creatively achieve our client’s goals.
Creative discovery and defenses achieve successful settlement for client
Our client, a mining goods manufacturer, was sued for significant alleged preferential transfers. We defended the preference action using creative discovery and legal research to craft numerous defenses, which helped achieve a favorable settlement.
Medical malpractice claim against physician dismissed
A medical malpractice claim filed with the West Virginia Board of Medicine against our client, an area physician, was dismissed.
Summary judgment for client in motor vehicle collision case
We obtained summary judgment on behalf of our client in a motor vehicle collision case. The Plaintiff claimed extensive personal injury and our client was at fault. The court ruled there was no way a jury could assign a verdict citing our client was more at fault than the plaintiff.
Summary judgment obtained for client in medical malpractice claim
We obtained summary judgment for our client, a physician in West Virginia. Through an extensive and lengthy discovery processes, we were able to establish evidence the plaintiff had knowledge of the condition before the statute of limitations. The court granted a summary judgment.
Defense of clients on blasting cases
We have defended an excess of 50 blasting claims throughout West Virginia and Eastern Kentucky. These cases involved defending mining companies, state and local government and construction companies businesses who use blasting as a means of clearing areas to conduct their business.
Kentucky Supreme Court decides damages in precedent setting trespass case
We represented clients who were landowners adjacent to an underground limestone quarry. The quarry operation trespassed on the clients’ property and removed over 100,000 tons of limestone. The Kentucky Supreme Court clarified the proper measure of damages for trespass and removal of limestone. The proper measure of damages in all innocent trespass cases is the value of the mineral after extraction, less the reasonable expenses incurred by the trespasser in extracting the mineral. The proper measure of damages where the trespass has been determined to be willful is the reasonable market value of the mineral at the mouth of the mine, without an allowance of the expense of removal. There is no basis to recover separately for punitive damages.
Obtained summary judgment on discrimination case
Our client, a national transportation company, was granted a summary judgment in U.S. District Court in the Western District of Kentucky. The plaintiff, a former carman, alleged race discrimination when his employer pulled a posted job and re-posted it with a CDL license requirement. He also alleged race discrimination for his employment termination following his conviction in Indiana state court on a drug-related charge. District court granted summary judgment on all counts, finding the employer had a legitimate, non-discriminatory and non-pretextual reason for its addition of a commercial driver’s license requirement for the posted job and finding the employee’s termination following a drug conviction was in keeping with the employer’s written drug policy. The summary judgment was affirmed by the U.S. Court of Appeals for the Sixth Circuit.
Obtained summary judgment for client in harassment and retaliatory discharge case
We obtained summary judgment for our client, an electrical subcontractor in U.S. District Court – Eastern District of Kentucky. The plaintiff, an electrician, sued her employer and the project manager on a construction site claiming sexual harassment in the presence of open, movable urinals on the construction site and retaliatory discharge. District court granted summary judgment on all counts, finding no sexually hostile work environment as plaintiff admitted both other male employees had expressed distaste over the urinals and the other female employees had indicated they had no problem with them. The court also found the plaintiff’s discharge was not retaliatory, as her termination was for an admitted violation of the construction site’s no-smoking policy, and the site manager’s directive for her removal from the worksite for this violation and her employer’s lack of any other job sites to which it could send her rendered her termination valid. The judgment was not appealed.
Obtained summary judgment for client on disability discrimination claim
We obtained summary judgment for our client, a mining company, in Fayette County Circuit Court in West Virginia. The plaintiff laborer was dismissed after a random drug test revealed the presence of a controlled substance for which he could not produce a prescription. He filed suit claiming his termination was disability discrimination, because he had revealed a back condition. The circuit court found the employer had a legitimate, non-discriminatory reason for the termination, as the employee had, by the employer’s written drug policy, failed the drug screen by his inability to produce a prescription for the controlled substance in question. The judgment was not appealed.
