Product Liability


Lewis v. Synthes, et al.

Dinsmore & Shohl represented Synthes, a medical device manufacturer, in the Ohio cases involving alleged injuries from the use of pedicle screws.  The cases were dismissed.

Defense of Tobacco Related Claims

Mr. Jernigan has for many years served and continues to serve as West Virginia counsel for the former Brown & Williamson Tobacco Company and its successor, the R.J. Reynolds Tobacco Company in the defense of tobacco related claims.  In this regard, Mr. Jernigan was involved in the successful defense of one of the nation's first class actions seeking medical monitoring for the development of future disease states relating to smoking.  Mr. Jernigan remains active in the defense of the R.J. Reynolds Tobacco Company in the defense of over a thousand personal injury claims pending against it for tobacco related diseases.

Representation of Corporate Defendants

Over the course of his career, Mr. Jernigan is experienced in the defense of major cases involving primarily corporate defendants.  Those cases have ranged from contract disputes to product liability claims involving the statewide representation of, among others, American Motors and Chrysler Corporation in the defense of Jeep rollover litigation; Sturm Ruger & Co., Inc. in the defense of product liability claims involving certain of its firearms; Johns Manville Corp. in defense of asbestos related claims; Black & Decker Corporation in the defense of various product liability claims involving guiding issues; and Procter & Gamble in defense of toxic shock claims.

Representation of Energy Industry Companies

Mr. Jernigan has represented a large number of companies in the energy industry in the defense of personal injury actions, contract disputes, major property damage claims and disputes with the State of West Virginia, including, among others, Massey Energy Company, Allegheny Energy, Peabody Energy, Consol Energy, Bluestone Coal Corporation, and Foundation Coal as well as the former Island Creek Coal, Cannelton Coal Corp., Westmoreland Coal Corp. and Pittston Coal.

Commercial Litigation Involving Software Supplier to a Vehicle Distributor

We represented an international motor vehicle distributor in a commercial litigation dispute with one of its software suppliers. We successfully defended the company in AAA arbitration proceedings in Des Moines, Iowa, resulting in a favorable resolution for our client.

A Long History as Trusted Counsel

Client: The Procter & Gamble Company
Dinsmore has a long history as trusted legal counsel to P&G.

As one of the world’s largest and most trusted companies, Procter & Gamble has no shortage of legal needs. Whether seeking counsel on corporate strategy, navigating real estate transactions or protecting their shareholders’ assets, P&G relies on its legal counsel to keep its business running efficiently. That’s why, for nearly 100 years, the consumer products giant has turned to Dinsmore.

“Dinsmore knows our business and understands our culture,” said Debbie Majoras, Chief Legal Officer for P&G.  “They remain a trusted ally for us because they are committed to our goals, our company’s success and meeting our legal needs. They bring tremendous value, and we enjoy working with them.”

Dinsmore works closely with P&G’s in-house lawyers to provide an array of services, from advising on all manners of contracts and agreements to corporate and securities counseling to handling real estate matters throughout the country. Dinsmore has also represented P&G in a variety of litigation matters over many years, including handling sophisticated product liability, class action, intellectual property and other complex commercial matters.

“Dinsmore is efficient and responsive, and we can count on great partnership and top quality work when we come to them,” said Majoras. “We truly value the special relationship we have built with them."

“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.

Video Games Litigation

Successful defense of creator/manufacturer of video games in which the parents of decedents of a high school shooting claimed that the students were shot by a young man who was addicted to violence by video games and movies.

Diet Drug Litigation

This multi-year representation included defense of a proposed statewide class action, and dismissal of a proposed medical monitoring class affirmed by the Kentucky Supreme Court. Significant experience in MDL practice and the interplay between state court cases and MDL cases.

Personal Injury Matter Relating To a Hand-Held Mixer

We represented a major household product manufacturer in a personal injury matter in Hamilton County, Ohio. The Plaintiff alleged she had suffered significant injuries when operating a hand-held mixer. The case went to trial. By utilizing effective presentations from our expert witnesses, including a live demonstration for the jury, and cross-examination of the Plaintiff and her expert witnesses, we were able to obtain a defense verdict on behalf of our client.

Product Liability Defense of Industrial Equipment Manufacturer Against Claims of Defective Design Involving Bucket Truck

We represented a man-lift manufacturer in a product liability case where plaintiff’s husband died in accident while operating an industrial bucket truck. The plaintiff alleged that the bucket truck should have been equipped with a strain gauge load cell system. The plaintiff filed claims for negligence, strict liability and breach of warrant against our client. After successfully obtaining dismissal of plaintiff’s manufacturing defect claim, we filed Daubert motions to exclude plaintiff’s experts arguing her experts were unreliable. Concurrently, we filed a motion for summary judgment. The state court judge granted both the Daubert motion and summary judgment motion in favor of our client.

Appellate Counsel to Manufacturer in Precedent-Setting Case Regarding Scope of Manufacturer’s Liability Under Doctrine of Equitable Estoppel

Successfully defended equipment manufacturer through appeal, establishing significant favorable precedent in product liability law in Kentucky regarding application of doctrine of equitable estoppel and statute of limitations discovery rule.

Fluke, Inc. v. LeMaster, 306 S.W.3d 55 (Ky. 2010). Click HERE to view the decision.

In re Bendectin Product Liability Litigation

Defense of Merrell Dow in several thousand suits alleging that birth defects were caused by the prescription anti-nausea medication, Bendectin. Numerous summary judgments and jury verdicts obtained in favor of Merrell Dow.

In re: Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Product Liability Litigation

Represented a generic drug manufacturer in thousands of product liability cases where plaintiffs alleged pulmonary and cardiac injury from ingestion of diet drugs. The cases were pending in federal multidistrict litigation proceedings in E. D. of Pennsylvania, and in various state courts in Texas, Alabama, Mississippi, Louisiana, Pennsylvania and California.

MDL 1407: In re: Phenylpropanolamine Product Liability Litigation

Served as national coordinating counsel for Procter & Gamble Distributing Company and Procter & Gamble Pharmaceuticals, Inc. in personal injury cases where plaintiffs alleged injury from the ingestion of over the counter and prescription cough/cold medications. The cases were filed in federal multidistrict litigation proceedings in the W. D. of Washington, and in various state courts.

Personal Injury/Product Liability

We represented a major motorcycle manufacturer in a personal injury product liability case in Montgomery County, Ohio. After conducting some preliminary discovery, and after arranging for an inspection of the product by expert witnesses, we were able to persuade the Plaintiff’s counsel to voluntarily dismiss the litigation.

Published Decisions - State of Ohio

Selected published decisions - State of Ohio:

• Scherpenberg v. City of Mason, 12th Ohio Appellate District, CA2011-02-017 (12-5-11).
Discretionary appeal denied 131 Ohio St. 3d 1499 (2012). Upholding dismissal of employment-related claims against the City by former Clerk of Courts.

• Lowe v. Cincinnati Inc., 124 Ohio St. 3d 204 (November 12, 2009).
Upheld termination of permanent total disability benefits.

• Blauvelt v. City of Hamilton, 12th Ohio Appellate District, CA2008-07-174 (June 15, 2009); Discretionary appeal denied (October 14, 2009).
Reversing trial court -- Assistant law director is not entitled to civil service protection.

• Perkins v. Live Nation, 1st Ohio Appellate District, C-080809 (May 13, 2009),
Summary judgment upheld--premises owner not liable in slip and fall case.

• Mitchell v. City of Blue Ash, 1st Ohio Appellate District, C-080657 (April 24, 2009); Discretionary appeal denied (August 26, 2009).
Summary judgment upheld--recreational use immunity bars claims against The City.

• Sexton v. City of Mason , 117 Ohio St. 3d 275 (2008).
Summary judgment upheld--city not liable for flooding on homeowners’ property and claim of permanent trespass.

• Williams v. City of Hamilton, Twelfth Appellate District, CV 2005-09-3061 (July 21, 2008); Discretionary appeal denied (December 3, 2008).
Summary judgment upheld--city not liable for intentional tort involving employee with 2nd and 3rd degree burns over large percentage of his body.

• Crosset v. Marquette, First Appellate District, 2007 Ohio 550 (February 9, 2007); Discretionary appeal denied 114 Ohio St. 3d 1428, (2007).
Summary Judgment upheld--officer did not engage in malicious prosecution.

• State ex rel. Hiatt v. Indus. Comm’n., 99 Ohio St. 3d 32; (2003).
Supreme Court affirmed industrial commission award of minimum benefit.

• State Farm Cas. v. Black & Decker, Inc., Eighth Appellate District, 2002 Ohio 5821, (October 24, 2002); Discretionary appeal denied 98 Ohio St. 3d 1480 (2003).
Reversing verdict for plaintiff in a product liability action and ruling in favor of defendant manufacturer--testimony of plaintiff’s expert was contradicted by physical facts.

• Stanley v. City of Miamisburg, Second Appellate District, 2000 Ohio App. Lexis 205, (January 28, 2000).
Summary judgment upheld--Judicial estoppel precluded plaintiff from claiming City constructively discharged him by “forcing” him to retire in retaliation for whistleblowing.

• Golden v. Kearse, Twelfth Appellate District, 1999 Ohio App. Lexis 2573,
(June 7, 1999).
Summary judgment upheld--truck driver was independent contractor at time of accident and not entitled to workers’ compensation.

• Cincinnati Bell Tel. Co. v. Village of Fairfax, 81 Ohio St. 3d 599 (1998).
Supreme Court upheld Village’s right to impose net profits tax on telephone company.

• General Accident Ins. Co. v. Black & Decker (U.S.), First Appellate District, 1996 Ohio App. Lexis 4907, (November 13, 1996).
Defense verdict in product liability claim upheld--trial court properly admitted testimony of a manufacturer’s expert witness.

• Gallaher v. Manpower Int’l, First Appellate District, 106 Ohio App. 3d 881, (October 25, 1995).
Summary judgment upheld--heart attack not caused by employment.

• Helton v. Consol. Rail Corp., Twelfth Appellate District, 1992 Ohio App. Lexis 3881, (July 27, 1992).
Summary judgment upheld--railroad had no duty to provide crossing warnings beyond those required by statute and the injured motorist was required to exercise ordinary care for his own safety.

• Sites v. Proctor & Gamble Mfg. Co., Third Appellate District, 1991 Ohio App. Lexis 6471, (December 24, 1991).
Summary judgment upheld--owner of premises had no duty to warn or protect individual independent contractors from dangers associated with work they were hired to perform.

• Dickstrom v. Southern Ohio Fabricators, Inc., Twelfth Appellate District, 1990 Ohio App. Lexis 502, (February 12, 1990).
Summary judgment upheld--employee’s death not caused by intentional tort.

• Miller v. Procter & Gamble Mfg. Co., Third Appellate District, 1989 Ohio App. Lexis 4793, (December 20, 1989).
Directed verdict upheld--manufacturer not responsible for injuries to an employee of an independent contractor where the employee was responsible for the condition of her work area and knew of the dangers of the job.

• Cox v. Consolidated Rail Corp., Twelfth Appellate District, 1989 Ohio App. Lexis 3313, (August 28, 1989).
Summary judgment upheld--Rail company’s failure to use warnings at grade crossing was not a nuisance.

• Grimsley v. General Motors Corp., Twelfth Appellate District, 1988 Ohio App. Lexis 516, February 15, 1988.
Summary judgment upheld--employer did not act with the belief that an injury was substantially certain to occur.

• Joseph v. Consolidated Rail Corp., Twelfth Appellate District, 1987 Ohio App. Lexis 9435, (October 30, 1987).
Summary judgment upheld--surveillance by private contractor did not impose liability on the employer.

• Baker v. Consolidated Rail Corp., Second Appellate District, 1986 Ohio App. Lexis 7559, (July 8, 1986).
Summary judgment upheld--railroad not liable for failing to provide warning devices in addition to the usual signs at a crossing where the decedent was killed by a train because the crossing was not especially dangerous.

Surles v. P&G-Clairol, Inc.

Our firm represented P&G-Clariol in a product liability case claiming personal injuries resulting from the use of a consumer product. We obtained summary judgment and dismissal on behalf of our client following discovery.

Product Liability Lawsuit Involving Allegations of Unwanted Acceleration

Defense of Automobile Manufacturer against unwanted acceleration allegation involving two seriously and permanently injured plaintiffs. Daubert motion lead to exclusion of plaintiffs’ liability expert and motion in limine resulted in exclusion of numerous allegedly similar incidents. Negotiated favorable settlement for Automobile Manufacturer.

Multi-District Product Liability Litigation

National liaison counsel for Recreational Vehicle Manufacturer in multi-district litigation involving more than 300 product liability lawsuits involving the design of a side-by-side utility vehicle. Co-trial counsel for 12 of these lawsuits involving Kentucky plaintiffs.

IN RE: Air Crash at Lexington, Kentucky, August 27, 2006

Counsel for Regional Jet Manufacturer in product liability litigation arising from the August 27, 2006 crash of Delta Flight 5191. All claims against the manufacturer were voluntarily dismissed.

Defended Equipment Manufacturer in a Product Liability Case Stemming From a Fatality

The plaintiff had purchased a track loader from our client, a Japanese equipment manufacturer. The plaintiff then attached a rotary mower, which had been purchased from another supplier, onto the track loader and attempted to mow a neighbor’s farm where a man-made pond existed. The plaintiff rode the newly-modified vehicle onto the dam, or berm, of the pond, the ground gave way under the vehicle’s weight, and the vehicle and its occupant overturned into the pond. The operator was killed, and a product liability suit was filed by his family. Working with mechanical engineers, we determined that the operator had been using the track loader in a manner inconsistent with the operating manual and subsequently developed incontrovertible evidence the product was free of any defects. We eventually negotiated a settlement favorable to our client.

Defended Video Game Manufacturer in Product Liability Case

We represented Nintendo in a product liability case that arose from a house fire. The plaintiff was charging a handheld Nintendo game system and left the house, which subsequently caught on fire. The plaintiff’s fire examiner alleged the cause of the fire was the Nintendo device, and the plaintiff filed suit for product liability. During depositions we disproved the theory that the fire was caused by the device, instead showing the fire originated three feet away. Following this, the plaintiff voluntarily dismissed the case with prejudice.

Fixodent Denture Cream Litigation

Dinsmore's Product Liability Team recently received a ruling in favor of The Procter & Gamble Defendants ("P&G") which is the first in the country to assess and reject the scientific basis for lawsuits filed by a number of Fixodent® users.

Frank C. Woodside, III, and his team serve as counsel for P&G defendants concerning Denture Adhesive Litigation. In that litigation, Judge Cecilia Altonaga oversees discovery in the Multi-District Litigation involving more than 150 plaintiffs who seek damages for personal injuries that allegedly resulted from their use of excessive amounts of Fixodent, manufactured by P&G, and/or Poligrip, manufactured by GlaxoSmithKline. The current litigation was initiated in 2009 against P&G. The Federal cases were eventually consolidated in Miami with a number of other cases pending in state courts throughout the country. P&G has steadfastly defended the safety of Fixodent.

On June 13, 2011 Judge Altonaga issued a Daubert opinion granting P&G's motion to exclude virtually all of the Plaintiffs’ proposed expert opinion testimony that purportedly supported the link between extremely excessive use of Fixodent denture adhesive and neurological disease.

Anonymous Plaintiff v. Cereal Manufacturer

We represented the Defendant's insurer in a suit for $10,000 against a cereal manufacturer for Plaintiff's broken tooth due to an alleged foreign object in the cereal.  The case was settled prior to mediation.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit against our client, a general contractor, seeking $100,000 for defects in Plaintiff's home related to the use of synthetic stucco (EIFS) material.  Dinsmore & Shohl obtained a dismissal in favor of the general contractor on the basis of the North Carolina Statute of Repose.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit against our client, general contractor, seeking $1 million for defects in Plaintiff's home related to the use of synthetic stucco (EIFS) material.  Dinsmore & Shohl negotiated settlement with the homeowners on the general contractor's behalf and prosecuted third-party claims against the EIFS product manufacturer.

Anonymous Plaintiff v. General Contractor

Plaintiffs filed a $300,000 suit against our client, the general contractor, for defects in Plaintiff's home related to moisture intrusion and structural defects.  The general contractor in turned filed suit against 12 different subcontractors.  The case was settled favorably for the client after two days of mediation.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit against our client, a general contractor, seeking $1,000,000 for defects in Plaintiffs' home related to the use of synthetic stucco (EIFS) material.  Dinsmore & Shohl obtained dismissal in favor of the general contractor, individually, which was affirmed on appeal.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit for $1,000,000 against our client, the general contractor, for defects in Plaintiff's home. The claim went through a week-long arbitration, settling favorably for the client before a verdict was rendered.