Success Stories
We are proud of the results that we obtain for our clients in and out of the courtroom. We are pleased to share some of these success stories with you.
Favorable ruling by Kentucky Court of Appeals in constitutional challenge to state statute prohibiting discovery of prescription drug records (June 2008): Ken O'Brien and Tom Peters successfully challenged the constitutionality of a Kentucky statute in the Kentucky Court of Appeals. The statute required health care providers to report the dispensation of controlled substances to a state agency, but prohibited the state agency from complying with a subpoena or court order allowing a civil litigant to obtain discovery regarding the controlled substances dispensed to the plaintiff. Our client wished to have access to the controlled substance information in order to evaluate whether the Plaintiff's pain complaints may have been exaggerated. The plaintiff in question had a history of substance abuse, ran out of his prescribed medications sooner than expected on many occasions, reported that his medication had been stolen on more than one occasion, and was dropped from a pain management program because he violated the program's patient contract. Mr. O'Brien and Mr. Peters argued that the statute was an unconstitutional violation of the separation of powers doctrine, since it invaded the province of the judicial branch by determining that relevant evidence, i.e. the KASPER report, was not discoverable in a lawsuit. The trial court and Court of Appeals agreed.
Favorable settlement of construction defect claim (July 2008): Peter Sewell recently represented a roofing subcontractor in a lawsuit brought by a general contractor alleging deficiencies in the roof work. The construction project involved the renovation of an old factory into residential condominiums. Issues included whether the owner, architect and contractors properly evaluated the existing roof deck and roof systems, whether the old roof systems needed to be fully removed, whether the roof was suitable for use as a rooftop garden and whether the roof coating that was utilized was appropriate for the dual purpose of acting as a weathertight membrane and as a durable surface for foot traffic. Investigation and discovery established that the general contractor had received written and verbal warnings regarding the roof and its intended useage from another commercial roofing contractor. The letter and photos were not found in the general contractor's project file. The letter and warnings were not shared with the project architect or the retained roofing subcontractor. This and other evidence allowed us to negotiate a favorable settlement for our client at mediation.
Favorable settlement of rollover truck accident Haz-Mat claim (2007-2008): Ken O'Brien recently represented a trucking company in a federal lawsuit arising from a chemical spill. Our investigation revealed that the truck had been loaded improperly, and that the containers may not have been been designed for a reasonably foreseeable event: a rollover accident. Our work allowed the trucking company to reach a settlement that was significantly less than the initial demand made by the Plaintiff.
Summary judgment granted to national sports organization re: products liability claim (Spring 2008): Ken O'Brien and Erin Logsdon defended a national sports organization in a personal injury claim in Jefferson County, Kentucky. The Plaintiff was struck in the head with a hit ball while pitching in a softball tournament. The Plaintiff alleged that the organization sponsored the tournament, and that it allowed the participants to use dangerous and defective equipment, i.e. the ball and bat, and that it should be held responsible for his injury. We demonstrated that the organization did not sponsor the tournament, and had nothing to do with selecting or approving the equipment used in the tournament. Our client was dismissed following a motion for summary judgment.
Summary Judgment granted to homeowner re: Plaintiff's slip and fall on a public sidewalk (2008): Erin Logsdon represent a property owner who was sued after a neighbor fell on a public sidewalk. We demonstrated that the homeowner did not own the sidewalk, had no duty to maintain the sidewalk, and that any leaves on the property would have been open and obvious condition for which it was not necessary to give a warning. The trial court agreed and granted summary judgment.
Favorable settlement in mold claim (2007): Ken O'Brien represented a national consumer electronics and appliances retailer in a mold claim. The retailer's employees allegedly damaged a waterline in the course of installing a refrigerator ice-maker. The damaged waterline caused mold, and the homeowners sued to recover for property damage and medical expenses that they attributed to mold exposure. The complaint was filed on the last day allowed by the applicable statute of limitations, but we demonstrated that the homeowners failed to comply with Kentucky's requirements for filing an action within the statute of limitations period because they did not make a good faith effort to serve their complaint in the 12 months after they filed it. The parties reached a compromise settlement that was substantially less than the homeowners? demand.
Favorable ruling at Kentucky Court of Appeals re: application of "sudden emergency" defense to personal watercraft claim (October 2007): Peter Sewell prevailed in a personal injury claim arising from the use of personal water craft. The Plaintiff was operating a personal water craft on Lake Cumberland. Our client was operating a second personal water craft behind and to the left of the Plaintiff. The accident occurred after the Plaintiff suddenly turned into our client?s path and the two personal water craft collided. The Plaintiff sustained a serious injury, and sought to recover more than $750,000 in damages. We successfully defended our client and obtained a defense verdict at trial. On appeal, the Plaintiff argued that the trial court erred in instructing the jury on "sudden emergency". The Court of Appeals disagreed and upheld the verdict in favor of our client.
Defense verdict in slip and fall trial (February 2007): Peter Sewell successfully defended a self-serve car wash in a slip and fall claim in Jefferson Circuit Court in Louisville. The Plaintiff alleged that he slipped on ice that had accumulated in the car wash bay, and that he sustained permanent injuries as a result of the fall. We established that the car wash featured an in-ground heating system for the car wash bays, and that the area did not represent a dangerous condition or slip hazard. The jury returned a defense verdict after less than 15 minutes of deliberations.
Defense verdict in federal products liability claim involving allegations of defective welding of a fan shaft (January/February 2006): In March 2006, Peter Sewell and Ted Kozak obtained a unanimous defense verdict on behalf of a specialty welding contractor after a month-long trial in U.S. District Court in Louisville. A local electric utility hired a machining company to repair a large fan shaft at an electrical generating plant in Louisville. The utility requested that a portion of the shaft be machined down, that a weld overlay be applied and that the shaft then be machined back down to original specifications. Our client was hired on a subcontract basis to perform the computer-controlled welding work. Approximately 30 days after the work was performed the shaft broke. A dispute then arose as to whether the shaft broke because of deficiencies in the welding or due to other reasons within the control of the utility company.
The failure of the fan shaft caused the electrical generating plant to either be inoperative or to be limited to running at reduced capacity for a period of five weeks during a particularly hot summer. The utlity made a claim in excess of $6,000,000 for lost profits for claimed lost sales of electricity in the wholesale market, in addition to seeking damages for the cost of the repair. This lawsuit presented some rather complex metallurgical and computerized welding issues, as well as a very interesting claim for lost profits. The eight-person jury returned a unanimous defense verdict after one and one-half hours of deliberation.
Defense verdict in taxi-cab assault case: In December 2003, Peter Sewell was successful in obtaining a defense verdict in a trial of a passenger's assault claim against a taxicab company and its driver. The passenger alleged that the taxicab driver stabbed him in arm with a knife without provocation. He sought damages for medical expenses, lost wages, pain and suffering, and punitive damages. At trial, the taxicab driver explained that the passenger and an acquaintance were intoxicated and that they initiated the altercation by uttering a racial epithet and attempting to punch him. The jury agreed that the taxicab driver acted in self defense, and returned a defense verdict.
Defense verdict in truck accident claim where Plaintiff failed to stop when truck pulled out from a parking lot: In March 2003, Ted Kozak and Peter Sewell obtained a defense verdict in a truck accident claim. The lawsuit arose from an accident involving a tanker truck and a minivan. The minivan struck the tanker truck as the truck pulled into the roadway from a parking lot. Issues at trial included the precise location of the two vehicles in the roadway at the time of collision, the speed of the plaintiff's vehicle, and whether the plaintiff failed to keep an adequate lookout for other vehicles. The defense case included an extensive presentation of videotape footage of many semi-tractor trailer vehicles pulling out of the parking lot, photographs and diagrams to demonstrate that the plaintiff would have been able to stop in time if she had kept a proper lookout and drove within the speed limit.
Defense verdict in slip and fall case involving a country club: In February 2003, Ken O'Brien successfully defended a local country club in a slip and fall claim in the Jefferson Circuit Court. The plaintiff alleged that he slipped in a restroom while he attended a wedding reception held at the country club. He alleged negligence on the part of the janitorial staff and sought more than $250,000 for medical expenses and pain and suffering. The defense argued that the plaintiff fell because of his own inattention, and that most of his complaints and medical expenses were actually attributable to a subsequent fall at a local race track. The jury returned a defense verdict after less than 2 hours of deliberations.