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Jillian L. Dinehart

Portrait of Jillian L. Dinehart

Jillian is a member of the firm’s Professional Liability Department where she focuses her practice across a broad spectrum of professional liability matters, including but not limited to, the defense of municipalities and their employees, non profit directors and officers, real estate professionals, insurance agents and brokers, and employers. She has practiced in both state and federal courts, handles appeals, and has argued before the Sixth Circuit Court of Appeals. 

Jillian has been defending municipalities and their employees since 2013 and she has continued this practice with Marshall Dennehey, now leading the Cleveland office’s professional liability practice.  Although varied, Jillian’s public-sector liability practice focuses on police practices, sovereign immunity issues as well as labor and employment claims. Her employment practice extends to private employers, defending claims before the Ohio Civil Rights Commission, the EEOC, Ohio and federal courts regarding discrimination, harassment and retaliation, including claims brought pursuant to Title VII, the ADA, ADEA, the FMLA, trade secret litigation, whistleblower actions, housing discrimination and related tort claims.   

In her real estate work, Jillian has a strong track record of obtaining favorable results for real estate agents, real estate brokers, title agents, and home inspectors in cases brought against them related to alleged negligence, misrepresentation, disclosure errors, and contract disputes.  Jillian also concentrates her practice on D&O liability defending condominium and homeowners associations, as well as their directors, officers, and property managers, in matters involving alleged breaches of fiduciary duty, declaration disputes, real property document issues, and FHA, HUD and Fair Housing claims.  Additionally, she routinely defends insurance agents and brokers and miscellaneous professionals in matters pertaining to negligence, errors and omissions.  Jillian also has lived experience in non-profit D&O liability as a volunteer president of the board to a local community development corporation.

Further, Jillian’s practice extends to privacy and data breach matters, where she helps clients manage cyber risk and navigate incident response, containment, and compliance obligations. She also has experience defending corporate and individual insureds in product liability, construction, premises liability, and personal injury claims. 

A native of New York’s Finger Lakes region, Jillian earned her Bachelor’s Degree in Political Science from SUNY Albany. She received her juris doctor from Case Western Reserve University School of Law, where she launched her litigation career as an award winning student in the Criminal Defense Clinic. Before joining the firm in 2017, she gained valuable public sector experience as a judicial staff attorney and assistant director of law—skills she continues to draw upon in her advocacy for political subdivision clients.

Outside the office, Jillian can often be found enjoying live music or exploring the Cleveland MetroParks with her husband and their dogs.

    • Case Western Reserve University School of Law (J.D., 2010)
    • State University of New York at Albany (B.A., magna cum laude, 2006)
    • Ohio, 2010
    • U.S. District Court Northern District of Ohio, 2014
    • U.S. Court of Appeals 6th Circuit, 2015
    • The Best Lawyers: Ones to Watch®, Health Care Law (2023)
    • The Best Lawyers: Ones to Watch©, Personal Injury Litigation - Defendants (2024)
    • The Best Lawyers in America©, Personal Injury Litigation - Defendants (2026-2027)
    • American Bar Association
    • Cleveland Metropolitan Bar Association
    • Ohio Personal Injury Litigation: Secrets Only the Top Attorneys Know, National Business Institute (NBI) Webinar, December 15, 2022
    • Political Subdivision Tort Liability, Cuyahoga County Common Pleas Court, August 2015
    • Brief Advice Clinic with Legal Aid Society of Greater Cleveland, 2009
    • Immigration Clinic with Catholic Charities, 2009
    • AmeriCorps Service Member benefitting Legal Aid of Western New York, 2009
    • Jillian’s Motion to Dismiss was affirmed on appeal after the Ninth District Court of Appeals found that Plaintiff had sued a non sui juris entity by suing a county department in a personal injury suit.  The Plaintiff initially filed suit against the department, and later dismissed without prejudice to allow more time to develop Plaintiff’s medical records.  When he refiled his suit, he again named a county department as the defendant.  Jillian filed a Motion to Dismiss arguing that a county department does not have the capacity to be sued.  Plaintiff then filed a Motion to Amend the Complaint and named the county.  Jillian then filed a Motion to Dismiss the Amended Complaint arguing that the plaintiff was outside of the statute of limitations and that the change in defendant could not relate back to the originally filed suit.  Plaintiff’s argument that naming the department was merely a misnomer and that the Amended Complaint should relate back to the original filing failed and the trial court dismissed the case.  After oral argument, the appellate court affirmed the decision.
    • In 2023, Jillian went to trial in a motor-vehicle accident case in which she represented a driver that had died while the case was pending.  There was also a large, financially successful, corporate co-defendant represented by other counsel.  The plaintiff had sustained a broken arm in the accident that was surgically repaired.  Jillian’s client had admitted liability, so the case was solely to be heard on the value of the injury, and the liability of the corporate co-defendant.  Likely counting on the deep pockets of the co-defendant, the Plaintiff’s pre-suit demand was not rationally related to the injury or in the realm of similar verdicts in the region.  During the first day of trial, Jillian formed a clear rapport with the jury panel, often engaging in friendly banter with the potential jurors about their own experiences in car accidents, injuries similar to the plaintiff’s, and the social impact of surgical scars.  This rapport was in direct contrast to a very dry voir dire by plaintiff’s counsel and was bolstered by a similarly friendly voir dire by the co-defendant’s counsel.  The parties completed their opening statements and returned to court in the morning, at which time the plaintiff asked to engage in settlement discussions.  As a result of Jillian’s trial performance, the case settlement for $1.5 Million less than the plaintiff’s demand the day before trial.

Results

Successfully Defended a Suburban Mayor in a Defamation Case

We successfully defended an appeal of a trial court decision dismissing a defamation claim against a suburban mayor. The plaintiff, a former police officer, brought actions against a former city mayor and related defendants, asserting defamation, false light and related claims. The plaintiff alleged that statements made during a press conference disparaged him and violated a non-disparagement clause in his separation agreement. The court ruled the defamation and false light claims were correctly barred by the one-year statute of limitations under R.C. 2305.11(A) where the saving statute, R.C. 2305.19(A), permitted refiling in federal court, but did not toll limitations for subsequent state filings after the federal court dismissal. The appellate court also found the former mayor’s statements, regarding police leaders who allegedly retaliated against her, were deemed truthful and, thus, not defamatory or disparaging.   

Summary Judgment Won in Slip and Fall Case Involving a Large Supermarket Chain

We won summary judgment in Franklin County, Ohio, for a large supermarket chain in a slip-and-fall case. The plaintiff alleged he slipped and fell in the parking lot on ice that remained more than two days after the most recent snow fall and after the lot had been plowed and salted by a co-defendant. The plaintiff’s expert opined that no amount of remaining snow or ice is acceptable and that the standard of care according to the Ohio Building Code requires complete removal in order to maintain a “slip-resistant” surface. However, in Ohio, a premises owner is not liable for natural accumulations of snow and ice because persons are expected to appreciate the danger. The plaintiff’s expert did not opine as to what the defendants should have done, other than to completely remove the snow and ice. The court struck the plaintiff’s expert’s untested opinion as being unhelpful to a jury and found that the Ohio Building Code did not apply to the plaintiff’s pleadings without a claim for negligence per se. In disregarding the expert opinions, the court also found that the remaining snow and ice was “natural,” even though there had been attempted removal.

Thought Leadership

Case Law Alerts

Sixth Circuit Recognizes Heckler’s Veto Theory in Limited Public Forum

July 21, 2026

The Sixth Circuit reversed the Southern District of Ohio and ordered the district court to grant a preliminary injunction finding a strong likelihood of success on the merits of the plaintiff’s free speech claim related to an attempted public comment at a school board meeting. The plaintiff began to offer public comment by reading a written statement at a school board meeting when the board president cut off the microphone and put the meeting into recess. The board’s reaction followed a comment that the school district was failing and that the superintendent was a coward for not addressing critical race theory in the school curriculum. Per board policy, the speakers were allocated five minutes to make a statement. The plaintiff began her statement citing her various public roles in the region, then began to voice her disapproval of the board’s reluctance to audit the school curriculum against critical race theory. At 28 seconds into her speech, the plaintiff stated that she “recently heard about the failing Xenia Board of Education and the cowardice (sic) superintendent who cannot perform adequately in his role…”  The board president interrupted the plaintiff, shouting over her and threatening to cut the mic. The plaintiff continued to calmly read her prepared statement. The crowd began to loudly boo the plaintiff after the board’s threat. Board President Grech then moved the meeting into a recess. The plaintiff continued to speak over the booing crowd. A few seconds later, Board President Grech took the microphone away from the plaintiff but she continued speaking loudly without a mic as the board left the room. Although others were allowed to speak after the meeting resumed, the plaintiff was not permitted to complete her five minutes of public comment.  The plaintiff filed a 42 U.S.C. § 1983 action asserting a First Amendment claim under a “heckler’s veto” theory and sought a preliminary injunction to enjoin the board from enforcing its policy against her speech at future meetings. Board policy provided for five minutes of individual public comment but allowed the presiding officer to interrupt, warn, or terminate speech when the comments are repetitive, obscene, or constitute a true threat. The policy also allowed the presiding officer to request that an individual stop speaking or leave the meeting when the speaker is disruptive to the meeting, and should that fail, call for a recess or order the disorderly person removed. The board alleged that they halted the plaintiff’s speech because she was venturing down the path of name-calling, she was directly addressing the superintendent as opposed to the entire board, and that her conduct incited the crowd. In a hearing before the district court, Board President Grech agreed that she stopped the plaintiff from speaking because she was spreading baseless accusations and name calling. Notably, the board also chided another speaker for speaking just to the superintendent and not to the entire board, but did not take further action. That speaker spoke in favor of the superintendent. The plaintiff testified that despite her desire to speak again she felt threatened and a “little frightened” about speaking at a Xenia Board meeting without court intervention. Although the district court found that some of the plaintiff’s speech was protected, it found that the phrase “cowardice (sic) superintendent” was an unprotected ad hominem attack. The district court did not reach the question of whether the board’s regulation of the plaintiff’s speech was reasonable, finding that it was a fact question that could not be resolved at the hearing. The district court denied the injunction because the record at times favored each side of the dispute and therefore there was no clear indication that the plaintiff would succeed on the merits of the claim. Reversing the district court, the Sixth Circuit found that descriptors such as “failing” and “cowardice” are protected by the First Amendment, even in a limited public forum. The Circuit court stated that even if the plaintiff’s speech was offensive, the First Amendment protects that speech because anything less would allow the government to ban the expression of unpopular views. Regardless of the forum or the risk of offending some, viewpoint discrimination is impermissible. The court continued to state that it has never held that an ad hominem attack is per se unprotected speech, but further, that plaintiff’s speech was not an ad hominem attack (a personal dig or affront, or the criticism of an adversary’s character as opposed to the substance of the adversary’s arguments). As to the heckler’s veto arguments, for the first time the Circuit applied the Heckler’s Veto theory to a limited public forum and held that the board’s conduct amounted to a heckler’s veto. The First Amendment does not permit the government to curtail speech by succumbing to the crowd’s reaction to it. Removing a speaker due to crowd hostility will “seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose.” The court noted that in this case, not only did the board sanction the heckler’s veto, but in fact gave rise to it by threatening to turn off the microphone which only riled up the audience. Finally, the court also found that the equitable factors of a preliminary injunction – the likelihood to suffer irreparable harm – was satisfied with the possible curtailment of future speech. The court did not offer much analysis on this, but seems to imply that simply saying that there is a future intention to speak and that one is a “little frightened” to do so is enough. However, it seems most likely that the Court found the board’s action so distasteful that it did not put much analysis into this element and accepted the Plaintiff’s assertions without question. Aside from the ruling on speech protections – the court offers an interesting rebuke of the district court’s determination that the reasonableness of the board’s reaction was a question of fact, holding:  “A factual finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed.  Here, the district court failed to make definitive credibility determinations, or probe into Grech’s testimony. Instead the district court framed the facts in the light most favorable to each side, and then determined it was too close to call. But courts have to make these calls, even the tough ones. The correct call here is that defendants provided no legitimate reason to regulate Boddy’s speech because Boddy shared views critical of the Board and Lofton.” There are a range of citable moments in this opinion, including Judge Bush’s own soapbox speech on the importance of protecting speech in the current political times in the concurrence!

Case Law Alerts

Aw Heck, As-Applied Challenges do not Implicate a Conviction

April 1, 2026

A new ruling from SCOTUS gives a lesson in Greek mythology, but more importantly makes it a near certainty that civil-rights plaintiffs will be able to run their malicious prosecution suit through summary judgment, despite a conviction. The oral argument led many to believe that the justices felt this was a complicated case, but in Olivier v. City of Brandon, a unanimous Court found that a suit that seeks prospective relief from arrest is not barred by the previous ruling in Heck v. Humphrey. Heck holds that a civil suit cannot invalidate a criminal conviction and is most often cited in cases arguing dismissal of a malicious prosecution claim because the plaintiff had been found guilty of the relevant charge. However, under Olivier, if the same plaintiff pleads prospective injunctive relief, the case may continue without an ad damnum request for damages. The result is an as-applied constitutional challenge of the law under which the plaintiff was convicted. There is no question that there is merit in reviewing the constitutionality of statutes and ordinances – but the as-applied challenge comes with significant expense and limited functional results. The Court even acknowledges that for Olivier to succeed in his suit for prospective relief, a court would find “something past should not have occurred” – that “something past” being a conviction in most cases. To come to this conclusion and avoid the implications of Heck, Justice Kagan drew a parallel to a citizen that seeks to enjoin enforcement of an ordinance that would prevent the plaintiff from exercising his free speech in the manner he desires – of course before the exercise actually occurs. There is no question that Heck does not apply in the case of a preliminary injunction, but Olivier presents an interesting glance into a criminal justice system that allows an accused to challenge the constitutionality during the criminal trial, get convicted, then challenge the constitutionality again in a civil suit. Practitioners should consider a request for prospective relief as an as-applied constitutional challenge that will likely need to be briefed at the summary judgment stage, therefore requiring discovery into the circumstances of the arrest.

Firm Highlights

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.