Winston E. Miller

Louisville
T 502.568.0296
F 502.581.1087
400 West Market Street
Suite 3200
Louisville, Kentucky 40202-3363

Winston has represented clients in state and federal courts located in at least 19 states, the District of Columbia, Puerto Rico and the U.S. Court of Claims. He has also represented clients in appellate matters before the Third, Fourth, Sixth, and Eleventh Federal Circuits, the U.S. Temporary Court of Appeals, as well as the Kentucky Court of Appeals and the Kentucky Supreme Court. Winston has been recognized as an outstanding litigation attorney by Chambers USA® America's Leading Business Lawyers, The Best Lawyers in America® including Bet-the-Company Litigation from 2017-2019, Kentucky Super Lawyers®, and Benchmark Litigation®. He is AV® Peer Review rated by Martindale Hubbell®. Winston's civil litigation and trial practice has included many types of civil litigation including commercial, product liability, mass tort, fire and explosion, employment, toxic tort, and trade secret litigation. For the past 20 years, Winston has represented an airline in various matters unique to the aviation industry. A substantial portion of his practice relates to complex multi-party cases arising out of catastrophic losses and serial litigation. Based on the performance of the Client Service Team which he chairs, Frost Brown Todd was selected as "The Outstanding Law Firm of the Year" by a Fortune 100 Company.

In addition to his litigation practice, Winston is available to serve as a mediator and arbitrator of civil cases and disputes. Winston is experienced in the mediation and arbitration of disputes, has attended various formal mediation training programs, and is listed on the Kentucky Court of Justice roster of mediators.

Before entering private practice, Winston was a trial attorney with the Civil Division of the United States Department of Justice in Washington, D.C. He represented the United States in civil matters in the Federal District and Appellate Courts across the country. While with the Justice Department, Winston was awarded a "Special Commendation" for his outstanding service.

Experience

Product Liability, Fire and Explosion and other Tort Litigation

• Indiana State Fair State Collapse Litigation; 7 deaths; over 60 injuries
• Collapse of a natural gas drilling rig; April 19, 2008; 2 deaths
• Sofa Super Store Fire, Charleston, South Carolina: June 18, 2007; 9 deaths, significant property damage
• Water well pump house explosion; July 4, 2005; serious burn and psychological injuries
• Liquid Natural Gas Pipeline Explosion, Ivel, Kentucky: November 8, 2004; numerous burns, psychological and other personal injuries and substantial property damage
• West Pharmaceutical Plant Explosion, Kinston, North Carolina: January 29, 2003; 6 deaths; 38 injuries alleged
• Rhode Island Station Nightclub Fire, West Warwick, Rhode Island: February 20, 2003; 100 deaths; 100+ injuries alleged
• West Virginia Tobacco Litigation: 1999-2003
• Defense of natural gas producer in claim arising out of an explosion at a water injection facility: August 7, 2001; serious burns resulting in death
• Howard Johnson/Holiday Inn Fire, Bowling Green, Kentucky: January 6, 1996; 4 deaths; 16 injured
• Rio Piedros explosion, San Juan, Puerto Rico; November 21, 1996; 33 deaths
• Imperial Food Products, Hamlet, North Carolina: September 3, 1991; 25 deaths
• Meridian Plaza Fire, Philadelphia, Pennsylvania: February 23-24, 1991; 3 deaths; $1 billion in damages
• Happy Land Social Club Fire, New York, New York: March 23, 1990; 87 deaths
• San Juan Dupont Plaza Hotel Fire, San Juan, Puerto Rico: December 31, 1986; 97 deaths; numerous injuries
• Younkers Department Store, Des Moines, Iowa: November 5, 1978; 10 deaths
• Beverly Hills Supper Club Fire, Southgate, Kentucky: May 28, 1977; 165 deaths; numerous personal injuries
• Natural Gas Compressor Station Explosion, Muldraugh, Kentucky: January 12, 1974; 2 deaths; substantial property damage

Drug, Medical Device and Pharmaceutical Litigation

• Darvocet, Darvon and Propoxyphene Products Liability Litigation MDL2226
• Breast Implant Litigation (MDL 926 and State Court - 8000+ Cases) - National Coordinating Counsel in defense of a polyurethane manufacturer in nationwide class action
• Vioxx Litigation (24 State Court and 303 MDL Cases) - Defended manufacturer of Vioxx in cases brought in the state of Kentucky
• Average Wholesale Pricing Litigation - Defense of pharmaceutical manufacturer against claims brought by the Commonwealth of Kentucky involving disputed sales and pricing policies
Business, Commercial, and Governmental Litigation
Defense of a variety of business disputes resulting in litigation in the state courts, federal courts and commercial arbitrations. These cases involved issues arising from buy-sell agreements, stock and business valuation, asset purchase agreements, commercial leases, mineral leases, minority shareholder rights, fraud, tax, general breach of contract, and the alleged violation of various consumer protection laws.. The following are examples of business litigation cases that have resulted in reported decisions:

• Represented defendants that operate for-profit post secondary schools in the State of Kentucky against claims brought by the Kentucky Attorney General for alleged violation of the Kentucky consumer protection laws and defended these defendants against private claims in related litigation in Federal Court
• Represented an airline company in regulatory proceedings where the Federal Aviation Administration (FAA) sought civil penalties and injunctive relief
• Represented a major pharmaceutical company against claims brought by the Kentucky Attorney General for alleged violations of the consumer protection laws relating to the sale and promotion of pharmaceutical products
• Represented a former owner and employees of an engineering company against claims brought by the purchaser of the engineering company regarding alleged non-competition agreement and other issues
• Represented real estate developer in litigation arising out of appeals of planning and zoning rulings
• Represented franchisor in suit brought by customers of franchisees
• Centurion Air Cargo v. United Parcel Service Co. 300 F. Supp. 2d 1281 (S. D. FL. 2004).
• Centurion Air Cargo v. UPS Co., 420 F.3d 1146 (11th Cir. 2005).
• Commerce Bank, N.A. v. Ogden, Newell & Welch, 81 F. Supp. 2d 1304 (M. D. Fla. 1999).
• First Nat'l Bank & Trust Co. v. Martin Marietta Materials, 22 F. App'x 546, 2001 WL 1480727 (6th Cir. 2001).
• H. S. Equities, Inc. v. Crouch, 698 F.2d 1220, 1982 U.S. App. LEXIS 12452 (6th Cir. 1982).
• Herm v. Stafford, 466 F. Supp. 439 (W. D. Ky. 1979).
• Inland Container Corp. v. Mason County Bd. of Educ., 6 S.W.3d 374 (Ky. 1999).
• Liberty Nat'l Bank & Trust Co. v. Foster, 737 S.W.2d 704 (Ky. Ct. App. 1987).

Employment Litigation

Defense of various employers, including a Fortune 100 Company, in employment litigation involving age discrimination, sexual harassment, breach of contracts of employment, and wrongful termination. The following are examples of employment litigation cases that have resulted in reported decisions:

• Beatty v. UPS, 267 F. Supp. 2d 823 (S. D. Ohio 2003), aff'd, 2004 U.S. App. LEXIS 13864 (6th Cir. 2004).
• Beatty v. UPS, 103 F. App'x 860 (6th Cir. 2005).
• Clark v. UPS, 286 F. Supp. 2d 819 (W. D. Ky. 2003).
• Clark v. UPS, 400 F.3d 341 (6th Cir. 2005).
• Francis v. UPS, 288 F. Supp. 2d 882 (S. D. Ohio 2003).
• Francis v. UPS of Am., Inc., No. 3:01cv235, 2005 WL 2124134 (W. D. Ohio Aug. 29, 2005).
• Harker v. Federal Land Bank, 679 S.W.2d 226 (Ky. 1984).
• Padgett v. Kentucky Utilities Co., No. 76-0196-0(G), 1978 WL 1614 (W.D. Ky. Jan. 25, 1978).
• Szabo v. UPS, Inc., No. 02-646-C, 2004 U.S. Dist. LEXIS 10600 (W. D. Ky. May 24, 2004).
• UPS v. Rickert, 996 S.W.2d 464 (Ky. 1999).

Aviation Industry Experience

More than 20 years of experience in representing an airline subject to 14 C.F.R. Part 119 of the Federal Aviation Regulations. This has included numerous matters involving disputes with the FAA, TSA and other regulatory agencies; commercial contracts and litigation; arbitration of disputes involving the acquisition of another airline; airport lease agreements; employee disputes and litigation; and other miscellaneous matters. Examples of disputes involving the FAA and TSA include the following:

• Represented an airline subject to 14 C.F.R. Part 119 of the Federal Aviation Regulations against allegations set forth in civil penalty letter that the airline had violated Consent Agreement previously entered into between the airline and the FAA and that the airline had further violated FAA regulations: (1) by performing maintenance on aircraft that did not comply with the airline’s continuous airworthiness maintenance programs [Section 43.13(a)]; (2) by approving aircraft for return to service after performing major repairs that did not comply with technical data approved by the Administrator [Section 121.379 (h)]; (3) by operating the aircraft when it did not carry a current airworthiness certificate [Section 121.153(a)(1); (4) operating aircraft that was not in an airworthy condition [Section 121.153(b)(2)]; and (5) by operating aircraft when the aircraft had been maintained in violation of operations specifications [Section 119.5(1)]. The FAA initially demanded $4,000,000.00 in civil penalties to resolve these claims by the presentation of expert witnesses and contesting the factual allegations made by the FAA. The airline presented a vigorous defense to each of these claims by the presentation of expert witnesses and contesting the factual allegations made by the FAA. These claims were resolved by settlement agreement wherein the airline agreed to: (1) implement certain safety enhancements, including a safety awareness system (SAS) and risk management plan (RMP) addressing revisions to certain manuals and standardization of the manual process; (2) develop a FAA approved continuing analysis and surveillance system (CASS) including an in-process inspection/audit checklist that was acceptable to the FAA; and (3) revise the CASS manual to include results of in-process inspections and audits.
• Represented an airline in a series of investigations, notices of civil penalties, final notices of proposed civil penalties and complaints with the Office of Hearings for the U.S. Department of Transportation that were initiated by the FAA relating to allegations that the airline had violated Federal regulations relating to the transportation of hazardous material. In response to each investigation, notice and complaint, the airline contested the varying legal and factual arguments advanced by the FAA. Ultimately the FAA dismissed or failed to pursue almost all of the claims.
• Represented an airline subject to 14 C.F.R. Part 119 against allegations set forth in a civil penalty letter that the airline violated FAA regulations (1) performing maintenance on an airplane contrary to Part 121 [Section 143.3(a)]; (2) failed to make a record of maintenance on an aircraft [Section 43.9(b)]; (3) failed to perform maintenance in accordance with methods, techniques and practices prescribed by the manufacturer or in accord with continued airworthiness [Section 43.12(a)]; (4) operated the aircraft as a direct carrier and under Part 121 in violation of operations specification [Section 119.5(g) and Section 119.5(l)]; (5) operated the aircraft without an airworthiness certificate and when the aircraft was not in an airworthy condition [Section 121.1453(a)(1) and Section 121.153(a)(2)]; (6) failed to record observed discrepancies in the aircraft’s maintenance log [Section 121.701(a)] plus other violations of the FAA regulations. The civil penalty letter demanded $2,145,000.00 in civil penalties to settle these claims. The airline vigorously defended these claims by the presentation of expert witnesses and contesting the factual allegations made by the FAA. These claims were resolved by a settlement agreement wherein the airline agreed to issue revisions to its general maintenance manual, develop and implement a management training program regarding maintenance responsibility and the airline paid a civil penalty to the FAA in the amount of $628,000.00.
Two recent examples of commercial litigation are:
• Representation of an airline in Federal Court litigation against a freight forwarding company in an effort to recover overcharges in excess of $10,000,000.00 based upon claims of breach of contract, negligent misrepresentation, and unjust enrichment.
• Representation of an airline in a Kentucky State Court against a contractor and its parent company seeking to recover damages for breach of contract, contractual indemnity, tortious interference with contract by parent company, piercing of the corporate veil and alter ego claims against the parent company. The damages claimed exceed $10,000,000.00.

Examples of the arbitration of disputes and the resulting litigation are reflected in the following reported cases:

• Centurion Air Cargo v. United Parcel Service Co., 300 F. Supp.2d 1281 (S.D. FL. 2004).
• Centurion Air Cargo v. United Parcel Service Co., 420 F.3d 1146 (11th Cir. 2005).
Examples of employment disputes and litigation are reflected in the following reported cases:
• Clark v. UPS, 286 F. Supp. 2d 819 (W.D. Ky. 2003).
• Clark v. UPS, 400 F.3d 341 (6th Cir. 2005).
• Szabo v. UPS, Inc., No. 02-646-C, 2004 U.S. Dist. LEXIS 10600 (W.D. Ky. May 24, 2004).
• UPS v. Rickert, 996 S. W.2d 464 (Ky. 1999).

Reported Cases

Abney v. Amgen, Inc., No. 5:05-CV-254-JMH, 2005 WL 1630154 (6th Cir. July 8, 2005).
Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006).
Adams v. 3M, No. 4:03CV-182-M, 2004 U.S. Dist. LEXIS 29697 (W. D. Ky. Mar. 30, 2004).
Air Transport Assoc. v. Federal Energy Office, 520 F.2d 1339 (Temp. Emer. Ct. App. 1975).
Albright v. Aeroquip Corp., No. 3:94CV447, 1995 U.S. Dist. LEXIS 10819 (M. D. N.C. June 26, 1995).
Amoco Oil Co., et al v. Charles M. Ivey III, 2:94CV00479, 2:94CV00595, 1996 U.S. Dist. LEXIS 1017 (M.D.N.C. January 2, 1996).
Anderson v. Merck & Co., 417 F. Supp. 2d 842 (E. D. Ky. 2006).
Beatty v. UPS, 267 F. Supp. 2d 823 (S. D. Ohio 2003), aff'd, 2004 U.S. App. LEXIS 13864 (6th Cir. 2004).
Beatty v. UPS, 103 F. App'x 860 (6th Cir. 2005).
Buechner v. Mid-America Energy, Inc., No. 1:07-CV-109, 2007 WL 2174723 (W. D. Ky. Aug. 2, 2007).
Cabinet for Human Resources, Interim Office of Health Planning & Certification v. Jewish Hosp. Healthcare Servs., 932 S.W.2d 388 (Ky. Ct. App. 1996).
Centurion Air Cargo v. United Parcel Service Co. 300 F. Supp. 2d 1281 (S. D. FL. 2004).
Centurion Air Cargo v. UPS Co., 420 F.3d 1146 (11th Cir. 2005).
Clark v. UPS, 286 F. Supp. 2d 819 (W. D. Ky. 2003).
Clark v. UPS, 400 F.3d 341 (6th Cir. 2005).
Coffey v. Jefferson County Bd. of Education, 756 S.W.2d 155 (Ky. Ct. App. 1988).
Commerce Bank, N.A. v. Ogden, Newell & Welch, 81 F. Supp. 2d 1304 (M. D. Fla. 1999).
Conn v. Markwest Hydrocarbon, Inc., No. 05-67-DLB, 2006 WL 782728 (E. D. Ky. March 27, 2006).
Cordle v. Merck & Co., 405 F. Supp. 2d 800 (E. D. Ky. 2005).
Dismas Charities, Inc. v. United States DOJ, 287 F. Supp. 2d 741 (W. D. Ky. 2003).
First Nat'l Bank & Trust Co. v. Martin Marietta Materials, 22 F. App'x 546, 2001 WL 1480727 (6th Cir. 2001).
Francis v. UPS, 288 F. Supp. 2d 882 (S. D. Ohio 2003).
Francis v. UPS of Am., Inc., No. 3:01cv235, 2005 WL 2124134 (W. D. Ohio Aug. 29, 2005).
Garza v. Evans (In re Vioxx Prods. Liab. Litig.), MDL NO. 1657 SECTION: L(3), 2005 U.S. Dist. LEXIS 36919 (E. D. La. Nov. 22, 2005).
Gifaldi v. Jefferson Chemical Co., No. 91-CV-677E, 1992 U.S. Dist. LEXIS 4245 (W. D. N.Y. March 30, 1992).
H. S. Equities, Inc. v. Crouch, 698 F.2d 1220, 1982 U.S. App. LEXIS 12452 (6th Cir. 1982).
Harker v. Federal Land Bank, 679 S.W.2d 226 (Ky. 1984).
Herm v. Stafford, 466 F. Supp. 439 (W. D. Ky. 1979).
In re One Meridian Fire Litig., No. 91-2171, 1994 U.S. Dist. LEXIS 5533 (E. D. Pa. April 29, 1994).
In re Fire Disaster at Du Pont Plaza Hotel, etc., 660 F.Supp. 982, 1987 U.S. Dist. LEXIS 13390 (J.P.M.L. 1987).
In re San Juan Dupont Plaza Hotel Fire Litig., 117 F.R.D. 30, 1987 U.S. Dist. LEXIS 13863, 9 Fed. R. Serv. 3d (Callaghan) 172 (D.P.R. 1987).
In re San Juan Dupont Plaza Hotel Fire Litigation, 687 F.Supp. 716, 1988 U.S. Dist. LEXIS 4603 (D.P.R. 1988).
In re San Juan Dupont Plaza Hotel Fire Litig., 121 F.R.D. 147, 1988 U.S. Dist. LEXIS 17329 (D.P.R. 1988).
In re Recticel Foam Corp., 859 F.2d 1000, 1988 U.S. App. LEXIS 12748 (1st Cir. P.R. 1988).
In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1988 U.S. App. LEXIS 13570 (1st Cir. P.R. 1988).
In re San Juan Dupont Plaza Hotel Fire Litig., 1988 U.S. Dist. LEXIS 17332 (D.P.R. Dec. 2, 1988).
In re San Juan Dupont Plaza Hotel Fire Litig., 129 F.R.D. 409, 1989 U.S. Dist. LEXIS 15949 (D.P.R. 1989).
In re San Juan Dupont Plaza Hotel Fire Litig., 129 F.R.D. 424, 1989 U.S. Dist. LEXIS 16546 (D.P.R. 1989).
In re San Juan Dupont Plaza Hotel Fire Litig., 888 F.2d 940, 1989 U.S. App. LEXIS 16908 (1st Cir. P.R. 1989).
In re San Juan DuPont Plaza Hotel Fire Litig., 129 F.R.D. 424, 1989 U.S. Dist. LEXIS 16559 (D.P.R. 1989).
In re San Juan DuPont Plaza Hotel Fire Litig., 129 F.R.D. 424, 1990 U.S. Dist. LEXIS 3436 (D.P.R. 1990).
In re San Juan Dupont Plaza Hotel Fire Litig., 745 F.Supp. 79, 1990 U.S. Dist. LEXIS 10674 (D.P.R. 1990).
In re San Juan Dupont Plaza Hotel Fire Litig., 742 F.Supp. 717, 1990 U.S. Dist. LEXIS 11272, CCH Prod. Liab. Rep. P12799 (D.P.R. 1990).
In re San Juan Dupont Plaza Hotel Fire Litig., 768 F.Supp. 912, 1991 U.S. Dist. LEXIS 9709 (D.P.R. 1991).
In re Vioxx Products, 2007 WL 2461628, E.D.La., August 21, 2007 (MDL No. 1657.).
Inland Container Corp. v. Mason County Bd. of Educ., 6 S.W.3d 374 (Ky. 1999).
Isby v. Brown & Williamson Tobacco Corp., No. 99-6068, 2000 WL 1359641 (6th Cir. Sept. 15, 2000).
Lacefield v. LG Elecs., Inc., No. 3:06-12-KKC, 2008 WL 54472 (E. D. Ky. Feb. 26, 2008).
Liberty Nat'l Bank & Trust Co. v. Foster, 737 S.W.2d 704 (Ky. Ct. App. 1987).
Lyman v. U.S., 500 F.2d 1394, (Temp. Emer. Ct. App., August 05, 1974) (Nos. 2-12, 2-16.).
Melton v. Merck & Co., Inc., No. 7:06-45-JMH , 2006 WL 1543036 (E. D. Ky. June 1, 2006).
Metcalf v. National Petroleum Council, 407 F. Supp. 257 (D. D.C. 1976).
Padgett v. Kentucky Utilities Co., No. 76-0196-0(G), 1978 WL 1614 (W.D. Ky. Jan. 25, 1978).
Ratliff v. Merck SC Co., 359 F. Supp. 2d 571 (E. D. Ky. 2005).
Reid v. MarkWest Hydrocarbon, Inc., No. 05-71-DLB, 2006 U.S. Dist. LEXIS 13489 (E. D. Ky. Mar. 27, 2006).
Sae Biang Optical v. Kenmark Optical, Inc., No. 3:05-CV-168-JDM , 2006 U.S. Dist. LEXIS 71400 (W. D. Ky. Sept. 28, 2006).
Sae Biang Optical v. Kenmark Optical, Inc., No. 3:05-CV-168-JDM, 2006 U.S. Dist. LEXIS 71403 (W. D. Ky. Sept. 28, 2006).
Sizemore v. Georgia-Pacific Corp., No. 6:94 2894 3 96, 1996 U.S. Dist. LEXIS 22401 (D. S. C. Mar. 21, 1996).
Smith v. Ky. W. Va. Gas Co., No. 04-177-DLB, 2005 WL 1239849 (E. D. Ky. May 24, 2005).
Structural Steel & Ornamental Iron Assoc. v. Shopmen's Local Union, etc., 478 F.2d 848 (3d Cir. 1973).
Syngenta Crop Prod. v. Doyle Brant, Inc., No. 3:06-CV-84-S, 2008 WL 167923 (W. D. Ky. Jan. 15, 2008).
Syngenta Crop Prod. v. Doyle Brant, Inc., No. 3:06-CV-84-S, 2008 U.S. Dist. LEXIS 15757 (W. D. Ky. Feb. 28, 2008).
Szabo v. UPS, Inc., No. 02-646-C, 2004 U.S. Dist. LEXIS 10600 (W. D. Ky. May 24, 2004).
Tasty Baking Company v. Cost of Living Council et al, 395 F. Supp. 1367 (E. D. Pa. 1975)
Trans World Airlines, Inc. v. Federal Energy Office, 380 F. Supp. 560 (D. D.C. 1974).
UPS v. Rickert, 996 S.W.2d 464 (Ky. 1999).

Highlights & Recognitions

  • Chambers USA, Litigation: Tort & Insurance Defense; Litigation: General Commercial
  • The Best Lawyers in America®, Commercial Litigation, Litigation - Labor & Employment, Personal Injury Litigation - Defendants, 2005-2019; Bet-the-Company Litigation, 2017-2019
  • Benchmark, The Definitive Guide to America's Leading Litigation Firms and Attorneys®
  • Selected for inclusion in Kentucky Super Lawyers® 2007-2016
  • AV® Rated, Martindale-Hubbell®
  • "Distinguished Merit Award," The Friends of Louisville Free Public Library
  • "Outstanding Volunteer of the Year," YMCA of Greater Louisville
  • "Special Commendation" Awarded for Outstanding Service, U.S. Department of Justice
  • Special Justice - Supreme Court of Kentucky

Memberships & Affiliations

  • American Bar Association
  • Kentucky Bar Association
  • Louisville Bar Association
  • Defense Research Institute
  • Citizens for Better Judges, Former Chair and current member of on the Advisory Committee
  • National Fire Protection Association
  • National Institute of Trial Advocacy

Press Releases

Civic & Charitable Organizations

  • Leadership Louisville, Participant
  • Metropolitan Board of the YMCA of Greater Louisville, former Member
  • Matthews YMCA, former Chair of the Board of Directors

Other Contact Info

Assistant

Cindy Endy
Email
T 502.779.8640
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