Major Victories

We were able to secure a defense verdict after a nine-day trial on behalf of a major hospital in the Philadelphia, Pennsylvania, area where the plaintiff was claiming that failure to make a timely diagnosis and treat a spinal epidural abscess resulted in the death of a 59-year-old woman.

Our attorneys secured a finding of no negligence after a three-week trail seeking damages for the death of a viable fetus and for the emotional distress secondary to placental abruption following a motor vehicle accident. The plaintiff maintained that electronic fetal monitoring should have been instituted in the trauma bay to which she was taken and that this step would have revealed the presence of fetal distress which could have been addressed through an emergency C-section. An obstetric examination was not performed until three hours after her arrival at the hospital. There was a finding that there was a legitimate dispute as to whether the plaintiff's injuries were life threatening enough to delay fetal monitoring. With this finding, our defense was that the ATLS and ACOG guidelines were applicable. These guidelines, in essence, require that life-threatening injuries to the mother be first ruled out and/or addressed adequately in situations of this nature. A $5 million demand was made by a very prominent medical malpractice plaintiff's law firm. No offers to settle were made.

A Summary Judgment was obtained on behalf of a correctional services food service provider for toxic tort claims brought by six correctional officers alleging exposure to mold in the prison in which they worked. Their demand exceeded $1 million. The court noted that the service provider was not the source of mold conditions, which pre-existed the contract for its services, and that there was no requirement under the contract or common law for the defendant to prevent, remove, abate or remediate the mold. Further, the court found that the plaintiffs lacked diligence in producing any expert evidence and, in particular, any evidence that the type of mold to which they were allegedly exposed was the type, sufficient quality or form to cause any harm.

In a case of first impression arising in the state of New Jersey, our attorneys were able to establish that law firms, as well as individual attorneys, are entitled to the beneficial screening function performed by the requirement that the plaintiff file an Affidavit of Merit. This is a highly significant ruling because it precludes the situation where a plaintiff could evade the statutory requirement of filing an Affidavit of Merit by suing not the lawyers but, rather, the firm only. It should be stressed that this ruling is limited to the necessity of an Affidavit of Merit in the discrete context of legal malpractice. Whether this ruling will apply in other professional contexts is an issue that the Appellate Division of New Jersey will have to answer.

In a high-exposure motor vehicle case where liability was admitted, our attorneys were able to secure a verdict of zero damages by showing a superseding cause of the abnormal MRI and EMG in the form of a slip and fall sustained by the plaintiff subsequent to the auto accident. Working in unison with our insurance client, we were able to demonstrate that the abnormal MRI and EMG results, based on testing three years after the accident, were unreliable in gauging the validity of the plaintiff's claimed injuries. This was done in two ways. First, the jury's attention was directed to the fact that the MRI and EMG studies done six months after the accident were normal. Further, again demonstrating the need for in-depth investigation, evidence was presented that, at a point and time subsequent to the motor vehicle accident, the plaintiff had suffered a trip and fall, in response to which the plaintiff filed a separate claim. Under cross-examination, the plaintiff admitted that she had destroyed the file from the separate incident by shredding it.

Our firm was able to obtain a summary judgment on behalf of a safety consultant for a water treatment plant. The facts of the case involved a murder mystery. The plaintiff's decedent, who had been responsible for monitoring water quality at the plant, was found dead in an underground water tank, the victim of an apparent strangulation. The estate filed a wrongful death suit, seeking $15 million in damages, alleging that the plant had insufficient safety procedures and had violated industry standards.

We were able to realize a defense verdict in a jury trial lasting three weeks. We defended lawyers who were sued in a Dragonetti case. The jury agreed that the plaintiff had not proven that the lawyers had an improper purpose. The plaintiff's demand never dropped below $3 million.

In a New Jersey matter, our attorneys were able to successfully argue that a step-down provision in the insurance policy reducing the coverage available from $1 million to $15,000 was valid. The court rejected the argument that the Scutari Gill Act, enacted by the New Jersey Legislature, was entitled to retroactive effect.

Our attorneys were able to secure summary judgment in the U.S. District Court for the Middle District of Pennsylvania in connection with an employee's claims of racial harassment and discrimination. The plaintiff had received a text message from his supervisor containing a joke with a racial epithet. He had also received offensive comments from his supervisors and coworkers. However, the court stressed that the employer had conducted an appropriate internal investigation into these complaints and had taken timely steps reasonably calculated to remedy the harassment.

A significant verdict was recently obtained by our attorneys in several cases where it was alleged that lung cancer resulted from working with welding rods. Our attorneys were able to demonstrate that welding rods do not release asbestos fibers that are respirable and that the mesothelioma which developed was caused by extensive exposure to asbestos insulation products.

In a case of significant precedential value, our attorneys were able to demonstrate that our insurance client did not have a duty to defend under an accident insurance policy where the intoxicated insured assaulted and attempted to kill the plaintiff before taking his own life. The court stressed that it is against public policy to extend insurance coverage to obviously intentional conduct and that intoxication can create a duty to defend only when the allegations suggest that the insured was so intoxicated that he lacked conscious awareness of his actions or lacked ability to form intent.

Following a two-week jury trial, a defense verdict was handed down in a medical malpractice matter involving the death of a 22-year-old woman who died of a massive pulmonary embolus. The plaintiffs alleged that our client, an emergency room physician, did not order proper tests or studies to rule out that diagnosis. The case was successfully defended on both standard of care and causation. There was a demand of $5 million, and no offer was ever made.

We successfully defended a non-profit emergency telecommunications corporation facing federal constitutional and state wrongful death and survival claims. A triple homicide was involved. The perpetrator was an employee of the defendant. Immediately after his termination, he proceeded to shoot and kill his girlfriend, her new boyfriend and his girlfriend's sister.

We successfully defeated a claim for $2 million against a national broker/dealer insurance company client. The plaintiff, whose general agency contract had been cancelled, asserted his claim under the theories of breach of contract and intentional interference with contractual relations.

Through eyewitness testimony, expert testimony (including the use of engineering models), and a video demonstrating the effectiveness of the packaging of an 800-pound steel cabinet that fell on the plaintiff, we were able to show that the plaintiff's inappropriate and ill-advised operation of a forklift was the proximate cause of the accident.

We prevailed in a 36-day, non-jury trial on legal malpractice claims in federal court. The most serious claims consisted of allegations of aiding and abetting the client's breach of fiduciary duty owed to his minority shareholders. We established that the plaintiffs had concealed certain key documents. The plaintiffs' damage analysis was in excess of $10 million.

A defense verdict was obtained in a recent medical malpractice matter involving two neurosurgeons, a neurologist, and a hospital in a case involving the death of a 22-year-old man from an undiagnosed ruptured cerebral aneurysm.

Our attorneys were able to defeat an assertion of false arrest of a student who had been disciplined a number of times by our client due to behavioral outbursts.

We successfully defended an ophthalmologist (retinal surgeon) who performed surgery on the plaintiff for removal of a foreign body from his eye. The plaintiff went on to develop an infection and eventually lost complete sight in his eye. The jury deliberated for 14 hours over three days and ultimately found in favor of our client, finding that the defendant had met the standard of care required of him.

A defense verdict was achieved in a New Jersey workers' compensation matter where the claimant, demanding a settlement amount in excess of $250,000, asserted that she had either developed bipolar disorder or experienced an exacerbation of this condition as a result of being treated unfairly by her supervisor. Following full trial before a judge, it was found that the claimant did not meet her burden of proof under controlling case law and that she had not shown her supervisor acted in any manner inconsistent with the supervisor's authority.

We successfully defended a Dram Shop matter where the plaintiffs' settlement demand reached $800,000 at one point. In their complaint, it was asserted that our client served them alcohol while they were visibly intoxicated and that, sometime thereafter, they had been beaten by our client's employees and patrons just outside the tavern. One of the plaintiffs asserted that he developed depression and panic attacks as a result of this incident. One of the approaches we took in successfully defending this matter was to introduce into the record a YouTube video showing him, along with his "comedy" partner, chugging beers, dancing around and making a number of off-color jokes. Ultimately, the plaintiffs agreed to voluntarily dismiss their case provided that the insurance carrier and their insured agreed to waive their right to file suit against them.

Our attorneys obtained a defense verdict in a complex legal malpractice case where the plaintiff was claiming $99 million in damages for counsel's alleged failure to timely perfect a third party beneficiary contract claim against a reinsurer. Plaintiff's last settlement demand before verdict was $7 million.

We were able to secure a summary judgment on behalf of two police officers against whom suit was brought with the allegation that they should have intervened to prevent an officer from a neighboring police department from using a Taser. It was asserted the use of this device constituted excessive force.

Several members of our Professional Liability Department obtained a voluntary dismissal of all claims against our national broker-dealer client. The claimants challenged the suitability of the investment recommendation of the registered representative that equity indexed annuities and a universal life insurance policy be used in estate planning. The specific theories of recovery asserted against our broker-dealer client were failure to supervise and respondeat superior.

A defense verdict was achieved in a case where the children of a women who had been sexually assaulted by an employee of a nursing care facility, upon learning of this assault many months later, filed suit alleging negligent infliction of emotional distress. The appellate court dismissed their claim noting the lack of any contemporaneous observation of the alleged assault by the plaintiffs thereby defeating their argument that recovery should be based on "bystander liability."

Marshall, Dennehey, Warner, Coleman & Goggin successfully defended an engineering firm in a matter concerning the design of a wastewater treatment system. The plaintiff was claiming in excess of $1 million in repairs and costs. We persuaded the jury that the proximate cause of the condition was a change by the plaintiff in the design of the original sewage system to save costs. The jury deliberated for only one hour before returning a verdict for the defense.

Our firm obtained a victory in an insurance coverage and bad faith case on behalf of an insurance company which had been brought by the insured, an accountant. The Pennsylvania Superior Court and Pennsylvania Supreme Court later affirmed the decision. We persuaded the court that no coverage existed for the accountant because of a specific exclusion in the policy.

Our attorneys obtained a voluntary dismissal of all claims by the plaintiff in a case involving trade secrets and theft of confidential information matter. Plaintiff alleged that one of its former employees had provided a competitor with confidential information about the manufacture of certain types of doors. The plaintiff's initial demand was $300,000. Following a highly contested discovery period, the plaintiff agreed to dismiss all claims.

Our firm succeeded in having the Superior Court vacate a $600,000 judgment. The plaintiff was claiming emotional stress from witnessing a lewd act by a fellow tenant which she claimed could have been prevented with proper building security. A request for a new trial was denied on the basis that the plaintiff was not able to demonstrate that any physical harm had been suffered by her, thereby barring her from compensation for emotional distress.

Members of our aviation practice group successfully assisted national counsel for a helicopter manufacturer in a case where, as a result of a helicopter crash, there were three deaths and loss of the helicopter itself, which was valued at $2.4 million. The death claims were resolved for very realistic sums and litigation in connection with the loss of the helicopter itself resulted in a defense verdict.

Our lawyers obtained summary judgment in a legal malpractice action where a prisoner was exonerated on the basis of DNA evidence after serving 18 years in prison for murder. The court granted summary judgment based on the statute of limitations. We successfully argued to the court that the limitations period starts to run when the client is no longer represented as a matter of fact, not from the date of counsel's formal withdrawal.

We obtained a defense verdict for a building owner in a case where a security guard fell off a loading dock and was severely injured. The plaintiff sustained permanent back, shoulder and wrist injuries and claimed over $1 million in lost past and future wages. After two hours of deliberation, the jury returned a verdict of "no negligence" on behalf of the defendant.

Our firm succeeded in defending an architectural firm in a case where the plaintiff's demand was $4.25 million. The defendant designed a department store where the plaintiff was employed. The plaintiff worked in maintenance and, as he climbed up a ladder onto the roof of the complex, he fell 20 feet. He sustained severe injuries. Our firm obtained summary judgment by demonstrating that the department store had not followed the architectural plan which had called for the installation of a permanent and secured ladder which would have lead to a "hatch" on the roof of the store.

A team of Marshall Dennehey lawyers obtained a defense verdict for two physicians in a case where a female patient fell and two weeks later died. The plaintiffs contended that she suffered a fractured hip which went undiagnosed and ultimately led to her death. We argued that there was no hip fracture and that there were several other factors which explained her death. The jury found that there was no negligence on the part of either physician.

We obtained summary judgment for a law firm where a part-time female associate claimed she was discriminated against because of her status as a working mother. The court determined that when she was denied a raise it was based on low billable hours. The court did not attach credence to her allegation that a member of the management committee did not want to see her return after taking maternity leave. The judge dismissed plaintiff's claims sounding in discrimination, hostile work environment, and retaliation.

Our firm obtained a judgment for the defendant attorney in a case where she was sued by the executor of an estate. The Court held that our client commenced a valid cause of action against the executor of the estate who was rapidly depleting the funds of the $1 million estate for his personal benefit contrary to his fiduciary duties as executor.

Marshall, Dennehey, Warner, Coleman & Goggin obtained summary judgment for an insurance company in a case where over $1.2 million were at stake. The underlying case settled followed by an action seeking reimbursement of all litigation costs and settlement payments from the other co-defendants. The Delaware court ruled that there was an obligation for indemnity on the part of one co-defendant, but no such obligation as to our client.

Marshall, Dennehey, Warner, Coleman & Goggin obtained a dismissal in favor of the defendant in an employment discrimination case. The employee alleged discrimination because of a disability and wrongful termination while on disability leave. We successfully argued that the termination was based on the needs of the small business and not a discriminatory motive.

We obtained summary judgment in favor of the defendant in a case where the plaintiff claimed $3 million. This claim arose from a failure of a roof at a mall in Kentucky. Although Kentucky does not have the Economic Loss Rule, we persuaded the court to apply it to this case to bar recovery against the defendant.

Our lawyers obtained defense verdicts in litigation arising out of a 1998 gasoline release from a gas station. An estimated 15,000 gallons leaked into the soil over several months and 49 residents brought suit demanding a total of $70 million. The trial lasted 6 weeks and in the end, after approximately 6 hours of deliberation, the jury returned defense verdicts on all claims.

We obtained a defense verdict in a two-week jury trial in federal court. Our client was a commander of a SWAT team that encountered the plaintiff who had fired at the officers while being in a state of intoxication. The plaintiff claimed that he was surrendering when he was shot, but we were able to prove that he had stated several times that he would not surrender. We also established that the locations of the plaintiff's wounds were not consistent with his testimony of where he was positioned when shot. The jury deliberated for only a few hours before coming back with a defense verdict.

Additional Case Summaries Available. These case summaries are but representative of the numerous matters handled by our firm. We maintain comprehensive case summaries for each of our practice groups which are available upon a request directed to:

Thomas R. Bond, Esquire
Shareholder and Chief Marketing Officer
Marshall, Dennehey, Warner,
Coleman & Goggin
1845 Walnut Street
Philadelphia, PA 19103-4797
Telephone: (215) 575-2709
Fax: (215) 575-0856
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