Defense Digest

On The Pulse ... Our Litigation Achievements ... We Are Proud Of Our Attorneys For Their Recent Achievements...

Congratulations to Steve Poljak (Pittsburgh) and Bruce Morrison (Philadelphia) from our Insurance Practice Group for their recent victory in the Pennsylvania Superior Court, which protected an insurer client from a potential $30 million exposure. Steve and Bruce represent the personal umbrella insurer for the parents of Jeffrey Baumhammers, who murdered five people and paralyzed a sixth victim during a 90-minute hate crime spree in Pittsburgh. In deciding the insurance coverage litigation arising out of that tragic circumstance, the Superior Court concluded that the "negligent failure to predict and prevent" claims asserted against Baumhammers' parents were not covered under either their primary homeowners policy or their personal umbrella policy. Given that the Superior Court decided that there was no coverage under either policy, that court did not reach or consider the trial court's other ruling that the shootings constituted six separate occurrences. Further appeals are expected.

Chuck Craven (Philadelphia) secured a major victory in the Pennsylvania Supreme Court by convincing the Court to completely reverse the judgments which the non-jury trial court entered and which a Superior Court panel affirmed against our client in Shamnoski v. PG Energy, 2004 Pa. LEXIS 2225 (9/28/04). The Supreme Court entered judgment in favor of our client.

Joseph Vender (Scranton) successfully defended a workers' compensation claim for ongoing total disability benefits for alleged right arm tendonitis by producing more credible evidence than was adduced by the claimant and by a thorough investigation of the claimant's prior medical and work history, which demonstrated medical treatment for the alleged injury prior to commencing employment with our client and similar complaints with prior employers. The Workers' Compensation Judge's dismissal of the Claim Petition was upheld by the Workers' Compensation Appeal Board based upon the able and persuasive arguments advanced by Robin Romano (Philadelphia). Joe also obtained a favorable decision from the Workers' Compensation Appeal Board which reversed the portion of the decision of the Workers' Compensation Judge Howard Spizer, who had assessed counsel fees against our insurance client for unreasonable contest.

Timothy McMahon (Harrisburg) obtained a defense verdict in Cumberland County, Pennsylvania following a three-day trial in a liquor liability case. The patron, who had plead guilty to DUI, had a blood alcohol concentration of .29 and had caused a three-vehicle accident about 30 minutes after he left the licensee's premises. The plaintiff claimed total disability based on a diagnosis of fibromyalgia, sought traditional non-economic damages, and claimed economic damages of approximately $400,000.

Candy Heimbach (Bethlehem) and Debbie Cooper (Bethlehem) obtained a unanimous defense verdict in a five-day medical malpractice trial in which the plaintiffs were represented by attorney James J. McEldrew, III. This was a bariatric surgery case where the plaintiff suffered a post-operative complication and subsequently died. After deliberating less than two hours, the jury found that the defendant/attending physician was not liable.

Christopher Reece (Akron) obtained a dismissal of Lowe's Home Centers, Inc. from a premises liability claim occurring at a Lowe's store in New Philadelphia, Ohio. The plaintiff sat in a patio chair on display in the Outdoor Garden Center. The chair had been improperly assembled by the co-defendant assembly services provider with whom Lowe's contracted for assembly services. Chris also obtained summary judgment on behalf of Village Discount Outlet, a wholesaler of quality used mixed family-wear and accessories. The plaintiff claimed she slipped and fell on a drier softener sheet lying in an aisle of the retail store. The court granted judgment to Village Discount as a matter of law on the basis that the plaintiff could not prove that Village Discount had actual or constructive notice of this dryer sheet.

Jim Wilson (Scranton) obtained a defense verdict for a local hospital in a medical malpractice trial. The case involved allegations against the hospital and a pediatrician that they both failed to timely diagnose a congenital hip dysplasia in a young girl.

Dale Golden (Tampa) and Jaime Girgenti (Tampa) successfully obtained summary judgment in a case filed in federal court in Tallahassee. The plaintiff alleged violations of the Fair Debt Collection Practices Act and the Equal Credit Opportunity Act. Dale and Jaime successfully defended Chase Manhattan, Litton Loan Service, and a local law firm by arguing that the plaintiff had failed to offer sufficient evidence to support her claims. Dale also recently obtained an arbitration award directing a broker to pay his broker-dealer $90,790 owed on a promissory note. The Panel also denied the broker's counterclaim for defamation and other torts related to various U-5 filings and statements made by the broker-dealer's compliance office and president. The broker had requested $10 million in damages for the alleged wrongful actions of the broker-dealer's employees.

Michael DeCandio (Jacksonville) and Tom Roberts (Jacksonville) obtained a defense verdict for the architectural and mechanical design of an oceanfront hotel on Amelia Island, Florida. The verdict came after a three-week trial in which the plaintiffs were seeking $1.5 million in damages.

Gregory Kelley (Plymouth Meeting) obtained dismissal of an international hotel chain on the grounds of forum non conveniens in an action in the Eastern District of Pennsylvania involving a $2 million demand for an accident at a luxury hotel in Rome, Italy. Previously, dismissal of the defendants in a companion action was obtained on the grounds of lack of personal jurisdiction. In this action, the court ruled, inter alia, that complete relief could not be afforded in Pennsylvania due to the absence of those other dismissed parties, and on the basis that Italy had a much greater local interest in the case and it was a more convenient forum as the operative facts occurred there and access to the proofs would be relatively easy. Greg also successfully argued for the Third Circuit Court's affirmation of the grant of summary judgment in an unfair labor practices action. The plaintiff alleged that our client discriminated and retaliated against him in wrongfully refusing to hire the plaintiff, allegedly due to the plaintiff's union activity in a prior grievance proceeding. Judgment was granted on the grounds that the court lacked subject matter jurisdiction. Exclusive jurisdiction was vested in the National Labor Relations Board, where our client had already prevailed.

David L. White (Newtown Square) obtained a favorable decision in a workers' compensation case involving an alleged injury of plantar fasciitis, which allegedly resulted from work as a lab technician, and was allegedly sustained through prolonged walking on the hard floor surfaces of a hospital. Dave received medical records that gave a contrary medical history than that given to the other providers, which indicated that the inception of the claimant's symptoms occurred while participating in an aerobics class that was not work-related. Dave forwarded these records to claimant's expert, who acknowledged that it was most likely that the claimant's condition was caused by participation in the aerobics class. This destroyed the competence of the claimant's expert's original opinion that the plantar faciitis was related to the claimant's work duties. In addition, Dave also obtained a victory involving a hotly disputed Petition to Modify/Suspend compensation benefits. Judge Makin ruled in Dave's favor, and there were subsequent appeals to the Workers' Compensation Appeal Board and the Commonwealth Court. The court affirmed Judge Makin's decision, which essentially determined that the claimant had engaged in bad faith in failing to respond to a job offer made to her by Magee Rehabilitation.

Jason Banonis (Bethlehem) obtained a defense verdict in a Northampton County jury trial. The plaintiff claimed that the defendant drove her vehicle into the passenger side of the plaintiff's vehicle, causing carpal tunnel and other personal injuries. The plaintiff was awarded $12,500.00 at arbitration. The jury deliberated for 22 minutes and returned a defense verdict.

Lary Zucker (Cherry Hill) obtained dismissal of two matters involving Six Flags Great Adventure in Jackson, New Jersey. Both cases were dismissed under the New Jersey Carnival-Amusement Ride Safety Act, which requires patrons to provide written notice of their claims within 90 days of the accident as a precondition to filing a lawsuit. A plaintiff may extend the 90-day notice period upon motion filed within one year of the accident, providing that the plaintiff can prove "sufficient reasons" for the delay.

Paul Krepps (Pittsburgh) and Audrey Copeland (Newtown Square) received a favorable Third Circuit decision in Carswell v. Homestead, representing the last in what has been a long ride with this case. Paul was originally retained to represent six Homestead police officers in 1999. They had all been involved in a foot pursuit of a violent suspect, which culminated in one of the officers shooting and killing the plaintiff's decedent. Paul represented the officers at the coroner's inquest, which concluded with no recommendation to criminally prosecute any police officer. Additionally, Paul obtained summary judgment in a case in which a Robinson Township Police Department police sergeant, acting on information from another local police department, conducted a search of the plaintiff's home. The sergeant discovered electronic equipment that had been recently stolen from Sears through the unauthorized use of an elderly woman's credit card. The sergeant returned the items to Sears, and another Township officer charged the plaintiff with a number of crimes arising out of the incident.

Robert Kelly (Plymouth Meeting) obtained an affirmation by the Supreme Court of New Jersey regarding whether a defendant that has produced documents pursuant to a Confidentiality Order may be required to make such documents available for review by third party news media and public interest group if such documents have never been filed with a court for determination of a dispositive motion.

Tom DeLorenzo, Ronda O'Donnell and Jim Gicking (Philadelphia) had a significant victory in the Pennsylvania Superior Court that affirmed "in a bitterly contested action" the denial of certification of a proposed class of residents who lived within six miles of our client's beryllium manufacturing plant in Reading, Pennsylvania. The plaintiffs sought to offer this extensive class medical monitoring to identify the development of beryllium disease.

Tom DeLorenzo and Stephanie Shapson (Philadelphia) obtained an American Arbitration Association arbitration award in favor of the Ritz-Carlton Hotel in an employment discrimination case. The plaintiff, a former cook at the hotel, claimed that he had been discriminated against and ultimately terminated because he is Hispanic. Tom and Stephanie were able to prove that the plaintiff was, in fact, terminated for repeated violations of the hotel's attendance policy. It is believed that the AAA award will also result in the dismissal of the discrimination claim the plaintiff filed with the Philadelphia Commission on Human Relations.

Sam Casolari and Scott Gedeon (Akron) obtained summary judgment in favor of our client, Capital Cleaning Contractors, Inc. entered by Judge David Cain of the Franklin County Court of Common Pleas. Five plaintiffs sued our client and others alleging that our client negligently hired, employed, supervised, and managed a person who threw a chemical mixture on several persons at a Home Depot store in Reynoldsburg, Ohio. Congratulations to Sam in a case wherein the plaintiff dismissed his complaint in the Cuyahoga County Court of Common Pleas rather than respond to a motion for summary judgment filed by his client, Industrial Construction. The plaintiff was an employee of a contractor who slipped into an open hole. Sam argued the "open and obvious" doctrine in Ohio and that Industrial Construction, as another on-site contractor, could not be responsible for the conduct of the plaintiff on the general contractor's premises. The plaintiff sustained about $17,000 in medical bills and suffered an ankle fracture.

Jim Stevens (Philadelphia) obtained a defense verdict on behalf of DaimlerChrysler in a subrogation matter. The case involved the subrogor's vehicle losing control and striking one vehicle and then three other vehicles, as well as other property. Alleged damages approached $100,000. The insurer paid on multiple claims and pursued the matter as subrogee against DaimlerChrysler.

Tony Michetti and Michele Frisbie (Doylestown) obtained a summary judgment on behalf of their clients in federal court before Judge James Munley. The plaintiff committed suicide while incarcerated at the Luzerne County Correctional Facility. Tony and Michele represented a non-profit corporation providing on-site mental health services to inmates pursuant to a contract with the County. The court agreed that the mental health provider was a local agency and, therefore, immune under the Political Subdivision Tort Claims Act.

Denis Dice and Samuel Cohen (Philadelphia) obtained a defense verdict in a National Association of Securities Dealers ("NASD") arbitration where the claimant sought recovery of compensatory damages in an amount of $650,000 and punitive damages of $1.95 million. The claimant alleged that our broker dealer client was liable under theories of failure to supervise and respondeat superior.

John Riddell (Newtown Square) secured a defense verdict for his clients after a trial before Judge Bradley in Delaware County involving a claim of abusive process in the case of Marcone v. Nagle. After four days of contentious testimony and several hours of deliberation, the jury returned a verdict in favor of one plaintiff in the amount of a whopping $9. The other plaintiff, the wife, was awarded $50,100 against other defendants. John also successfully obtained the dismissal of his doctor client, who had been a target defendant, via preliminary objections. The physician he represented practiced, exclusively, in the State of Delaware. All patient contact occurred in Delaware. The plaintiff argued, among other things, that the doctor's non-professional contacts with the Commonwealth of Pennsylvania, ranging from delivery of office supplies to attendance at social events in Pennsylvania, conferred jurisdiction. The court disagreed.

Julia Rafferty (Philadelphia) obtained a defense verdict in a binding ADR before Judge Gafni. Julia represented Federal Housing in the suit. The plaintiff alleged injuries from a slip and fall in the ballroom of one of Federation Housing's properties.

Richard Kraemer (Philadelphia) successfully defended Judgment NOV in the Superior Court in a product liability action on behalf of OshKosh Truck Company. The plaintiff, driver of an Oshkosh front discharge concrete truck, fell from the truck to a cement driveway sustaining disabling injuries. He claimed that the truck was defectively designed because it lacked a slip-resistant surface on the fender platform he fell from, lacked sufficient instructions and warnings, lacked a lip to hold a sliding foot, and lacked an additional handrail on the cab for stability. At trial, the plaintiff received a verdict of $535,000. On post-trial motions, the court entered judgment NOV.

Terry Lefco and Cynthia Brennan (Philadelphia) obtained an order denying class certification in a federal landlord-tenant matter in which the plaintiff sued a landlord and the landlord's attorney for violations of the Federal Fair Debt Collection Practices Act, the Pennsylvania Debt Collection Trade Practices Act, the Pennsylvania Landlord-Tenant Act, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Also, Terry Lefco and Jim Gicking (Philadelphia) were victorious in the U.S. Court of Appeals for the Third Circuit. Terry, who argued the case to the Third Circuit and had handled lower court proceedings, represented a Southern Chester County Pennsylvania municipality. In their appeal, Terry and Jim argued that District Court Judge Brody erred in granting a permanent injunction against evicting occupants from trailers which a mushroom farmer had placed on his property.

Stephanie Rawitt and John Hare (Philadelphia) were successful before the United States Court of Appeals for the Third Circuit. The Third Circuit entered an Order dismissing the plaintiff/appellant's appeal for lack of appellate jurisdiction. The plaintiff/appellant's appeal was based upon two orders issued by the trial court in association with a claim raised by the plaintiff/appellant concerning satisfaction of the terms of a settlement reached between the parties two years prior to the institution of the lawsuit at issue in the appeal.

Kim Boyer (Philadelphia) obtained a reversal from the Third Circuit in a coverage dispute in favor of her client, Staples, Inc. Staples had filed a declaratory judgment action against Wausau Insurance seeking indemnification from Wausau for Staples' defense costs and satisfaction of the arbitration award rendered in the underlying action of Kline v. Staples.

Walt Kawalec and Diane Magram (Cherry Hill) successfully argued a case before the Appellate Division of the Superior Court of New Jersey. Diane had previously argued and won a summary judgment motion based upon the plaintiff's failure to pierce the verbal threshold. The plaintiff alleged that, as a result of the motor vehicle accident, he sustained mild traumatic brain injury, as well as soft tissue injury, anxiety and stress disorder, and an exacerbation of a previous underlying condition. The court affirmed the lower court's holding that the plaintiff, the sole owner of a corporation and the only named driver, was subject to the tort threshold option that he had chosen. The court affirmed Judge Colalillo's previous holding that the plaintiff could not make the verbal threshold selection to receive the reduced insurance premium, and then not be subject to that selected option. The appellate court also held that the lower court did not err in finding that the plaintiff failed to demonstrate that his injuries were permanent. The plaintiff had demanded the arbitration award of $75,000.

Ross Carrozza (Scranton) received a Decision and Order issued by the Benefits Review Board on a Federal black lung claim in which Judge Kaplan had denied and dismissed the claimant's Federal black lung claim and the claimant thereafter appealed. The claimant had 17 years of qualifying coal mine employment, and Ross had to stipulate to the existence of pneumoconiosis being present in the matter. The judge, however, found that there was insufficient evidence to establish that the miner's death was due to pneumoconiosis. After reviewing the Order of the judge and the evidence supporting it, the Benefits Review Board found no reversible error. Ross also obtained a favorable decision from the Workers' Compensation Appeal Board in a matter in which the Workers' Compensation Judge had determined that Staples' employment of the claimant caused an aggravation of the claimant's pre-existing condition, which occurred with Laurel Hill, our insured. As such, the Judge determined that the claimant sustained an aggravation or new injury with Staples and awarded benefits on the Claim Petition against Staples rather than our client. Staples then appealed to the Appeal Board, arguing that the claimant did not meet her burden of proof and had failed to provide sufficient and timely notice in accordance with the Act. The Appeal Board has found that neither of Staples' contentions have any merit. As such, the Appeal Board has affirmed the Judge's decision.

Kevin McKeon (Cherry Hill) obtained a defense verdict in favor of DaimlerChrysler. The plaintiffs made claims pursuant to the New Jersey Lemon Law, breach of express and implied warranty, Magnuson-Moss Warranty Act, and Consumer Fraud Act. The plaintiffs withdrew all claims but the Lemon Law claim just before picking a jury. After a two-day jury trial, the jury found no defect in the 2000 Dodge Caravan. Kevin obtained another defense verdict on behalf of DaimlerChrysler after a three-day jury trial in Sussex County, New Jersey. The plaintiffs made claims of consumer fraud, breach of express and implied warranty, and New Jersey Lemon Law as a result of alleged defects in a new Dodge Ram. The plaintiff's expert testified as to the allegedly dangerously unsafe aspects of the vehicle and significant depreciation in the value of the vehicle because of the defects. The jury returned a verdict in favor of DaimlerChrysler on all counts. The plaintiffs had prevailed at arbitration with a return of almost all of the money they had paid, plus attorney fees and costs.

Doug Kent (Philadelphia) and Walter Kawalec (Cherry Hill) had a recent victory in the Superior Court of Pennsylvania. In a published opinion, the court affirmed the lower court's dismissal on preliminary objections and held that a stacked coverage waiver form, whose title differed slightly from that set forth in the statute, was not void.

Paul Laughlin and Dan Snyder (Bethlehem) obtained a defense verdict in a medical malpractice case on behalf of St. Luke's Hospital and Health Network. The case involved a retained sponge which was removed from the plaintiff 13 months after surgery. The plaintiff argued that the sponge was left during surgery, but Paul convinced the jury, despite a res ipsa loquitur charge, that the sponge was not surgical in nature and must have been left subsequent thereto, while the plaintiff was being treated by a different provider who had been packing the open wound.

Mark Spivak (Cherry Hill) won a New Jersey workers' compensation trial on a Motion for Medical and Temporary Disability Benefits in Camden, New Jersey. The petitioner claimed entitlement to benefits from an alleged work accident. After testimony from the petitioner, witnesses from the employer, and several doctors, the judge found the petitioner to be less than credible and denied his application for benefits.

Jeff Albinson (Tampa) successfully had a malpractice claim against a Florida lawyer dismissed before any discovery or other preliminary litigation action took place. The plaintiff was the beneficiary of a trust. The lawyer represented one of the settlors of the trust in drafting an amendment to the trust adding a beneficiary.

Christian Marquis (Pittsburgh) obtained two favorable decisions on behalf of the Borough of McKees Rocks, Pennsylvania. The plaintiffs, who own a night club and bar in the Borough, filed two actions against the Borough as a result of its nightly closure of a public parking lot, which the plaintiffs claimed had an adverse impact on their business due to the lack of parking. The plaintiffs had filed an action for an injunction to enjoin the Borough from closing the lot. Christian also successfully obtained the dismissal of various individually named council members of the Borough of Whitehall, Pennsylvania. The plaintiffs, a contractor and its owner, alleged that the various council members defamed them and interfered with their attempted procurement of various contracts when the council members voted to declare the contractor non-responsible for public bidding purposes with the Borough of Whitehall. The judge agreed that the council members were immune from suit on the basis of high public official immunity.

Tony Michetti (Doylestown) obtained a defense verdict on behalf of an emergency room doctor, Nesbitt Hospital, and Wyoming Valley Healthcare Systems, Inc. in a medical malpractice case. The plaintiff had claimed that the defendant hospital and emergency room physician were negligent for failing to promptly diagnose and treat his perforated esophagus. Tony also obtained a defense verdict on behalf of a Day Development Program for mentally retarded adults. Three individual female plaintiffs were sexually abused by a staff member of the Day Development Program. The male staff member was taking individual female clients off the Day Development Program's premises to his home during his lunch break

Jack Slimm (Cherry Hill) obtained a dismissal in a case where he represented an accounting firm that was joined in a shareholders' dispute regarding stock evaluations prepared for a merger. The allegation by the plaintiff/shareholders was that the accountants favored the defendant/shareholders and, therefore, negligently or fraudulently prepared the stock evaluations so as to harm the plaintiffs and reduce their percentage of ownership in the merged corporation. The dispute involved $30 million. The accountant did commit errors in the preparation of the stock evaluation, and he missed loans and debts that ultimately affected the stock evaluation and percentage of ownership of shares in the merged companies. However, Jack successfully argued that the plaintiff/shareholders knew the value of the companies and the loans on the books. The accountants were required to testify for six days during the valuation trial, after which dismissal was granted, and Jack's clients were insulated from liability in further proceedings involving the complex shareholders' dispute.

Laurianne Falcone (Philadelphia) obtained a defense verdict on her first jury trial before Judge Fritsch in Bucks County, Pennsylvania. The plaintiffs filed suit against Sesame Place claiming that the plaintiff sustained a concussion when she fell out of her inner tube in a pool at the bottom of a water slide. The plaintiffs were previously awarded $15,000 at arbitration to which the defense appealed.

Joan Ford (Doylestown) successfully obtained a defense verdict on behalf of her client, an orthopedic surgeon. The plaintiff claimed that the doctor was negligent in treating a fracture-dislocation of the elbow, resulting in the need for additional surgical treatment. The plaintiff argued that the defendant misread post-operative x-rays, appropriate treatment was delayed, and as a result, any chance for a better result was lost.

Paul Lees (Bethlehem) obtained a defense verdict in a Monroe County, Pennsylvania trial involving claims of property defect causing injuries to the plaintiff, necessitating two separate knee surgeries. The jury returned a verdict finding that the defendants were not in any way negligent.

Tim Hartigan (Plymouth Meeting) obtained summary judgment on behalf of Commonwealth Telephone Company Inc. (CTI) and Henkels & McCoy, Inc., their subcontractor, in a Lebanon County Court of Common Pleas case. The plaintiff, a lineman, had fallen from a telephone poll after claiming to have received an electrical shock when he first touched a CTI messenger and then touched a Time Warner cable television strand.

Megan Cinberg (Norristown) obtained a defense verdict in a federal civil rights trial in which the plaintiff alleged that he was falsely arrested and subjected to an illegal search by two City of Bethlehem police officers. The plaintiff claimed that the search, which yielded several pieces of inculpatory evidence, violated his Fourth Amendment rights.

John Gonzales (Norristown) obtained a defense verdict in a federal civil rights trial in Wilkes-Barre, Pennsylvania. The plaintiff alleged that a Susquehanna Township police officer used excessive force while arresting the plaintiff at his apartment following a report of loud music. The plaintiff sustained four broken ribs; however, the jury deliberated for less than an hour before returning the defense verdict.

Steve Day (Newtown Square) obtained a defense verdict for a urologist in the Delaware County Court of Common Pleas. The plaintiff alleged a surgical misadventure during the implantation of an inflatable penile prosthesis. The jury found no negligence after two hours of deliberation.

Robin Snyder (Scranton) and Kathy Walsh (Scranton) successfully defended two Hazleton City, Pennsylvania police officers against alleged Fourth Amendment violations. Two separate plaintiffs filed suit, and each claimed that the police officers cited them for summary offenses without probable cause and used excessive force in arresting them. One of the plaintiffs claimed that the police officers unlawfully entered her home. Judge Vanaskie, in the U.S. Middle District, allowed the cases to proceed together for the purposes of discovery. He then bifurcated the probable cause issues from the claim against the City of Hazleton. After 50 minutes, the jury returned a verdict on all eleven special interrogatories in favor of the defendant officers.