Defense Digest

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

Casualty:

Tony Michetti (Doylestown) obtained a defense verdict in an arbitration held before Judge Abraham Gafni. There were no guaranteed parameters. The plaintiff was a 7-year-old visitor to the defendant's home. When the plaintiff departed, she mistakenly walked through a glass sidelight adjacent to the front door. The plaintiff suffered severe lacerations to her face and body, resulting in significant scarring. The home was built in 1973, and safety glass was not used in the sidelight. The case concerned the applicability of the Safety Glazing Materials Act of 1971 to a single family residence.

Paul Lees (Bethlehem) obtained a defense verdict in a jury trial conducted in Northampton County where the plaintiff sued the defendant homeowners for failure to properly maintain the exterior walkways around their home, which caused the minor plaintiff to fall and sustain serious dental trauma, necessitating multiple surgeries and ultimately the placement of dental implants. The jury deliberated for approximately an hour before concluding that the defendants were not negligent in maintaining their property.

Brian O'Rourke and Carolyn Bogart (Cherry Hill) obtained summary judgment in Camden County before Judge Mary Eva Colalillo in a case where the plaintiff pedestrian brought a claim against the driver in a motor vehicle accident and the carrier for PIP benefits. The plaintiff filed the underlying complaint against the driver and company in a timely fashion, but failed to file the PIP complaint within the statute of limitations. The plaintiff argued that the relation back doctrine applied and that the claims should not be barred. Brian successfully argued that the relation back doctrine did not apply because the plaintiff had known all along the identity of the carrier as the carrier had denied the claim. Judge Colalillo agreed and dismissed the plaintiff's complaint for failure to meet the statute of limitations.

Christopher Allen (King of Prussia) obtained a defense award in Montgomery County where the plaintiff complained of on-going injuries from a side impact motor vehicle accident, including neck pain, back pain, right shoulder pain, and lumbar radiculopathy. The plaintiff also alleged that she was forced to change jobs as a result of her injuries. The defendant contested both liability for the accident and the severity of the plaintiff's injuries on the issue of limited tort.

Ellen Casey (King of Prussia) obtained a successful decision on a Motion for Summary Judgment filed in the Philadelphia County Court of Common Pleas on behalf of our hospital defendant in a case in which the plaintiff-employee of the hospital fell on a walkway on the premises. Our motion was based on the exclusivity provisions of the Pennsylvania Workers' Compensation Act. The hospital had a contract with a third party for Operations and Maintenance, including the grounds of the facility. The plaintiff's attorney unsuccessfully argued the "dual capacity" doctrine as an exception to the Act to keep the hospital in the case.

Howard Myerwitz (Roseland) obtained summary judgment for a horseback riding stable in Bergen County Superior Court. The plaintiff suffered broken ribs and other injuries when he fell off a horse while out on a trail with a guide. Howard successfully argued that pursuant to the New Jersey Equine Animal Activities Act, the plaintiff had assumed the risks of horseback riding and that he failed to comply with the Act's notice requirements. Although there are no reported cases dealing with the New Jersey Equine Animal Activities Act, the judge agreed with Howard's analysis of the Act's provisions and dismissed the case in its entirety.

Walter Klekotka and Brian O'Rourke (Cherry Hill) obtained the dismissal of a slip and fall case for the plaintiff's failure to comply with the applicable statute of limitations. In this matter, the plaintiff's accident occurred on May 28, 2002, but the complaint was not filed until June 1, 2004. The complaint had a typographical error reflecting the accident year as 2004, as opposed to 2002. Upon discovering the discrepancy, we filed a Motion to Dismiss that was ultimately unopposed by counsel and granted by the court.

Jason Banonis (Bethlehem) obtained summary judgment in a motor vehicle liability case with clear liability. The defendant rear-ended another vehicle and caused a chain reaction accident. The plaintiff claimed to have suffered a full thickness tear of the rotator cuff tendon, multiple disc bulges, carpal tunnel syndrome, and cervical and lumbar strains. However, the plaintiff failed to establish causation for his injuries.

Giovanni Stewart and Michael DeCandio (Jacksonville) obtained a defense verdict in a case arising out of an industrial site accident. The plaintiff sustained head and neck injuries which resulted in both orthopedic and neurological injuries, subsequent spinal fusion, and claims for neuropsychological and emotional damages. After four days of trial, the jury found that our client was not negligent under either common law negligence or the Federal Employers Liability Act.

Ed McGinn and Tim Hartigan (King of Prussia) obtained a defense jury verdict in the Philadelphia County Court of Common Pleas before Judge Rau on behalf of a nightclub. Three plaintiffs sought damages for injuries sustained in a shooting incident when one of the plaintiffs pulled a gun, after passing the nightclub's bouncers, and began firing back into the crowd of 200-300 people on the street and sidewalk in front of two nightclubs. The nightclub's bouncer, an off-duty state constable, identified himself as such, drew his personal weapon, and ordered the plaintiff shooter to drop his weapon. The plaintiff shooter began running, and the constable and his partner pursued. The plaintiff shooter continued to shoot at the constable as he was running, and the constable returned fire, hitting him with four of six shots and killing him. The other two plaintiffs were bystanders who claimed to be hit by bullets, but they could not identify who shot them and did not have ballistic evidence available to assist them. The jury returned a defense verdict in under an hour.

Laurianne Falcone (Philadelphia) obtained a defense verdict in a Philadelphia County arbitration. The plaintiff filed suit against her clients, the property owners/managers, because she tripped and fell while leaving the Curtis Center. The plaintiff alleged that the exit was defective because the threshold was raised, not flush with the ground. Laurianne argued that the area was similar to many other doorways and there was no defect. The arbitrators unanimously found in our favor.

Laurianne also obtained a defense verdict in a federal arbitration in which the plaintiff claimed that he slipped and fell on ice in a parking lot that had been treated by our client, a snow removal contractor. He also sued the property owner. The plaintiff fractured his ankle and underwent open reduction surgery. The arbitration panel unanimously found in favor of both defendants.

Lary Zucker, Deirdre Heine and Steven Polansky (Cherry Hill) obtained summary judgment in a case by a university student who claimed the university and the defendant employees were grossly negligent and should be held liable for injuries she sustained while a member of the university's softball team, despite the charitable immunity doctrine. The plaintiff also claimed breach of contract for loss of an athletic scholarship. The court found that the individual defendants were employees rather than independent contractors. The court also found that the plaintiff failed to provide any evidence that would establish that the defendants were grossly negligent or even created an issue of fact that the defendants engaged in willful and wanton conduct with reckless disregard of the plaintiff's well-being. Lastly, the court dismissed the breach of contract claim and found that the plaintiff knew she would lose her scholarship by transferring to a satellite campus of the university. The plaintiff's complaint was dismissed in its entirety.

Health Care Liability:

Deborah Cooper and Dave Williams (Bethlehem) obtained summary judgment in an elopement and suicide involving a forty-six-year old minister. Debbie prepared the motion and brief in support of the motion for summary judgment on the grounds that the client's, Good Shepherd Rehabilitation Hospital, actions did not rise to the level of "gross negligence" as required by the Pennsylvania Mental Health Procedures Act. Dave subsequently argued the motion for summary judgment in the Court of Common Pleas of Northampton County, which granted the motion and dismissed the suit.

Ellen Casey (King of Prussia) obtained a defense verdict in Montgomery County in which the plaintiff underwent a procedure at Abington Memorial Hospital by GI specialists (who were dismissed from the suit) to remove gallstones (ERCP) during which a wire stone retrieval basket got stuck and there was a perforation. Our defendant surgeon performed emergency surgery to remove the basket and to remove the patient's gallbladder, both necessitated by the complications during the ERCP. He inadvertently cut the bile duct, and the patient was sent to Jefferson Hospital for reconstructive surgery. Our expert surgeon testified that injury to the bile duct is a known risk of open cholecystectomy, especially in an emergency setting and with the degree of this patient's scar tissue from chronic gallbladder disease. Our GI expert testified as to the plaintiff's damages, successfully countering and minimizing the testimony of the plaintiff's expert surgeon on damages. The plaintiff's demand had been $600,000.

Fred Roller (Philadelphia) obtained a defense verdict in Philadelphia County. The plaintiff (33 years old) alleged that the defendant orthopedic surgeon failed to make a timely diagnosis of an infection over a three-week period following a discography procedure, which ultimately resulted in the need for three operations, including a spinal fusion of discs L4 - S1 subsequent to which he alleged permanent disability. The defense presented no contrary evidence on damages but, instead, focused on liability and causation. The pre-trial demand was $2.5 million, and the jury returned a verdict of no negligence. Kara White and law clerk Jennifer Passante assisted at trial.

John Riddell (Philadelphia) obtained a defense verdict in a medical malpractice/wrongful death action in Philadelphia. The case involved an allegation that the treating physicians failed to timely order and/or perform a colonoscopy. It was also alleged that our client, a medical clinic, failed to properly maintain the decedent's chart, contributing to a delay in the ordering of this critical test. The plaintiff contended that these failures resulted in a 21-month delay in diagnosis of the plaintiff decedent's colon cancer, which was eventually found to have originated in the cecum.

The claims of direct liability against the hospital were successfully eliminated prior to jury deliberations, but the jury was left with the issue of ostensible agency as to the clinic.

Perhaps the most interesting aspect of the case was the nature of the cancer the decedent developed. Through the pathology records, John was able to show that the tumor was a poorly differentiated neuroendocrine tumor. This tumor is so aggressive that it likely would not have been present and could not have been detected via colonoscopy on the date when the plaintiff contended that the test should have been ordered and performed.

Candy Barr Heimbach and Michelle Wilson (Bethlehem) obtained a defense verdict in favor of their client, an obstetrician. The plaintiffs claimed that their child suffered from brain injuries and related cognitive deficits as a result of alleged birth trauma. After eight days of trial, the jury returned a verdict of no negligence within one hour and five minutes, which time included their lunch hour.

Dan Sherry (King of Prussia) obtained a defense verdict in a case wherein a 19-year-old male claimed that he was improperly prescribed a pain medication that aggravated a pre-existing condition of ulcerative colitis. The plaintiff went on to undergo a colectomy and now has a permanent colostomy with an increased risk of cancer and impotency. The case was defended on both negligence and causation. The jury in Chester County deliberated about an hour and rendered a verdict in favor of all defendants.

David Chmiel (Pittsburgh) obtained the dismissal of a professional liability action against a physical therapist and physical therapy facility. Dave obtained an order precluding the plaintiffs from presenting any expert testimony against his clients. Dave was then able to convince the judge to dismiss the case with prejudice as the plaintiffs would be unable to prevail at trial in the absence of any such testimony.

Steve Ryan (King of Prussia) obtained a non-suit in a trial involving devastating complications of chemotherapy, a claim for punitive damages, and multiple patient safety issues/events with a confused and heavily medicated patient. The case is noteworthy because the combination of aggressive workup and perseverance by Lynn Reutelhuber (Philadelphia) (including six sets of preliminary objections to woefully pleaded complaints, and an order limited claims in the fifth amended complaint) created a litigation "checkmate" before the trial started. Vicarious liability under Respondeat Superior ad apparent agency were eliminated, leaving a claim for hospital corporate liability with no underlying negligence claim to tie causally to any systematic failure of the hospital. During the time the multiple P.O.'s were pending, M-Care's expert witness's qualification requirements became effective, yet the plaintiff, thereafter, videotaped for trial an expert (surgeon) with some hospital administration experience but who had not practiced for 13 years and had not taught for 20, whose testimony was precluded. The court agreed that there was no point in waiting until the end of the plaintiff's case since no other hospital liability expert would be called and since the co-defendant agreed that his defense would not implicate the hospital; so the hospital, which was uninsured for the claim and had already shelled out $45,000 for defense, avoided additional defense costs.

Professional Liability:

Jack Slimm (Cherry Hill) obtained a decision from New Jersey's Appellate Division in the matter of Broadway Family Practice v. Willitts, A-3700-03T1 (App. Div. July 11, 2005), in which the court ruled that, where an attorney commits malpractice in the course of handling a case in suit, and the client becomes aware of the facts supporting the potential claim while the case is still pending, the malpractice action against the attorney must be joined with the underlying lawsuit or it will be barred by the entire controversy doctrine.

The entire controversy doctrine applied in this case because in April of 1997, when the plaintiff's Chancery Division action against his former landlords for breach of a lease was dismissed, the state of the law concerning the entire controversy doctrine as it applied in legal malpractice actions required a joinder. Jack was able to demonstrate through discovery that, while the case filed by the attorney against the landlords was pending, the physicians knew that the attorney missed an option deadline. The attorney was replaced by new counsel who specifically told the physicians that the defendant, Willitts, may have committed malpractice. At that point, the law was such in New Jersey that the attorney could have and should have been joined as a defendant pursuant to Circle Chevrolet Co. v. Giordano, Halloran & Ciesla, 142 N.J. 280 (1995) and Mystic Isle Dev. Corp. v. Perskie & Nemad, 142 N.J. 310 (1995) (a case which Jack Slimm argued in the New Jersey Supreme Court).

In any event, in Olds v. Donnelly, 153 N.J. 424 (1997), the Supreme Court changed the law regarding the entire controversy doctrine and held that the doctrine no longer compelled the assertion of a legal malpractice claim in an underlying action that gave rise to the claim. If the Olds decision, decided in 1997, were applicable, the doctrine would not apply, and the case would have gone forward. However, Olds applied only to all pending cases, whether on appeal or in the trial courts. Since Broadway Family Practice's case was concluded in April of 1997 by way of a Stipulation of Dismissal and Release, it was not in the pipeline and, therefore, was not saved by the Olds holding.

Doug Herman (Philadelphia) obtained a stipulated dismissal of his client, an insurance broker, from a lawsuit asserted by a party who was injured in an automobile accident following cancellation of his automobile insurance policy. Doug received a defense award in favor of his client at arbitration and was successful in convincing all parties' counsel to agree to a stipulated dismissal of his client when one of the other defendants appealed. Doug argued that his client had submitted the cancellation instruction at the plaintiff's request. This fact was disputed by the plaintiff, who claimed he merely wanted to remove one vehicle from his policy. Doug convinced the other attorneys, however, that even if the broker mistakenly placed the cancellation request, the court would have given effect to the policy (affording the plaintiff the benefit of his full tort coverage) and he would have been able to continue his suit against the other defendant-drivers for pain, suffering and related damages.

Chris Dougherty (Philadelphia) obtained a defense verdict in a Delaware County legal malpractice case in which he defended an attorney and law firm. The case stemmed from an underlying workers' compensation claim wherein the defendants represented the underlying claimant and the employer prevailed after a trial and briefs. The plaintiff claimed this was because his attorney negligently failed to call a key material eyewitness to the work-related accident and failed to offer other available evidence at trial. By agreement of counsel, the case was tried before a former workers' compensation judge with a binding decision.

Joseph Santarone (King of Prussia) obtained a defense jury verdict in the United States District Court for the Eastern District of Pennsylvania before Judge Curtis Joyner in a case where an engineer, who refused to give his name to police after he and his girlfriend were found skating on a frozen quarry, claimed that his handcuffs were put on too tight to punish him for not identifying himself. Procedurally, Joe had originally prevailed in the District Court, but the decision was reversed by the Third Circuit. Petitions and a Writ of Cert were then filed with the United States Supreme Court and briefed, but the case was remanded for a new trial. The plaintiff's expert, the well-known hand surgeon, Dr. Raymond Culp, testified that the plaintiff had permanent nerve damage to his dominant hand.

Jack Penders (Philadelphia) obtained an order granting his legal malpractice client a summary judgment in a case with compensatory damage exposure in excess of $600,000 as well as a claim for punitive damages. This lawsuit arose out of a disputed sale of a business by one party to the client of the law firm that Jack represented relative to the escrowing of certain funds in the law firm trust account, which were later distributed at the direction of the law firm's client but without the permission or consent of the other party to the sale/purchase agreement. The court held that a lawyer cannot serve as an escrow agent for two different parties if he or she represented one of the parties and that there was no violation of any fiduciary duty to the other party because, in filing a Complaint to Rescind the sale/purchase agreement, the selling party relinquished any property interest in the funds, which it originally agreed to accept for its interest in the business.

Christian Marquis (Pittsburgh) received a favorable decision from the Commonwealth Court on behalf of various council members of the Borough of Whitehall. In a reported decision, the Commonwealth Court affirmed the sustaining of preliminary objections that dismissed the plaintiffs' second amended complaint pursuant to the doctrine of high public official immunity. In this case, an aggrieved contractor alleged various damages for the failure to be awarded public sanitary sewer contracts with the Borough as a result of a vote during a public meeting that declared the contractor non-responsible for purposes of bidding on public projects within the Borough.

Christian also received a favorable decision on behalf of the Borough of Plum in a case wherein a pedestrian was struck and killed by a motor vehicle while walking across a road. The court granted summary judgment on the basis of governmental immunity, accepting the argument that Plum had no authority with respect to the installation of traffic controls or other pertinent devices because the road in question was under the jurisdiction of PennDOT.

Christian Marquis and Paul Atencio (Pittsburgh) obtained summary judgment on behalf of Bigler Township with respect to a claim for residential property damage as a result of an allegedly defective sewer pipe. During the course of the litigation, the plaintiff had lost ownership of the subject property due to mortgage foreclosure. Christian and Paul successfully argued that the plaintiff, therefore, no longer had standing to pursue her claim for damages to her residential property.

Denis Dice (Philadelphia) obtained a defense verdict in a NASD arbitration. The claimants alleged that the respondent broker-dealer and its registered representatives were responsible for losses allegedly caused by the recommendation of mutual funds that were unsuitable to the claimants' stated investment objective of preservation of capital. However, the arbitrators denied the claimants' claims in their entirety and found that the mutual funds were, in fact, suitable and the claimants understood the risk associated with the ownership of these equity investment. The arbitrators also recommended that this matter be expunged from the stock broker's regulatory records.

Jaime Girgenti and Jeff Albinson (Tampa) obtained a defense verdict in a non-jury trial. The case involved a complex factual situation dealing with the application of Florida's Marketable Record Title Act (MRTA). The matter was essentially one of first impression in Florida. By prevailing, the defense was able to preserve the enforceability of certain homeowner's associations' restrictions that otherwise would have been sunsetted by the automatic extinguishment provisions of MRTA.

Rich Goldstein and Walt Kawalec (Cherry Hill) won a recent victory in the Appellate Division. The case involved a police dispatcher trainee, who was terminated at the completion of his probationary period. Because of poor job performance, the probation was originally to be extended, but when it was pointed out that the township's ordinances did not permit an extended probation, the plaintiff was fired. He sued under New Jersey's Whistleblower Statute (CEPA) and Law Against Discrimination (LAD), arguing that he was fired as retaliation for complaints he made related to a conflict he had with a female co-worker. The Appellate Division affirmed the summary judgment, finding that the CEPA claim must fail because the plaintiff failed to show that the reason for his termination was pretext for retaliatory action. The LAD claims were dismissed because the plaintiff had not proven that his termination had anything to do with his sex or that the employer would discriminate against a member of the majority, as New Jersey law requires.

Employment Law:

Tom DeLorenzo and Stephanie Shapson (Philadelphia) obtained a defense verdict in an employment discrimination case for Ritz-Carlton Hotels (Marriott). The case was tried through the American Arbitration Association in a private binding arbitration. The plaintiff claimed race and disability discrimination. In a strongly worded opinion, the arbitrator stated that she found no basis whatsoever for the plaintiff's claims.