On The Pulse Our Litigation Achievements - DD 3/06
Defense Digest
On the Pulse ... Our Litigation Achievements ... We Are Proud Of Our Attorneys For Their Recent Accomplishments...
Casualty:
Alan Johnson and David Chmiel (Pittsburgh) obtained a defense verdict following a three-week non-jury trial and extensive post-trial briefing in an Allegheny County Common Pleas case involving defamation and construction claims against Thomas & Williamson LLC (T&W). In its non-jury verdict, filed December 30, 2005, the court found in favor of T&W on the defamation claim of the plaintiff, James Construction. The cross-claim by Foreman Architects Engineers (FAE) against T&W on construction contract issues was mooted by a verdict that FAE was not liable to any other party.
Chris Reece (Akron) obtained summary judgment on behalf of Lowe's Home Centers, Inc. in a personal injury action in Jefferson County, Ohio. The plaintiff was shopping at Lowe's in Steubenville, Ohio and was accompanied by her adult son. While exiting an aisle, the plaintiff tripped over a stationary pallet jack, fell and sustained an injury. The following day, the son returned to the store and alleged for the first time that he witnessed an employee pushing the pallet jack into his mother. Thereafter, the son died in a car accident. The court held that the deceased son's verbal and written statements were inadmissible hearsay. Without that evidence, the case was treated as an ordinary premises liability claim. The court observed that pallet jacks are used in virtually every warehouse retail store setting and their use is to be expected by customers. The court ruled that the pallet jack was "plain to see for anyone who cared to look." Thus, the court awarded judgment to Lowe's under Ohio's open and obvious doctrine.
Barbara Davis and Kevin McGoldrick (Cherry Hill) obtained summary judgment dismissing all claims against the insured in a dram shop liability action. After a night out drinking at the insured's premises and then at a second bar, the defendant driver was involved in a one-car motor vehicle accident. The plaintiff was a passenger in the vehicle. In dismissing the claims, the court held that the parties had no supporting evidence that the driver was served while visibly intoxicated at the insured's premises. Further, the mere fact that the driver consumed alcohol and was later involved in an accident did not warrant the inference that the service of alcohol was a proximate cause of the accident.
Nick Kierniesky (Cherry Hill), Bob Kelly and Jay Layne (King of Prussia) secured a summary judgment in a construction site accident case in Union County, New Jersey. The case had been taken from a previous law firm and reassigned to our firm in September 2005 after a motion for summary judgment filed by that previous firm had been denied and an arbitration award of $342,000 entered against the insured. The plaintiff was injured when a scaffold that had previously been erected by his co-workers pulled free from its supports and collapsed. The plaintiff suffered permanent injuries and total disability. He sued our insured as general contractor on the job site. A motion for summary judgment was filed, urging that the insured was not in control of the work and the fact that there was an OSHA violation was not sufficient to establish liability of the general contractor.
Jack Senechal (Cherry Hill) obtained a defense judgment before a binding UM arbitration panel. The insured claimed he was in an auto accident whereupon he suffered permanent injury to his neck and shoulder. The claim raised suspicions with the carrier because the accident was never reported to police and there was no property damage. An investigation revealed that the insured continued to scuba dive and play ice hockey during the weeks following the accident. Video surveillance was obtained depicting the insured performing substantial home remodeling work, including siding replacement and roofing repairs over a three-day period. Ultimately, the arbitrators concluded that the insured did not suffer a permanent injury, thereby barring recovery under the verbal threshold. They declined to rule on whether the insured's material misrepresentations during the claim reporting and investigation voided coverage.
Brad Remick, Damaris Garcia (Philadelphia) and Brian O'Rourke (Cherry Hill) obtained summary judgment in Camden County, New Jersey in a case where the plaintiff was alleging traumatic brain injury from being struck in the head by a falling object at a CVS store.
Tony Michetti (Doylestown) obtained a non-suit in favor of his client, a candle manufacturer, in a Bucks County products liability case. The plaintiff claimed that a fire started due to a defective glass candle jar. The fire caused the complete destruction of the plaintiff's home. At the conclusion of the plaintiff's case, the Judge ruled that there was insufficient evidence identifying the jar candle as the defendant's product.
Tony Michetti also obtained summary judgment on behalf of the defendant in a liquor liability case. The plaintiffs claimed they were assaulted by several "bikers" while patrons at the defendant's bar. The plaintiffs claimed that the "bikers" were served alcohol while visibly intoxicated. However, the plaintiffs failed, even through their own deposition testimony, to establish any evidence that the "bikers" were served while visibly intoxicated. All claims involving liquor liability were dismissed. The case is proceeding against the defendant on a failure to provide adequate security theory. The defendant is being represented by other counsel through its general liability carrier on the remaining theory.
Kevin Connors (Wilmington) obtained a defense jury verdict on behalf of a leading maker of timers in a product liability action in which the plaintiffs alleged that a malfunction in a timer caused a house fire. The win was the second defense jury verdict Kevin obtained for this manufacturer.
David Makara (Philadelphia) obtained a defense verdict in a fire damage case in Philadelphia. The plaintiffs alleged our client, an oil heater repair company, improperly serviced an oil heather, causing a fire which destroyed the plaintiffs' home. The plaintiffs' engineer testified the heater caused the fire due to its poor condition. The defendants' fire investigator testified that the cause of the fire could not be determined. After a four-day trial in Philadelphia, the jury returned an 8 to 0 verdict, finding for the defendants on the issue of negligence.
Scott Gemberling and David Makara (Philadelphia) obtained summary judgment on behalf of their client in a Delaware County case arising from a fire in a residential apartment building. The plaintiffs injured in the fire claimed the fire was caused by the negligence of the landlord and property owners in failing to correct an electrical problem. Our client was listed as an owner of the property on the deed to the premises, although she was not a party to the lease. The court granted summary judgment dismissing our client based upon evidence she was either not in a landlord-tenant relationship with the plaintiffs or, alternatively, she was a landlord out of possession who owed no duty to the plaintiff tenants. The case is proceeding against the landlord defendant. The plaintiffs' demand to resolve the case against our client was $750,000.
Brad Remick, assisted by Michele Mintz, Kim Boyer and Damaris Garcia (Philadelphia), obtained a defense verdict in a Philadelphia products liability case involving a roofing kettle. The kettle melts asphalt to 550 degrees for use in roofing applications. The plaintiff alleged the kettle was defective because it lacked adequate guards to prevent 550 degree molten asphalt from "blowing back" out of the kettle. He also alleged that the kettle should have had a "safety loading" system, which our client offered as an option. The plaintiff sustained significant third-degree burns to his torso and arms as a result of being hit with the molten asphalt. We argued that the kettle was safe without the "safety loader" and the plaintiff's conduct was the sole cause of the accident.
Dan Hart (Philadelphia) obtained a defense verdict after a four-day trial in the Eastern District of Pennsylvania. The plaintiff, who was seriously injured in this bike accident, alleged that the defendant was negligent in placing a utility pole horizontally on the ground within the townships right-of-way and allowing weeds and tall grass to grow and hide the pole. Despite the fact that the court instructed the jury that the defendant's actions violated a township statute and were negligent per se, Dan convinced the jury that the plaintiff's conduct was the primary cause of the accident.
Matt Keris (Scranton) obtained a defense verdict in a four-day trial in Wayne County where his client admitted liability after hitting an uninsured motorcycle operator. The defense verdict was rendered before the Honorable Robert Conway. The jury found that the motor vehicle accident was not a substantial factor in causing the plaintiff's injuries and returned the verdict in an hour.
Marty Sitler (Akron) obtained a grant of summary judgment on a premises liability case in favor of RadioShack Corp. The plaintiff claimed that he tripped and fell over a stack of boxes on display in a RadioShack store. Marty successfully argued that the plaintiff failed to establish the cause of his fall, and in the alternative, that the boxes were an open and obvious hazard and, therefore, RadioShack did not have a duty to warn the plaintiff of the potential hazard. The Mahoning County Court of Common Pleas seated in Youngstown, Ohio entered the judgment in favor of RadioShack.
Also, Marty obtained a defense verdict for his client, Eagle Warranty Corporation, in a lawsuit tried in Licking County, Ohio before a magistrate. The plaintiff claimed that Eagle Warranty breached an extended service contract by not repairing and replacing the engine in her car. The court found that Eagle Warranty did not breach the contract and that the plaintiff's continued use of her damaged vehicle resulted in the engine failure.
Employment Law:
Sam Casolari and Marty Sitler (Akron) obtained an appellate court affirmance of the trial court's granting of summary judgment in favor of their client in a multimillion dollar demand case. The Seventh District Court of Appeals in Ohio affirmed the trial court's ruling that Pennsylvania law applied to the plaintiff's employment-related intentional tort claim against his employer. The central issue before the trial court was whether Pennsylvania or Ohio law controlled the claim against the plaintiff's employer. The trial court determined that Pennsylvania law controlled, and, therefore, the action was barred because Pennsylvania does not recognize the employment-related intentional tort cause of action. Under Ohio law, an employee is not barred from such a claim. On appeal, the plaintiff argued that the trial court erred in its conflict of law analysis and that Ohio law applied to the cause of action. Upon considering written briefs and oral arguments, the appellate court affirmed the trial court's decision in favor of the employer.
Jack Slimm (Cherry Hill) obtained an order for summary judgment in a complex multi-party employment termination action in the U.S. District Court, District of New Jersey. Jack represented a municipality's former labor relations attorney, who was joined for allegedly conspiring with the municipality to terminate the plaintiff's employment and also for violating the plaintiff's civil rights under 42 U.S.C. §1983. The plaintiff alleged that the municipality and its attorney retaliated against him because he exercised his freedom of speech in reporting irregularities, including gifts that were given to Township committee members. Jack was successful in arguing that the attorney was a private attorney who merely represented his client and, therefore, did not act under the color of state law. Also, Jack was able to show the absence of an actionable conspiracy or agreement and that a retained attorney cannot be held liable under the Civil Rights Act.
Thomas Lent (Erie) successfully obtained a favorable decision for his client/employer in defending against a grievance in a binding labor arbitration conducted by the National Labor Relations Board. The specific issue was whether the employer would have to incur substantial costs in maintaining previous insurance benefits based on negotiated language in an expired collective bargaining agreement after the employer's healthcare company unilaterally made changes to its rate and benefit structure. The arbitrator ruled that, while the specific contested language was in effect at the time, it was not operative due to the lack of various pre-conditions.
Professional Liability:
John Gonzales (King of Prussia) obtained a compulsory nonsuit in the Philadelphia Court of Common Pleas in a defamation lawsuit in which he represented the Philadelphia Fraternal Order of Police. The plaintiff, a widow of a deceased FOP member, accused the FOP of defaming her by calling her names and handing out flyers accusing her husband of double-dipping from the City's pension fund while she picketed outside FOP headquarters. The court held that the plaintiff failed to prove special damages, or defamation per se, and dismissed the case at the close of the evidence.
Joe Santarone (King of Prussia) obtained a defense verdict in the United States District Court for the Eastern District of Pennsylvania where plaintiff brought a false arrest and malicious prosecution claim against a Township detective. The plaintiff's counsel's theory was that the arrest was for the purpose of trying to pressure the plaintiff into cooperating in an on-going major investigation involving the cashing of an $800,000 check drawn on an attorney's escrow account that had only $22,000 in the account.
Howard Mankoff (Roseland), Audrey Copeland (King of Prussia) and Hillary Fraenkel (Roseland) obtained summary judgment in a federal suit based on the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits municipalities from enacting legislation which either substantially burdens the free exercise of religion or imposes differential treatment of similarly situated entities based on religion. We represented the City of Long Branch, which designated its downtown as a redevelopment zone. The plaintiff was a reverend, who owned a building in the redevelopment zone, which he wanted to use as a church. The City denied permission to do so because of a state statute prohibiting the issuance of a liquor license to any business within 200 feet of a house of worship. This would have frustrated the design of the redevelopment zone. There is very little appellate authority interpreting this new statute. We successfully convinced the Judge to reject the logic of an 11th Circuit case, which was one of the only appellate opinions on the Circuit. We also successfully argued in the Third Circuit against the plaintiff's appeal of an order denying the plaintiff's application for a preliminary injunction.
Jeff Albinson (Tampa) obtained an appellate court affirmance of the dismissal with prejudice of a legal malpractice claim. The Second District Court of Appeal in Florida affirmed the trial court's ruling that the plaintiff would not be able to establish the essential element of causation of damages because, even at the time the legal malpractice claim was brought, the plaintiff could have taken steps to correct the alleged legal malpractice. By choosing to file suit instead of correcting the alleged deficiency, the plaintiff created any damages, not the law firm.
Michael McGirney (Tampa) and Susan Oosting (Jacksonville) were successful in having a significant coverage matter dismissed. The plaintiff, with a nationally-known residential builder, defended without insurance company assistance a class action lawsuit in California. The company then sued its insurance company, seeking the cost of settling and defending the class action suit. Michael and Susan were successful in having this matter dismissed based upon a multi-million dollar statute of limitations defense.
Christian Marquis (Pittsburgh) obtained a defense verdict on behalf of Kennedy Township, Allegheny County. The plaintiff alleged that he was injured after stepping into an excavated hole for a drainage basin that was not yet completed. He claimed that there were no warning devices in place at the time of the incident. The Township took the position that a warning barrier was placed at the hole after it was excavated and, if the barrier was not in place at the exact time of the incident, the Township did not have notice that the barrier had been moved.
Scott Dunlop, assisted by Alan Johnson and Christian Marquis (Pittsburgh) obtained summary judgment from the U.S. District Court for the Western District of Pennsylvania in a federal civil rights claim. The plaintiff was an excavation contractor who had been debarred from Borough contracts in 2000 without a hearing on the basis of the Borough Council's dissatisfaction with the plaintiff's work on a contract in the mid 1990's. The plaintiff sued the Borough for $600,000 of estimated lost profits and sought punitive damages against the Borough's manager, solicitor, engineer and each member of Borough Council. Plaintiff's counsel made the mistake of pursuing state claims in Common Pleas Court. The state claims were dismissed in state court on the basis of high public official immunity. Alan and Christian then convinced Judge Standish that the dismissal of the civil action brought in state court constituted res judicata, or claim preclusion, with respect to the federal claims, as all of the claims arose out of the same series of events and transactions.
Jim Gicking and Eric Fitzgerald (Philadelphia) obtained reversal of the trial court's grant of summary judgment for the insured in a coverage case. Eric sought summary judgment for the insured, asking that the trial court deny coverage under a CGL policy for an attack by dogs--which the insured claimed to have kept as pets and for protection at the insured residential property--when they escaped from an uninsured property and attacked a passerby. In the appeal handled by Jim, the Superior Court rejected the trial court's conclusion that the policy's phrases "arising out of ownership, maintenance or use" or "operations necessary or incidental to the premises" were ambiguous or required the additional term "exclusive" to limit coverage to the insured property. The Superior Court also concluded that there was no causal connection between this event and the use or ownership of the rental property, even under the "but for" causation standard suggested by "arising out of" language in the policy.
Ted Kobus (Philadelphia) obtained a voluntary withdrawal of a lawsuit in which our client, a Pennsylvania township police department, was sued in the U.S. District Court for the Central District of California for copyright infringement. The allegations were based on the distribution of plaintiff's literature regarding Neighborhood Watch programs. The plaintiff's claims were also based on information posted by the police department on its website. We successfully convinced the plaintiff that its lawsuit was barred by the Fair Use Doctrine under the Copyright Act. Based on the arguments presented, and with the threat of Rule 11 sanctions hanging over the plaintiff, the plaintiff voluntarily withdrew the lawsuit without any payment by the insurance carrier or the client.
Giovanni Stewart (Jacksonville) obtained summary judgment on behalf of his client, an architect, in Orange County, Florida. The plaintiff and his wife sued the architect, among other parties, under theories of negligent design, negligent inspection and negligent supervision. The plaintiff alleged he sustained a fall on concrete steps designed by the architect and, as a result, he sustained serious back injuries that required two separate laminectomy and bilateral fusion surgical procedures. Summary judgment was obtained on all three theories, and the plaintiff continues to litigate his claims against the general contractor who constructed the steps and the owner of the premises.
Larry Berg and Joann Veltrup Diaz (Cherry Hill) obtained summary judgment in a professional liability action pending in Superior Court, Camden County. The plaintiff, automobile dealership/finance company, brought an action seeking damages against the estate of the purchaser of an automobile, his insurer and the insurance broker/agent through which he obtained insurance for the vehicle. The deceased insured/purchaser of the automobile purchased insurance through our client and, at the time, did not provide the identity or existence of a lien holder to be placed on the policy. Within weeks of purchasing the insurance policy, the insured allegedly committed suicide and set fire to the automobile. The plaintiff, the alleged lien holder, brought this action against the insurance carrier, seeking coverage, and the insurance broker/agent, alleging a duty was owed by the broker/agent to the lien holder. Summary judgment was granted dismissing the insurance broker/agent.
Megan Cinberg and John Gonzales (King of Prussia) obtained summary judgment in the Middle District of Pennsylvania in a Title VII, ADEA and First Amendment Retaliation case involving a City of York police officer who had publicly called for the termination of the Mayor and Police Commissioner.
Gary Shendell and Jonathan Kanov (Ft. Lauderdale) prevailed in a recent trial in the U.S. District Court for the Southern District of Florida. The defendants were a public auditing firm and its employee who received a complete defense verdict after two weeks of trial, as well as damages on their counterclaim. The case involved accounting malpractice allegations and novel issues surrounding the roles and responsibilities of an independent auditor with respect to AICPA guidelines and SEC regulations. The plaintiff, Strategic Capital Resources, was seeking over $6 million in damages.
workers' Compensation:
Judd Woytek (Bethlehem) received a favorable decision in a case wherein the claimant suffered work-related injuries on January 23, 2004, including bruises and contusions of his head, neck, groin and back, when the partially-loaded bed of a dump truck broke and came crashing down, causing the truck to bounce off the ground twice with the front wheels rising five to six feet off the ground each time. The claimant struck his head on the roof of the cab and struck other parts of his body on the gearbox. After an IME, which released the claimant to return to work, the employer offered the claimant his pre-injury job without restriction. The judge concluded that there was work available to the claimant within his medical restrictions and that the claimant had refused to perform that work in bad faith. Therefore, the judge suspended the claimant's wage loss benefits.
David L. White (King of Prussia) obtained a favorable decision in a case wherein the judge rendered an award in favor of the employer and denied and dismissed the claim petition, which alleged occupational asthma. The significant question in this case was whether exposure to the dust of a super absorbent polymer (sodium polyacrylate) was the cause of claimant's alleged pulmonary condition. The judge determined that it was not, based on the expert testimony that Dave presented of Paul Epstein, M.D. This decision is significant to the employer because of the implications that would have resulted had the decision been in favor of the claimant. The employer is a manufacturer of disposable baby diapers and other healthcare products. The substance that was alleged to be the cause of the claimant's occupational asthma is the absorbent material contained in the disposable baby diapers, as well as many other applications used in many manufacturing processes.
Ross Carrozza (Scranton) obtained a favorable decision from the Benefits Review Board with respect to the claimant's appeal from the judge's decision denying benefits. The Board rejected the claimant's contention that the judge erred in failing to accord determinative weight to the opinions of the claimant's treating physicians, that the judge failed to provide adequate explanation for discrediting the opinions of Drs. Prince, Scalia and Vollmer, and that the judge failed to address whether there was a mistake in the prior determination based upon a review of all evidence. Thus, they affirmed the judge's denial of benefits.
Ross Carrozza also prevailed in a decision and order from the Appeal Board affirming the Judge's decision denying the claimant's Reinstatement and Review Petitions. The Appeal Board found that the claimant failed to meet his burden of proving that he sustained a work-related injury that resulted in disability.
Health Care Liability:
Candy Barr Heimbach (Bethlehem) obtained a defense verdict in favor of the hospital-client. The plaintiff claimed she fell while being assisted out of her bed following outpatient surgery. There was no documentation of a fall or injury, and our client's nurses denied that one ever occurred in the Short Procedure Unit. The plaintiff alleged damages in the form of RSD with the need for continuing medical care for this permanent condition. Although our expert confirmed that she had the condition, there was evidence presented to question its origin. After the jury had the opportunity to assess the credibility of the witnesses for both sides, they determined that the hospital was not negligent in its care of this patient.
Bob Seiferth (Williamsport) obtained a no negligence defense verdict in a Bradford County medical malpractice case arising out of an alleged delay in diagnosis of a sternoclavicular joint infection.
Joe Manning (Roseland) assisted by Alicia Calaf, obtained a defense verdict in a medical malpractice case tried in Passaic County, New Jersey. The plaintiff alleged the defendant doctor failed to order the appropriate diagnostic tests prior to performing an endopylotomy on the plaintiff. The defendant, during the endopylotomy, cut the plaintiff's renal artery, and the plaintiff wound up having an emergency nephrectomy. The jury returned a 7-0 verdict for the doctor on liability.
Paul Laughlin (Bethlehem) obtained a defense verdict in a retained sponge case against a hospital, affirmed in an appeal handled by Jim Gicking. The Superior Court's precedential opinion addressed issues of scope of expert testimony, preclusion of opinions as a discovery sanction, and applied the Connor-Reynolds distinction between complaint amendments that merely "amplify" and those that allege new theories or facts. The plaintiff had twice undergone abdominal surgery at the hospital, had problems healing and a year later, a small piece of sponge and a clip were removed from the surgery site. She sued the hospital and a visiting nurse association. Her expert initially attributed the retained sponge to either one of the surgeries or to wound care conducted by visiting nurses, but he expanded his opinion at a trial deposition to include the period following surgery. The court precluded the new theory, and Paul proceeded to obtain a defense verdict in the case. On appeal, the plaintiff challenged the ruling, suggesting that the expert report sufficiently encompassed the testimony and that she should have been permitted to amend the complaint, relying on certain complaint language that the Superior Court found too "vague" to serve as the basis for amendment.
Candy Barr Heimbach, assisted by Debbie Cooper and Michelle Wilson (Bethlehem), obtained a defense verdict on behalf of their client, an orthopedic surgeon. At age 12, the minor-plaintiff had suffered from a slipped capital femoral epiphysis, for which our client performed surgical pinning. The plaintiff alleged negligence in her pre-operative care in that our client required her to be non-weight bearing but did not keep her out of school while awaiting surgery. During a fall at school, the degree of her slip increased, leading to the failure of the pinning, subsequent surgeries, and eventual hip replacement procedures throughout her life. The jury quickly found that our client was not negligent in his pre-operative instructions.
Steve Day (King of Prussia) obtained a defense verdict in a medical malpractice trial in Delaware County. The plaintiff claimed over $2 million of lost earning potential allegedly as a result of improperly performed lumbar mechanical traction. The jury found no negligence on the part of the physical therapists who performed the traction.
