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Defense Digest

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

Casualty:

Congratulations to Tom McKenzie (Philadelphia, PA) and the late Joe Daly for securing a summary judgment in the case of Lestarchick v. Toro, et al. The plaintiff's decedent was operating a lawn mower manufactured by Toro on a public highway. The lawn mower had been converted to use as a snow plow in the winter, which was one of the expected uses of the device. While proceeding down the road, for reasons that were never explained, the lawn mower/snow plow veered to the left into the path of an approaching 18-wheel truck-trailer. The plaintiff was ejected from the cab of the mower. There were no seat belts in the cab. He was crushed when the product rolled on top of him as a result of the collision. Suit was brought against the School Board for whom the plaintiff worked, a company that was responsible for the maintenance of the equipment, the distributor of the Toro product, Toro, and the tractor trailer company. Theories against liability against Toro addressed warning and instructions, as well as an argued absence of seat belts, which would have restrained the decedent. Toro urged that seat belts had been provided to the distributor and that there was evidence that they had been present at one time, but apparently had been removed by the persons responsible for the maintenance of the equipment. Summary Judgments were granted in favor of Toro and its distributor. The case continues as to other litigants.

Steven Polansky (Cherry Hill, NJ) successfully obtained summary judgment for a manufacturer in a case in which a trucker sought coverage under the insured's trailer coverage. The underlying case settled for $900,000. The insurance carrier for the trucker asserted that it was entitled to coverage under the trailer insurance policy. It further asserted that the trucker's coverage was excess and that the insurance carrier issuing the coverage for the trailer was primary. While the court agreed that the trucker was entitled to coverage under the trailer policy, the court held that this policy was excess. Since the $1 million limit of coverage in the trucker's policy had not been exhausted, judgment was entered in favor of the carrier issuing coverage for the trailer.

We congratulate R. Bruce Morrison (Philadelphia, PA) for his role in the appeal team which produced a Superior Court JNOV in favor of the insurer in Condio v. Erie Insurance Exchange. In reversing a $1 million punitive damages award from the trial court, the Superior Court ruled as a matter of law that the insurer's ultimately unsuccessful defense of a fatal UIM claim was not bad faith under the Pennsylvania bad faith statute. The case is a significant victory for auto insurers in that it is based on the court's express recognition that UM and UIM claims are "inherently and unavoidably arm's length and adversarial," where the insurer's duty is "good faith and fair dealing," not some heightened or fiduciary duty. Bruce was the author of the amicus brief submitted for the Pennsylvania Defense Institute, and the court's opinion contains a lengthy quote from the brief to set up its analysis of the duty issue. Further appeals are expected.

James Hanratty (Akron, OH) successfully defended a case in the 9th District Court of Appeals, Ohio. In Kukla v. Field Energy Services, Inc., 2006-Ohio-3114, the court of appeals affirmed the jury's defense verdict. The plaintiff and her granddaughter were driving on a public road. Defendant's employee was dragging large pipes across the road with a backhoe when the pipes broke loose and scattered on the road. The plaintiff swerved to avoid the pipes, lost control and flipped the car. Both driver and passenger claimed injury. The driver plaintiff claimed multiple spinal injuries, shoulder injuries and psychological injuries. She also claimed an interruption/delay in the operation of a group home that she recently built before the accident. The plaintiffs had sought $14 million in their complaint.

Christopher Reece (Akron, OH) obtained summary judgment on behalf of Lowe's in the Jefferson County Court of Common Pleas in Steubenville, Ohio. Chris argued that Lowe's could not be legally responsible for the plaintiff's injuries when some vinyl sheets fell on the plaintiff while she was making a purchase at the local Lowe's stores. The plaintiff sustained a wide variety of injuries and her treatment was ongoing to both her shoulder and ankle. This is the second Lowe's case to which Chris received summary judgment in the Jefferson County Court of Common Pleas.

David Makara (Philadelphia, PA) obtained summary judgment on behalf of his client, BIC Corporation, on a products liability claim in Bucks County. The plaintiff alleged he sustained second and third degree burns to his left hand when a lighter malfunctioned as he was attempting to light a cigarette. The plaintiff failed to produce any expert testimony as to a defect in the lighter. David conducted the deposition of a psychologist who had evaluated the plaintiff for a social security disability claim. The psychologist's testimony was that the plaintiff had a history of bipolar disorder, suffered from hallucinations and had a history of injuring himself and, thereafter, being unable to explain how his injuries occurred. The psychologist specifically noted that the plaintiff told him he had burned his hand with a lighter but could not explain how this had happened. Based upon this testimony, along with the absence of any expert testimony, the court entered summary judgment in favor of BIC Corporation on the plaintiff's product liability claim.

Lary Zucker and Deirdre Collins (Cherry Hill, NJ) obtained dismissal of the plaintiff's Complaint against a roller skating rink. The plaintiff, a 14-year-old female, was skating in the defendant's rink when she lost her balance and fell, sustaining a severely broken left ankle that required an open reduction and internal fixation. She filed suit against the rink claiming that there was a foreign substance on the floor that caused her to lose her balance and fall. However, during depositions, the plaintiff could not identify the substance on the floor and agreed that she did not know what caused her to fall. The defendant moved for summary judgment on the basis that the plaintiff's claim is barred by the New Jersey Roller Skating Safety and Fair Liability Act, which provides for immunity for skating rinks when skaters fall due to a loss of balance. The plaintiff's attorney did not oppose the defendant's motion for summary judgment.

Howard Myerowitz and George Helfrich (Roseland, NJ) obtained a favorable result in a highly contested PIP subrogation matter against the dram shop insurer. The PIP carrier was seeking reimbursement of significant medical benefit payments to the plaintiff as a result of an accident which occurred involving a co-defendant driver whose blood alcohol was over 1.9 on the night in question. The defendant driver admittedly was on our client's premises. However, we prevailed in establishing that at no time were there any independent witnesses or any witnesses whatsoever to establish that our client served the co-defendant driver at any time while he was visibly intoxicated.

Cynthia Banks (Scranton, PA) obtained a defense verdict in an automobile versus pedestrian accident. The Middle District jury found that Cynthia's client was not negligent for failing to avoid hitting the 13-year-old pedestrian plaintiff. The plaintiff alleged she was walking on the berm of the road. Cynthia argued that, given the curvature of the two-lane road and the dark of night, her client was unable to see the plaintiff until his headlights illuminated the plaintiff's location on the road. By then, he swerved left to avoid her but could not avoid impact.

Samuel Casolari (Akron, OH) obtained a motion for summary judgment on behalf of Bob Evans Farms in a matter filed in Stark County Court of Common Pleas, Canton, Ohio. The plaintiff decided to have lunch at the restaurant in Massillon, Ohio. While being escorted to her table, the plaintiff fell on a warning cone and injured the left side of her body, specifically the left hip and shoulder. The court ruled that the cone was, as a matter of law, an open and obvious object that was neither obscured nor concealed. As such, the restaurant had no further duty to warn the plaintiff of the existence of the warning cone. The case had been set for trial in June 2006.

Lary Zucker and Deirdre Collins (Cherry Hill, NJ) obtained summary judgment for a New Jersey-based charitable corporation that operates a summer camp in Pennsylvania for mentally challenged adults. The case raised an interesting choice of law question that was decided in favor of the defendant. The plaintiff is a New Jersey resident who claimed that she was sexually assaulted by another camper in August 2004. She filed suit in the Superior Court of New Jersey, Monmouth County, claiming that the New Jersey charitable organization that ran the camp was negligent in supervising the campers. The defendant filed a motion for summary judgment based on the New Jersey Charitable Immunity Act (N.J.S.A. 2:53A-7). The plaintiff did not dispute that the defendant is a charitable organization or that she was a beneficiary of the defendant's charitable works. Rather, the plaintiff claimed that the law of Pennsylvania should be applied and the defendant's motion should be denied because Pennsylvania recognizes no such immunity. Applying the New Jersey "governmental-interest" test, the Judge decided that New Jersey had the greater interest in the underlying litigation and granted the defendant's motion.

Christopher Allen (King of Prussia, PA) obtained a defense jury verdict after five days of trial in the Montgomery County Court of Common Pleas before Judge Tilson on behalf of the defendant driver of a minivan carrying the plaintiff and her five children that was involved in a motor vehicle accident with a tractor trailer. The accident occurred in a construction zone on Route 202. It was the position of the defendant tractor trailer driver that the defendant minivan driver caused the accident by entering into his travel lane. As a result of the accident, the plaintiff alleged significant permanent back injuries requiring multiple back injections, the implantation of three spinal cord stimulators and continued significant pain medications and therapy. The plaintiff's demand on the day of jury selection had been $750,000.

Scott Shannon (Wilmington, DE) obtained a defense verdict on behalf of McDonald's in a premises liability matter in the Delaware Superior Court. The plaintiffs were able to put over $100,000 on the board and never reduced their settlement demand below six figures. Nevertheless, during the plaintiffs' case-in-chief, a juror passed a note advising that he did not need to hear any more and that it would be a waste of time to continue hearing testimony. Although that juror was excused, the defense verdict was rendered in about 90 minutes.

Samuel Casolari (Akron, OH) obtained summary judgment on behalf of Keystone Foods in the Wood County Court of Common Pleas seated in Bowling Green, Ohio. The plaintiff, while working at the Keystone Plant in North Baltimore, Ohio, walked across a walkway that contained a large patch of ice on the stone surface. The plaintiff fell on his elbow and began a progression of medical care and treatment which ultimately lead to four surgeries, a serious infection, and the partial loss of use of his elbow. The court granted summary judgment on the theory that the plaintiff encountered a natural accumulation of ice which was both open and obvious.

Susan Oosting and Michael Orr (Jacksonville, FL) obtained summary final judgment in Duval County, Florida in a case where the plaintiffs were alleging significant damages and losses to their bakery facility and baking equipment as a result of vandalism. The bakery owners submitted conflicting claims in their proof of loss to the insurer and failed to respond to a Request for Admissions. The court agreed with Susan and Michael that, both procedurally and substantively, the subject conflicts and failures invalidated coverage for the plaintiffs' claims, thus, warranting summary final judgment.

Employment Law:

Larry Berg and Joann Veltrup Diaz (Cherry Hill, NJ) obtained summary judgment dismissing the plaintiff's lawsuit against the defendant Board of Education in an action seeking damages for negligence, as well as a claim of negligent hiring, supervision and retention in the Superior Court of New Jersey, Ocean County. The plaintiffs, a minor and his parent, brought an action against the Board of Education and a teacher seeking damages for injuries allegedly sustained as a result of a physical altercation with the teacher. The defendants were successful in demonstrating that the plaintiff failed to meet the threshold requirements under the New Jersey Tort Claims Act, N.J.S.A. 59:9-2(d), relative to bodily injury and/or medical treatment expenses, and had also failed to establish a prima facie case of negligent hiring, retention and supervision. The plaintiff had previously dismissed the Count of the Complaint alleging that the altercation gave rise to a claim under the New Jersey Law Against Discrimination.

Larry Berg also obtained summary judgment in a case involving retaliation and constructive discharge allegations. The judge dismissed the plaintiff's entire complaint based on the defendant's brief, which argued that the plaintiff's former employer: (1) did not return the plaintiff immediately to his job (after a workers' compensation injury) because of an ongoing fraud investigation conducted by the workers' compensation carrier and not for filing a workers' compensation claim; and (2) never forced the plaintiff to resign when they had held open his job and gave it back to him once the fraud investigation concluded.

Samuel Casolari (Akron, OH) successfully defended a jurisdictional appeal before the Ohio Supreme Court. The Court declined to hear the plaintiffs' proposition of law as it related to choice of law issues on an employment related intentional tort action brought by a Pennsylvania employee of a Pennsylvania employer in Ohio. The Supreme Court's decision lets stand a decision of the Seventh District Court of Appeals affirming the employer's motion for summary judgment where the trial court applied substantive Pennsylvania law which prohibits such actions against an employer. The plaintiff was severely injured causing a below-the-knee amputation.

Heath Care Liability:

Rick Ravine (Fort Lauderdale, FL) obtained a defense verdict in a nursing home wrongful death case in the Circuit Court of Palm Beach County, Florida. The decedent, a 96-year-old male with Alzheimer's disease, died after a seven-month stay in our insured's nursing home. While at the nursing home, the decedent developed a Stage III sacral pressure ulcer, ischemic and pressure ulcers on his foot, malnutrition, dehydration and severe contractures. The decedent was transferred to a hospital where his foot was amputated. He died 14 days later. The plaintiff, the deceased's daughter, filed statutory and common law negligence claims alleging that her father's conditions and ultimate death were caused or aggravated by the negligence of the staff at the home. If the plaintiff had prevailed on the statutory count, in addition to any award given by the jury, the plaintiff would have been entitled to recover attorneys' fees. After a four-day trial, the jury returned a defense verdict after two hours of deliberations.

Kate McGrath and Ellen Casey (King of Prussia, PA) were granted a nonsuit by Judge Jelin in Philadelphia County in a medical case alleging failure to order diagnostic testing and failure to diagnose colon cancer where the patient was being treated concurrently by surgeons concerning GI problems. The defendant surgeons had settled prior to trial, but the defendant family physicians pursued cross claims and called experts against them at trial. On cross-examination, the plaintiff's expert was unable to testify as to exactly when our family practitioner should have referred the patient for a colonoscopy and, thus, breached the standard of care. Kate's motion for a nonsuit was granted at the close of the plaintiff's case. The jury found 100% liability against one of the surgeons, but no causation, thus, returning a complete defense verdict.

Kate McGrath (King of Prussia, PA) obtained a defense jury verdict after six days of trial in the Montgomery County Court of Common Pleas before Judge Rossanese on behalf of a hospital defendant. The plaintiff's decedent alleged that the plaintiff's death was caused by medical negligence in the failure to properly treat a pulmonary embolism. The defendant relied on the expert testimony of an expert pulmonologist during the course of the trial to support the treatment provided to the plaintiff's decedent. It was also successfully brought out during the cross-examination of the plaintiff's expert that a draft of the plaintiff's expert report was produced in discovery, which was contradictory to the plaintiff's expert report introduced at trial. The plaintiff's demand had been $1.65 million.

Marty Sitler (Akron, OH) obtained a favorable decision from the U.S. District Court, Northern District of Ohio, Eastern Division in ordering voluntary dismissal of all claims against our client, NovaCare Outpatient Rehabilitation, a subsidiary of Select Medical Corporation. Early in the litigation of the case, Marty moved to dismiss all allegations against NovaCare on the theory that the plaintiff's negligence claims were substantively medical claims and, therefore, were time-barred and failed to comply with Ohio procedural requirements for medical actions. The plaintiff opposed NovaCare's motion, and prior to the court's ruling, the plaintiff moved for voluntary dismissal of the claims against NovaCare. The court granted the voluntary dismissal, but did so with a condition that before re-filing, the plaintiff must reimburse NovaCare for all reasonable attorney fees and expenses incurred up to the date of dismissal.

Bradley Goewert and Lorenza Wolhar (Wilmington, DE) obtained a defense verdict in a medical negligence case. In this wrongful death/survival action, the plaintiffs alleged that the treating cardiologist breached the standard of care in his use of the antiarrhythmic agent, Amiodarone, given for post-surgical atrial fibrillation following the decedent's coronary artery bypass graft (CABG) surgery. Additionally, the plaintiffs claimed lack of informed consent to the Amiodarone, which has a "black box" warning in the Physicians Desk Reference and has not been approved by the FDA for treatment of atrial fibrillation. The plaintiffs further alleged that the doctor gave the wrong dosage/duration of the medication that was memorialized on a prescription received in a follow-up office visit with the cardiologist. The plaintiff died four months after his CABG from alleged Amiodarone induced pulmonary toxicity. The plaintiff decedent was survived by a spouse and three children. The plaintiffs' demand was $6 million. Both standard of care and causation were hotly contested. In their case in chief, the plaintiffs had six physicians testify. After a six-day trial, the jury returned a verdict in favor of our doctor in less than an hour.

Bradley and Lori also obtained a defense verdict in a medical malpractice case. The plaintiff underwent a pubovaginal sling procedure. Following the procedure, the plaintiff suffered from complications that were inherent to the surgery that was performed. The plaintiff claimed she was never advised of any risks of the procedure. After a four-day trial, the jury returned a verdict in favor of the defendant doctor in less than two hours.

Frederic Roller, assisted by Kara White (Philadelphia, PA), obtained a defense verdict in Montgomery County in which the plaintiff alleged a six-week delay in diagnosing a partial rupture of the Achilles Tendon. She was diagnosed following a complete rupture, which then required surgical repair. However, because of a longstanding underlying medical condition for which she was maintained on Prednisone, she developed post-op complications resulting in two years of wound care and ultimately a significant loss of her Achilles Tendon. She claimed permanent disability.

Steve Day (King of Prussia, PA) obtained a defense verdict in a medical malpractice action in Delaware County. Steve defended an OB/GYN. The claim involved an alleged delay in diagnosing pelvic infection in the weeks following the removal of an ectopic pregnancy. The infection led to pelvic adhesions, the need for a hysterectomy, and years of bowel problems. The jury found no negligence on the physician.

Joan Orsini Ford (Doylestown, PA) won a defense verdict in an informed consent and negligence claim against her obstetrician client, which was recently affirmed by the Superior Court in the appeal handled by James Gicking (Philadelphia, PA). The plaintiff claimed that the defendant physician had not obtained her consent to perform an episiotomy--after obtaining her consent for vaginal delivery--and that it was negligent to proceed with the third vaginal delivery after two previous deliveries, each resulting in significant tearing, increasing the risk of incontinence and other injuries for which she was seeking recovery. While Joan argued, in part, that no consent was required for an episiotomy, the trial court submitted the claim to the jury based on the plaintiff's argument that the episiotomy was expected "surgery" in these circumstances and where the physician notes included his "promise" at one point to deliver the third baby by C-section based on previous tearing. The Superior Court affirmed the defense verdict in a memorandum decision.

John Aponick Jr. (Scranton, PA) secured defense verdicts in back-to-back medical malpractice cases in Wilkes-Barre and Easton. The first case in Luzerne County involved a claim against a cardiothoracic surgeon from Allentown. It was alleged that his patient suffered a permanent injury to the phrenic nerve during the harvesting of the left interior mammary artery in bypass surgery. The claim was based upon res ipsa loquitur, theorizing that a permanent injury to the phrenic nerve, which controls the movement of the diaphram, cannot occur in the absence of negligent use of cautery in harvesting the artery. The case was complicated by the fact that the defense's only liability witness refused to appear to testify. Regardless, the jury accepted the defense that the nerve injury, in fact, was not permanent and, therefore, the res ipsa loquitur theory was inapplicable. In the second case, it was claimed that an orthopedic surgeon treated a patient for an ankle sprain who years previously had surgery to correct a club foot. The plaintiff maintained that the surgeon failed to diagnose promptly a torn anterior tibial tendon and perform corrective surgery. The surgery ultimately was performed at a Philadelphia hospital. The patient developed RSD in the right leg, ankle and foot, claiming to have been caused by the late diagnosis and failure to correct the ruptured tendon. A claim was made that the RSD was irreversible, progressive and permanently disabling. The jury returned a defense verdict after less than a half hour deliberation.

Kevin FitzPatrick (King of Prussia, PA) obtained a defense jury verdict after three days of trial in Montgomery County Court of Common Pleas on behalf of an emergency specialist and Montgomery Hospital. The case involved an alleged overdose of medication that the plaintiff's decedent received after presenting to the emergency room and being diagnosed with a hip fracture. The patient received a narcotic and antiemetic IV and went into cardiac and respiratory arrest within seconds of receiving the medication. The defense focused on the highly unusual response, inconsistent literature and the experience of the physician and ER nurse.

Professional Liability:

James McGovern and Paul Atencio (Pittsburgh, PA) were successful in obtaining a dismissal of a legal malpractice case on a Motion for Judgment on the Pleadings in the Court of Common Pleas of Westmoreland County. The attorney had drafted a Will by which the adult son and adult daughter of the decedent were each to receive real property owned by the decedent, but the value of the daughter's property was several times the value of the son's property. The son sued the attorney on a negligence theory, alleging that the Will should have contained an equalization clause. The court held that there was no privity between the attorney and the son as beneficiary to support a negligence cause of action and dismissed the complaint.

Terry Lefco and Wilhelm Dingler (Philadelphia, PA) were recently successful in obtaining a defense verdict after a non-jury trial, consuming more than two weeks of trial testimony, in the Bankruptcy Court for the Eastern District of Pennsylvania in a lawyer's malpractice case. The Chapter 7 debtor company claimed that the attorney should have investigated the UCC filings and informed the debtor, prior to bankruptcy, that the bank had failed to timely perfect its security interest. Armed with this knowledge, the debtor could have successfully worked out its issues with the bank or, in the alternative, could have successfully reorganized in bankruptcy and relegated the bank's security interest to unsecured debt. The trustee claimed that the company had a fair value in reorganization of $13 million, while it was actually liquidated for $1 million, all of which was paid to the secured creditor. Thus, the claim against the lawyer was for $13 million, and there was a $10 million insurance policy limit in place. We argued that the attorney did not have a duty under the circumstances to check the UCC filings, given the limited scope of his representation. The court declined to make a decision on the issue of duty but accepted Terry and Will's second argument that there was no causation. Even if the attorney had discovered the late filed security interest, the plaintiffs failed to prove that they would have been able to work out the debt pre-bankruptcy or to reorganize in bankruptcy, given the highly checkered history of business practices by the principals of the debtors. The plaintiff also failed to prove any other damages.

Douglas Kent (Philadelphia, PA) and Trish Monahan (Pittsburgh, PA) were successful in having the court issue a declaratory judgment that an insurer did not have to defend a Virginia insured or indemnify a Pennsylvania claimant for a workers' compensation claim occurring in Pennsylvania when the insured did not purchase the necessary endorsement for coverage outside Virginia.

Steven Polansky (Cherry Hill, NJ) obtained summary judgment on behalf of St. Paul Travelers in a case in which an engineering firm retained by the New Jersey Turnpike Authority was seeking coverage as an additional insured and alleging bad faith. The additional insured endorsement reflected that coverage was provided to the New Jersey Turnpike Authority, it's agents, servants and employees. Based upon the retention agreement, the engineering firm asserted that it was acting as an agent of the Turnpike Authority and entitled to coverage. The underlying claim involved a construction worker who was electrocuted. The court rejected this claim, as well as the bad faith claim, finding no duty to defend or indemnify under two separate policies of insurance issued by St. Paul.

Lila Wynne (Cherry Hill, NJ) obtained an Order for Summary Judgment on behalf of Freehold Cartage, Inc., a hazardous waste hauler, in a Class Action suit filed by several thousand residents of Alabama who were seeking medical monitoring in the state of New Jersey. The New Jersey Appellate Division affirmed the Order for Summary Judgment in favor of the defendants. The Class Action was filed by residents of Alabama against defendants, Ciba Specialty Chemicals Corporation, Novartis Corporation, Ciba-Geigy Corporation, Arch/Olin Chemicals and Freehold Cartage, Inc. The plaintiffs alleged that they were at an increased risk of injury from exposure to contaminants while residing in McIntosh, Alabama, which is near chemical facilities operated by the Ciba and Olin defendants. Freehold Cartage, Inc. transported hazardous waste from Ciba's facility in Toms River, New Jersey to McIntosh, Alabama. The plaintiffs' request for relief was the establishment of a medical monitoring fund to be administered in McIntosh, Alabama for the local residents. The plaintiffs instituted suit in New Jersey to obtain medical monitoring, which is a recognized cause of action in New Jersey but is not in the state of Alabama. The trial court granted the summary judgment motion in favor of the defendants and dismissed the Amended Complaint, with prejudice. On June 9, 2006, the Appellate Division affirmed.

Richard Goldstein, Walter Kawalec and Kara Pullman (Cherry Hill, NJ) achieved a reversal in the Appellate Division. In the trial court, the judge ordered the enforcement of a proposed settlement agreement between our client, a municipal school board, and a former employee. Tentative terms were reached but never formally adopted by the Board. The Appellate Division held that the formal adoption of the settlement by the Board was required for the Board to be bound by it. Absent such formal action, the trial court could not enforce the agreement, the Appellate Division held.

Robert Graham and Michael DeCandio (Jacksonville, FL) obtained summary judgment on behalf of our client, Ranger Construction Industries. The plaintiff, an employee of a sub-subcontractor on an interstate highway construction project, was seriously injured due to alleged deficiencies in the maintenance of traffic and construction practices within the construction zone. The plaintiff raised three arguments to the defense of workers' compensation immunity. They were the dual persona, dual capacity and unrelated work exceptions. Robert Graham researched and prepared a very detailed memorandum of law, which was argued in court and resulted in a lengthy and well written order in favor of our position.

Nicholas Kierniesky (Cherry Hill, NJ) obtained summary judgment in Cape May County, New Jersey in a liquor liability case. The facts were bizarre. An adult woman and her mother were vacationing in Cape May, New Jersey and had visited a number of taverns. They last visited a well-known local establishment where the mother purchased a beer and a mixed drink for her daughter. The daughter became profane and disruptive and was asked to leave. For unclear reasons, she attempted to return to the establishment. Our client called the police, who promptly arrived at the scene. The daughter was arrested and taken to the local jail, where she was held in a cell. She feigned illness and generally behaved badly. The police called EMTs, and she was transported to a nearby hospital. While in the rear of the ambulance, the daughter somehow freed herself from her restraints. Then, when the EMT was not watching, she attempted to open the rear door of the moving ambulance. She exited the moving ambulance and fell onto the roadway. She hit her head on the pavement and later died. The mother, who procured the alcohol for her daughter, then sued diverse defendants, to include the public entities. She also sued the bar for negligent service of alcohol. We moved for summary judgment on the issue of forseeability. Judge Visalli found our analysis to be persuasive and granted our motion, dismissing the complaint with prejudice as to our client.

James McGovern (Pittsburgh, PA) successfully defended an arbitration case filed with the National Association of Securities Dealers, Inc. ("NASD"). The claimant alleged that she lost over $760,000 due to negligent advice and fraudulent investment practices of the broker and the brokerage firm. The claimant also sought treble and punitive damages. After a three-day hearing, the Panel of Arbitrators unanimously determined that there was no merit to the allegations and entered an Award denying all of the claimant's claims with prejudice.

Terry Lefco and John Hare (Philadelphia, PA) successfully obtained from the Pennsylvania Superior Court an opinion affirming the post-verdict dismissal of a claim on the basis that a settlement agreement entered into in 2000, but subsequently disaffirmed by the plaintiff, precluded all further claims. Denis Dice (Philadelphia, PA) had negotiated the settlement in 1998 and continued to maintain that it was effective, but the Court of Common Pleas of Philadelphia County, in two separate decisions, disagreed. The case against our client, a prominent Philadelphia law firm, went to trial, and there was a significant adverse verdict. However, we succeeded in having the verdict vacated and a new trial ordered. The plaintiff appealed and lost. We cross-appealed, and the Superior Court, in its affirmance, directed the lower court to re-examine the issue of the prior settlement. The lower court did so and found in our favor. The Superior Court has now affirmed.

James McGovern (Pittsburgh, PA), Andrew Davitt and Michael Panichelli (Philadelphia, PA) obtained a decision from the Superior Court of Pennsylvania affirming the grant of summary judgment entered by the Court of Common Pleas of Allegheny County. The case involved a rogue securities broker who defrauded numerous investors by selling essentially worthless promissory notes in the millions of dollars. The broker declared bankruptcy, pled guilty and died a few months after going to prison. The 37 plaintiffs sued his children (also brokers) and the broker dealer. We represented the broker dealer and were successful in having the trial court and the appellate court determine that our client was not liable as a matter of law because it had no knowledge of or responsibility for the unauthorized conduct of the broker.

Samuel Cohen and Joel Wertman (Philadelphia, PA) obtained a dismissal of the plaintiff's Motion to Set Aside Arbitration Award in the U.S. District Court for the Western District of Kentucky. This case was originally filed as an NASD arbitration. A nearly one-year discovery battle included the issuance of five separate discovery orders against the plaintiff in response to motions filed by the defendants . After awarding monetary sanctions against the plaintiff and threatening dismissal, the arbitration panel granted the extraordinary relief of dismissal with prejudice for the plaintiff's repeated discovery abuses. The plaintiff attempted to vacate the decision reached by the arbitration panel. However, the court dismissed the plaintiff's motion citing that the plaintiff had not properly served his motion to set aside arbitration award on the defendants. Plaintiff's counsel mistakenly served a member of this firm, whom he knew to be retired. Thereby, the plaintiff missed the three-month deadline to appeal an arbitration decision. The court further noted that the arbitration panel had not exceeded its discretion and that the dismissal was warranted under the circumstances.

Terry Lefco and John Hare (Philadelphia, PA) obtained the dismissal in federal court of all claims against a lawyer who had represented a wife in a domestic relations dispute. The husband, unhappy because he had been jailed by the judge for contempt and compelled by the judge to enter into an agreement with a psychologist, sued the judge, the Court of Common Pleas of Montgomery County, the court-appointed psychologist, his wife's psychologist, and his wife's lawyer. The husband claimed civil rights claims asserting, among other things, denial of due process, denial of liberty, impairment of the right of contract and involuntary servitude. We succeeded in having all of these claims dismissed by virtue of thorough legal research and analysis. Judge Sanchez' opinion virtually adopted our brief, which relied in part on the Third Circuit's opinion in Egervary, which was argued by Jim Gicking (Philadelphia, PA) of our appellate department.

Jack Slimm (Cherry Hill, NJ) successfully argued an appeal and obtained a reversal of the trial court's judgment, which had restrained Pennsylvania attorneys from representing their clients in Philadelphia before a proceeding before the Pennsylvania Department of Environmental Protection. The trial court had denied the law firm's motion to dismiss and granted an injunction prohibiting the attorneys from representing the clients, a civic association, in a Pennsylvania matter. The trial court ruled that it had jurisdiction over the matter because the attorneys were also admitted in New Jersey and had an office in Camden County. The disqualification was based on an alleged conflict of interest, as one of the defendant attorneys previously practiced law in Camden County with a firm that represented the plaintiffs. On appeal, the Appellate Division concluded that the trial court erred in denying the motion to dismiss. First, the complaint was based upon a violation of the New Jersey and Pennsylvania R.P.C.'s. New Jersey courts do not have subject matter jurisdiction to enforce the rules of professional conduct in another state. The Supreme Court of New Jersey and the Supreme Court of Pennsylvania have exclusive jurisdiction to control the practice of law in their respective states. Also, in New Jersey, the R.P.C.'s do not provide an independent basis for a cause of action. The Appellate Division also agreed with Jack's forum non-conveniens argument. The Appellate Division held that an action aimed at disqualifying an opposing party's counsel should be filed in the state where the underlying dispute is being litigated so that the opposing party may readily participate to defend its right to fairly choose its counsel. The court further held that it is manifestly inappropriate to attempt, as the plaintiffs did, to achieve disqualification of opposing counsel by filing a lawsuit in another state.

Megan Cinberg (King of Prussia, PA) obtained a defense judgment in a Section 1983 Civil Rights case before Judge Buckwalter in the Eastern District of Pennsylvania. The plaintiff alleged that police officers from the Bensalem Township Police Department arrested him without probable cause and used excessive force. The plaintiff was acquitted of all charges in his underlying criminal case.

Tom Bracaglia (Philadelphia, PA) represented Lucent Technologies, Inc. in obtaining a non-suit at the close of the plaintiffs' case in a jury trial in Lehigh County because the plaintiff did not establish that the chemicals to which he was allegedly exposed caused his alleged systemic complaints. The defense focused on causation because the evidence was undisputed that Lucent used hazardous chemicals in its operation. The plaintiffs' demand was lowered pretrial from $1 billion or $2 million. No offer was extended. Tom had the pleasure of being threatened by the plaintiff, who had been arrested in the past for assault, and being escorted by the sheriff out the back door of the courthouse while the plaintiff waited on the courthouse steps.

Christopher Boyle and John Gonzales (King of Prussia, PA) obtained summary judgment in a jail suicide case involving Ridley Township, Delaware County in the U.S. District Court for the Eastern District of Pennsylvania. The plaintiff attempted to hang himself by his socks while in the police lockup after his arrest for public drunkenness. The plaintiff survived, but sustained a permanent injury, which requires 24 hour care. The plaintiff was represented by Kline and Specter. The latest demand before Judge Fullam's decision was $6 million.

Lawrence Berg and Joann Veltrup Diaz (Cherry Hill, NJ) obtained dismissal of the plaintiff's complaint against the defendants in a professional liability action pending in the Superior Court of Cape May County. The plaintiff brought an action against her insurance carrier and the insurance broker/agent from whom she obtained insurance on her automobile, seeking damages for property damage to her vehicle. At the time of the accident, the plaintiff did not have collision/comprehensive coverage on her policy. The plaintiff purchased insurance, including collision/comprehensive coverage, from our client but, thereafter, failed to maintain the collision/comprehensive coverage on her vehicle. The plaintiff claimed the defendant insurance agent/broker breached a duty owed to notify the plaintiff of the cancellation of the collision/comprehensive coverage and failed to forward documentation, allegedly provided by the plaintiff, to the carrier to maintain that coverage. Despite the fact that these alleged failures to act were related to the professional services provided by the agent/broker, the plaintiff did not provide an affidavit of merit setting forth the standard of care as required by the statute. The plaintiff took the position that an expert was not needed to establish the common duties owed and/or that the relationship between the plaintiff and the insurance agent/broker was more akin to contract and, thus, the New Jersey Affidavit of Merit Statute was inapplicable. Following oral argument, the defendants' motion to dismiss was granted, and our clients were dismissed.

Jack Slimm (Cherry Hill, NJ) won a motion to dismiss in a legal malpractice action against two law firms arising out of an underlying patent infringement case. The plaintiff, through its liquidating trustee, brought a claim for legal malpractice arising out of an underlying patent infringement case which resulted in a verdict of approximately $30 million against the plaintiff for re-selling "refurbished" Fuji disposable cameras.

Workers' Compensation:

A. Judd Woytek (Bethlehem, PA) obtained a favorable decision and order from Workers' Compensation Judge Alan Harris in which he denied and dismissed the claimant's Claim Petition which sought to add cervical and thoracic injuries to the Notice of Compensation Payable. The judge also granted Judd's petition to terminate compensation benefits as of November 11, 2004, based upon the credible testimony of Judd's medical expert, Dr. William Murphy.

Judd also obtained a successful Decision and Order by Workers' Compensation Judge Bruce Doman finding that the claimant did sustain a work injury. However, he also found that the claimant failed to prove that she was ever disabled for more than seven days. Therefore, he did not award any wage loss benefits to the claimant, and he formally suspended her wage loss benefits. The judge also credited the opinions of our medical expert, Dr. Kelman, and found that the claimant had fully recovered from her work-related injury and terminated the claimant's compensation benefits.

Ross Carrozza (Scranton, PA) obtained a Decision and Order from Judge Kaplan denying the claimant's Federal Black Lung claim based on the claimant's failure to prove that he had pneumoconiosis by either the x-ray evidence or physician opinion evidence of record regardless of the claimant's 11 years of coal mine employment.

Mark Spivak (Cherry Hill, NJ) obtained a favorable decision from the Appellate Division in which they affirmed a decision of the Workers' Compensation Judge. The petitioner contended that his physical limitations proved a diminution of his earning capacity, entitling him to reconstruct his wage from his part-time job to a full-time wage. The Appellate Division affirmed our position that the petitioner failed to satisfy his burden of proof that his injuries limited his earning capacity. Any limitation that the petitioner had in his ability to work was self-imposed. As a result, the petitioner was not entitled to reconstruction of his wage to simulate that of a full-time worker.

A. Judd Woytek (Bethlehem, PA) obtained a favorable Decision from Judge Beverly Doneker granting Judd's petition to terminate the claimant's compensation benefits. The claimant sustained a work-related injury to both of her knees while working as a hall monitor for the Bethlehem Area School District. A large student ran into her and she fell on her knees. Later that day, her knees gave out on her, and she fell down a flight of steps. The claimant testified that she continued to have pain in her knees through to the present time and that her pain was worse now than it was at the time of the injury. Judd presented testimony that the claimant was fully recovered from the work-related injury and was, instead, suffering from degenerative arthritis in her knee caps. The claimant's expert was of the opinion that the claimant continued to suffer from the effects of her work-related injury. The judge credited the opinions of Judd's expert over the claimant's expert.

David L. White (King of Prussia, PA) obtained a favorable Decision from Judge Donald Poorman. In this case, a claim petition was filed alleging an injury at work. However, the claimant's testimony did not conform to the content of the medical records of his family doctor or to the content of the records at the Occupational Health Department of SPS Technologies. Dave was able to point to a number of inconsistencies between the testimony of the claimant and the content of medical records and was also able to directly refute certain aspects of the claimant's testimony as to the fact that he had never previously experienced or been treated for back problems. The judge rejected the testimony of the claimant based on the inconsistencies and contradictions and dismissed the claim petition.

Lori Strauss (Philadelphia, PA) obtained a favorable Decision from Judge Susan Kelley terminating the claimant's benefits in a hotly contested case. Judge Kelley found that the former Main Line Health System employee was fully and completely recovered from her work-related injury.