Defense Digest

On the Pulse ... Our Litigation Achievements

Amusements, Sports & Entertainment Liability

Lary Zucker and Deirdre Collins (Cherry Hill, NJ) won a motion for summary judgment on behalf of a traveling carnival in New Jersey.  The carnival was set up in the parking lot of a church, and the plaintiff tripped and fell as she was leaving the side door of the church in order to attend the carnival.  The plaintiff claimed that the carnival was responsible for inspecting the church property since they knew or should have known that people would be leaving through that door to enter the church parking lot.  Discovery revealed, however, that the plaintiff could not identify a defect in the door or threshold and that the plaintiff simply missed her step due to the surge of the crowd behind her.  This was the second motion for summary judgment granted to the defendant in this case.  The first summary judgment order was reversed by the Appellate Division because discovery was not complete.

Civil Rights

Sharon O'Donnell (Harrisburg, PA), with assistance from associates Donald Carmelite and Peggy Morcom, obtained a directed verdict from Judge Yvette Kane, U.S. District Court for the Middle District of Pennsylvania in a claim brought by a school board member against her Board, the Superintendent and the District on the basis that the defendants violated her first amendment right to free speech and to collect/gather information from school employees.

Construction Litigation

Nicholas Kierniesky (Cherry Hill, NJ), Robert Kelly and James Layne (King of Prussia, PA) 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 after a motion for summary judgment filed by that previous firm had been denied and an arbitration award of $342,000 had been 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.  In New Jersey, a general contractor is not a statutory employer.  Rather, if a general contractor is required to pay workers' compensation, the amount paid is reduced from the award that may be made against the general contractor.  After assignment, request for admissions were filed by our office upon the plaintiff.  Thereafter, a motion for summary judgment was filed, arguing 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.  The case was scheduled for trial on January 23, 2006.  The motion for summary judgment was argued on January 6, 2006, and was granted.

Consumer & Credit Law

Andrew Schwartz (Philadelphia, PA) won summary judgment in a consumer class action case in federal court in Arizona against an Arizona law firm and one if its attorneys.  The plaintiff filed suit under the Fair Debt Collection Practices Act, alleging that a notice of medical lien sent to the plaintiff by the law firm was misleading and confusing.  We were able to effectively argue that the lien letter was not an attempt to collect a debt, but was simply a statutory requirement to perfect the hospital's lien rights against any third-party tortfeasor.  The court had previously certified the matter as a class action.

Employment Law

Sangeeta Spengler and Jeff Albinson (Tampa, FL) obtained a verdict in favor of the defendant on the "same decision" affirmative defense in an employment practices liability case following a five-day jury trial in Federal Court (Middle District of Florida).  The plaintiff claimed he had been terminated from his employment based on his religion.  The defendant denied that religion motivated the termination and further raised the affirmative defense that it would have made the same employment decision even in the absence of religion as a factor.  At the summary judgment stage, the defense obtained a ruling that the plaintiff would not be able to obtain injunctive or other relief in the event the jury returned a verdict in favor of the affirmative defense.  Thus, the plaintiff was foreclosed from recovery of any kind in light of the verdict.

Additionally, Sharon O'Donnell (Harrisburg, PA) with the assistance of Peggy Morcom, obtained a defense verdict – in eight minutes – on the plaintiff's claims against his former employer for breach of contract and unjust enrichment and a non-suit on a claim brought under the Wage, Payment & Collection Law.  The plaintiff was employed for five years as a sales representative for his employer, a debt collection agency, when his position was eliminated.  He sued for residual commissions he believed he was entitled to receive when the company actually collected on the debt accounts he brought in (including the company's second largest debt account worth over $85 million.)

Environmental

Timothy Rau (Philadelphia, PA) obtained a defense verdict on behalf of Pep Boys in a disputed asbestosis case against Paul Reich & Myers before Judge Carriefiello in the Philadelphia Court of Common Pleas.  The jury returned a defense verdict in under one-and-a-half hours in phase one, where the jury decided the plaintiff did not have an asbestos-related disease.

Fraud

Jack Senechal (Cherry Hill, NJ) obtained a decision in favor of his client at a binding arbitration.  Prior to suit, an investigation uncovered significant questions regarding whether the insured was actually involved in an accident.  Benefits were denied after repeated attempts to take the sworn statement of the insured went unanswered.  The insured brought an action seeking payment of medical expenses under first party PIP coverage. The arbitrator found that there were significant issues raised by the circumstances of this claim involving whether the insured was lying about being involved in an accident and suffering injuries.  An insurer has the right to request a sworn statement of the insured subject to ordinary standards of fairness and reasonableness.  Under the circumstances of this case, the carrier's request for a sworn statement was reasonable, and the insured's failure to cooperate with this request constituted a violation of the policy.

General Liability

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 that 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.

Tony Michetti (Doylestown, PA) obtained a defense verdict in a Bucks County case before Judge Clyde Waite. The plaintiff, a 14-year-old, was injured while riding a bicycle at night across an unlit field at the Pennsbury High School. The plaintiff came into contact with a stake and guy wire used to stabilize a tree that had been installed earlier that same day. The defendant was hired by Pennsbury School District to transplant a number of larger/mature trees from one section of the school property to the subject field.  The defendant marked the guy wires with white ribbons.  The plaintiff claimed that the field was commonly used by children in the community and this fact was known or should have been taken by the defendant to warn of the guy wires.  The defendant presented expert testimony that the guy wires were marked in an appropriate manner.

Health Care Liability

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.

Candy Barr Heimbach and Michelle Wilson (Bethlehem, PA) obtained a defense verdict in favor of their client, an orthopedic surgeon.  The case involved alleged negligence with regard to foot surgery where the plaintiff had undergone three subsequent surgeries with the accompanying work loss.  A motion for non-suit was prepared by Michelle and argued by Candy.  Although the judge did not grant it in its entirety, she strictly limited the case, which went to the jury, to involve only an alleged delay in diagnosis and the alleged pain and suffering between the first two surgeries.  The jury then found our client not negligent in that respect.

Matthew Owens (Harrisburg, PA) obtained summary judgment in favor if his client and defendant, a prison nurse, in the District Court for the Middle District of Pennsylvania. The plaintiff suffered from various psychological injuries before and after he was incarcerated for approximately one year in a northern Pennsylvania prison.  His physicians had forwarded letters to the prison indicating that his prescription medication needed to be continued.  Various physicians at the prison changed his medications, and the plaintiff suffered a worsening of his overall psychological condition and developed new problems. The plaintiff filed a medical malpractice lawsuit in federal court and included 42 U.S.C. §1983 civil rights claims.  Following voluminous document discovery and extensive depositions, Matt filed a motion for summary judgment on both the medical malpractice and federal civil rights claims. The plaintiff, defended by both local and out-of-state counsel, opposed the motion. However, the federal court, after briefing, granted the motion.

Fred Roller (Philadelphia, PA) obtained a defense verdict in York County in a case involving RSD where the plaintiff alleged our client failed to recognize signs and symptoms of RSD in the foot for several months before performing surgery, after which the plaintiff developed full limb RSD causing permanent disability.  The plaintiff presented evidence of years of post operative treatment with no success and presented evidence of $1.5 million future wage loss and approximately $170,000 in past medical expenses.  Following two hours of deliberations, the jury returned a unanimous defense verdict.

James Wilson (Scranton, PA) obtained a defense verdict on behalf of a family physician in a jury trial in Lackawanna County before Judge Minora.  The plaintiff, a young woman, suffered severe scarring on her thighs as a result of over use of Lotrisone cream, a steroid cream, prescribed for ringworm by the family physician.  This scarring, which is really skin atrophy from the steroid, is permanent and irreversible.  The plaintiff's claim was that she was not given any instructions on how to use the cream or for how long to use it. There was nothing in the office notes regarding use or length of use.  The physician's testimony, which was accepted by the jury, was that, although he could not remember this patient or what was told to her, his custom and habit was always to advise the patient not to use a steroid cream for more than two weeks without coming back to the office.

Steve Day (King of Prussia, PA) obtained a directed verdict in a malicious prosecution action.  The claim, which sought $500,000 in punitive damages, stemmed from an incident in the emergency room, where an out-of-control patient attempted to stab a paramedic with a pen.  The patient claimed he simply wanted to write the paramedic's name down for the purposes of reporting him.  The police were called, and the man was arrested and jailed for four days.  The District Attorney ultimately nolle prossed the charges. The court found that, because the police maintained exclusive control over whether to file the charges, the hospital did not "initiate the criminal proceeding," one of the prongs of the tort.

Insurance Coverage & Bad Faith

Steven Polansky (Cherry Hill, NJ) obtained summary judgment in the Superior Court of New Jersey in an action where the claimant was attempting to avoid a family member exclusion contained in a supplemental liability policy.  The party seeking coverage purchased supplemental liability protection when renting an automobile.  The supplemental liability policy excluded coverage for claims made by family members residing in the same household as the renter.  It was alleged that this provision did not comport with the coverage represented by the auto rental company, that the provision violated public policy and, further, that the provision was not permitted under the financial responsibility law.  The court rejected all of these arguments, finding the limitation clear and unambiguous.

Mark Fontanella and Anthony Ross (Scranton, PA) obtained a dismissal prior to trial of a class action lawsuit against their client, an insurer.  The plaintiff was severely injured in an automobile accident and claimed that her reduction of UIM benefits were invalid.  The plaintiff claimed that she was entitled to $2 million in coverage and filed a declaratory judgment action and class certification on behalf of all of the carrier's insureds.  The plaintiff's claims were based upon the fact that all of the carrier's reduction of UIM first required the insured to completely reject coverage, then on the same piece of paper, reduce the UIM limits to a selected amount below the bodily injury/liability limits.  The plaintiff claimed that the rejection of the coverage violated Pennsylvania statutory and decisional law.  The plaintiff's complaint was removed to the U.S. District Court, Middle District of Pennsylvania in Harrisburg.  Upon cross motions for judgment on the pleadings, cross motions for summary judgment and oral argument, Judge Kane ultimately ruled in favor of the carrier, denied all claims by the plaintiff, and agreed that the carrier was not required to make any further payment to its insureds.

Liquor Liability

Barbara Davis and Kevin McGoldrick (Cherry Hill, NJ) obtained summary judgment dismissing all claims against their 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.

Municipal Liability

Michael Pipa (Harrisburg, PA) obtained a complete dismissal of claims against a foster parent who allowed a three-year-old foster child to find his way to her in-ground swimming pool and drown.  The plaintiffs filed suit in federal court under Section 1983 and also raised state law negligence claims.  We moved to dismiss under Rule 12(b)(6) on the basis that (1) the federal claims were not sustainable because the foster parent does not qualify as a "state actor" and (2) the foster parent is immune to state law claims under the Political Subdivision Tort Claims Act because she qualifies as an "employee" of the local county Children and Youth Service.  The court noted that we presented a "heads I win, tails you lose" type argument but agreed that the law is squarely on our side.

Michael Brennan and Jack Slimm (Cherry Hill, NJ) successfully obtained an order for summary judgment of all federal and constitutional claims in an action filed in the United States District Court for the District of New Jersey.  In this case, the attorney served as the Affirmative Action Officer for a school district.  He conducted a preliminary investigation into complaints of harassment, which were made by employees against the plaintiff, the Assistant Superintendent/Business Administrator of the school district.  Another attorney was retained to investigate other allegations of misconduct that were voiced by employees against the plaintiff.  Eventually, after a settlement was reached with plaintiff, which required his resignation in consideration for the payment of a lump sum, a local newspaper reported the settlement.  As a result, the plaintiff declared the settlement null and void.  Eventually, suit was filed, and Mr. Barkers, the district's Affirmative Action Officer, was joined as a defendant.  First, the court ruled that any release of the terms of the settlement agreement to the press did not violate the plaintiff's constitutional rights to privacy.  In addition, the court held that the plaintiff's complaint failed to state a claim for Violation of Due Process, under Third Circuit precedent, because the plaintiff did not possess a substantive due process right to continued employment with the school district.  Also, claims for violation of 42 U.S.C. §1983 were dismissed because the plaintiff failed to prove a violation of an underlying constitutional right against the district and its hearing officer.  All remaining state law claims were then dismissed for lack of subject matter jurisdiction.

Premises Liability

Carolyn Bogart and Kevin McGoldrick (Cherry Hill, NJ) obtained summary judgment on behalf of a minor league baseball team in an action venued in Mercer County.  The case involved a minor plaintiff who was struck in the nose by an overthrown baseball by one of the players during game warm-ups.  The plaintiff argued that the recent ruling in Maisonaive, 185 N.J. 70 (2005), was distinguishable from this case in that the injury occurred "between innings" and not "during play."  The court granted the defendant's motion, stating that there was a limited duty of a visiting team to protect patrons of the home field from fly balls.  The court also referenced new legislation entitled The N.J. Baseball Spectator Safety Act of 2005 entered into law in January 2006.  The Act limits the liability of professional baseball teams and owners of stadiums by allowing them to post warning signs of the inherent dangers of attending baseball games.

Christopher Reece (Akron, OH) obtained summary judgment on behalf of his client in a personal injury action in Jefferson County, Ohio.  The plaintiff was shopping at a home center 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 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 the defendant under Ohio's open and obvious doctrine.

Product Liability

Brad Remick and Damaris Garcia (Philadelphia, PA) achieved a stipulation of dismissal in the U.S.D.C. for the District of New Jersey in a $12 million products liability claim.  The plaintiff, a Chilean explosives manufacturer, sued Brad and Damaris' client, a manufacturer of complex heat exchangers and environmental economizers.  The component was manufactured in New Jersey, shipped through the Panama Canal to Mejiones Chile, and installed into the plant's production line.  According to the plaintiff, the component was defectively manufactured and failed, causing the entire production line to fail. The case required Brad and Damaris to travel to Santiago in southern Chile, as well as Antafagasto and Mejiones in northern Chile, for inspections and depositions (nearly a combined 25,000 miles).  Mejiones is located in the Atacama Desert, which is said to be the driest desert in the world.  In some parts of this desert, no precipitation has ever been recorded.  Because of the many delays and discovery abuses, Brad and Damaris were able to get nearly $95,000 of sanctions against the plaintiff.  Not surprisingly, the plaintiff dropped the case.

Brad and Damaris also obtained summary judgment in the U.S. District Court for the Eastern District of Pennsylvania.  The case involved strict liability claims against the manufacturer of a power strip which allegedly caused a house fire.  In an attempt to escape the flames, an 11-year-old girl was forced to jump from the second floor of the house.  She sustained several spinal injuries causing her paraplegia.  She is confined to a wheelchair for the remainder of her life and has no bowel or bladder control.  Brad and Damaris were able to prove that their client's product was not involved in the fire through careful examination of the remains of the power strip.

Tony Michetti (Doylestown, PA) obtained a non-suit in favor of his client, a candle manufacturer, by Judge Robert Mellon 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, Judge Mellon ruled that there was insufficient evidence identifying the jar candle as the defendant's product. 

Tony also obtained summary judgment in favor of his defendant, a recreational vehicle dealer.  The plaintiff purchased a used RV from the defendant.  Approximately one year later, he attended a Penn State football game and spent the night in his RV, which he had parked in the stadium parking lot.  Carbon monoxide from the RV generator entered the living compartment, and the plaintiff died as a result.  The RV had a carbon monoxide detector; however, the battery pack was not installed and was still in the manufacturer's plastic package.  The plaintiff's estate claimed that the dealer failed to install the battery pack at the time of the sale.  After failing to produce expert reports, as ordered by the court, a motion for summary judgment was granted.

Professional Liability

Jack Slimm (Cherry Hill, NJ) obtained an order for summary judgment on behalf of a law firm for a bank who, along with the bank, was sued for damages in connection with a claim of a debtor that the bank's counsel made misrepresentations in a bankruptcy hearing on which the debtor's bankruptcy counsel relied to convert the bankruptcy to a Chapter VII Liquidation.  In New Jersey, there are circumstances in which an attorney can have liability to a third-party.  However, in circumstances where adversary counsel is sued, the plaintiff must prove the fraud or misrepresentation made by the adversary counsel (in this case, the bank's attorney) as well as reliance and causation.  The claim in the case was that bankruptcy counsel relied upon the statements made by the bank's attorney that buyer for the business of the debtor had backed out of the deal.  Jack was able to show through depositions of bankruptcy counsel and others that any representations made by the bank's attorneys would have to have been placed on the records at the time of the bankruptcy hearing.  The bankruptcy record did not reveal that such statements were made.  In addition, the bankruptcy attorneys testified that they had no recollection of a statement having been made by the bank's attorneys at the time of the hearing.  Finally, although the plaintiff guarantors testified that they were told by bankruptcy counsel that plaintiff's counsel made the statements (misrepresentations), Jack was successful in keeping them out of evidence because they were not admissible pursuant to N.J.R.E. 801(c) as they constituted double hearsay and the plaintiffs sought to introduce the statements for the truth of the matter.  Finally, the court also ruled that the plaintiff's losses were not caused by the actions of the bank's attorneys in connection with the conversion to the Chapter VII Liquidation.

Nicholas Kierniesky (Cherry Hill, NJ) obtained summary judgment, dismissing the complaint against an insurance broker in the Law Division, Superior Court of New Jersey, Atlantic County.  The broker allegedly violated the New Jersey Consumer Fraud Act (CFA) by making misrepresentations that purportedly induced a customer to transact business with the broker.  However, the actual gravamen of the complaint was a claim of negligence in connection with advising a customer of an amount due to the insurance company, which resulted in the cancellation of a policy and the lack of coverage for a subsequent automobile accident.  In New Jersey, insurance brokers (producers) are considered professionals – like doctors, lawyers, etc. – and are subject to the Affidavit of Merit Statute (AMS) (N.J.S.A. 2A:53A-26).  More importantly, the New Jersey Supreme Court held in Macedo v. Della Russo, 178 N.J. 340 (2004), that "learned professionals," such as doctors, lawyers and even real estate brokers, are exempt from the CFA when they are acting in their "professional capacity." The trial court concluded that the insurance producer was likewise exempt from the CFA and dismissed the complaint.  Because the plaintiff had not complied with the AMS, which had been specifically pleaded as a defense, she could not amend the complaint to assert a negligence claim.

Workers' Compensation

Kacey Wiedt (Harrisburg, PA) obtained a defense verdict on a Termination Petition before Judge Brian Puhala in Berks County, Pennsylvania.  The claimant alleged that he injured his back and neck while carrying a bucket of neutralizer and experienced shooting pain in his neck, right shoulder and arm.  He also testified that he struck his head in the basement of a customer's home.  Judge Puhala found that the claimant's allegations to expand the nature of the accepted work injury to include his neck and back were unfounded. The Judge granted the defendant's Termination Petition, finding the claimant fully recovered from his initially acknowledged injury of a right shoulder strain.

Lori Strauss (Philadelphia, PA) received a favorable decision in a case where the claimant suffered significant injuries in a motor vehicle accident.  The case was bifurcated, and the judge heard testimony from the claimant and numerous fact witnesses in order to address the issue of whether the claimant was in the course and scope of his employment at the time of the motor vehicle accident.  The Judge issued a lengthy fifteen-page decision and denied the claim petition, ultimately concluding that the claimant was not on a special mission for his employer and, therefore, was not within the course and scope of his employment when the injuries occurred.