Defense Digest

Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories:

Bougher v. Terex Aerials, Inc. Litigated by Kimberly Boyer, Esq. (Philadelphia). The plaintiffs brought an action to recover damages after the plaintiff was injured at a construction site accident.  The plaintiffs alleged that the plaintiff was injured after the platform of the vertical lift he was using to paint abruptly fell. They claimed that the lift was defectively designed because it did not contain a particular safety feature.  At trial, the defendants presented evidence, in the form of a schematic, demonstrating that the lift actually did contain the particular safety feature.  After the close of evidence, the jury determined that the lift was not defective and found in favor of the defendants.  On appeal, the plaintiffs argued that they were entitled to a new trial because the trial court improperly admitted into evidence the schematic, which purportedly was not produced by the defendants during discovery. 

The Superior Court observed that the plaintiffs failed to establish the existence of a discovery violation because the cover of the manual that contained the schematic was produced and the manual itself was available for inspection.  The Superior Court also found that the plaintiffs could not sustain their claim of prejudice because their expert acknowledged that he reviewed the schematic and discussed it with counsel prior to trial.  The expert also testified that the production of the schematic did not change his opinion that the safety feature was not on the lift.  As a result, the Superior Court concluded that the trial court did not abuse its discretion in admitting the schematic.

Christiansen v. Doylestown Hospital, Hospital of the University of Pennsylvania, et al. Litigated by Audrey Copeland, Esq. (King of Prussia). This case involved the application of Pa.R.C.P. 1006 regarding venue in medical malpractice actions.  The plaintiff was admitted to Doylestown Hospital.  During the course of his care, his treating physicians consulted physicians at the University of Pennsylvania by telephone. However, all medical care was exclusively rendered at Doylestown Hospital in Bucks County. The plaintiff was never treated in Philadelphia at any time relevant to the suit.  Consequently, the defendants' preliminary objections to venue in Philadelphia were sustained and affirmed on appeal because venue in medical malpractice actions is proper only in the forum where the medical care was actually furnished, here, Bucks County.

Vita v. Holy Redeemer Hospital & Medical Center. Litigated by Charles Craven, Esq. (Philadelphia). This case illustrates the hazards that confront those who are not experienced post-trial and appellate counsel. This is a Philadelphia County medical malpractice case in which the jury found no negligence on the part of our doctor client. The plaintiff appealed, arguing only that the trial court erred in refusing to ask the potential jurors if they were influenced by remarks made about the "malpractice crisis" during the 2004 Presidential campaign. Unbeknownst to the parties, a similar issue was raised in another Philadelphia County medical malpractice appeal, which was considered by the Superior Court en banc.

The first line of defense to the appeal in our case sought a suspension of the briefing and oral argument, pending the court's consideration of a serious question of whether the plaintiff adequately preserved the question for review. That challenge was referred to the merits panel. After briefing, oral argument was deferred by the merits panel to consider the impact of the then yet-to-be-delivered decision in the related en banc case. In that case, the court held that the questions should have been asked of the prospective jurors and granted a new trial. In our case, however, the panel held that the plaintiff had not preserved the question for appellate review because the plaintiff did not raise the issue in his motion for post-trial relief, which pleaded only meaningless boiler-plate claims, but, rather, raised the issue on his own beyond the deadline for post-trial motions, a practice which the appellate courts do not condone.

The Northwestern Mutual Life Insurance Co. v. Babayan. Litigated by Charles Craven, Esq. (Philadelphia). When the insurer rescinded a disability insurance policy on the ground that the insured's answers to various questions on both the application for the policy and on a health questionnaire were materially false, the insured responded by asserting the insurer could not rescind, that the answers were not materially false, and that the company's agent, our client, told her that no answers were needed to two of the questions at issue on the application.

The court held that the plaintiff acted in bad faith when she concealed the details of her medical treatment and failed to answer several questions of the application and the questionnaire in full. On that basis, the court upheld the company's rescission of the insurance policy. The court also held that the agent was not liable because, even if he had told the plaintiff not to answer certain questions and was negligent for so instructing her, that conduct was not the cause of the plaintiff's harm since the insurer rescinded the policy on the basis of the plaintiff's responses to other questions.

Singh v. Clarion, Inc. Litigated by Charles Craven, Esq. (Philadelphia). Two church groups returning home from a convention stopped to stay at the defendant's motel. The groups arrived at the motel after the normal pool hours, but the motel's management re-opened the pool for the groups for a short time. After that time, management closed the pool again. Some time after that, the body of one of the children from the church groups was found in the pool. The cause of death was drowning. The investigation found that the pool doors had been locked and that there was no forced entry into the pool.

The plaintiff claimed that the hotel and the adults who were with the drowned child, including our client, had a duty to make sure that he was safe. The Superior Court rejected those arguments and upheld the summary judgment granted by the trial court in favor of the motel and the adults.

Prudential Property and Casualty Co. v. Bryan. Litigated by Charles Craven, Esq. (Philadelphia). The insureds contended that they were covered in a lawsuit which asserted that the insureds, the Bryans and their minor children, "engaged in a continual pattern of harassment, which included physical assault against plaintiff and her family including plaintiff's minor children; verbal and physical threats; BB gunshots fired through the plaintiff's house windows; BB guns pointed at plaintiff's minor children; and other acts of physical and emotional harassment."

The Superior Court agreed that the factual allegations of the underlying complaint fell squarely within two plainly worded exclusions in the insured's homeowner's insurance policy.

First, exclusion "a" stated that there would be no coverage for an injury "which results from an act that is intended by any insured to cause harm." Because the exclusion bars coverage for all insureds for an injury which results from an act that is intended by any insured to cause harm, and because the intent to cause harm is at the core of the alleged harassment, the resultant injury claimed by Westerfer was not covered.

Second, both the main and the parental supervision claims were barred by exclusion "m," which stated that there would be no coverage for an injury "which results from the actual or attempted act by any insured [of] any …abuse, molestation, exploitation, assault or other mistreatment of any person; or … for damages arising out of the failure of any insured to take action to insure that the acts listed … would not be committed by any other person."

Mitchell v. Liberty Mutual Ins. Co. Litigated by Charles Craven, Esq. (Philadelphia). Mr. Craven successfully defended against attacks that motor vehicle insurance policy should be deemed as a matter of law to call for arbitration of underinsured and uninsured motorist claims in light of Insurance Department regulations.

Bittenbender v. Hasiuk. Litigated by James Gicking, Esq. (Philadelphia). This was an appeal of a defense verdict on a claim that the defendant obstetrician had failed to obtain informed consent to perform an episiotomy, which resulted in a fourth-degree tear, with resulting fecal incontinence and sexual dysfunction, in a third pregnancy and after the physician had indicated in an earlier plan and had "promised" the patient that the third delivery would be by C-Section. Each of the previous two vaginal deliveries had resulted in fourth-degree tears, requiring surgical repair. Experts agreed that the plaintiff was at an increased risk for both a tear in the third delivery and for the resulting conditions. While the Superior Court agreed with the plaintiff that the unique circumstances made this an informed consent case (an issue of first impression), the court agreed with our position that a number of fact issues surrounding consent issues and knowledge of risks were appropriately submitted to and resolved by the jury.

Dorflein v. Six Flags. Litigated by Walter Kawalec, Esq. (Cherry Hill). The plaintiff filed a negligence and products liability action for injuries he allegedly sustained while riding a roller coaster at an amusement part.  The plaintiff was appealing the grant of summary judgment in favor of the park.  The appellate panel affirmed the trial judge's holding that the plaintiff's failure to report the alleged injury did not comply with the Carnival-Amusements Rides Safety Act (CARSA).  Although the plaintiff claimed he immediately knew he was injured, no report of the supposed injury was made to the park, nor did he notify them of the injury any time before filing the complaint, almost six months later. 

The court found that the plaintiff failed to comply with CARSA's notice requirements and rejected his argument that the signs required to be posted by the park in order for CARSA to apply were not in compliance with the statute.  The court found that there was no evidence to support this assertion. 

The court also affirmed the trial court's dismissal of the products liability action.  The plaintiff asserted that under the Products Liability Act, if a manufacturer is declared bankrupt, then the product seller can be held liable.  However, in this case, the manufacturer of the ride has not been declared bankrupt, nor was the park a "seller" under the Products Liability Act.  As such, the products liability claim against the park was properly dismissed.