Defense Digest

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

Casualty:

Christopher Reece (Akron, OH) prevailed through dismissal of a premises liability case against Bob Evans' Restaurants. The plaintiff was exiting a Bob Evans' restaurant and walking down a handicap/wheelchair access ramp. The plaintiff stepped aside to allow two women to pass and, in doing so, stepped on the side edge of the ramp and twisted and broke his ankle. The case was dismissed on a motion for summary judgment. Chris successfully asserted the defenses of commonly-encountered condition, open and obvious, lack of notice of hazard, assumption of risk, and comparative fault.

Dave Wilk (Williamsport, PA) obtained a defense verdict in a two-day trial in Lycoming County, Pennsylvania. The case involved a motor vehicle accident, and the defendant stipulated to liability. The plaintiff presented medical evidence of permanent physical restrictions and a claim for lost earning capacity ranging from $200,000 to over $400,000. the plaintiff had made a pretrial demand of the $100,000 policy limits, and a $10,000 offer was withdrawn immediately prior to trial. At the conclusion of the case, the jury deliberated less than 20 minutes before returning a verdict in favor of the defendant, finding that the plaintiff had not sustained a serious impairment of a bodily function and awarded the plaintiff no damages on the lost earnings claim.

Jack Slimm and Art Wheeler (Cherry Hill, NJ) obtained summary judgment for our client who was a prior owner of a commercial property in Passaic County, New Jersey. Our client sold the property to the co-defendant and returned to the property five days after settlement with the plaintiff to remove remaining items from an attic area. Our client had cordoned off an area where the attic floor met a dropped ceiling during the entire time he owned the property. The plaintiff proceeded into the attic area with the client, where the barrier had been removed. The plaintiff fell through the dropped ceiling, sustaining injuries including a pelvic fracture, rib fractures, and closed head injury. He was confined to a wheel chair for six months after the accident. The plaintiff claimed special damages of approximately $70,000. The plaintiff's demand prior to argument of the motion was $750,000. The court agreed with our analysis that under New Jersey law there is no basis for a finding of liability against our client, a former property owner, for an allegedly dangerous condition on the property after title was conveyed.

Kevin McGoldrick (Cherry Hill, NJ) obtained dismissal of the plaintiff's complaint against Sunoco, Inc. in Ocean County, New Jersey. The plaintiff alleged that he purchased contaminated gasoline from a Sunoco station in Jackson, New Jersey thereby causing damages to his vehicle. The gasoline was tested and found to be contaminated with either diesel fuel or #2 heating oil, neither of which were sold from the Sunoco station. After hearing testimony from the expert witness, who tested the gasoline, and the station manager, who confirmed that neither of these products were sold at Sunoco, the Judge ruled in favor of the defense stating that the plaintiff failed to show a nexus between the purchase of gasoline from the Sunoco station and the alleged damages sustained to his vehicle. The Judge ruled that the plaintiff's failure to provide expert testimony to make the connection between the purchase of the gasoline and the alleged damages would not warrant a recovery by the plaintiff in this matter.

Eric Weiss (Philadelphia, PA) was successful in a matter in which he co-tried a case at the request of our insurance client in Prince George's County, Maryland. The plaintiff claimed traumatic brain injury rendering him unable to perform his $130,000 per year job and claimed total disability. The plaintiff was involved in a rear end collision on I-95 involving minimal damage to the plaintiff's vehicle. In addition to the claim of traumatic brain injury, the plaintiff also claimed resulting disc surgery and ongoing complaints with his low back. Shoulder injuries and other injuries were likewise claimed. The plaintiff presented a host of experts, including a neurologist, a general practitioner, a psychiatrist, a neuropsychologist who performed an extensive neuropsychological testing, a vocational expert, an economist and an expert on the damages to the plaintiff's vehicle. During the trial, the court directed a verdict for the plaintiff on the liability issues. The defense presented one expert on damages and a defense psychiatrist, who attributed the plaintiff's cognitive deficits to a preexisting mental disorder involving depression and anxiety. The plaintiff put up on the board as special damages approximately $2.2 million in past and future wage losses; $110,000 in medical bills, including physical and cognitive therapy; and asked the jury for in excess of $750,000 for pain and suffering damages, which is allowed in Maryland. Prior to trial, the plaintiff turned down $700,000. The jury verdict was in favor of the plaintiff in the amount of $104,000 with nothing for pain and suffering and nothing for any alleged brain injury. The plaintiff has filed a Motion for a New Trial.

Donna Modestine (King of Prussia, PA) obtained a defense verdict in an arbitration case in Delaware County involving a fall at a local Delaware County hospital. Although the plaintiff had pre-existing injuries from an automobile accident, she was claiming that she sustained additional disc herniations from the fall with the potential need for back surgery.

Gregory Kelley (Philadelphia, PA) obtained summary judgment in the Court of Common Pleas in Philadelphia. The plaintiff, a truck driver, was by our client's loading dock when he walked behind an open tractor trailer that was in the process of making a delivery, and the cargo feel out and struck him. The co-defendant trucker from whose truck the cargo fell pursued a cross-claim, and subsequently, the plaintiff asserted a claim against Greg's client, the premises owner, averring that the client was negligent in its loading dock receiving operations in that it failed to have trained personnel supervise and coordinate activities at the loading dock, failed to maintain the premises, failed to inspect the cargo upon arrival, and failed to ascertain that the seal on the trailer was broken so as to ensure that the cargo was property secured in the trailer before it was allowed onto the premises. The plaintiff's pretrial demand was $2.5 million and is continuing against the other defendants.

Howard Myerowitz and George Helfrich (Roseland, NJ) obtained a dismissal in Arbitration Forums as to a dram shop PIP subrogation matter. The plaintiff carrier was seeking reimbursement of $252,000 as a result of payments made on a claim to their insured alleging that our client served the defendant driver while visibly intoxicated on our premises. We were able to prevail by establishing that the plaintiff did not have competent legal proofs to establish that the defendant driver was served while visibly intoxicated on our premises and, thus, the plaintiff did not prove his case under the New Jersey Dram Shop Act.

Ben Nicolosi (Scranton, PA) obtained a defense verdict in Pike County, Pennsylvania in a slip and fall case. Ben's client was legally blind when he changed the oil in a snow blower on a concrete pad on his property. There was also a dumpster on the pad. The plaintiff asked Ben's client if he could use the dumpster, and the client consented. The plaintiff did not notice the oil spill and fell on it, injuring his right knee, which resulted in arthroscopic surgery. Ben's client offered apologies to the plaintiff for his carelessness. The jury ultimately decided that the favor should not be returned with a lawsuit.

Barbara Davis and Kevin McGoldrick (Cherry Hill, NJ) obtained dismissal of the plaintiff's claims and cross claims against the defendant bar owner under the dram shop statute. The plaintiff had claimed the codefendant driver had been served at the insured's bar while visibly intoxicated. The driver pled guilty to driving under the influence. When interviewed by the police after the accident, the driver indicated he had been at the insured's premises. At depositions, the defendant driver admitted to being at the bar but denied having anything alcoholic to drink. In attempting to defeat the motion, the codefendant argued there was a material issue of fact concerning the inconsistent statements given by the driver to the police at the scene of the accident and at his deposition. At the scene of the accident, when the police asked the driver where he had been drinking, the driver responded the insured's bar. The court granted summary judgment dismissing the plaintiff's complaint and all cross claims as the plaintiff could not show that the defendant driver was "served while visibly intoxicated." The court noted that, even though there was an issue of fact of whether the driver drank alcohol at the insured's bar, there was no evidence to support the driver was "served while visibly intoxicated" as required under the statute.

Barbara Davis (Cherry Hill, NJ) obtained summary judgment on behalf of the former property manager in a claim involving an amputation of the leg of a twenty-year-old movie theater employee. Several employees were "horse playing" when one employee fell through a glass window. When the window shattered, the plaintiff, who was standing nearby, had a large shard of glass imbedded in his leg resulting in the eventual above-the-knee amputation of the leg. The plaintiff argued the glass in the front window was not "safety glass" and should not have "broken in," resulting in the plaintiff's devastating injury. The plaintiff filed claims against the former and present property owners and managers trying to determine who was responsible for the installation of the glass. The court granted dismissal of the claims as the plaintiff was unable to show the insured, who had last managed the property years before the incident, was responsible for the glass being installed.

Health Care Liability

David Lingenfelter (Williamsport, PA) successfully obtained the dismissal of his client, a nursing home, in a claim that negligent care resulted in injury and subsequent death of a resident. David persuaded the court on a Motion for Summary Judgment that the plaintiff's expert failed to establish causation and that causation was not so obvious as to not require expert testimony.

Kevin FitzPatrick ( King of Prussia, PA) obtained a defense award on behalf of an emergency room physician in a binding high/low arbitration before Tom Rutter from ADR Options. The allegations focused on the alleged failure to diagnose a stroke during the plaintiff's January 1999 emergency room visit to the defendant hospital. The stroke was ultimately confirmed during a presentation to another hospital two days later. The defense focused on the position that the plaintiff's presenting symptoms were inconsistent with a stroke diagnosis and more consistent with an inner ear infection. Additionally, given time factors involved and the type of stroke the plaintiff sustained, there would have been no difference in the outcome and causation could not be established. The arbitrator agreed with the defense position.

Steve Day (King of Prussia, PA) obtained a defense verdict in a week-long trial in Montgomery County. Steve represented an OB/GYN. The plaintiff developed necrotizing fasciitis after undergoing a supra-cervical hysterectomy. She claimed that the doctor should have screened her for diabetes pre-operatively (she was later found to be diabetic) and should have administered a prophylactic antibiotic prior to the surgery. The jury rejected both arguments and found the doctor not negligent.

William Banton (Philadelphia, PA) obtained a defense verdict in a Philadelphia Common Pleas Court. The case was a medical malpractice action involving the alleged treatment rendered to the plaintiff's decedent by various healthcare providers. The plaintiff's Complaint asserted that during the decedent's admission to our insured's facility, the defendants were negligent for failing to require the decedent to ambulate, that they failed to diagnose DVT (deep vein thrombosis), and further failed to anticipate the potential development of a PE (pulmonary embolism) in an obese, diabetic, non-ambulatory individual with a fractured ankle, which ultimately led to the decedent's death. After deliberating for approximately three hours, the jurors returned with a complete defense verdict as to the attending podiatrist and the hospital.

Professional Liability

Doug Herman (Philadelphia, PA) obtained dismissal of all claims asserted against his realtor clients in a Montgomery County, Pennsylvania lawsuit. President Judge Corso sustained Doug's Preliminary Objections to the plaintiffs' fraud, negligent misrepresentation and Unfair Trade Practices claims. The plaintiff-buyers, who were represented by their own realtor, purchased a piece of residential real estate. After closing, they became dissatisfied with the developer/seller and its real estate broker and agent (Doug's clients) and commenced suit against them for an array of damages. The plaintiffs asserted that Doug's clients misrepresented information to them prior to closing. Doug argued that the plaintiffs possessed no viable claims against his clients because, even if the alleged misrepresentations had been made (which was denied), the plaintiffs were in possession of the "correct" facts about the property before entering into the Agreement for Sale. The court agreed that, as a matter of law, the plaintiffs could not establish justifiable reliance on the alleged misrepresentations or that Doug's clients caused them any harm.

Additionally, Doug obtained a verdict in favor of his client, a title agency, in the amount of $170,000 against a title search company, which asserted, among its defenses, a limitation of liability clause that purportedly limited the title search company's liability to $1,000 for negligent acts. Doug's client was sued by a title underwriter for which it issued title insurance policies, and it joined the search company as an additional defendant. After Doug favorably settled the underwriter's claims against his client, he proceeded to trial on his client's claims against the title search company. Doug argued successfully that the title search company had improperly identified an open mortgage as having been satisfied and that the search company's unilateral limitation of liability provision (which appeared at the top of each search report) was ineffectual. The court entered an award in favor of Doug's client for the entire amount of his client's third-party claim.

Charles Dorman and Michael Orr (Jacksonville, FL) successfully convinced the First District Court of Appeal to reverse and remand a trial court order dismissing their client's Third Party Complaint for contractual indemnity with prejudice. The Appellate Court specifically held that application of Section 725.06, Florida Statutes, to non-construction-related contracts constitutes reversible error. Section 725.06, Florida Statutes, places express limits on indemnification agreements contained within construction contracts. The court found that the client's maintenance agreement with a building owner was not a construction contract and that the client's employees were not engaged in the act of general contracting or subcontracting, rendering Section 725.06 moot. The published decision, 31 Fla. L. Weekly D2297a, is the first in the state of Florida which specifically finds, as a matter of law, that Section 725.06, Florida Statutes, does not apply to non-construction-related contracts. The statute at issue was originally enacted in 1972.

David Lingenfelter (Williamsport, PA) successfully obtained the dismissal of his client, a non-profit redevelopment corporation, in a suit brought by former tenants of a property purchased by his client for rehabilitation. The plaintiffs sued in State Court for damages they claimed under state law for their "eviction." David removed the case to Federal Court under the artful pleading doctrine, in that the claim actually involved a claim for damages under the Federal Uniform Relocation Act ("URA"), though the plaintiffs "artfully" avoided reference to it in their State Court complaint. Because the URA requires an exhaustion of administrative remedies, that the plaintiffs had not pursued at all, David successfully moved to dismiss under Rule 12(b) immediately after removal.

Jack Slimm (Cherry Hill, NJ) successfully obtained dismissal of a legal malpractice action arising out of a failed real estate transaction. The purchasers alleged that our client, the attorney for the sellers, made statements and representations with the intent to deceive and defraud the buyers. It was further alleged that the attorney altered the sale price from the number that the buyers had agreed to pay. When the transaction failed, an action for specific performance was filed, and the attorney was joined as a defendant. However, through discovery, Jack was able to show that any changes in the Contract came about as a result of discussions among the parties and counsel for the buyers. This was a situation where the buyers and sellers negotiated among themselves, and the attorney acted simply as a scrivener. As a result, Jack filed a motion to dismiss, and a dismissal was obtained.

Jack Slimm and Art Wheeler (Cherry Hill, NJ) obtained dismissal of a complex legal malpractice/fraud action involving a breach of contract action for the purchase and sale of software for a municipality security system. The attorney who represented the manufacturer and seller of the system was joined as a defendant by the municipalities, who alleged that the attorney acted improperly in connection with his duty and obligation as escrow agent for the transaction. Art and Jack were able to demonstrate that the attorney's role for his client was limited and that the municipalities relied upon the services of their counsel in the transaction. As a result of the dismissal, our client, the transactional attorney, was permitted to move forward with the trial on behalf of the plaintiff manufacturer against the municipalities.

Lary Zucker (Cherry Hill, NJ) successfully defended the Coastline Restaurant of Cherry Hill, New Jersey in a claim for damages under the New Jersey Law Against Discrimination (LAD) relating to its "Ladies Night" promotion. The case began in 1998 when David Gillespie filed a Complaint with the New Jersey Division of Civil Rights charging that the Coastline's "Ladies Night" promotion discriminated against men because women were admitted free and paid a reduced price for drinks. In 2004, the Office of Administrative Law ruled in Gillespie's favor, finding that the "Ladies Night" promotion violated the LAD. As a result, Mr. Gillespie was entitled to damages for emotional distress and other losses. At an evidentiary hearing, Mr. Gillespie testified that he suffered emotional distress, although he admitted that he never sought or received any medical care or treatment. Based on the evidence, the Administrative Law Judge ruled that Mr. Gillespie was not entitled to damages under the LAD. He found that the emotional stress resulting from the "Ladies Night" promotion was based on the complainant's unusually sensitive nature and was not the type of stress that would be experienced by a reasonable person and was not compensable under the LAD. Mr. Gillespie also claimed that he suffered additional distress in 2004 when the ruling in his favor was followed by media coverage and demeaning comments by public officials, including former Governor McGreevey. The Administrative Law Judge rejected this claim, ruling that litigation-induced stress was not recoverable as a separate component of damages and was not proximately caused by the 1998 incident.

Paul Krepps, Paul Atencio and Michelle Primis (Pittsburgh, PA) successfully obtained summary judgment in the United States District Court for the Western District of Pennsylvania in the matter Hoffman v. Avalon. Mr. Hoffman was outside the home of his estranged wife's boyfriend vandalizing her car. Mrs. Hoffman (the plaintiff) telephoned the police, who stopped Mr. Hoffman several blocks from the scene. The officers detected alcohol on Mr. Hoffman's breath; however, he passed several field sobriety tests. Mr. Hoffman was warned about his activities and permitted to leave. Some time later, Mr. Hoffman was involved in an accident when his car left the roadway and struck a parked truck. He died of his injuries, and his post mortem blood alcohol was above the legal limit. The plaintiff brought a 14th Amendment claim under the "state created danger theory." The court granted summary judgment after requiring the parties to file supplemental briefs addressing the recent Bright v. Westmoreland County decision, finding that the officers did not commit any constitutional violation and there was no evidence of an unconstitutional policy on the part of Avalon Borough.

Jim Gicking and Jeff Chomko (Philadelphia, PA). Jeff obtained summary judgment for Intelliquote Insurance Services, a company providing life insurance quotes through an internet website, a decision now affirmed in a precedential opinion in the appeal handled by Jim Gicking. The Third Circuit rejected the plaintiff's theory that "backdating" an insurance contract (by including a "date of issue" that preceded receipt of the policy) waived the insurer's requirement that the first premium must be paid before coverage begins. The court also held that, in part, since no insurance contract was formed, the plaintiff could not state claims for breach of contract or bad faith or under the UTPCPL.

Alicia Calaf (Roseland, NJ) obtained summary judgment in two cases. In the first case, the plaintiff filed a claim against the City of Passaic YMCA alleging inadequate supervision and negligence. It was argued that the YMCA was immune from liability arising from negligence and/or gross negligence under the Charitable Immunity Act because the plaintiff was injured while benefiting from the YMCA's after school program. The court agreed and dismissed the plaintiff's Complaint with prejudice. The second case arose from a claim of negligence against the City of Union. The plaintiff argued that she was injured by a minor declivity in the roadway. This case was likewise dismissed as the Judge agreed with the arguments that the City of Union was immune from liability under the Tort Claims Act.

Jack Slimm, Art Wheeler and Mike Brennan (Cherry Hill, NJ) obtained a dismissal of a complex legal malpractice claim arising out of an attorney's failure to file an appeal of an administrative decision in which a police dispatcher sought damages and reinstatement to her position after being terminated. The attorney clearly failed to file the appeal. However, we were able to demonstrate that the plaintiff, following the administrative decision, retained separate counsel, who filed suit against the employer and obtained a significant settlement. Once we subpoenaed the attorney and his file, we were able to demonstrate that the plaintiff obtained relief in the Law Division action for the identical claims that were the subject of the administrative hearing and which would have been the subject of the appeal. Accordingly, we were successful in arguing that the plaintiff was fully compensated in her Law Division suit for all damages claimed at the administrative hearing and which would have been the subject of an appeal of the same.

Tom DeLorenzo and Ronda O'Donnell (Philadelphia, PA) obtained summary judgment in a significant medical monitoring beryllium exposure case in Philadelphia Common Pleas Court. The case began in 2000 as a class action with an alleged 200,000 potential members in the Reading, Pennsylvania area. In 2003, Tom and Ronda defeated the plaintiffs' attempt to have the class certified. The plaintiffs appealed, but the Superior Court affirmed the lower court. The plaintiffs attempted to appeal to the Supreme Court, but the Supreme Court declined to hear the case. That left the plaintiffs with the three individual claims of the named plaintiffs/former class representatives. Summary judgment was recently obtained on those three individual claims on the basis that they had no present injury.

Additionally, Tom and Ronda obtained summary judgment in a Philadelphia Common Pleas Court toxic tort case based on a statute of limitations defense. The case involved a claim that the plaintiff's decedent had contracted a lung disease and ultimately died as a result of exposure to beryllium dust. The case was part of the Beryllium docket in the Mass Tort Program, and motions for summary judgment are rarely granted in that program, especially when based on a statute of limitations defense. In this case, however, Tom and Ronda were able to convince the presiding judge to grant oral argument on the motion (another rarity), and after hearing argument, the judge granted the motion.

Dan Ryan (Philadelphia, PA) and Patricia Monahan (Pittsburgh, PA) obtained summary judgment in a UIM bad faith case, and Jim Gicking (Philadelphia, PA) saw that the Superior Court affirmed. Loughren v. USAA, 506 WDA 2006 (July 28, 2006). In a memorandum, the Superior Court concluded that the two-year limitations period of Ash v. Continental Ins. Co. barred Mr. Loughren's bad faith claim, which accrued when USAA rejected the demand for $1.2 million UIM benefits, offered $200,000 to settle the claim, and Loughren had previously written to USAA stating that the insurer was acting in bad faith in not paying the full claim. The court rejected Loughren's argument that the bad faith action could not have accrued until he received a $4 million UIM arbitration award, noting that bad faith and UIM claims are separate and distinct and that the statute runs on any claim when one has knowledge of a claim (some injury) and does not require a determination of value. Judge Del Sole, dissenting, considers that accrual of a bad faith action is triggered by "actual harm," which to him "could only be determined" with a UIM award.

James McGovern (Pittsburgh, PA), Denis Dice and Rachael Luken (Philadelphia, PA) were successful in obtaining a dismissal of a class action complaint upon preliminary objections on the ground that the lead plaintiff (who is an attorney) could not serve in the dual capacity of both lead plaintiff and counsel for the class. The plaintiff sued the two defendant securities broker-dealers upon theories of breach of contract, fraud, violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and federal Fifth and Fourteenth Amendments claims because they charged him ongoing fees for maintenance of his brokerage accounts, which at times were in excess of the very small balance in the accounts. The Court of Common Pleas of Allegheny County (upon remand from the federal court) held that there was an inherent conflict of interest and dismissed the class action complaint.

Patricia Monahan (Pittsburgh, PA) obtained summary judgment on behalf of Turkeyfoot Valley Area School District and its individual School Board members in a case where a former School Board secretary alleged that the Board terminated her employment in violation of the Pennsylvania Whistleblower Law, her first amendment rights, and her procedural and substantive due process rights. The plaintiff had also alleged state law torts of interference with contractual relations. Her claims of denial of equal protection and violation of the Pennsylvania Human Relations Act had been dismissed previously on a Rule 12b(6) Motion. Western District Judge Gibson agreed with the defendants that the plaintiff had produced no competent evidence to show that her reporting of one School Board member to the State Auditor General was causally related to her termination. In fact, a jury would have to speculate that the Board even knew that the plaintiff was the source of the report. Moreover, the plaintiff's accusation that a School Board member was seen taking cafeteria food out of the cafeteria and then giving the food to charity did not rise to the level of wrongdoing under the Whistleblower Act. The plaintiff could not legitimately dispute the Board member's testimony that she had reimbursed the school for the food. The plaintiff and her counsel, for whom she works in a part-time capacity, had been aggressively pursuing the case for the purposes of presenting a large fee petition.

Workers' Compensation

Bill Walls (Pittsburgh, PA) successfully defended a Fatal Claim Petition brought by a widow on behalf of herself and the decedent's minor child. The claimant secured the testimony of an employer witness in an attempt to carve out an exception (traveling employee) to the Coming and Going Rule, as the death occurred at an intersection due to a motor vehicle accident as the decedent traveled to a worksite, which was away from home. Bill was able to convince the Workers' Compensation Judge that no exception existed to the general rule that injuries occurring on the way to and from work are not within the course and scope of employment. The Judge denied the Fatal Claim Petition, noting that there was no need to discuss any additional evidence presented by either party after agreeing with the legal analysis applied to the facts as set forth by the employer.

Judd Woytek (Bethlehem, PA) obtained a favorable Decision and Order by the Administrative Law Judge Paul Teitler denying and dismissing the claimant's claim for Federal Black Lung Benefits since the claimant failed to sustain his burden of persuasion regarding the presence of coal workers' pneumoconiosis.