Appellate Victories, DD 12/06
Defense Digest
Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories:
Tucker v. The Daily News and Legal Intelligencer, No. 05-1597, 2006 U.S. LEXIS 5856; 75 U.S.L.W. 3164 (Oct. 2, 2006), was successfully handled by Jim Gicking (Philadelphia, PA) in the United States Supreme Court. The Court recently denied the plaintiff's petition for review of a defamation case brought by a prominent critic of "gangsta rap" music, C. Delores Tucker, against the Philadelphia Legal Intelligencer. The case had twice made its way to the Pennsylvania Superior Court and Pennsylvania Supreme Court in appeals handled by Jim.
Wise v. Am. Gen. Life Ins. Co., 459 F.3d 443 (3d Cir. 2006), was successfully handled by Jim Gicking (Philadelphia, PA) in the United States Court of Appeals for the Third Circuit. In this case, which is reported in this issue of Defense Digest, the court ruled on issues of insurance contract formation and the consequences of delivery and receipt of life insurance applications and policies.
Bittenbender v. Hasiuk, 380 MAL2006, 2006 Pa. LEXIS 1882 (Pa. 2006), was successfully handled by Jim Gicking (Philadelphia, PA) in the Supreme Court of Pennsylvania. In that case, the Court denied review in an informed consent medical malpractice case in which the lower courts had ruled for the defendant.
Andreassen v. Saf-Gard was successfully handled on appeal by Michael Panichelli (Philadelphia, PA) in the Superior Court of Pennsylvania. In that case, the Superior Court rejected a claim for indemnity by a product's distributor against the product's manufacturer. The court held that a distributor can be held strictly liable, separate and apart from the manufacturer, for selling a product without adequate warnings, despite not having manufactured them, since section 402A of the Restatement (Second) of Torts, under which strict liability is imposed, extends to anyone who "sells any product in a defective condition." In this case, the jury found that the distributor had failed to supply adequate warnings, and this finding was sufficient to impose independent liability on the distributor.
McCandless v. Edwards was successfully handled on appeal by Kim Boyer-Cohen (Philadelphia, PA) in the Superior Court of Pennsylvania. The case involved the question of whether a methadone clinic owed a duty to the plaintiffs' decedent, who had overdosed on drugs he obtained from a third-party who had stolen the methadone from the clinic's patient. The plaintiffs alleged that the clinic had violated applicable federal and state regulations, as well as its own internal regulations, in distributing the methadone to its patient. In the published opinion, the Superior Court affirmed the trial court's decision to direct a verdict in favor of the clinic on the basis that the clinic did not owe a duty of care to the decedent as a matter of law. The Superior Court also rejected the plaintiffs' claim that the federal and state regulations governing clinical distribution of controlled substances did not impose a duty on the clinic in favor of the decedent as a matter of law.
Rake v. Moultrie was successfully defended on appeal by Kim Boyer-Cohen (Philadelphia, PA). In this case, the defendant admitted negligence in a motor vehicle accident with the plaintiff but contended that her negligence was not a proximate cause of the plaintiff's injuries. The jury concluded that the defendant's negligence was not a factual cause of the plaintiff's injuries and returned a verdict against the plaintiff. The successful appeal defense strategy pointed out that the defendant's expert witnesses, and even the majority of the plaintiff's expert witnesses, did not admit that the collision caused the plaintiff's injuries. The Superior Court affirmed, agreeing that the jury was free to reject the testimony of the plaintiff's expert in the face of the countervailing testimony. The Superior Court also agreed with the defense that the plaintiff's biomechanical expert was properly precluded from rendering an opinion that the collision actually caused the plaintiff's injuries.
Nadig v. Nagel was successfully handled on appeal by John Hare (Philadelphia, PA) in the Superior Court of Pennsylvania. In that case, which arose from a feud between neighbors, the Superior Court held that the plaintiff could not pursue claims for intentional infliction of emotional distress (IIED), defamation, invasion of privacy, and civil conspiracy.
Stephens v. Riolo was successfully handled on appeal by John Hare (Philadelphia, PA) in the Superior Court of Pennsylvania. In that case, the Superior Court affirmed the entry of summary judgment for a defendant physician in a case where the plaintiff claimed the physician failed to properly diagnose and treat a post-operative infection. The Superior Court held that the plaintiff had failed to adduce sufficient expert testimony to support her claims against the physician.
Cetel v. Kirwin Financial was successfully handled on appeal by Walter Kawalec (Cherry Hill, NJ) in the Third Circuit Court of Appeals. The case involved the marketing and operation of voluntary employee beneficiary associations (VEBAs). The plaintiffs, who purchased life insurance through the VEBAs, alleged under ERISA, RICO and state law that the VEBA operators misrepresented the potential tax benefits of the VEBA plans. (Our client promoted the VEBAs in question, but did not operate them.) The Court of Appeals held that the plaintiffs' federal and New Jersey RICO claims were time-barred, that a number of state common law claims sounding in fraud were time-barred based on application of the discovery rule, and that the New Jersey Consumer Fraud Act was inapplicable to the VEBA plans because they were not marketed to the general public.
