On The Pulse...Our Litigation Achievements, DD 9/07

Defense Digest

Our Litigation Achievements...We Are Proud Of Our Attorneys For Their Recent Achievements...

Lary Zucker (Cherry Hill, NJ) won a defense verdict in a roller skating liability case in Gloucester County Superior Court. The case involved a roller skater who claimed that he tripped on a buckled section of the wooden skating floor. The plaintiff sought to introduce evidence that the rink floor had been replaced within a year of his accident, but the Judge barred his testimony based on the rule prohibiting evidence of subsequent remedial repair. The Judge also barred the plaintiff from testifying about a statement made to him by an unidentified rink employee who stated that the reason that the floor was changed was because it was buckling. The Judge ruled that this statement was hearsay because the plaintiff could not identify the employee. As a result, the only evidence of a defect in the floor was the plaintiff's testimony, which the jury rejected.

Michael Fox Orr (Jacksonville, FL) obtained a reversal on behalf of our client from the Second District Court of Appeal. The appeal stemmed from a final judgment and jury verdict of nearly one half million dollars awarded in a personal injury suit. Michael filed an appeal as to the award for future damages, which accounted for $220,000 of the total award. On appeal, Michael admitted to the court that the jury could find evidence that existed in regard to the plaintiff's need for future medical care and future loss earning capacity. However, Michael argued that there was no evidence with which the jury could calculate the dollar amount attributable to both the future medical expenses and future loss earning capacity. The appellate court agreed with Michael and found that the trial court abused its discretion in denying a motion for remittitur as to the future damages award based upon the lack of evidence in the record. The appellate court deliberated over eight months before delivering its ten-page published opinion.

Jim Hanratty (Akron, OH) obtained a defense verdict for an insurance company in an Underinsured Motorist claim. The carrier was the named defendant in this case due to the tortfeasor having settled for $70,000 of the total $100,000 policy limits. Under Ohio law, the carrier defended in its own name and was entitled to a set off of the full $100,000 tortfeasor limits. The plaintiff claimed traumatic brain injury resulting in a seizure disorder and loss of vision in the lower left quadrant of his left eye due to traumatic neuropathy of the optic nerve. Jim's defense attacked the medical conclusions and test results. Additionally, Jim used a biomechanical engineer to show that the accident could not have caused the plaintiff to strike his head as he claimed. The plaintiff demanded $850,000 to settle before trial. The carrier offered $50,000. At the close of the two-day trial, the plaintiff asked the jury to award $1 million. The carrier had policy limits of $1.15 million. Jim suggested a verdict of $50,000 to the jury. After an hour of deliberation, the jury awarded $50,000 to the plaintiff and $25,000 to his wife for loss of consortium. The net effect of this was a defense verdict for the carrier due to the set off of the amount obtained from the tortfeasor.

Giovanni Stewart (Jacksonville, FL) obtained summary final judgment on behalf of his client, a nationwide producer of heavy construction building materials. An employee of the client was involved in an vehicle accident on westbound, Interstate 10. The plaintiff alleged that the employee was negligent in the operation of his fully-loaded, semi-tractor trailer when it rear-ended the plaintiff's vehicle during the plaintiff's vehicle's lane change. The plaintiff alleged permanent neck and back injuries that would require future surgical intervention. A thorough investigation into the cause of the accident revealed that a phantom vehicle failed to yield during its attempted merge onto the Interstate, which, in turn, caused the plaintiff's vehicle's lane change. Mr. Stewart convinced the presiding judge that the evidence demonstrated that the employee did not cause the accident or contribute to its occurrence and that the phantom vehicle was the sole proximate cause of the accident.

Michael Obringer (Jacksonville, FL) obtained a defense verdict in a personal injury case. The plaintiff was employed by a tile company, and he made a delivery of pallets of tile to a construction site during the lunch hour. The defendant was a masonry subcontractor on the site who happened to have left the site, with his employees, during the lunch break. He was the only subcontractor with a forklift at the site. The masonry subcontractor removed the key from the leased forklift before he left for lunch. While the masonry subcontractor and his employees were at lunch, another contractor's employee used a "universal key" to essentially commandeer the forklift in order to assist the tile company employee in lifting the tile from the truck. The tile employee got in front of the forklift and tried to manually adjust the settings of the tines or forks of the forklift (so that it could accommodate his tile pallets) by "rocking" or "snatching at" the forklift tines, despite not having been asked to do so by the forklift operator and being warned by several other employees not to do so. As a result of the tile employees' shoving and rocking the forklift tines, one fell and broke his arm, requiring surgical repair with plates and screws. The plaintiff argued at trial that the tine that had fallen on his arm had been tied into an upright position in a hazardous fashion. The defense was able to show that this was not the case. The jury deliberated only 35 minutes before rendering a zero verdict for the plaintiff.

Christopher Reece (Akron, OH) obtained judgment in Trumbull County, Ohio. The plaintiff slipped and fell as she stepped from a floor mat supplied by our client onto a tile floor in the reception area of a medical center. In addition to the plaintiff's claims against the property owner and janitorial service, she alleged that the floor mats contributed to a slippery condition, including a claim that some type of chemical component in the mat was a contributing factor. The court ruled that there was no expert evidence supporting any "slippery chemical" claim, the defendant had no notice of a condition with this mat, and any slippery condition on the floor was open and obvious to the plaintiff.

John Aponick and Jack Nealon (Scranton, PA) and Michael Panichelli (Philadelphia, PA) secured summary judgment in the District Court for the Middle District in a $3 million subrogation suit. The claim arose from the failure of a mall roof in Kentucky. Damages were claimed for the loss sustained to the roof and interior water damage to the mall. The defendant roof manufacturer contended that the economic loss rule barred recovery in tort. The plaintiff filed a motion for partial summary judgment on the premise that Kentucky had not adopted the economic loss rule. The partial summary judgment was denied, with the court holding that, although the Kentucky Supreme Court had not expressly adopted the economic loss rule, it would predict that the Kentucky Supreme Court would apply the rule to this case and bar tort recovery. The plaintiff then moved, under a Kentucky rule of civil procedure, for certification of the issue to the Kentucky Supreme Court. The defendant opposed certification and moved for summary judgment. The court noted that certification had not been sought until late in the proceeding, after an unfavorable ruling to the plaintiff, and suggested the motion seeking certification could be viewed as an attempt to get a second bite at the apple. Certification was refused and the defendant's motion granted.

Dan Sherry (King of Prussia, PA) obtained a defense verdict in a case in which he represented an emergency room physician and a hospital in a jury trial conducted in Chester County, Pennsylvania, where the death of a diabetic patient was allegedly caused by the administration of an antibiotic that was later taken off the market for that very reason. The case was defended on both standard of care and causation. No offer was made, and the jury returned a finding of no negligence after deliberating for less than one hour.

Jack Warner (King of Prussia, PA) obtained a defense verdict in a case involving the death of a 59-year-old male bread-winner who died of prostate cancer in June of 2002. The plaintiffs' theory was that the decedent was a patient of the defendant doctor's family practice group from January 1997 through January 2000 when the diagnosis was made. In this three-year period, the decedent saw a defendant doctor and other members of the group on 18 different occasions, nine by the client defendant doctor. The decedent initially came as a weight reduction patient but gradually used the practice for medication and acute care visits. The plaintiff contended, and it was admitted, that at no time prior to the diagnosis was the decedent counseled on prostate screening nor was the prostate screening tests offered or given (prostate specific antigen-a blood test, and digital rectal examination). Although the prostate screening concept was still somewhat questionable in that time frame, the defendant doctor testified that as part of his practice, he counsels patients on the tests and a decision is made as to whether they should be done. This would have been done if the decedent had made an appointment for a "wellness" visit, or annual physical examination. The plaintiff presented evidence that the decedent was always concerned about his health and would have requested that the tests be done had he been told about them. The plaintiff presented evidence that an earlier diagnoses would have produced a more favorable outcome, which was denied by the defense expert. The plaintiffs claimed under the Wrongful Death and Survival Act non-economic loss and economic loss of almost $700,000. After a six-day trial, the jury found that there was no negligence on the part of the client defendant doctor, or the co-defendant physician's assistant.

Robert Jozwik (Philadelphia, PA) was successful in obtaining summary judgment in favor of an insurance carrier in an insurance coverage dispute initiated by an insured in the Eastern District of Pennsylvania. The insured, a transportation broker, had been named as a third party defendant in an underlying personal injury action wherein the plaintiff was struck in the eye while checking the tarps and straps that secured the cargo he was transporting. In turn, the insured filed a joinder complaint against our client, who had issued a commercial general liability policy, and two other insurers seeking defense and indemnity obligations for the underlying action. One of the issues presented on summary judgment was whether the underlying plaintiff's injuries arose out of the use of an automobile, which was excluded under the auto exclusion in the policy issued by our client. In considering the application of the auto exclusion, the District Court determined that the underlying plaintiff's act of checking the tarps and straps involved the handling of property and, hence, constituted loading and unloading, as defined in the policy. Consequently, the District Court held that the specific, plain, and clear language of the auto exclusion applied to bar coverage to the insured in the underlying action. All claims against our client, therefore, were dismissed with prejudice.

Christopher Reece (Akron, OH) obtained judgment for an insurance carrier in a claim brought by a plaintiff who purchased trip cancellation insurance for an around-the-world vacation. Prior to the trip, the plaintiff sustained a burst fracture of his vertebrae after crashing a sail plane (recreational hobby). The plaintiff was denied trip cancellation benefits. The plaintiff argued that this soaring activity was not akin to skydiving, parachuting or hang gliding, which were particularly identified as exclusions. Chris successfully argued that another exception -- a result of riding in any device for aerial navigation -- applied to exclude coverage.

Tim Rau (Philadelphia, PA) obtained a defense verdict in an asbestos case tried in Philadelphia. In the case, the jury found in favor of the defense after the second phase of a 10-day, reverse bifurcated trial. During the first phase of the trial, the jury found that the plaintiff had asbestosis and awarded him $335,000 in damages. In the second phase of the trial, Tim argued that the plaintiff's product identification evidence was erroneous and that his client's product could not have caused the plaintiff's disease. The jury found in favor of the defense.

Tom DeLorenzo and Kim Woodie (Philadelphia, PA) obtained defense verdicts in four cases tried together before Judge Rossanese in Montgomery County and arising out of a 1998 gasoline release from the a gas station. An estimated 15,000 gallons leaked into the soil over a period of a few months. A total of 49 neighborhood residents retained the Ballard Spahr firm and filed suit against eight defendants claiming that they suffered a variety of personal injuries and property damage as a result of the release. The judge told the parties to pick four test cases to try first on causation and damages, with a liability trial to follow 90 days after the verdict in the first phase. Thereafter, the remainder of the cases would be tried, if necessary. The plaintiffs selected to try the cases of a 30-year-old woman with leukemia and a 6-year-old boy with autism. The defendants selected two women who claimed they suffered headaches for years as a result of the release and also claimed that their homes had diminished in value because of the "stigma" attached to the neighborhood as a result of the release. Three of the four plaintiffs also sought medical monitoring for life. Ballard's initial demand for the 49 cases was $70 million. During a pre-trial mediation, Ballard said we would have to get in the $20 million range to "begin to talk." Trial lasted six weeks, and after approximately six hours of deliberation, the jury returned defenses verdicts against all four plaintiffs on all claims.

Chris Dougherty and Doug Herman (Philadelphia, PA) obtained dismissal of a lawsuit commenced by several commercial property owners against our client, a commercial property manager. The lawsuit was filed in the Court of Common Pleas for Philadelphia, where the plaintiff-corporations were domiciled; however, the commercial properties, which were managed by our client, were located in Washington, D.C. Our client was incorporated in Maryland. Chris and Doug filed Preliminary Objections to the plaintiffs' Complaint, which alleged that our client breached its duties to the plaintiffs under certain property management agreements. They argued that the Philadelphia court lacked personal jurisdiction over our client and that venue was improper in Philadelphia. The plaintiffs argued that because our client directed e-mails, telephone calls, correspondence and remittances to them in Philadelphia, the court should exercise jurisdiction over our client. The court sustained the objections and issued an opinion which concluded that the plaintiffs failed to establish that our client maintained sufficient "contacts" with Philadelphia to establish personal jurisdiction. The court agreed that the subject matter of the proceeding and substantive "contacts" arose out of, and occurred in, the District of Columbia where the properties were located and the services were provided. No appeal was taken from the court's decision.

Jack Slimm (Cherry Hill, NJ) successfully argued in New Jersey's Appellate Division on behalf of a firm which was named as a defendant in a legal malpractice action arising out of an underlying divorce action. The attorneys represented the plaintiff's former wife in a divorce proceeding. The final Judgment of Divorce was entered. Following the judgment, the former husband filed litigation claiming unethical and illegal conduct, bribery, false court filings, fraud and conspiracy to abuse the domestic violence laws, intentional and malicious submissions to the court, and bribery of the parenting time evaluator. Jack was successful in defeating the action by arguing to the Appellate Division that the plaintiff's action was collaterally estopped as a result of the decision of the court in the matrimonial case and the appeal which followed from the divorce judgment. Jack demonstrated that the damages to the husband stemmed from the divorce action rather than from the attorney's actions in the representation of the wife. In New Jersey, there are limited circumstances in which the adversary's attorney can be sued. Also, attorneys are protected by New Jersey's litigation privilege which extends to all statements or communications in connection with the judicial proceedings. Jack was able to demonstrate to the Appellate Division that the litigation privilege applied which protected the attorney and the law firm. This case was important because it recognizes that the litigation privilege extends to all statements or communications in connection with the judicial proceedings. Those statements are absolutely privileged and are wholly immune from liability.

Jonathan Kanov (Fort Lauderdale, FL) successfully defended a legal malpractice case in which the plaintiffs were sellers of a nurse and health care staffing business. The plaintiffs sought damages of $568,000 against the defendant alleging that the defendant neglected and failed in the defendant's duties as closing/escrow agent for a stock sale transaction. Such duties purportedly included securing a personal guarantee on a Note, protecting the plaintiffs' security interests, and properly accounting for receivables. Shortly before the Ninth Judicial Circuit Court was set to rule on Jonathan's Motion for Summary Judgment, and with trial specially set for two weeks later, the plaintiffs agreed to completely walk away, take nothing, and dismiss all of its claims with prejudice.

Patrick Carey (Erie, PA) obtained defense verdicts in a federal civil rights lawsuit where he defended the City of Erie, its former chief of police, and two of its police officers. The police officers were dispatched to the plaintiff's residence to prevent a confrontation between the plaintiff and her adult son, who was a resident of the plaintiff's home and who wanted to retrieve his personal belongings and move out. With the consent of the plaintiff's son, the police officers entered the plaintiff's home and stood by while he packed his clothes and other personal belongings. When the plaintiff's son attempted to leave the home, the plaintiff blocked his path, and when one of the officers placed his hand on the plaintiff's arm and asked her to step aside, the plaintiff struck the officer and raised her hand to strike the police officer a second time. The plaintiff was taken into custody and arrested. The plaintiff claimed that the officers' entry into her home and her subsequent arrest and prosecution violated her Fourth Amendment rights and also claimed that the police officers used excessive force during her arrest. The court dismissed the Fourth Amendment claim of illegal entry based upon its finding that the police officers had consent from the plaintiff's son, who had both actual and apparent authority to consent to the entry. The court also dismissed the City of Erie and the former chief of police as a matter of law. The other issues surrounding the plaintiff's arrest and prosecution and the claim of excessive force were submitted to the jury, which entered defense verdicts in favor of the police officers after only 30 minutes of deliberations.

Sharon O'Donnell, assisted by Peggy Morcom, (Harrisburg, PA) successfully obtained judgment following trial under F.R.C.P. 52 in favor of a local Township School District against a former student and her parent. The plaintiffs claimed that the District failed to provide the student with a free appropriate public education under the Individuals with Disabilities Education Act when it failed to identify the student as eligible for special education and related services because of a diagnosed emotional disturbance that manifested in a pattern of deteriorating behaviors and recurrent depressive episodes. The District brought to the court's attention one of the more compelling 'deteriorating behaviors' that involved a sexual encounter on a school bus that resulted in a 10-day suspension. The District defended on the basis that, while the student may have benefited from social skills counseling, the student was intellectually bright, received excellent grades, and made good academic progress in spite of her diagnoses. Special education services in content, methodology or delivery of instruction would not have benefited this student. In a 27-page memorandum opinion, the court agreed and entered judgment in favor of the District.

Joe Santarone (King of Prussia, PA) obtained a defense verdict after a two-week jury trial in federal court. His client, commander of a SWAT team that encountered a drunken plaintiff who had already shot at officers responding to his wife's frantic 9-1-1 call, faced claims under the Americans with Disabilities Act, the Civil Rights Act, and Monell liability. Joe was successful in having many of the plaintiff's claims dismissed at the summary judgment stage, and then proceeded to trial on claims of excessive force, supervisory and Monell liability. While the plaintiff sought to convince the jury that he was actually surrendering when he was shot, Joe was able to show that the plaintiff had repeatedly stated he would not surrender and the position of his wounds was not consistent with the position he claimed he was in when shot. Through the use of a SWAT expert, a psychiatrist, a ballistics expert and a forensic pathologist, the defense was able to prove that the plaintiff's story just didn't hold up. The jury came back in just a few hours with a defense verdict.

David Shannon (Philadelphia, PA) successfully defeated a motion for a permanent and preliminary injunction in the Court of Common Pleas of Philadelphia County. The plaintiff signed a Confidentiality and Non-Competition Agreement with his employer, a water ice flavor manufacturer, six months before he was terminated for cause. The Agreement stated the plaintiff could never divulge the insured's confidential water ice flavors and trade secrets or compete against his former employer for two years. The plaintiff filed a federal action for age discrimination regarding his termination and a separate state court action for rescission of the Agreement and damages related to his inability to obtain employment in the water ice flavor industry. The plaintiff's motion claimed our client had no trade secrets or confidential information and that the non-compete was overbroad and signed under duress. Judge Abramson denied the Motion, and the plaintiff subsequently signed a consent order reaffirming that he was bound by the terms of the Confidentiality and Non-Compete Agreement. Further, the plaintiff agreed to include in the consent order that any potential employers must be provided a copy of the court's Order which states that any employer aiding in the violation of the Confidentiality and Non-Compete Agreement could be subject to damages for interference with a contractual relationship.

Dario Badalamenti (Roseland, NJ) successfully obtained a defense decision on behalf of his client, a recycling company. The petitioner, an employee of the insured, alleged that he had sustained certain occupational exposures during the course of his employment, resulting in his permanent and total disability, entitling him to lifetime medical and indemnity benefits. The ensuing trial lasted approximately one year and involved the testimony of multiple lay witnesses and medical experts. In dismissing the petitioner's claim against the insured, the court cited Mr. Badalamenti's direct examination of his expert neurologist as providing the only full and cogent explanation of all medical issues presented at trial.