On The Pulse...Our Litigation Achievements, DD 12/07

Defense Digest

Casualty

Jim Hanratty (Akron, OH) won a defense verdict for his client in a serious automobile case in which the plaintiff, a registered nurse, claimed medical expenses of $80,000 and lost wages in excess of $130,000. Jim represented the underinsured motorist carrier at trial. The tortfeasor previously settled the underlying claim for their policy limits of $50,000. The defense was based entirely on cross examination of the experts and the plaintiff. The plaintiff had failed to inform her treating doctors of extensive pre-existing chronic pain. We obtained prior treatment records that established that the plaintiff had been on narcotic pain medication as recently as two weeks prior to the accident giving rise to this suit.

Michael Obringer (Jacksonville, FL) obtained a favorable verdict following a three-day jury trial in Duval County Circuit Court. The case involved a disputed damages claim resulting from two separate automobile accidents. Michael represented the underinsured motorist insurer for both accidents. The plaintiff was injured by a phantom truck, which drove away after striking the plaintiff's vehicle. The plaintiff was subsequently injured in a second automobile vehicle accident when she was rear-ended by another vehicle. The plaintiff underwent extensive neurological testing and pain management treatment. Liability was admitted, but permanent injury and causation were disputed. The plaintiff's last demand before trial was $250,000. The plaintiff demanded in excess of $1 million at trial. The jury awarded $23,500 at trial and found no permanent injury.

Kimberly Wyss (Akron, OH) obtained a defense verdict following a jury trial in Stark County Common Pleas Court. The case involved a disputed liability automobile accident wherein both the plaintiff and the defendant claimed they had a green light before colliding in an intersection. The plaintiff sustained a fractured ulna and fifth metacarpal as a result of the collision. The jury deliberated for 45 minutes before returning a defense verdict.

Eric Weiss and Vlada Tasich (Philadelphia, PA) received an Order from the Court of Common Pleas of Philadelphia County denying the plaintiff's Motion for Class Certification. The proposed class, over 3,500 in number, purported to represent recipients of unsolicited faxes and claimed, at a minimum, statutory damages of over $500 each allowed under the applicable federal statute. The defense opposed the Motion for Class Certification contending that the class was inappropriate and did not meet the requirements of the applicable Pennsylvania Rules of Civil Procedure. After extensive briefing and a hearing on the issue, Judge DeVito of the Court of Common Pleas of Philadelphia County denied the Motion for Class Certification.

Howard Myerowitz (Roseland, NJ) recently obtained a "no cause" in a four-day jury trial in Middlesex County Superior Court in a matter that was pulled from another law firm six days before the scheduled trial date. The plaintiff/tenant claimed she slipped and fell on snow and ice outside her apartment as she was returning from the supermarket. She claimed to have suffered two herniated discs and several disc bulges, treatment for which resulted in $58,000 in outstanding medical bills. A review of the deposition transcripts showed that the plaintiff had produced three pictures of herself lying in the snow, supposedly taken by her teenage daughter. The plaintiff's story was that her daughter was going to take pictures of the plaintiff's two-year-old granddaughter playing in the snow and had fortuitously walked out of the building just after the plaintiff fell. The pictures had never been obtained by prior counsel. Although discovery was over, paralegal Erin Decker convinced plaintiff's counsel to provide the pictures. She then had them blown up in time for the trial. At trial, Howard used the pictures during cross-examination of the plaintiff and her daughter to convince the jury that they had staged the accident. The defense put on no witnesses of its own, and the jury was out a little over an hour.

Bob Kelly and Jay Layne (King of Prussia, PA) obtained Summary Judgment from the Honorable Jan DuBois in the U.S. District Court for the Eastern District of Pennsylvania. The case arose from the rape and murder of a teenage girl and the murder of both her parents by a convicted criminal subject to house arrest. Our client provided the monitoring security system to the Parole Department of the City of Philadelphia. The felon left the premises of house arrest and went on a one-month spree of burglaries, which culminated in the rape and three murders. The plaintiff's claim was brought against the Adult Probation and Parole Department and our insured. The claims against our insured sounded in products liability, based upon contentions that our advertising over-promised that our product did not incorporate alert and tracking systems available in the market place and that the device should have been more robust so that it could not be readily removed by the targeted wearer. Extensive discovery was taken and expert depositions were taken of consultants from the Mid-West who testified on behalf of the plaintiff. After reviewing the depositions submitted to the court and the legal briefs, the court ruled that the plaintiff's claim for breach of warranty was not properly pled and, even if pled correctly, was time barred. As to the monitoring device and claim defect, although other designs could have been incorporated, the device as made was what the Adult Probation and Parole Department bargained for, and its use provided a utility in consideration of the risk-utility analysis required by applicable law.

Christopher Reece (Akron, OH) prevailed in an appeal on behalf of Lowe's Home Centers, Inc. before the Ohio Seventh District Court of Appeals. The Court of Appeals affirmed judgment that Chris obtained in Lowe's favor in the Jefferson County Court of Common Pleas. Samuel Casolari provided valuable assistance throughout the case. The plaintiff alleged that numerous rolls of pre-cut vinyl sheet flooring vertically displayed on an aisle end-cap fell on her as she was selecting one roll from the display, causing significant injury. The Court of Appeals affirmed the judgment that it was apparent from the display that manipulating some of the vinyl sheet flooring rolls could cause some of the other rolls to fall out of the display. Thus, the condition and risk of injury were open and obvious, relieving Lowe's from any duty to warn its invitees. The open and obvious doctrine was one of six arguments before the court.

Christopher Reece (Akron, OH) obtained a defense verdict following a three-day jury trial in Cuyahoga County (Cleveland), Ohio. The plaintiff Arlene Susman alleged that she tripped and fell over a stack of lumber temporarily being stored in the defendant's clothing shop. The store was being renovated, and the materials were to be used in the project. The plaintiff alleged a torn right medial meniscus (permanent) and back injury. The plaintiff asserted a claim for loss of consortium. The jury returned a complete verdict in favor of the defendant, finding that the condition was open and obvious and there was no duty of care owed to the plaintiff to warn against the condition -- the apparent condition served as a warning in itself.

Lawrence Berg and JoAnn Veltrup Diaz (Cherry Hill, NJ) obtained a Dismissal from the State of New Jersey, Division on Civil Rights in an employment discrimination case brought by a former employee. The employee filed a Complaint alleging discrimination on the basis of disability and wrongful termination after she was terminated while she was on disability leave. On behalf of the defendant employer, it was successfully argued that the termination was based on the particular needs of the small business and was based on a legitimate, non-discriminatory reason lacking any evidence of pretext.

Bradley Blystone (Orlando, FL) successfully qualified a brain-damaged and permanently impaired infant under Florida's Birth-Related Neurological Injury Compensation Act thereby precluding a catastrophic injury lawsuit against his client healthcare system. The involved child suffered a massive bleed in the brain during the birthing process, purportedly as a result of the vacuum extraction process. A petition for benefits under Florida's Birth-Related Neurological Injury Compensation Act was filed on behalf of the child, but the state agency that administers the plan denied the child's birth qualified for benefits. Brad intervened in the state proceedings on behalf of the healthcare system as an interested party. Protracted proceedings ensued, but the state agency reversed its position and awarded benefits on the eve of the final administrative hearing after cross-examination of the State's expert witness revealed the fallacy of their position. A lifetime benefit award for State benefits was then entered on behalf of the child. The benefit award saved our client from a multi-million dollar bad baby case.

Frank Leanza (Roseland, NJ) obtained a defense verdict in a medical malpractice/wrongful death action involving a 20-year-old college student. The plaintiff-decedent had recently been diagnosed with Leukemia and required placement of a central line catheter for treatment. During its placement, the defendant surgeon inadvertently lacerated the plaintiff's subclavian vein resulting in the development of a hemothorax. Despite two surgical attempts to repair the laceration and to control bleeding, the plaintiff expired several hours later. The plaintiff's expert alleged that the defendant surgeon was negligent in the manner in which the catheter was placed, in the timeliness of his response to the developing hemothorax and of the manner in which the surgical procedure was performed. The defense claimed that, while tragic, the inadvertent laceration was a known complication of the procedure and that the defendant surgeon complied with the standard of care in his response to the developing emergency and in the surgery performed. The jury returned a "no cause" in less than an hour.

Ronald Puntil (Pittsburgh, PA) obtained a defense verdict in a medical malpractice action. A Washington County jury returned a verdict in favor of Ron's client, a family practitioner. The decedent, a 70-year-old woman with a history of diabetes, hypertension and obesity, was admitted to the hospital through the Emergency Department with complaints of shortness of breath and chest pressure. A presumptive diagnosis of bronchitis was entertained, and the patient was admitted to a general, non-monitored bed. An EKG in the Emergency Department revealed evidence of an old myocardial infarction. Ron's client evaluated the patient in the hospital the following morning, and the patient was complaining of shortness of breath and nausea. Within three hours of his evaluation, the patient suffered an acute event and died. The plaintiff's experts argued that, given the EKG evidence of an old myocardial infarction combined with the patient's symptoms and increased risk factors for the development of coronary artery disease, she should have been admitted to a monitored bed to evaluate for arrhythmias. The defense contended that the diagnosis of bronchitis was reasonable under the circumstances and that, despite the increased risk factors, admission to a non-monitored bed was appropriate. The jury returned a defense verdict after a six-day trial.

Ronald Puntil (Pittsburgh, PA) obtained a defense verdict in a medical malpractice action. The Clarion County jury returned a verdict in favor of Ron's client in a claim against an orthopedic surgeon. The patient underwent arthroscopic surgery of her knee and subsequently developed a total collapse of the medial tibial plateau requiring total knee replacement. The jury found that the orthopedic surgeon was not negligent.

Matt Wilson (Philadelphia, PA), Jack Warner (King of Prussia, PA) and Joan Orsini Ford (Doylestown, PA) obtained a defense verdict in Bucks County. The case involved a claim against a psychiatrist (Jack and Joan's client) and a facility (Matt's client) for the suicide of the plaintiff's decedent. The plaintiff claimed that the doctor was grossly negligent in treating the suicide ideations of the plaintiff's decedent which resulted in his suicide. The patient was referred to the defendants for evaluation of suicidal ideation and was seen on a Friday afternoon with his wife. His history was significant for two prior suicide attempts. After evaluation, the defendant psychiatrist recommended hospitalization which the patient refused. The patient was instructed to take his medications, call his regular psychiatrist on Monday, and return if his thoughts worsened. Sometime that weekend the patient killed his wife and then himself. The claim was brought on behalf of the decedent's children from a prior marriage. The plaintiff's expert, Carla Rodgers, M.D., contended that the defendant was grossly negligent for failing to contact the decedent's family doctor and psychiatrist, obtain a complete medical and family history, and convince the patient of the need for hospitalization. Once the patient refused hospitalization, plaintiff's expert contended that the defendant had a duty to initiate a 302 commitment.

Denis Dice and Joel Wertman (Philadelphia, PA) won a mandatory binding non-appealable FINRA Dispute Resolution arbitration venued in Cleveland, Ohio. The claimant sought losses in excess of $1 million against our broker-dealer client based upon a negligent failure to supervise its registered representative in connection with his business relationship with the claimant. However, we were able to convince the panel that the supervision was reasonable, that the claimant was an active participant in the business enterprises, that his limited liability company membership units were considered securities, and that these business activities were outside the scope of the representatives' limited agency relationship with the broker-dealer. The arbitration was litigated over the course of nine days, after which the panel rejected the claimants' claims in their entirety and assessed all the forum fees and costs against a co-respondent.

Mary Doherty (Philadelphia, PA) obtained summary judgment on behalf of Royalty Home Inspection Services, Inc. in the Court of Common Pleas, Delaware County. The plaintiff homebuyer purchased a property with existing termite damage and sought to recover the significant costs incurred in repairing the property as well as various other related costs and expenses. The plaintiff asserted claims against the seller, the real estate company and the inspection/exterminating company alleging that the defendants intentionally concealed the extent of the termite damage, which the plaintiff later discovered was structural in nature. The plaintiff's claims against Royalty, the inspection/exterminating company, included breach of contract, fraud and intentional misrepresentation, negligent misrepresentation and violation of the home inspection law. All claims against Royalty, including cross claims of the co-defendants, were dismissed. The court concluded that the plaintiff could produce no evidence to support the claims of fraud and intentional misrepresentation or negligent misrepresentation against Royalty. In addition, the breach of contract claim failed as there was no privity of contract between the plaintiff and Royalty. Royalty's agreement was with the prior owner and had expired. No home inspection was conducted under the terms of the home inspection law, and even if Royalty's actions were deemed a home inspection, the one-year statute of limitations for such claims had run.

Robin Snyder and Angela Januski (Scranton, PA) obtained summary judgment on behalf of Dallas School District. The plaintiff, a substitute teacher for the District, claimed that she was not called to teach because the District discovered that she had cerebral palsy. She sought compensatory damages under 42 U.S. C. §1983 and §1985; the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). In analyzing the ADA claim, the court found that the plaintiff did not present any direct evidence of discrimination and reviewed the case under McDonnell-Douglas Corp. v. Green. The court found that the plaintiff failed to show that she had a "substantial limitation" in her activities and failed to provide any evidence that members of the District had any knowledge of her cerebral palsy. The court dismissed the plaintiff's claim of conspiracy and found that the plaintiff could claim no more than a unilateral expectation of continued employment without any protection guaranteed by the Fourteenth Amendment.

Michael DeCandio (Jacksonville, FL) argued and won summary judgment on behalf of the Clay County Florida Board of County Commissioners. The suit involved multiple claims for wrongful death and personal injury. Allegations were that the County was negligent in failing to provide and maintain safe roadways and in failing to warn the public of known hazardous conditions. Issues raised and argued to the court included separation of constitutional authority for actions of the Clay County Sheriff's Department, scope of authority and duty of the Board of County Commissioners, as well as immunity for planning level versus operational level decision making. A favorable ruling was originally obtained on a Motion for Judgment on the pleadings. Subsequent to rehearing and further discovery opportunity granted to plaintiffs counsel, the motion was amended to one for summary judgment, reargued, and a favorable ruling was again obtained. Pamela Bower and Giovanni Stewart both assisted in preparation of the research and portions of the memoranda of law for the two arguments.

Paul Krepps (Pittsburgh, PA) and Chuck Craven (Philadelphia, PA) obtained summary judgment in a civil rights case in the Western District of Pennsylvania. The plaintiff was the subject of a Terry stop in the early morning hours in an area known for drug transactions. When the plaintiff continued to act nervous, the police officer advised him that he intended to pat him down for weapons. The plaintiff fled, and as he ran, he pulled a 9mm semi-automatic handgun from his waist band and pointed the gun at the officer. The officer, a firearms instructor, drew his weapon and shot the plaintiff, striking him in the back. The plaintiff is now a paraplegic. The plaintiff was convicted of, among other crimes, two counts of attempted aggravated assault. In his civil rights suit, the plaintiff claimed that the danger to the officer had passed and, thus, lethal force was excessive. He appealed his criminal conviction and, during discovery while the criminal appeal was pending, pursuant to the advice of his attorney, the plaintiff refused to answer questions pursuant to the Fifth Amendment. The court initially agreed with the plaintiff's position and intended to administratively close the case until the criminal appeal was resolved. Believing that this may take years, and that the case posed potentially significant appellate issues, Chuck Craven assisted during the litigation phase and drafted the motion and supporting brief. The court ultimately agreed with the defendants' position that the plaintiff's claims are barred by the doctrine set out in Heck v. Humphrey and dismissed the plaintiff's Complaint.

Michael DeCandio and Giovanni Stewart (Jacksonville, FL) obtained a favorable ruling on a Motion for Summary Judgment filed on behalf of our client, a Florida engineering firm. Keith & Schnars Engineering was in contract with the Florida Department of Transportation to perform construction and engineering inspection services on an interstate highway widening project. The lawsuit arose from a multi-vehicle accident that occurred on an exit ramp of I-295 in Jacksonville, FL. Plaintiff was seriously injured and brought suit against the Engineer of Record for the FDOT, the general contractor and our insured, the CEI. The motion for summary judgment was predicated on agency theory and resultant immunity for our insured. Plaintiffs argued that we had exceeded the scope of our contractual duties and, therefore, lost our agency based immunity. The court found that there was no record evidence to substantiate that assertion, that all actions were within the bounds of the contractual requirements, and that immunity was absolute.

Steven Polansky (Cherry Hill, NJ) obtained summary judgment on behalf of our insurance company client in a case involving cancellation of an insurance policy. While the court found that the insurance company did not strictly comply with statutory requirements for cancellation, the court found actual notice of cancellation as a matter of law based upon documents obtained during discovery and held that the policy had been cancelled prior to the underlying loss for which the insured sought coverage. The underlying loss for which the insured bears liability exceeds the $1 million coverage limits which would have existed had the policy not been cancelled.

James McGovern (Pittsburgh, PA) obtained summary judgment in favor of an insurance agent in a case involving UM/UIM waiver forms. The plaintiff's parents had auto insurance through the same agency and insurance company from 1992 until their deaths in an auto accident in 2004. The first-named insured had signed UM/UIM waivers in 1996. After the accident, it was discovered that a customer service representative in the agent's office had hand-written the name of the insured, the policy number and other information on the forms when she sent them to the home office. The plaintiff alleged that the inclusion of this additional language on the forms was fraudulent and violated the Motor Vehicle Financial Responsibility Law making the forms void ab initio and entitling the insured to stacked UM/UIM coverage in the amount of $1 million. The court held that the forms were in compliance with the MVFRL and that the additional language did nothing to alter the substantive form or effect of the otherwise valid rejections.

Jessica Julian and Eric Thompson (Wilmington, DE) prevailed before the Delaware Supreme Court which affirmed the Industrial Accident Board's decision in favor of Delaware Home & Hospital for the Chronically Ill. The claimant filed a Petition for Compensation Due seeking total disability. The Board found the claimant totally disabled; however, only for a limited period of time because her treating doctor had discharged her to return to work with restrictions. The claimant appealed the Board's decision alleging the Board failed to address whether the claimant was a displaced worker (an employee who is so handicapped by a compensable injury that she will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if she is to be steadily employed). The claimant argued that the issue was properly before the Board because the box on the pre-trial memorandum was checked and, in the alternative, it was the employer's burden to prove the claimant was not a displaced worker once it was found the employee was totally disabled. The Superior Court affirmed the Board's decision finding that the claimant failed to raise the displaced worker doctrine during the hearing before the Board and had, thus, waived that argument. The Supreme Court affirmed finding not only that the claimant failed to raise the issue, but that it was the claimant' Petition and, therefore, it was her burden to prove she was a displaced worker.