On The Pulse...Our Litigation Achievements, DD, 6/08
Defense Digest
On The Pulse...Our Litigation Achievements...We Are Proud Of Our Attorneys For Their Recent Victories
Casualty
Ralph Bocchino and Michael Detweiler (Philadelphia, PA) received a defense verdict at a binding arbitration before Judge Gafni. The plaintiff, a 37-year-old male, claimed various injuries as a result of improper stretching at a gymnastics activity at the defendant's gym. The plaintiff claimed torn hamstrings, a ruptured piriformus muscle and eventual herniated discs and low back surgery. The case presented significant damages and a seven-figure demand; however, the unrebutted testimony of our biomedical engineer established that the claimed injuries do not occur during the type of stretching the plaintiff performed. The case file contained thousands of pages of medical bills, reports, and treatment records. Through the hard work of the attorneys and with special assistance of Marshall Dennehey support staff, the records were organized and a PowerPoint presentation was created. The plaintiff had prior medical issues with his legs and back, and the defense emphasized this through cross-examination and confronting the plaintiff with his prior medical history.
John Slimm and Dante Rohr (Cherry Hill, NJ) obtained summary judgment in a suit arising out of the drowning of an eight-year-old boy and near drowning of his mother in Maple Creek, a tidal creek in Cumberland County, New Jersey. The plaintiffs alleged that the defendants negligently designed and maintained a culvert and failed to warn about dangerous tidal currents in an area which was a popular crabbing and fishing spot. The defendant, a land conservatory trust, argued that it had no possession or control over the area and instrumentality involved in the accident, and that it was statutorily immune from liability under the New Jersey Landowner's Liability Act which grants immunity to a landowner whose land meets the statute's definition of undeveloped, open and expansive, rural or semi-rural lands. In addition, it was argued that the Trust could not be liable for the design of the culverts as it was not responsible for the design of the culverts and liability for an alleged defective design is barred by the Statute of Repose.
Art Wheeler (Cherry Hill, NJ) obtained a dismissal of all claims asserted against a restaurant/bar in central New Jersey in a premises liability/dram shop action. The plaintiff claimed to have been injured by police, who arrested him, after consuming alcohol at our client's restaurant/bar, even after an undercover police officer instructed our bartender not to do so. We successfully argued that there was no causal link between the service of alcohol and any injuries claimed by the plaintiff.
Gary Kaplan and Shae Chasanov DiLuzio (Wilmington, DE) obtained a defense verdict on behalf of their client, Wilmington College. The plaintiff slipped and fell while walking off the curb in front of Wilmington College on the Avenue in Rehoboth Beach, Delaware. The street in which the plaintiff stepped onto had an uneven surface, causing the plaintiff to injure his ankle. The defendant, Wilmington College, was able to show that it was not responsible for the conditions of the street and also that it had no duty to warn its business invitees of problems with adjacent landowners' property. Even if the plaintiff's injuries were the result of a defective sidewalk and not the street surface, Wilmington College had previously written to the City of Rehoboth Beach, notifying the City of sidewalk defects in need of repair. This notification was found to satisfy any duty owed by Wilmington College, as the City was arguably responsible for addressing and correcting sidewalk problems on the Avenue.
Tony Michetti (Doylestown, PA) obtained a defense verdict in a Bucks County case involving a serious ankle fracture. The plaintiff claimed that she was caused to trip and fall because of an improperly constructed handicap ramp on the defendant's property. Although the ramp was not in compliance with applicable codes, Tony successfully argued that the ramp had nothing to do with the plaintiff's fall.
Jim Hilly (Philadelphia, PA) obtained a defense verdict before Judge Massiah-Jackson in Common Pleas Court, Philadelphia. The case involved a tractor-trailer/car collision on the Schuylkill Expressway in which the plaintiff claimed neck injuries, which ultimately resulted in a three level cervical fusion. Jim's defense of the case was made more difficult in that the plaintiff had no comparative negligence and our driver swerved into her lane to avoid an unidentified car entering on an on-ramp. Therefore, absent establishing sudden emergency, any degree of negligence would have resulted in full liability of our client. The demand had been $500,000 throughout the trial.
Paul Johnson and Nadira Kirkland (Cherry Hill, NJ) obtained summary judgment on behalf of a fuel oil distributor that retained an independent contractor to transport gasoline to retail service stations. The driver for the independent contractor trucking company blacked out while driving his tanker trailer on the highway, and his truck rear ended several vehicles causing significant injuries. Up until one month before the accident, our client had transported some of its own fuel and, in fact, the driver involved in the accident had previously been an employee of our client. However, at the time of the accident, the driver was an employee of the independent contractor, and our client did not engage in any transportation activities. The court agreed with our position that, under New Jersey law, a party is not liable for the negligence of its independent contractors. The court also agreed that our client did not control the manner and means of the independent contractor's activities. The court also agreed with our position that our client did not retain an incompetent contractor.
Employment Law
Richard Goldstein, along with Walter Kawalec and Kara Pullman (Cherry Hill, NJ), obtained summary judgment on behalf of a community college in New Jersey. The college was sued by a former employee who claimed that she was subject to age discrimination and that her contract non-renewal was done in violation of the New Jersey Law Against Discrimination (NJLAD). Although the plaintiff had been employed continuously for 26 years prior to the non-renewal of her contract, we argued in the brief for summary judgment that the plaintiff was not afforded the protections of the NJLAD as she fell into an exception to its protections because she was over 70 at the time that her contract was non-renewed. After requesting the parties to submit supplemental briefs on this issue, the court granted the motion in its entirety.
Patricia Monahan (Pittsburgh, PA) secured a Rule 50 Motion for Judgment as a Matter of Law in the Western District for Washington County. Judge Lenihan found that the plaintiff's claim for hostile work environment based on race could not go to the jury because the plaintiff had insufficient evidence that her suspension for excessive use of the telephone, the requirement that she report her whereabouts and her supervisor's denial of flex time were based on race. The court also dismissed the plaintiff's constructive discharge claim. There was no appeal.
Health Care
Kevin FitzPatrick (King of Prussia, PA) obtained a defense verdict on behalf of a defendant obstetrician following a five-day jury trial which ended January 8, 2008. The case involved a brachial plexus injury to a minor plaintiff during the course of a delivery in which a shoulder dystocia was encountered. The defense position was that the minor's injury was an unanticipated outcome following the application of proper obstetrical technique in delivering the baby. The case was tried before Judge Mario Rossanese in Montgomery County, Pa.
Frank Leanza and Eric Grogan (Roseland, NJ) obtained a defense verdict following a three-week medical malpractice trial before the Honorable Allison Accurso in Somerset County, New Jersey. The plaintiff-decedent died of a massive subarachnoid hemorrhage, at the age of 49, six weeks after undergoing an MRI of the brain for severe headaches. The insured, a neuroradiologist, interpreted the films as showing non-specific and non-emergent abnormalities, but found the studies to be suboptimal and suggested additional testing. The plaintiff contended that the insured failed to diagnose bleeding in the subarachnoid space preventing the plaintiff-decedent from obtaining appropriate neurosurgical treatment. The plaintiff also alleged that several subsequent treating physicians and radiologists failed to diagnose a brain aneurysm or to suspect a subarachnoid hemorrhage as a result of which the plaintiff did not obtain appropriate treatment. All co-defendants settled with the plaintiff prior to jury selection. At trial, it was argued that the MRI was appropriately and properly interpreted by the insured and he acted reasonably and responsibly in suggesting additional testing.
Robert Evers (Roseland, NJ) obtained a defense verdict on behalf of a defendant obstetrician following a trial heard before The Honorable Mary K. Costello, J.S.C., Hudson County, New Jersey. The case involved allegations that the defendant failed to obtain informed consent for the plaintiff's tubal sterilization procedure and that the defendant physician deviated from accepted standards of care by failing to cauterize the left fallopian tube. The defense position was that the plaintiff was provided with full informed consent prior to the tubal sterilization surgery and that the defendant obstetrician did, in fact, cauterize both fallopian tubes. The plaintiff's subsequent pregnancy following her tubal sterilization procedure was an unanticipated outcome due to recanalization of the left fallopian tube.
Candy Barr Heimbach, Michelle Wilson and Jeffrey Fleischaker (Bethlehem, PA) attained a defense verdict after a three-week trial on behalf of our client-hospital. The plaintiffs had alleged the wrongful death, specifically, the stillbirth of their son. They claimed that the staff from our client's clinic, as well as the co-defendant specialists, were negligent in the prenatal care provided to the plaintiff-mother for her gestational diabetes. Although the plaintiff-mother admitted non-compliance with various recommendations, the issue of any negligence on her part was not allowed to go to the jury for decision. Candy and all other defense counsel still were able to prove that none of the defendants were negligent in their care.
Candy Barr Heimbach and Michelle Wilson (Bethlehem, PA) obtained a defense verdict in Bucks County for our client, an Ob-GYN and his practice, with invaluable assistance from Joan Orsini Ford (Doylestown, PA) on local issues. The plaintiff alleged a delay in diagnosis of breast cancer in this case. The plaintiff appeared in the Ob-GYN's office, complaining of a lump, but it was not palpable by the doctor or patient at that time. The doctor had recommended follow-up via self breast examinations and via a mammogram in seven months when the patient turned 40. She did not do the latter for 18 months, nor did she return to the office for breast complaints or for an annual examination. The jury determined that the doctor was not negligent in his treatment and advice to the patient.
Kate McGrath (King of Prussia, PA) obtained a defense verdict in a medical malpractice jury trial before the Honorable James Proud in Delaware County Court of Common Pleas. The 71-year-old plaintiff completely lost vision in her left eye after undergoing cataract surgery. Both the plaintiff and the co-defendant ophthalmologist alleged that our insured failed to appropriately administer the anesthesia, causing the plaintiff to move multiple times during the course of the surgery. The jury found no negligence on behalf of the insured.
Professional Liability
Joseph Santarone (King of Prussia, PA) obtained a defense verdict after a three-day trial before Judge Stengel in Federal Court. The plaintiff was a prisoner at Berks County Prison who claims he was severely beaten by the staff. Although this event occurred four years ago, at the trial, the plaintiff's attorney made the allegation in his opening statement that this entire incident had been videotaped and that the prison was hiding the tape. This was the first time any such allegation was ever made, but counsel not only made the allegation but alleged they had requested the tape early on in the case. The defendants were able to explain through our witnesses the difference between a planned cell extraction, which is videotaped, and an "officer assist" call which requires a fast reaction by all available staff and does not allow for time to get a camera.
Bruce Morrison (Philadelphia, PA) was successful in a Superior Court appeal. Bruce was retained to take an appeal from an adverse decision from Blair County which had refused to enforce or apply a household exclusion in a fatal UIM claim. The lower court had found that the policy's Limit of Liability clause acted as a new insuring agreement which, because it appeared after the household exclusion in sequence, either superseded or at least created an ambiguity with regard to that earlier-appearing household exclusion. Under either rationale, the trial court refused to apply the exclusion and found instead that the insured's estate was entitled to coverage. In a 2 to 1 decision, the Superior Court reversed the lower court and remanded the case to the trial court for the entry of judgment in the insurance carrier's favor. The panel properly explained the different purposes served by insuring agreements, exclusions, and limit of liability clauses, and it concluded that the carrier's household exclusion was enforceable.
Steven Polansky (Cherry Hill, NJ) obtained Affirmance from the New Jersey Superior Court, Appellate Division, in a case where the insurance company excluded coverage as a result of the intoxication of the driver. The insurance company's policy which provided supplemental liability coverage excluded coverage where the operator of the vehicle was intoxicated. The appellate court found that the exclusion did not violate public policy and further that the exclusion was not ambiguous.
Steven Polansky and Michael Gorokhovich (Cherry Hill, NJ) obtained summary judgment in favor of the insurance company in a case where the issue involved the inception date of the policy of insurance. The insured asserted that coverage was effective as of the date of payment to the retail broker. The insurance company asserted that coverage did not begin until the date referenced in the binder. The court held as a matter of law that coverage did not exist on the date of the underlying incident, which occurred subsequent to payment to the retail broker, but prior to the date of inception referenced in the binder.
Thomas Wagner, Mary Doherty, and J. Scott Shannon (Wilmington, DE) obtained summary judgment in a case where the court simultaneously denied the opposition's motion for summary judgment. In this case, they represented the insurance carrier and its insured in a claim for indemnification. They defended an underlying product liability case arising out of an explosion and fire in an oxygen pipeline. On behalf of our clients, they demanded defense and indemnity from a co-defendant based on a contract, but they refused. They completed the defense and settled the case on favorable terms. Then we sued the co-defendant for reimbursement of all litigation costs and settlement payments. The amount at stake was over $1.2 million. The contract called for the application of Missouri law. The federal court in Delaware ruled that under Missouri law, the indemnity obligation was clear and granted summary judgment.
Carolyn Bogart (Cherry Hill, NJ) obtained a defense verdict at trial in Middlesex County, New Jersey. The plaintiff had sought coverage under the UIM portion of his motorcycle policy, claiming he had met the verbal threshold. The plaintiff's argument had been that his disc bulges and hairline fracture of the sternum were sufficient to meet the verbal threshold as a permanent injury. The plaintiff had been involved in eight accidents before the accident in question and two accidents after. The court also ruled for the defense on a motion in limine regarding the interpretation of the UIM arbitration appeal clause, barring the plaintiff from arguing that his tort selection on his auto policy should not apply to his motorcycle. After a six-day trial, the jury found that the plaintiff had not sustained a permanent injury and was not entitled to an award of damages.
Joe Miele and Michael Packer (Fort Lauderdale, fl) successfully obtained a dismissal by motion of a bad faith claim, as well as a breach of contract claim, in an underlying workers' compensation case. The bad faith claim was dismissed because the insured did not properly file its complaint with the Department of Insurance, which is a condition precedent to the action. The breach of contract claim was dismissed because the court found that a workers' compensation claimant is not a third party beneficiary of his employer's policy. The win was significant as the Florida plaintiff's bar has been attempting to create a new breed of bad faith claims out of workers' compensation cases.
Paul Krepps (Pittsburgh, PA) obtained summary judgment on all federal claims brought against a municipality, its Chief of Police and an investigating officer. The plaintiff was arrested for attempting to lure a total of three young girls into his van on different occasions. The defendant police officer conducted an investigation in which he obtained detailed statements from the girls, and in one case a witness developed photo arrays of the suspect and conducted additional investigation. Before obtaining a warrant, he consulted with the District Attorney. After the plaintiff was arrested, one of the girls admitted to fabricating her story, and after further consultation, the District Attorney's office declined to prosecute any of the girls' claims. The plaintiff then brought an action under 42 USC §1983 claiming violation of due process and false arrest as well as Monell claims against the Borough for failure to train and supervise. The plaintiff alleged that the police failed to conduct a competent investigation, including a perceived failure to investigate the plaintiff's whereabouts during the alleged incidents. United States District Judge Terrence McVerry granted summary judgment as to all federal claims, finding that there was no evidence upon which a jury could find in favor of the plaintiff on any federal claim.
Richard Goldstein and Michael Keller (Cherry Hill, NJ) obtained dismissal of a professional liability claim in Cumberland County against our client, a private non-profit which provides a variety of health care services to residents of Salem County, Lower Gloucester County, and parts of Northern Delaware. Part of the services provided include mental health screening, which is furnished by certified screeners employed by the insured at Salem County Hospital and the Salem County Jail, among others. Several days after our client conducted an initial assessment of an inmate at the Salem County Jail, the inmate committed suicide. His relatives, as the plaintiff, filed a complaint against our client, as well as others, alleging negligence in failing to make proper recommendations and/or assessments with regard to the plaintiff's mental status. We filed a Motion to Dismiss on the grounds that the plaintiff failed to produce an Affidavit of Merit within the time permitted by N.J.S.A. 2A:53A-27 and, therefore, failed to establish any breach of the applicable standard of care. Judge Fisher granted the motion and dismissed the case with prejudice.
Terry Lefco and Aaron Moore (Philadelphia, PA) obtained a dismissal by the United States District Court for the Eastern District of Pennsylvania wherein the plaintiff, an executor of the estate for his deceased father, filed a Complaint alleging that our client, an attorney for a condominium association, had violated the Fair Debt Collection Practices Act (FDCPA) when he sent the executor a letter inquiring as to the current ownership of a condominium which was previously owned by the deceased. The court granted our client's motion to dismiss, holding that the letter was not an attempt to collect a debt; thus, the attorney could not be held liable under the FDCPA.
David Shannon (Philadelphia, PA) obtained dismissal of a professional malpractice claim against our client, Unitech Engineering, Inc. Unitech was joined as an additional defendant by the Bristol Township School District in a lawsuit between multiple contractors regarding the installation of an artificial turf playing surface at Harry S. Truman High School. The primary defendant, the artificial turf installer, alleged that our client negligently misrepresented the existing conditions on the original playing field and improperly instructed a subcontractor to add more stone to the underlying surface during installation of the turf field. After the conclusion of discovery, David filed a Motion for Summary Judgment and argued that the facts overwhelmingly demonstrated that our client properly represented the existing conditions of the field and did not have any authority to advise the subcontractor to add stone to the playing field subsurface. Upon receipt of our motion, the parties in the case then agreed to sign a Stipulation of Dismissal.
Jack Slimm and Art Wheeler (Cherry Hill, NJ) obtained dismissal of a legal malpractice claim against our client, a large, well-known plaintiff's firm in New Jersey. The plaintiff in the matter was counseled by one of the two original defendant law firms in the case concerning a workers' compensation claim for asbestosis. Subsequently, the first firm referred the matter to the other co-defendant firm for handling. The other co-defendant then asked our client to consult for a potential third-party asbestos claim against the asbestos manufacturer. Jack and Art successfully argued that the claim was referred to our client for review after the statute of limitations had expired. Further, they successfully argued that the plaintiff had not made the requisite proof that the underlying third-party case, if brought within the statute, would have been successful. In addition to arguing that there was no attorney-client relationship between the plaintiff and our client, we further argued that our client owed no duty to the referring law firm consistent with New Jersey law.
Jack Slimm and Arthur Wheeler (Cherry Hill, NJ) obtained an order for summary judgment in a complex legal malpractice action arising out of an attorney's representation of a police officer concerning an appeal of a non-passing score on the Camden County Police Sergeant's Examination. The appeal was dismissed because the attorney failed to file the appellant's brief. A legal malpractice action followed. Although the attorney failed to file the appellant's brief, Jack and Art successfully argued that the plaintiff's expert could not show that an appeal would have been successful. In fact, they were able to demonstrate through data from the Department of Personnel of the State of New Jersey that such appeals are rarely granted because of the stringent standard which applies under the Brady decision to appeals of Department of Personnel matters. These cases are highly technical and, in this case, the plaintiff's expert was unable to express an opinion on whether a brief, if properly filed by the attorney, would have resulted in a successful reversal.
Workers' Compensation
Ross Carrozza (Scranton, PA) obtained a favorable Decision and Order from Judge Howard Spizer on a workers' compensation claim wherein the claimant filed a claim petition to recognize the injury, and we filed a termination petition to stop benefits. The judge found the claim petition moot because we issued a Medical Only Notice of Compensation Payable.
Mark Spivak (Cherry Hill, NJ) had a successful trial on a motion to terminate the workers' compensation benefits of a petitioner previously found to be totally and permanently disabled. The petitioner had received an award of permanent total disability from a compensable accident, entitling him to benefits for the rest of his life. After 450 weeks of benefits, surveillance found him working on a car. Based on the surveillance, Mark filed the motion to terminate, which was tried in parts over four years. The petitioner's benefits were ordered completely terminated by the court based upon a finding that the petitioner was less than credible and was capable of gainful employment.
