On The Pulse...Our Litigation Achievements, DD, 3/08
Defense Digest
On The Pulse...Our Litigation Achievements...We Are Proud Of Our Attorneys For Their Recent Victories
Casualty
Alicia Schweyer (Scranton, PA) obtained a defense verdict at trial in Luzerne County, Pennsylvania. Liability for the auto accident was admitted. The plaintiff offered insufficient evidence of medical bills and wage loss. No economic damages were awarded. The jury found the plaintiff failed to prove she sustained a serious impairment of a body function, despite a lengthy treatment history, resulting in an award of zero damages.
Bradley Remick and Justin Oravetz (Philadelphia, PA) obtained a defense verdict in a Philadelphia County fire subrogation case. The plaintiffs alleged that the defendant, an electrician, was responsible for the fire which caused approximately $490,000 worth of damage to a commercial property. The defendant was in the building performing electrical work five hours before the fire was discovered.
Eric Weiss (Philadelphia, PA) defended Besam Automatic Door Solutions, Inc. in a jury trial held in Middlesex County, New Jersey, and obtained a defense verdict. Besam was the sole defendant in a case where a 75-year-old female plaintiff alleged she was struck by a closing automatic door, sustaining a fractured hip and wrist. Special damages boarded by the plaintiff were over $110,000. The plaintiff lived independently in her own home prior to the accident and was thereafter compelled to sell her home and live in either assisted living or nursing homes. The theories advanced by the plaintiff included failure to affix warning labels required by the applicable ANSI code and failure to incorporate presence sensors. The plaintiff offered liability and damages experts, as did Besam. The jury deliberated for 30 minutes and came back for Besam.
Howard Myerowitz (Roseland, NJ) obtained a "no cause" in a four-day jury trial in Somerset County Superior Court on behalf of the PNC Bank Arts Center. According to the plaintiff, he was attending a concert on the lawn when the ground suddenly gave way beneath him and he slid 15 feet into a concrete divider. The plaintiff sustained a trimalleolar ankle fracture, requiring surgery with the insertion of a metal plate and pins. Four witnesses - all of them friends of the plaintiff - testified he was injured while dancing/jumping and landing on a metal drainage grate that they identified as "The Pit of Death." Howard argued that the plaintiff was fully aware of the drainage grate and the need to stay away from it and that the plaintiff must have been under the influence for him to believe the accident happened the way he thought it did. The jury apparently agreed, finding that the Arts Center was negligent but that its negligence was not a proximate cause of the plaintiff's injury.
J. Patrick Geraghty, Bruce Seidman and Tom Foti (Roseland, NJ) won a motion for summary judgment in a maritime personal-injury action filed in the State Court of New Jersey by a passenger against a Florida cruise ship operator. The cruise line successfully argued there was no personal jurisdiction over it in New Jersey since, among other things, the cruise line did not advertise in New Jersey, the passenger did not buy her ticket in New Jersey, and the cruise line did not have an office, any employees or agents in New Jersey. The court also ruled there was no subject-matter jurisdiction in New Jersey because the passenger ticket had a forum selection clause designating state court in Florida for all disputes brought under the passenger contract.
James Cole and Tim Ventura (Doylestown, PA) obtained Summary Judgment in favor of the defendant snow removal contractor. The plaintiff, a tenant in a strip shopping center, claimed to have fallen over "glazed ice" in the middle of a winter storm. The plaintiff claimed a cervical herniation, which resulted in laminectomy surgery, as well as significant wage loss. The court correctly applied Pennsylvania's Hills and Ridges Doctrine to the case, despite the plaintiff's assertions that the snow removal contractor may have actually created the "glazed ice" condition by "pre-salting" the parking lot.
Matthew Noble (Philadelphia, PA) obtained a directed verdict on behalf of his client after four days of a jury trial in the United States District Court for the Eastern District of Pennsylvania. The case arose from a game between the Philadelphia Eagles and the Washington Redskins on New Year's Day, 2006. Matt's client, a company that provided security during Eagles' games at Lincoln Financial Field, was sued by a fan who claimed she suffered a broken nose when punched by Rhonnel Hearn, the mother of the Washington Redskins' running back, Clinton Portis. The plaintiff claimed that Matt's client failed to act promptly and reasonably in preventing an encounter between unruly fans that led to the alleged assault. The plaintiff sought compensatory damages in excess of $500,000 as well as punitive damages. Ms. Hearn did not appear at trial and a default judgment was entered against her. Matt and his co-defendant, another security company, successfully precluded the testimony of the plaintiff's security expert, a Philadelphia police officer, on the basis that his report did not account for the independent role of the Philadelphia police in providing security at the stadium. In the absence of expert testimony or other evidence of inadequate security, Matt's client received a directed verdict. The plaintiff's claims against the remaining defendants were submitted to the jury and, despite the default judgment against Ms. Hearn, the jury awarded no damages.
Tony Michetti and Tim Ventura (Doylestown, PA) obtained Summary Judgment in a Bucks County "Social Host" case. The plaintiff accidentally shot and killed himself. The evidence was that the plaintiff had been drinking for a number of hours and was very intoxicated at the time of the shooting. It was alleged that the defendant had supplied/furnished alcohol to the plaintiff. The court found that there is no Social Host liability in cases involving adults in Pennsylvania.
Tony Michetti (Doylestown, PA) also obtained a defense verdict in a Montgomery County case involving a slip and fall on ice. The defendant landowner was in the process of spreading salt/calcium chloride throughout the development when the plaintiff fell. The facts indicated that the landowner responded immediately after it stopped snowing and had already completed plowing and shoveling at the time of the plaintiff's fall. Although the landowner had not yet spread salt/calcium chloride in the area where the plaintiff fell, it was clear that the landowner had acted in a reasonable and timely fashion.
Tom Gerard (Wilmington, DE) obtained a defense verdict in a slip and fall case he tried in July and the court's denial of the plaintiff's motion for trial new trial on the basis of a question asking the jury to determine whether the defendant's negligence was a proximate cause of the plaintiff's injury rather than her fall. The court rejected the plaintiff's argument that the proximate cause question should have used the word "fall" instead of "injury." As a threshold matter, the plaintiff did not object during the prayer conference to the use of the word "injury." Moreover, even if she had done so, she would have raised a distinction without a difference, the court explained.
Employment Law
Joseph Santarone (King of Prussia, PA) obtained a defense verdict in a jury trial in Montgomery County defending Abington Hospital. The plaintiff was a nurse in the operating room at the hospital. Her husband worked for "Good Neighbors," a charitable organization which provides food and medical supplies to third world countries. The plaintiff had removed a cart-load of materials from the hospital one night at the end of her shift. She claimed the supply manager had told her that she was permitted to take any items on a particular table which were going to be discarded by the hospital. After the removal was discovered, the plaintiff returned all the items but was discharged from employment, and criminal charges for theft of property were brought against her. The plaintiff brought suit after the District Attorney dropped the criminal charges. Much of the case was dismissed through motions, with remaining counts being malicious prosecution and invasion of privacy when the case went to the jury.
Health Care
Kate McGrath (King of Prussia, PA) obtained a defense verdict in a two-week medical malpractice jury trial before the Honorable Thomas P. Rogers in Montgomery County Court of Common Pleas. Kate represented North Penn Hospital where the plaintiffs alleged the failure to diagnose and treat a pulmonary embolism in a 32-year-old patient. The primary issue in the case involved the application of the Differing Schools of Thought Doctrine in the charge to the jury as it related to the administration of heparin, an anticoagulant.
Candy Barr Heimbach and Jeff Fleischaker (Bethlehem, PA) obtained a defense verdict in a Lehigh County medical malpractice case. The plaintiff alleged that the defendant, a hand surgeon, lacerated the dorsal sensory branch of the ulnar nerve while performing an arthroscopic repair of a tear in her TFCC. The plaintiff claimed that the laceration caused an "exquisite" neuroma, which in turn developed into a brachial plexus injury and permanent disability. The facts, however, indicated that the plaintiff had a long history of inconsistent complaints, as well as a history of shopping for doctors who would find her totally disabled from her job as a landscaper. Furthermore, with the help of our expert witnesses, we were able to establish that the plaintiff's theory of how the nerve was lacerated was a physical impossibility.
Justin Johnson and L. Grace Spencer (Roseland, NJ) obtained a successful verdict after the four-week trial of a medical malpractice case venued in Passaic County, New Jersey. Justin and Grace represented a general/vascular surgeon called in consultation in connection with the hospital admission of a diabetic patient in 2002. The surgeon was one of two remaining defendants at trial. The plaintiffs alleged misdiagnosis and that the surgeon failed to obtain the informed consent of the patient for the surgery. After several hours of deliberation, the jury returned a verdict concluding that the surgeon had complied with the standard of care in his treatment of the patient and that he also obtained the patient's informed consent for the surgical procedure.
John Aponick (Scranton, PA) obtained a unanimous no negligence verdict in a medical malpractice trial. The Luzerne County case involved a claim that a urologist, a medical oncologist, and a radiation oncologist (our client) all failed to advise the plaintiff, who suffered from bladder cancer, that he should undergo surgical removal of the bladder (cystectomy). Each defendant doctor contended that the plaintiff, a retired state trooper, had been so advised and refused surgery because he did not want to "wear a bag." He underwent radiation therapy, as an alternative treatment, which allegedly complicated treatment and delayed surgery. Ultimately, he underwent the surgery and died shortly thereafter. The recommendation for cystectomy and refusal was not documented clearly in our physician's records.
John Aponick (Scranton, PA) also obtained a unanimous no negligence verdict in a medical malpractice trial. In the Lackawanna County case, the plaintiff charged that a general surgeon who performed repair of an inguinal hernia was negligent in failing to provide adequate postoperative care and failed to obtain informed consent by not advising the patient of the possibility of postoperative nerve entrapment which could require additional surgery. The alleged negligence was failure to refer the patient four or five months postoperatively to a pain clinic or pain specialist to evaluate the plaintiff's complaints and that such failure complicated management and delayed necessary surgery. The court precluded the informed consent claim because the plaintiff's expert did not offer the testimony required by the MCARE Act. The jury rejected the negligence claim following a brief deliberation.
Frank Leanza (Roseland, NJ) obtained a defense verdict in a medical malpractice action following a trial in Union County, New Jersey. The plaintiff alleged that the defendant doctor failed to diagnose coronary artery disease and unstable angina as a result of which the plaintiff, a 54-year-old man, suffered a massive heart attack requiring five vessel bypass surgery and a prolonged hospitalization. The plaintiff also alleged that as a result of his heart attack, he suffered such significant heart damage that he now requires a heart transplant and has been placed on New Jersey's Heart Transplant List. The defendant doctor and experts in internal medicine and cardiology contended that the plaintiff's presenting signs and symptoms were consistent with previously diagnosed gastric reflux disease and that the defendant doctor appropriately ordered and relief upon the findings of a full cardiac workup, including serial EKGs and a nuclear stress test, all of which were normal.
Professional Liability
Bruce Morrison (Philadelphia, PA) won in a Superior Court appeal. In Ertwine v. Progressive, Bruce was hired 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 Progressive's favor. The panel properly explained the different purposes served by insuring agreements, exclusions, and limit of liability clauses, and it concluded that Progressive's household exclusion was enforceable.
John Viggiani and Giovanni Stewart (Jacksonville, FL) achieved a defense verdict on behalf of our client, a contractor, in a four-day jury trial. The plaintiff suffered severe injuries after being catapulted from a man lift while working on construction of the three-story public library in downtown Jacksonville. The plaintiff was wearing a safety harness and, after diving at least 20 feet from the man lift's basket, remained suspended 40 feet above the ground for several minutes. The plaintiff alleged that our contractor was grossly negligent in the manner in which it rigged a load of PVC pipes and that the negligence resulted in the catapulting and the plaintiff's severe injuries. The plaintiff further alleged that our contractor directed the tower crane carrying the PVC pipes to fly directly over the plaintiff's lift while the plaintiff was performing his work in the basket. As a result of the accident, the plaintiff had two reconstructive knee surgeries and a left forearm nerve graft. Due to horizontal immunity that the contractor had under Florida's workers' compensation laws, the plaintiff could only recover if he proved gross negligence. John and Giovanni argued that the method in which the contractor rigged and hoisted the PVC pipes was an acceptable method within the construction industry. The plaintiff produced one expert for trial in support of his position that the rigging and hoisting used by our client was not a "best practice" within the construction industry. John and Giovanni decided not to produce any expert for trial and relied upon their cross examination of plaintiff's expert. The jury deliberated for 45 minutes before returning their verdict. After demanding $2 million from our client contractor prior to and during trial, the plaintiff recovered nothing.
Christian Marquis (Pittsburgh, PA) obtained summary judgment on behalf of the West Mifflin Sanitary Sewer Municipal Authority. The plaintiffs argued that a sanitary sewer line and its trenching were defective and caused a landslide to occur behind the plaintiffs' residence, resulting in significant property damage. On summary judgment, it was argued that the plaintiffs failed to produce adequate evidence to establish the existence of the alleged defective condition and corresponding causation, in addition to the lack of prior notice of the condition. The court agreed and entered summary judgment in favor of the Authority.
Jay Rothman, William Conkin, and Robert Jozwik (Philadelphia, PA) were successful in obtaining an Order from a three-judge panel of the Court of Common Pleas of Philadelphia County in the first ever case submitted to the Commerce Case Management Protocols for Alternative Disputed Resolution Procedure Using Three Judge Panel and Common Law Arbitration, also known as the "Abramson Protocols." Robert appeared for oral argument before the three-judge panel, which included Judge Abramson, Judge Shepherd and Judge Bernstein. In short, an insured, who had a self-funded employee and welfare plan, filed an action seeking reimbursement under an Excess Loss Insurance Policy ("Stop Loss Policy") for $902,468 in medical expenses incurred by one of its employees. The Stop Loss Policy provided coverage for claims submitted under the insured's plan in excess of a threshold amount for a specified period. The insurer denied coverage on the basis that the claim was not "paid," as defined by the Stop Loss Policy, within the coverage period. During the litigation, the parties agreed to submit the coverage dispute to the Abramson Protocols. The submission was made by stipulation of the parties and was subject to meeting specific requirements and conditions that govern the Abramson Protocols, including that any order issued would be final and not appealable. Based on the briefing of the issue and after hearing oral argument, the three-judge panel determined that the claim was not covered under the Stop Loss because it had been paid after the policy expired and, therefore, the insurer had no obligations to reimburse the insured for the claim.
Workers' Compensation
Paul Tatlow (King of Prussia, PA) successfully litigated a Claim Petition in a workers' compensation case before a Judge who is well known for being quite claimant-oriented. Our defense for Ruby Tuesday, the employer, conceded that there was a compensable work injury and a limited period of about two months of disability. The Judge granted only that limited disability period and then terminated benefits based on the testimony of the defense medical expert who found that there was a full recovery as of his exam date. The claimant was seeking ongoing total disability which was denied. A key finding was the Judge's rejecting the claimant's testimony based on inconsistencies between her trial deposition and her testimony at the final hearing.
Linda Wilson and Eric Thompson (Wilmington, DE) prevailed before the Delaware Supreme Court which affirmed both the Superior Court in and for New Castle County, Delaware, and the Industrial Accident Board's decision in favor of Sara Lee Corp. The claimant filed a Petition for Compensation Due seeking pre-authorization for a visit with her treating physician and payment of outstanding medical bills. The Board found the issue moot because the insured had confirmed it would pay for all reasonable, necessary and related treatment and the physician testified that this was sufficient authorization for him to treat the claimant. The twist is that the physician did not find out about this letter until his deposition because neither the claimant nor her attorney had informed him of it. The Industrial Accident Board, Superior Court and Supreme Court disagreed with the claimant and held that the letter did constitute authorization and that, since this constituted authorization, the claimant's petition was dismissed based on the claimant's letter that she would dismiss the claim for unpaid medical bills if authorization for treatment was provided.
Ross Carrozza (Scranton, PA) obtained a favorable Decision and Order from the Workers' Compensation Appeal Board denying the claimant's appeal in all respects. The claimant raised multiple issues on appeal. She challenged the Workers' Compensation Judge's termination of her benefits. The Appeal Board found there was ample evidence to support the termination of benefits. The claimant argued that the Judge erred by not finding a shoulder injury. The Appeal Board disagreed and noted that the claimant failed to meet her burden of persuasion and pointed out that the claimant had informed a physician that she had injured her shoulder at home.
