Defense Digest 9/08: On The Pulse...Our Litigation Achievements...We Are Proud Of Our Attorneys For Their Recent Victories

Howard Myerowitz (Roseland, NJ) and Walter Kawalec (Cherry Hill, NJ) won a victory in the New Jersey Appellate Division that reversed a jury verdict of $350,000 in favor of the plaintiff, who was impaled on the steering wheel when she drove a go-kart at full speed, head first into a retaining barrier. At trial, the plaintiff argued that the operator was negligent in allowing the 225 pound woman to ride the kart because her abdomen was only one to two inches from the steering wheel. The plaintiff also argued the operator should have lowered the speed of the kart because, even though the plaintiff had been driving for 20 years, this was her first time on a go-kart. The plaintiff put on no expert to testify, and at the end of plaintiff's case, Howard moved for a directed verdict based on the plaintiff's failure to make out a prima facie case. The motion was denied. The Appellate Division agreed with Howard and Walter that the motion should have been granted because without an expert, the plaintiff could not establish that the defendant had breached a standard of care and the jury should not have been allowed to speculate on the issue.

Kimberly Wyss (Akron, OH) obtained a defense verdict following a jury trial in Belmont County Common Pleas Court. The wrongful death case involved a negligence claim against the driver of a truck from which the plaintiff's decedent voluntarily exited while it was moving. Kim represented the owner of the vehicle on a negligent entrustment claim. At the time the vehicle was entrusted, the driver had a suspended operator's license and a significant prior history of reckless driving. The jury deliberated one-and-a-half hours before returning verdicts in favor of both defendants.Jim Hanratty (Akron, OH) obtained a defense verdict for his client after a two-day trial and two hours of jury deliberation. Jim represented a driver who went left-of-center as a result of his reaction to a sudden emergency and struck the plaintiff head on. The sudden emergency was another motorist entering the roadway from a private drive. The jury determined that 100 percent fault rested with the co-defendant and returned a defense verdict for Jim's client. The plaintiff had sought $109,000 but only received $39,000 from the co-defendant.

Diane Magram (Cherry Hill, NJ) obtained a defense verdict in an automobile negligence matter. Liability was stipulated. At issue was whether the plaintiff's injuries were caused by the accident and if they were permanent in nature. The plaintiff testified that she was in daily pain, could no longer walk or grocery shop without taking a break, and could no longer play with her grandchildren in the park. On cross examination, the plaintiff admitted that she had two prior work-related injuries to her back and shoulder. She previously worked as a landscaper for ten years. The jury deliberated in just under two hours and came back with a unanimous 7-0 verdict that the plaintiff's injuries were not caused by the subject motor vehicle accident.

Dave Williams (Bethlehem, PA) obtained a defense verdict Lehigh County after a three-day trial. The case involved a pedestrian knock down involving a 65-year-old plaintiff who sustained significant injuries. While damages were not an issue, liability was highly contested and hinged on whether our client struck the pedestrian or the pedestrian walked into the side of our client's minivan. The jury found no negligence on behalf of our client, relying principally upon the client's testimony that there was a smudge in the dirt on the side of her van where the plaintiff made contact.

Meg Kelly (Scranton, PA) won a defense verdict in Pike County. Our client, a 76-year-old woman, rear-ended the plaintiff, who was eight months pregnant, while traveling on an interstate. The defendant contended that the plaintiff stopped suddenly for a dog on the side of the road, which the plaintiff disputed. The jury deliberated for approximately an hour before finding no negligence on the part of the defendant.

Jim Hanratty (Akron, OH) secured a defense verdict for his client in a case where a bicyclist claimed to have been struck by the client's car. The defense denied striking the plaintiff. The plaintiff was seeking $75,000 for contusion injuries to his left leg and disc injuries to his lumbar spine. Before trial, the client's insurance carrier offered $10,000 to settle, but the plaintiff refused.

James Lare and Megan Teesdale (Philadelphia, PA), as part of the firm's aviation group, successfully assisted national counsel for American Eurocopter Corporation ("AEC") in defending a products liability lawsuit that was pending in the Allegheny County Court of Common Pleas. The suit arose out of a December 2000 helicopter crash at the Allegheny County Airport in which the helicopter was completely destroyed and the three people on board sustained varying degrees of personal injury. Both the operator of the helicopter and the individuals aboard sued AEC for damages. After a week-long trial, the jury returned a defense verdict.

Marty Sitler (Akron, OH) obtained summary judgment in a contract dispute action where the plaintiff alleged that our client was responsible for damages due to breach of a lease contract. The court determined that there was no evidence that our client entered into a contract with the plaintiff. Further, the court found no evidence that the co-defendant had authority as an agent to bind our client to the lease contract. Accordingly, the court sustained our summary judgment motion.

Michael Obringer (Jacksonville, FL) received a favorable defense verdict on behalf of his clients in Bronson, Levy County, Florida. The case was filed by three adult children and a step-daughter of a deceased man who alleged that a funeral home and a crematorium failed to deliver to them, and misappropriated, the remains of their late father in 2001. After heavy litigation, the plaintiffs tried the case against another defense firm and received a $9 million jury verdict for emotional distress and other damages. The resulting final judgment was reversed on appeal based upon a procedural error, and a new trial was ordered. The second time around, the defendant asked Michael Obringer to learn the entire case and try it in less than six months. Michael's only defense was to somehow limit the damages award as liability was admitted for purposes of the second trial. The plaintiffs asked the jury for $24 million during closing argument at the second trial. Our clients offered the plaintiffs $1 million prior to the jury taking the issue. The plaintiffs were awarded $160,000, which was significantly less than the offer of judgment provided to them prior to the second trial.

Dan Hart (Philadelphia, PA) and Kevin Connors (Wilmington, DE) represented the grandparent/homeowner's in a case involving the drowning death of their 20-month-old granddaughter at their indoor swimming pool. The suit was brought by a court-appointed administrator on behalf of the beneficiaries. The plaintiff alleged that the grandmother and/or a contractor working at the house were negligent for leaving a sliding glass door open between the dining room and the pool. The plaintiff also alleged the homeowners were negligent for not updating the door with either an audible alarm when open or a self-closing and latching mechanism. Dan argued that the duty to supervise the child never left the mother who was in a bedroom of the house at the time of the incident. The jury deliberated less then two hours before returning a verdict in favor of all defendants. The carrier for the grandparents left its settlement offer on the table even after the jury reached a quick verdict. The plaintiff accepted the offer, and the verdict was read because the contractor withdrew its offer.

Howard Myerowitz (Roseland, NJ) recently obtained a "no cause" following a week-long jury trial in Ocean County on behalf of the PNC Bank Arts Center. The plaintiff sustained a broken hip resulting in two surgeries, the second being a total hip replacement, when she was knocked down at the Arts Center. The accident occurred during a torrential rainstorm, during which patrons from the lawn area were permitted to enter the covered, reserved seating area. The plaintiff argued this violated the Arts Center's own Emergency Procedures Manual and resulted in pandemonium. Howard argued there was no pandemonium because, although the lawn can hold over 10,000 people, there were less than 1,000 on the lawn that night and most had gone by the time the decision to allow them in was made. In addition, Howard argued that if it had been pandemonium, the plaintiff would not have gotten out of her seat. On cross-examination, the plaintiff admitted she was not holding onto the handrail when she was knocked down because "I didn't need to." The jury deliberated for an hour before returning a verdict for the defense.

Tony Michetti (Doylestown, PA) obtained a defense verdict in a case where the plaintiff brought an action in Bucks County against a local hardware store claiming that the front steps were in disrepair and not Code compliant. As the plaintiff exited the store and descended the steps, she fell and sustained a fractured ankle. The steps were admittedly in very poor condition, but the defense was able to persuade the jury that the plaintiff fell due to her own negligence and carelessness, and the Jury found that the defendant was not negligent.Dan Krebbs (Philadelphia, PA) obtained a defense verdict following a four-day trial before the Court of Common Pleas of Philadelphia County in a premises liability action. The plaintiff, a security guard employed by a tenant of the defendant's building, was severely injured when she fell off a loading dock while patrolling the building one evening. The plaintiff claimed the defendant building owner was negligent because the lighting system was inadequate and was not working properly on the night of her accident. The plaintiff sustained a ruptured lumbar disc, two herniated cervical discs, a torn rotator cuff, and a fractured wrist as a result of the accident. Both plaintiff's treating physician and vocational rehabilitation specialist opined that her injuries were permanent and she could no longer work. The plaintiff claimed $175,000 in past lost wages and medicals and $850,000 in future wages. After two hours of deliberations, the jury returned a verdict of "no negligence" in favor of the defendant building owner.

Howard Myerowitz (Roseland, NJ) obtained a "no cause" in a jury trial in Bergen County. The plaintiff walked into a glass wall in the executive offices of a Commerce Bank and claimed to have sustained a broken nose, herniated disc, and a knee injury. The plaintiff argued the ceiling-to-floor glass, which was cleaned daily, should have had some type of markings or decals on it. Howard argued the plaintiff had been at the office three times previously without incident and that in the eight years the wall had been in existence, no one else had ever walked into it. The jury deliberated six minutes before returning a verdict for the defense.

Paul Johnson (Cherry Hill, NJ) obtained a defense verdict in a jury trial in Monmouth County in a fork lift accident case. The plaintiff, a 25-year-old temporary worker, was using a high/low fork lift to move a pallet of products from the upper level of a shelf rack system to the floor level of the rack system in a warehouse. The plaintiff alleged that our client, a fork lift repair company, negligently maintained the brakes on this lift truck. The jury deliberated and found that our client was not negligent in this case. We had provided evidence that there had been no prior complaints of any braking problems on this fork lift prior to the plaintiff's accident. The plaintiff had used the fork lift on several occasions before the accident and noticed no problems with the brakes. Additionally, we provided evidence that the brakes were tested in accordance with the proper brake testing procedure established by the manufacturer approximately four days after the accident. That test showed that the brakes were in proper working condition. The plaintiff had suffered a fractured ankle when his ankle was crushed between the base of the fork lift and the steel of the rack system. He underwent three surgeries on his ankle and still complained of constant pain in his ankle and leg as of the time of trial.

Doug Suplee (Cherry Hill, NJ) obtained a defense verdict on behalf of Chrysler Corp. following a jury trial before the Superior Court of New Jersey, Middlesex County. The plaintiff alleged defects in a 2005 Dodge Neon SRT, a sportier high-performance version of the Neon. In particular, the plaintiff alleged that he experienced regular difficulty shifting gears and that the defendant's servicing dealership's inability to reproduce any shifting abnormalities entitled him to relief under state and federal law. Doug provided the jury with a visual breakdown of the vehicle's service history and its inconsistencies with the plaintiff's testimony as to his impaired use and safety. The jury rendered a unanimous verdict for Chrysler Corp.

Larry Berg and JoAnn Veltrup Diaz (Cherry Hill, NJ) obtained a dismissal of a civil rights complaint filed with the state of New Jersey against an insured by a former employee. The former employee filed a complaint alleging discrimination for failure to accommodate her disability and eventually terminating her employment after she requested an accommodation. After a protracted investigation by the DCR, the state eventually adopted our position that the employer's decision was based on legitimate and non-discriminatory reasons. The state dismissed the complaint.

Dan Sherry (King of Prussia, PA) obtained a defense verdict in a case where he represented an attending physician and a house physician in a case in Delaware County, Pennsylvania, in which a 53-year-old female patient was hospitalized and fell during the course of the admission. The plaintiffs contended that she suffered a fracture of the hip that was undiagnosed and which led to her death two weeks later. The defense was that there was no hip fracture, that there was nothing about the patient's condition that would have made the physicians suspicious for a fracture, and that the patient's death was explained by a number of other physical problems she had. The jury found that there was no negligence on the part of either physician.

Steve Day (King of Prussia, PA) obtained a defense verdict on behalf of an orthopedic surgeon. The claim involved an infection that developed under a cast of a diabetic woman. The plaintiffs claimed that her death five weeks later was as a direct result of the infection and its complications. The jury rejected these arguments finding that the cast needed to be applied and was monitored appropriately.

Steve Day (King of Prussia, PA) obtained a defense verdict in a six-day trial. Steve represented two orthopedic surgeons. The plaintiff alleged that he was discharged prematurely and sustained a post-operative wound infection that led to permanent osteomyelitis and the potential for amputation. He had been involved in a motorcycle accident and had an open fracture of his ankle. The plaintiff also alleged that further debridement of the wound was necessary, along with prophylactic antibiotics. The jury rejected these assertions and found in favor of both doctors.

John McGrath (Scranton, PA) obtained a defense verdict in a jury trial in Lackawanna County in a medical malpractice action. The trial lasted four days. The issue was the delayed diagnosis of an ACL tear, costing the plaintiff an opportunity to regain full strength in his leg. There was a three-month delay in the diagnosis, and the plaintiff went on to have episodes of weakness in his knee giving out and his leg. The plaintiff was a 49-year-old individual when the accident occurred and has been unable to go back to work. The date of loss was 1999. The jury found no negligence on behalf of the defendant doctor. The plaintiffs' expert was weak, and our doctor did a nice job on his own behalf.

Candy Barr Heimbach, Michelle Wilson and Jeff Fleischaker (Bethlehem, PA) were successful in obtaining a defense verdict following a two-and-one-half week medical malpractice trial in Northampton County. Our client, an Emergency Room physician, was alleged to have failed to properly treat the plaintiff, who was brought to the ER with a laceration of her leg. The plaintiff returned to the ER the following day in septic shock. It was claimed at trial that this condition eventually caused her death some two-and-a-half years later. Our expert witnesses were extraordinarily strong, and the jury deliberated for less than two hours before returning a defense verdict.

James McGovern (Pittsburgh, PA) successfully obtained a dismissal of a Financial Industry Regulatory Authority (FINRA) arbitration matter wherein it was alleged that the claimant bought worthless promissory notes in North Carolina from 2001 to 2004. The brokerage firm's (our client) former registered representative sold millions of dollars worth of such notes while associated with four different broker-dealers from 1999 to 2004. In 2004, he was charged with securities fraud and ultimately was sentenced to 25 years in prison. The claim was dismissed on the ground that the claimant bought only one note from the representative while he was associated with our client in May 2001, and the complaint was not filed until October 2007, beyond the six-year claim eligibility period.

John H. Osorio (Cherry Hill, NJ) obtained a no cause following a nine-day jury trial in Ocean County on behalf of Van Cleef Engineering Associates. The plaintiff, an over 55 adult community, brought an action against Van Cleef Engineering Associates concerning the design of the wastewater treatment system. The plaintiff claimed that Van Cleef Engineering Associates under-designed a subsurface disposal bed, resulting in an alleged breakout in the northwest corner of the field. The plaintiff was claiming in excess of $1 million in remedial repairs and costs. John Osorio successfully convinced the jury that the proximate cause of the condition was a subsequent change in the design of the initial sewage system undertaken by the plaintiff to save costs. Furthermore, defense experts rebuffed the plaintiff's expert opinion that subsurface geological conditions were ignored by the Van Cleef design personnel. Defense experts further applied that the plaintiff's change in our design caused increase flows in excess of the permitted and design limit for the original subsurface disposal bed. The jury deliberated for one hour before returning a verdict for the defense.

Joe Santarone and John Gonzales (King of Prussia, PA) obtained a defense verdict in a Section 1983 Wrongful Arrest and Malicious Prosecution Trial in the U.S.D.C. for the Eastern District of Pennsylvania. The plaintiff was arrested and prosecuted for burglary after she was identified by an eyewitness/victim in a photo lineup. Ultimately, the charges were nolle prossed by the District Attorney's office, and another suspect pled guilty to the charges. The jury awarded $350,000 against the eyewitness/victim but exonerated our clients, two police detectives for a Bucks County police department.

Christopher Conrad (Harrisburg, PA) prevailed on a Motion for Sanctions under Pa. R.C.P. 1023.2, which resulted in the dismissal with prejudice of the plaintiff's complaint and the imposition of an award of attorney's fees and costs. In this Dauphin County action, the plaintiff filed suit against two Hershey High School teachers and the High School's athletic director, alleging various claims under RICO and for defamation arising out of the plaintiff's misguided efforts to promote his daughter's running career while she attended school in the District in 2001 and 2002. This was the plaintiff's third lawsuit since 2004 premised upon the same set of facts and against the same parties, the most recent of which was filed in Dauphin County and was dismissed on Preliminary Objections in July 2007. The court concluded that because the claims here were nearly identical to those asserted in the two prior actions, the instant matter was meritless and brought for an improper purpose and, thus, warranted sanctions under Pa. R.C.P. 1023.4.

Steven Polansky (Cherry Hill, NJ) successfully obtained summary judgment on behalf of his client in a case where the insured sought to have the carrier pay for residing his entire home since siding which was damaged on one side of the home allegedly could not be replaced with identically matching siding. The trial court agreed with our client's position that the insurance policy only required replacement of that property which sustained physical damage. The court dismissed both the breach of contract and bad faith claims.

Bruce Morrison and Chet Darlington (Philadelphia, PA) obtained a Superior Court affirmance and defeated allocatur in the Pennsylvania Supreme Court in an insurance coverage case and bad faith case on behalf of Safeco. Safeco's insured, an accountant, was sued by his client in a separate tort action regarding the alleged loss of the client's savings by the life insurer who misappropriated the funds. The accountant had placed the client with the life insurer and had received a commission. The Safeco policy excluded coverage for malpractice claims arising from investment advice where the accountant received compensation from the insurer of the security, and Safeco argued that no coverage existed based on that exclusion. The trial court granted summary judgment in favor of Safeco. An appeal followed. Initially, the Superior Court reversed. Bruce and Chet filed a Motion for Reconsideration, which was then granted with the Superior Court affirming the trial court after it initially had reversed the trial court. The accountant filed a petition for allocatur with the Pennsylvania Supreme Court, which was then denied. The decision is reported at Sweeney v. Safeco Ins. Co., 2005 Pa. D & C. Dec. LEXIS 338 (Montgomery Co. CCP 2005), affirmed, 943 A.2d 331 (Pa. Super. 2007), appeal denied, 2008 Pa. LEXIS 841 (Pa. 2008).

John Aponick (Scranton, PA) secured a summary judgment in a libel suit in Wyoming County. Our client, an oil distributor, ran two advertisements in a newspaper indicating that "discount oil companies" offer less than optimal service. The ads did not identify any particular "discount oil company," but in one ad, reference was made to "our newest competitor" with a main office "in Dunmore." No competitor was identified by name. the plaintiff oil distributor claimed the alleged defamatory advertisements were directed at it. In granting summary judgment, the court stated that the asserted defamatory statements were not capable of defamatory meaning and the statements could not reasonably be understood as referring to the plaintiff.

Dennis Roman and Charlene Sten (Pittsburgh, PA) obtained summary judgment in a legal malpractice action where the plaintiff was exonerated for murder based upon DNA evidence after spending 18 years in prison. The plaintiff alleged that our client, his former counsel in the post-conviction proceedings, stipulated to an inferior method of DNA testing which produced an inconclusive result and prevented his early release. The court granted summary judgment on statute of limitations grounds, finding that the statute begins to run upon the termination of the attorney-client relationship and not upon the plaintiff's release from prison while represented by PCRA counsel on a second petition. Dennis and Charlene convinced the court that the termination of the attorney-client relationship occurs when the client is no longer represented as a matter of fact and is not dependent upon counsel's formal withdrawal as counsel listed on the docket, as the plaintiff had argued.

Marjorie Hensel (Tampa, FL) obtained a defense verdict in a legal malpractice case. The plaintiff alleged that she was not told of a half million dollar settlement offer prior to trial. The attorneys testified that they had numerous discussions with the plaintiff and that she had rejected the offer and decided to go forward to trial where they obtained a favorable verdict - but for considerably less money. After two days of testimony, she obtained a directed verdict for one of the attorneys. The jury returned a no cause verdict for the remaining individual defendants and the law firm.

Patricia McDonagh and Dario Badalamenti (Roseland, NJ) were successful before the New Jersey Appellate Division, wherein the appellate court affirmed the two decisions rendered in the New Jersey Workers' Compensation Court in favor of the respondent (1) to dismiss the petitioner's Claim Petition to reopen a prior Claim Petition which the petitioner had brought against the respondent, the petitioner's employer, arising from back injuries the petitioner sustained as a result of a 1992 work-related accident, on the basis that the petitioner allegedly sustained an increase in disability since he entered into an Order Approving Settlement of his prior Claim Petition and (2) to dismiss the petitioner's other Claim Petition for injuries he allegedly sustained arising from occupational exposure to hazardous materials at the employer's worksite. Dario handled the underlying workers' compensation case, which resulted in the Orders of Dismissal in favor of the respondent employer. Patricia handled the subsequent appeal that was filed by the petitioner in the New Jersey Appellate Division, challenging the Workers' Compensation Judge's above Orders of Dismissal. In affirming the lower court's Orders of Dismissal, the Appellate Division held that the reasons given by the Workers' Compensation Judge for her dismissal of the petitioner's Claim Petitions were reasonably supported by the weight of the evidence and that the petitioner failed to meet his burden of proof, in the first instance, to establish a causal connection between his alleged increased disability and the 1992 accident and a link between his occupational exposure disability claim and the respondent employer's worksite.

Robert Schenk (Philadelphia, PA) won a hard fought workers' compensation case on behalf of Shell Oil. A claim petition had been filed by the claimant alleging that he sustained an ongoing disabling psychiatric injury as a result of a threat by a co-worker. The employer was forced to concede the threat was conveyed but continued to defend the case from both factual and medical perspectives. After entering into evidence surveillance reports and tapes, fact witness testimony, and expert medical opinions, the employer was able to limit the claim to a closed period of disability, ending with a termination of benefits as of the date of the employer's independent psychiatric examination. Given that the claimant received STD during the period of disability, there was no award of benefits from the workers' compensation order.