Defense Digest 9/08: On The Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories

Michael Panichelli (Philadelphia, PA) succeeded in having the Superior Court, sitting en banc, reverse a Superior Court three-judge panel and affirm a trial court entry of summary judgment for a defendant manufacturer in an asbestos case. The case involved product identification and causation issues involving whether the plaintiff could show that rail car brake shoes her decedent came into contact with were made with asbestos and were produced by the defendant, and whether the plaintiff could show that the decedent's exposure to the brake shoes was the type of exposure that would have caused asbestosis. Tarzia v. American Standard (3053 EDA 2005) (with Judge Klein writing the majority opinion in which eight of the nine sitting judges joined and from which one judge dissented).

Chuck Craven (Philadelphia, PA) succeeded in having the Commonwealth Court reverse the Workers' Compensation Appeal Board, which affirmed the grant of a fatal claim petition by a Worker's Compensation Judge. In its published, precedential opinion, the unanimous Commonwealth Court three-judge panel agreed with Chuck's arguments that the Workers' Compensation Judge and Workers' Compensation Appeal Board erred when they treated the fatal claim petition under the Workers' Compensation Act's time limitation for death from an occupational disease. The Workers' Compensation Judge previously determined that the employee's disablity from non-Hodgkin's lymphoma could not qualify as an occupational disease claim but that the disability did qualify as a compensible occupational injury in the nature of a work-related disease. Consequently, because the employee did not die from an occupational disease but, rather, from an occupational injury, the applicable time limitation was the shorter limitation provided for death from injury cases, not the longer period for death from disease that the Workers' Compensation Judge and Workers' Compensation Appeal Board mistakenly applied. Because the employee's death occurred more than 300 weeks after the date of his injury, the Commonwealth Court agreed that the fatal claim petition was barred by the 300-week injury limitation. The Commonwealth Court's decision is reported at Brockway Pressed Metals and ACE USA v. Workers' Compensation Appeal Board (Holben), -- A.2d - (Pa. Cmwlth. 2008) (2008 Pa. Commw. LEXIS 192; May 12, 2008).

Kim Boyer-Cohen (Philadelphia, PA) succeeded in having the Superior Court affirm the dismissal of the plaintiff's complaint without leave to amend in which the plaintiff asserted claims for breach of contract and violation of the RICO statute. After the pro se plaintiff repeatedly amended his complaint and chose to stand on his Fourth Amended Complaint, the trial court granted preliminary objections without leave to amend. On appeal, the plaintiff claimed that the trial court erred in concluding that he failed to state a cause of action and abused its discretion in not granting him leave to amend his complaint in regard to his RICO claim. The Superior Court agreed that a lack of consideration supported the plaintiff's breach of contract claim and that there a number of problems with the allegations of RICO violations. The court also rejected the plaintiff's abuse of discretion claim because it was clear that, even if amendment was permitted, the plaintiff could not cure the deficiencies regarding his RICO claims. Saterstad v. Stover, 1395 MDA 2007 (May 1, 2008).

Kim Boyer-Cohen (Philadelphia, PA) also successfully obtained the Superior Court's affirmance of judgment entered in favor of the defendants on a jury verdict in a medical malpractice case tried based on the patient's claim of failure to timely diagnose and properly treat breast cancer. The plaintiff argued on appeal that the trial court improperly instructed the jury on causation and made several improper rulings with respect to the testimony of both the plaintiff's and defendants' experts. The Superior Court ruled that the charge fully and accurately instructed the jury on the issues before it. With respect to the alleged errors involving the experts' testimony, the court found no reversible error had been committed by the trial court. Lloyd v. Blaum, 13 MDA 2007 (April 10, 2008).

John Hare (Philadelphia, PA) succeeded in having the Superior Court reverse two discovery orders that compelled the disclosure of materials claimed to be privileged. In its published decision, the 2-1 Superior Court majority concluded that the discovery orders were overbroad, and it remanded for the trial court to conduct further proceedings to determine the extent to which its orders should be revised. The Superior Court's decision is reported at T.M., parent/ legal guardian for D.M. v. Elwyn et al. Appeal of Elwyn, 805 and 1002 EDA 2007 (June 4, 2007).