Defense Digest 12/08: On The Pulse...Our Litigation Achievements...We Are Proud Of Our Attorneys For Their Recent Victories
Casualty
Christopher Dougherty (Philadelphia, PA) and Dante Rohr (Cherry Hill, NJ) obtained dismissal of the plaintiff's complaint in a complex products liability action. The plaintiff claimed he was riding his Honda ATV in a wooded area when he shifted from second gear into first and his vehicle instead shifted into reverse, causing him to be thrown off and suffer injuries. While the plaintiff's claims were within the scope of the Products Liability Act, he failed to bring his claims under the PLA. Rather, the plaintiff brought his claims under New Jersey common law for negligence, carelessness, recklessness, and breach of warranties. Because the plaintiff did not seek a remedy under the PLA in the complaint and the common law claims alleged by the plaintiff are subsumed within the PLA, the plaintiff's complaint was dismissed by the District Court. In addition, the District Court found as an additional basis for dismissal that the plaintiff failed to effect sufficient service of process. The plaintiff failed to show that service of the complaint on the security office of a Honda parts center in Mt. Laurel, New Jersey, was service on an officer, managing or general agent, or an agent authorized by law as required under Federal Rule of Civil Procedure 4(h)(1)(b), or New Jersey Rule 4:4-4(a)(6).
Diane Magram (Cherry Hill, NJ) received a defense verdict in an automobile negligence case in Gloucester County, New Jersey. The plaintiff alleged that she sustained permanent injuries in the form of bilateral carpal tunnel, a cervical herniation and radiculopathy, and a lumbar strain and sprain. She underwent surgery for the right sided carpal tunnel syndrome. The defense presented two medical expert witnesses and a low impact expert. The arbitration award was $55,000. Liability was stipulated.
Doug Suplee (Cherry Hill, NJ) obtained a defense verdict on behalf of Chrysler Corp. following a three-day jury trial before the Superior Court of New Jersey, Gloucester County. The plaintiff alleged defects in a 2005 Dodge Magnum, a sporty and powerful station wagon with a 340-hp V8 Hemi engine. In particular, the plaintiff, an owner of several high-performance muscle cars, alleged that she experienced various transmission problems, including torque converter failure and an undocumented intermittent condition during which the vehicle failed to timely shift into the next gear. During her deposition, the plaintiff admitted that she had frequently seen digital numbers on the subject vehicle's instrument cluster but had no idea what they meant. Nor did she have any idea that the vehicle is equipped with a manual shifting mode option, allowing the driver to switch from automatic transmission operation to manual operation (much like a stick shift, but without a clutch). At trial, Chrysler's automotive expert explained to the jury that digital numbers will only appear on the dash when the vehicle has been engaged into manual shifting mode and, in his opinion, the plaintiff's shifting complaint was consistent with unknowingly operating the vehicle in manual shifting mode. The expert also noted that at the time of his inspection, the rear tire tread was dangerously bald (while the front tires showed little wear), consistent with power braking or "burning rubber," a condition that can certainly lead to torque converter failure. Despite such facts, Doug argued that plaintiff had failed to clear the high hurdles of the lemon law and was unable to establish that Chrysler's basic limited warranty failed of its essential purpose. The jury rendered a unanimous verdict for Chrysler.
James Layne (Philadelphia, PA) and the Aviation Practice Group successfully obtained a partial summary judgment order that reduced a client's potential exposure from $3.5 to 4 million to under $35,000. The group represented a cargo handling company that was sued by the insurer of an overseas pharmaceutical corporation for alleged damages to an international shipment of pharmaceuticals. The shipment was transported to the U.S. by air, and it was argued in the Motion that the entire transaction was therefore governed by the "Convention for Unification of Certain Rules Relating to International Carriage By Air," as amended by Montreal Protocol No. 4 in 1975, and adopted by the United States on March 4, 1999. The Convention provides the exclusive rules for liability applicable to "all international carriage of persons, baggage or cargo performed by aircraft for reward" and serves to limit the liability of air carriers (defined broadly to include cargo handlers such as the client in this case) for damages to cargo to a set sum per kilogram. The plaintiff responded that the Convention's limits of liability are not applicable in cases where the damage resulted from the willful misconduct of the carrier. In turn, it was shown that the Convention's willful misconduct exception has not been applicable in cases involving alleged damages to cargo since adoption of the Protocol Amendments in 1999 and that, in any event, the facts simply would not support a finding of willful misconduct against the client.
Jeff Imeri (New York, NY) recently obtained a defense verdict in a property damage case following a bench trial in the Supreme Court of New York for New York County. Jeff defended the owners of a residential townhouse in New York City against claims of negligence, nuisance, and trespass asserted by the owners of an adjoining townhouse. The plaintiffs claimed that the defendants' irrigation system, located in the front courtyard of the defendants' property, caused water to infiltrate the foundation and wall on the western side of the plaintiffs' home. The complaint alleged property damage in excess of $1.2 million. During the three-week trial, the plaintiffs attempted to prove actual damages in excess of $630,000 and presented five expert witnesses who testified that the insureds' watering system was the sole cause of the water damage to the plaintiffs' home. Jeff presented two expert witnesses and several fact witnesses in support of the defendants' contention that other causes, such as groundwater infiltration, leaking pipes, the building's age, wear and tear, etc., were the proximate or substantial causes of the plaintiffs' water damage. Following the submission of post-trial briefs by the parties' counsel, the trial judge issued a decision and order granting a full defense verdict to the defendants and dismissing all of the plaintiffs' claims, including their demand for an injunction.
Matthew Owens (Harrisburg, PA) obtained a defense verdict in a jury trial in Northumberland County. The client (a camping organization) had been sued by two railroad conductors/engineers who sustained serious injury when their train collided with a large tree which had fallen from the camping ground onto and across the railroad tracks. The plaintiffs alleged that the campground was negligent for failing to cull the large tree at the close of the camping season, which, according to the plaintiffs, had shown signs of deterioration prior to the accident. The case against the defendants was further complicated by the fact that, each year for the past ten years, trees every winter had fallen due to the rising waters of the Susquehanna River. In addition, the campground had leased the land from the owner and the lease included the duty to maintain the grounds, which further included the duty to inspect and remove trees on the campground and in and around the railroad tracks. The jury returned a verdict in favor of the defendants, finding no negligence.
Michael Obringer and Pamela Bower (Jacksonville, FL) and Steve Ryan (King of Prussia, PA) obtained a defense verdict in an Ephedra/basilar artery stroke trial in Alachua County, Gainesville, Florida, with $2.5 million having been offered and rejected. The plaintiff suffered a brainstem stroke after ingestion of a dietary supplement containing Ephedra. The product contains ephedrine, which is in a class of drugs loosely implicated to cause cerebral vasospasm. Twenty-six-years old at the time of his cerebral episode, the plaintiff remains wheelchair bound at 36, paralyzed on one side, with use of only one hand to control his wheelchair. His speech is barely intelligible, but his cognition remains normal. The firm's client was brought into the suit a few years earlier, but no coverage had been triggered, and predecessor counsel had done little to prepare for trial. A duty to defend was triggered at the 11th hour by a new product ID. With two months before trial, the team got up to speed, participated in remaining discovery, agreed to present the expert witnesses retained by the distributor, added a new expert, and tried the bifurcated liability case to a successful conclusion.
Michael Speer (Roseland, NJ) obtained a no-cause verdict after a trial in Monmouth County, New Jersey. The plaintiff was a nine-year-old girl who was a rear passenger on her father's motorcycle. The plaintiff was thrown from the motorcycle after it was stuck by a car and suffered multiple fractures, scarring, and internal injuries. The plaintiff sued our client, alleging negligence not only regarding the happening of the accident, but also regarding her father's decision to allow her to ride on the motorcycle. The jury found negligence on the driver of the car but returned a no-cause as to our client.
Tim Hartigan (King of Prussia, PA) obtained a defense verdict in the Court of Common Pleas of Chester County in favor of a State Farm insured in a "negligent hair cutting" case. The plaintiff claimed that he was cut while receiving a hair cut in our client's salon and then subsequently developed MRSA. We successfully argued that the MRSA was unrelated to the "nick" from the hair cut due to the latency period, presenting live medical testimony to that effect from a prominent infectious disease specialist. The jury deliberated for about an hour before sending the judge back questions regarding the degree of medical certainty needed for the plaintiff to prove and whether they had to award the plaintiff any money if they found causation. A defense verdict followed shortly thereafter.
Employment Law
Stephanie Rawitt, Thomas DeLorenzo and Lee Durivage (Philadelphia, PA) obtained Summary Judgment in an employment discrimination action that was pending before the U.S. District Court for the Eastern District of Pennsylvania. The plaintiff maintained claims of disability discrimination and retaliation under the Americans with Disabilities Act (ADA) as well as an FMLA claim against her former employer, a charter school. The plaintiff also maintained common law claims of intentional and negligent infliction of emotional distress against the School's former Director of Operations. In granting summary judgment with reference to the ADA claim, the court determined that the plaintiff was not disabled within the meaning of the statute. Also noteworthy was the court's determination that the plaintiff's negligent infliction of emotional distress claim was barred by the Pennsylvania Workers' Compensation Act. The plaintiff's FMLA claim, ADA retaliation claim, and intentional infliction of emotional distress claim were also dismissed.
Health Care
Thom Lent (Erie, PA) obtained a defense verdict for a Nurse Practitioner following a seven-day jury trial in Warren County. The plaintiff, a 24-year-old female, suffered a perforated sigmoid colon, requiring emergency surgery, as well as four additional procedures to address recurrent peritonitis and sepsis. After transfer to UPMC in Pittsburgh, she was placed into a drug-induced coma, during which time she suffered a severe stroke, resulting in right-sided paralysis. Her abdomen required a graft to close, and she underwent a subsequent abdominal hernia repair. It was alleged the nurse practitioner was negligent in failing to bring the plaintiff into the office initially when she called twice in the ten days prior to the perforation. As well, it was alleged the nurse practitioner (and co-defendant family doctor) was negligent in her examination and diagnosis when she saw the plaintiff two days prior to the perforation. The jury deliberated an hour-and-a-half before returning their findings of no negligence for either our nurse practitioner or the family doctor.
Professional Liability
Bill Conkin and Chet Darlington (Philadelphia, PA) obtained summery judgment on a bad faith claim regarding the denial of a disability insurance claim in the Eastern District of Pennsylvania. The insured claimed he was disabled and could not perform certain activities for daily living and sought about $1.5 million in disability benefits. The insurer denied the claim. In granting summary judgment on the bad faith claim, the court found that the insurer had a reasonable basis for its decision based on the insured's medical records, video surveillance, and an IME.
Christian Marquis (Pittsburgh, PA) obtained summary judgment on behalf of the Township of Shaler. The plaintiffs alleged that Shaler was liable for significant personal injuries to a minor-plaintiff resulting from a motor vehicle accident. The minor-plaintiff was riding in a motor vehicle as a passenger when the vehicle struck a catch basin with a concrete barrier near the edge of a road after which the vehicle became airborne, struck a hillside, and then struck a utility pole owned and placed by an electric company. The minor-plaintiff was ejected through the windshield of the vehicle. The plaintiffs argued that Shaler should be liable based on defective conditions of the road, the catch basin, and the hillside, and for authorizing the placement of the utility pole. The court accepted the argument that Shaler could not be found negligent within any exception to governmental immunity because the evidence supported that Shaler did not own the road or the catch basin, did not posses the hillside, and did not authorize the placement of the utility pole, the latter theory of which could not be utilized to impose liability regardless of whether or not Shaler did or did not authorize the utility pole's placement.
Doug Alba (Cherry Hill, NJ) obtained a dismissal with prejudice of a counterclaim filed against Allstate in state court in New Jersey. The counterclaim alleged bad faith denial of insurance claims; estoppel; unjust enrichment; breach of duty of good faith and fair dealing; and tortious interference. Doug successfully argued these claims must be dismissed because the only available remedy in a dispute over PIP benefits is the remedy contained in the PIP statute.
Eric Fitzgerald (Scranton, PA) and Chet Darlington (Philadelphia, PA) obtained the granting of a Motion for Judgment on the Pleadings in the Middle District of Pennsylvania in an insurance coverage case involving hundreds of homeowners who claimed they were defrauded by mortgage lenders, builders, and a home appraiser who allegedly overvalued their homes in order to place unnecessarily large mortgages on the homes which then generated larger commissions and revenue for the lenders and appraiser. When the housing market fell, the homeowners were allegedly left with large mortgages that were not reflective of the real value of the homes. The homeowners sued the lenders, builders, and appraiser. Our client, an insurer for the appraiser, filed a declaratory judgment action against the appraiser asserting that there was no coverage for the suit based on various exclusions. The court granted the motion in part, finding no duty to indemnify the appraiser, but found a duty to defend. Eric and Chet then filed a Motion for Reconsideration as to the duty to defend issue. The court granted the motion and reversed itself, finding no duty to defend as well.
Eric Fitzgerald, Thomas Specht and Thomas Witowski (Scranton, PA) won summary judgment for their insurance company client in an excess verdict bad faith case venued in Buffalo, New York, where the underlying verdict came in at 14 times the last offer made by our client. The ruling avoids a trial wherein the key issue before a Buffalo jury would have been whether our client reasonably discounted the jury appeal of the plaintiff's treating physician, who subsequently obtained national fame when he was credited for saving the life of a Buffalo Bills football player from the sideline. The court reviewed a seven-part test under New York law and found that our insurance company client acted reasonably as a matter of law in its handling of the underlying case.
John Ledwith (Philadelphia, PA) won a Motion for Summary Judgment a week before the trial was to begin for a professional civil engineer in Chester County, Pennsylvania. The plaintiff claimed about $900,000 in damages when its place of business was flooded. Our client had designed a retention basin upstream from the plaintiff's leased premise. The Motion was submitted after the plaintiff did not serve an expert report by the required deadline. After the Motion was filed, the plaintiff submitted an expert report from a professional engineer. A Motion in Limine was then filed to preclude the expert from testifying at trial. The court adopted the reasoning in the Motion in Limine to grant the Motion for Summary Judgment, holding that the report was too late and the expert did not adequately opine that the defendant designed the basin system in violation of accepted engineering principles or, even if so designed inadequately, the plaintiff's losses would not have occurred.
Kevin Regan and Grace Spencer (Roseland, NJ) prevailed on a Declaratory Judgment action. The insured is a Christmas tree farmer who entered into an agreement with a hunting club, allowing the club to hunt on his property in exchange for the club performing work. The insured also required the club to obtain a CGL policy and list him as an additional insured. During one of the work details, a club member got his hand caught in a log splitting machine and brought an action against our insured property owner and the club. From the outset, Kevin and Grace tendered the defense to the club's carrier who continually refused to take over the defense. After two years of litigation, they filed an amended complaint naming the carrier and prevailed on their Declaratory Judgment motion. The order included that the club's carrier pay our legal fees from the inception of the case.
Matthew Behr and Michael Keller (Cherry Hill, NJ) obtained summary judgment in the United States District Court for the District of New Jersey in a case where the plaintiff, the deceased's mother, brought an action alleging, inter alia, various violations of 42 U.S.C. Section 1983 and various state based claims against the insured, the Township of Princeton, Princeton Township Police Department, and several individual police officers. The plaintiff specifically alleged excessive force, violation of due process, and violation of Equal Protection pursuant to 42 U.S.C. Section 1983. The plaintiffs' son was shot and killed by the police after entering into a home and attacking the homeowner and proceeding outside with a knife still in his hands. The police confronted the decedent outside, and after various commands to drop his weapon, the decedent moved toward the officers, thus, necessitating two of the officers to discharge their weapons. Tracking the arguments set forth in our summary judgment motion, the court dismissed the case, finding that, under the circumstances, the firing of three shots was objectively reasonable and, thus, granting qualified immunity to each of the officers. The court also dismissed all claims against the public entity because the plaintiff could not establish that the municipality violated any custom or policy. All state based claims were also dismissed.
Michael Archibald (Tampa, FL) defended a national department store in a case involving alleged assault and invasion of privacy. The plaintiff alleged she was assaulted by a department store employee in the store's parking lot in Bradenton, Florida, and that, at that time, the employee used a racial slur. The plaintiff alleged she sustained serious orthopedic injuries and mental distress damages from the alleged altercation. The trial was heavily litigated by both the defense and the plaintiffs with respect to pre-trial motions and trial objections. Michael Archibald zealously presented the defense's case at trial by highlighting and exploiting all of the issues with the veracity of the plaintiff's testimony and discovery responses.
Sam Cohen (Philadelphia, PA) recently obtained a complete dismissal of all claims against his client, a mortgage loan servicer, on a 12(b)(6) motion before Judge Padova. The case involved a mortgage refinance, and the plaintiffs alleged that they were verbally promised a fixed rate loan and a lower monthly payment but were presented with loan documents at closing that were contrary to the verbal agreement. The Complaint also alleged that the plaintiffs were charged a "Yield Spread Premium" as well as other fees that were "concealed and/or underdisclosed" and which allegedly inflated the loan terms. In dismissing the plaintiffs' claims for alleged violations of the Truth In Lending Act and Real Estate Settlement Procedures Act (among other claims) against Sam's client, Judge Padova found that the plaintiffs "failed to raise a right to relief beyond a purely speculative level."
Scott Shannon and Judy Kinney (Wilmington, DE) obtained summary judgment dismissal of all counts and claims in a legal malpractice action where the plaintiff claimed her divorce attorney negligently failed to include a prayer for alimony in a motion for default judgment resolving all ancillary matters in the underlying Family Court action. The plaintiff's expert had offered the opinion that in a default posture, the Family Court judge would have awarded alimony in the amount of $1,800/month for a period of five years and five months for a total of loss of $117,000.
Tim Hartigan and Michele Krengel (King of Prussia, PA) received Summary Judgment in Chester County for a Liberty Mutual insured in a seller's disclosure case on behalf of the home inspector on the basis of a specific one-year statute of limitations in the home inspection law. Prior counsel had failed to plead any statue of limitations defense in new matter, but had also failed to answer an amended complaint because the amendments had been directed at another party. On assuming the file, we filed an answer to the amended complaint, raised the statute of limitations defense in new matter, and then filed the motion for summary judgment. Michele argued the motion which was opposed by the pro-se plaintiff, who asserted that she should not be penalized for her original counsel's failure to file on time. We said the only thing more unfair than holding her responsible for counsel's failure was holding us responsible. Our co-defendants failed to oppose our motion, which also asked for dismissal of cross-claims. We were granted summary judgment on all plaintiff's claims and cross-claims. The case is proceeding to trial against the sellers and their realtor.
