Defense Digest 3/09: On The Pulse...Our Litigation Achievements...We Are Proud Of Our Attorneys For Their Recent Victories...

Casualty

Michael Fox Orr (Jacksonville, FL) achieved an appellate victory. Michael Orr and Michael Obringer tried a case in St. Johns County, Florida, over one year ago involving claims ranging from property loss/damage, breach of contract, the malicious killing of a pet, and punitive damages. A jury rendered a verdict in favor of the defendant-client after the court granted certain motions for limine, excluding alleged evidence of prior similar bad acts of the client. On appeal, the plaintiffs argued that the trial court erred by excluding the evidence of prior similar bad acts and that by ruling in that manner, the trial court also improperly denied the plaintiffs' request to submit a claim for punitive damages to the jury. The plaintiffs further argued that the trial court erred in granting a defense motion for summary judgment that excluded claims for sentimental value pertaining to the lost property. The appellate court issued its opinion affirming the lower tribunal's decisions and the jury's verdict after the submission of briefs and oral argument. The plaintiffs recovered nothing from the defendant and instead reimbursed the defendant for costs associated with the trial and appeal, which lasted over three years.

Douglas Alba (Cherry Hill, NJ) was successful in a binding arbitration in which the arbitrator found in favor of Allstate with regard to the insured's Demand for Arbitration seeking reimbursement of Personal Injury Protection Benefits as to treatment provided by all of her medical providers. The arbitrator found in favor of Allstate because the claimant could not establish that the treatment rendered by these medical providers, four months after the automobile accident, was casually related to the accident. Thus, the Arbitrator held that the medical providers were not entitled to reimbursement for the services they provided. The insured was seeking reimbursement in the amount of $11,268.31 as to a number of medical providers.

Kevin McGoldrick and Susanne Finiello (Cherry Hill, NJ) obtained a defense verdict in a recent NAF hearing. The claimant was seeking $1,265.64 in medical expenses for an EMS unit prescribed to the patient for treatment of brachial neuritis/radiculitis in the cervical and lumbar spines. Kevin and Susanne argued that the EMS unit and supplies for home use were not medically necessary in accordance with N.J.S.A. 39:6A-2(m). The patient had been undergoing chiropractic treatment for five months while simultaneously undergoing acupuncture without any benefit or relief. The treating physician then prescribed the home EMS unit without providing any contemporaneous notes to substantiate the medical necessity for the EMS unit. The DRP found that the claimant had failed to meet her burden of proof with regard to medical necessity. No documentation was submitted by the treating physician indicating what clinical findings led to his determination that the unit was medically necessary. The claimant was also seeking attorney fees and costs in excess of $1,200, all of which were denied by the DRP.

Douglas Alba (Cherry Hill, NJ) was successful in a binding arbitration in which the arbitrator found in favor of Allstate with regard to the insured's Demand for Arbitration seeking reimbursement of Personal Injury Protection benefits as to treatment provided by all of her medical providers. The arbitrator found in favor of Allstate because the insured made repeated material misrepresentations to Allstate that were both knowing and material. Thus, the policy through which the insured sought reimbursement was void and all benefits at issue were denied. The insured was seeking reimbursement in the amount of $34,683.55 as to a number of medical providers.

Laurianne Falcone (Philadelphia, PA) obtained a defense verdict at the Philadelphia Arbitration Center in a trip and fall case. The plaintiff claimed that she tripped and fell in front of our clients' Chinese takeout restaurant and sprained her ankle. The arbitration panel found in our favor because the plaintiff failed to prove that we were on notice of any dangerous condition prior to her alleged fall. In addition, the plaintiff's credibility was at issue due to severe inconsistencies between her testimony and the medical reports. The panel may also have been swayed by the plaintiff's belligerence during cross-examination and unusual behavior throughout the hearing.

Michele Mintz (Philadelphia, PA) obtained judgment in her client's favor at an arbitration in Philadelphia County. When Michele first received the case, an assessment of damages hearing was scheduled within days, after the defendant was defaulted for failing to answer the Complaint. Michele's motion to open the default judgment was granted on the grounds that the defendant was not properly served with the Complaint and had a meritorious defense: it did not own the property where the plaintiff allegedly fell. The case was subsequently remanded to arbitration, and at the arbitration, the panel found that the plaintiff could not establish that the defendant owned or maintained the property where the plaintiff allegedly fell. Thus, the arbitration panel would not allow evidence regarding the plaintiff's alleged damages. The plaintiff did not appeal the award.

Courtney Schulnick (Philadelphia, PA) obtained a defense verdict at her first Arbitration at the Philadelphia Arbitration Center in a trip and fall case. The plaintiff claimed that she tripped and fell on a mat in front of the counter at our client's hoagie shop, resulting in injuries to her neck, shoulder, and lower back. The arbitration panel found in our favor because the plaintiff failed to sustain her burden of proving that the mat was defective and that our client was on notice of any dangerous condition prior to her alleged fall. Additionally, Courtney pointed out to the panel the plaintiff's questionable credibility, due to the major inconsistencies in her testimony about her medical and litigation history.

Kevin McGoldrick (Cherry Hill, NJ) obtained Summary Judgment on behalf of his client based on the verbal threshold defense. The plaintiff was injured in an automobile accident and complained of pain and stiffness in the lower back. He did not receive any medical treatment other than one consultation with Dr. Goldstein, who diagnosed lumbar stenosis, mostly pre-existing, and probable discogenic abnormality further compromising the stenoic construct. No diagnostic studies were ever performed. Also, no Certificate of Permanency was submitted by Dr. Goldstein for the plaintiff's alleged injuries. Kevin argued that the plaintiff was subject to the verbal threshold under his auto policy and the injuries sustained did not pierce the threshold under N.J.S.A. 39:6A-8. The court found that the plaintiff did not have any diagnostic studies performed, nor did he receive any medical treatment for the accident that would allow the claimant to pierce the threshold and show a permanent impairment of a body part or organ that did not return to normal based on the documentation provided in the record. Counsel had originally attempted to resolve the case with the carrier for nuisance value prior to our involvement, but the claim was denied on the verbal.

Kimberly Wyss (Akron, OH) obtained a defense verdict following a four-day trial in Cuyahoga County Common Pleas Court. The plaintiff had his leg amputated as the result of a motorcycle/vehicle collision. The collision occurred at a four-way stop, and both drivers claimed they stopped at the sign. An accident reconstruction performed by the Ohio State Highway Patrol showed that the plaintiff's motorcycle was traveling 27 mph at impact. The plaintiff and his wife sought damages in excess of $1 million. The jury deliberated for less than one hour before returning a verdict in favor of the defendant.

George Helfrich (Roseland, NJ) obtained a defense verdict in a week-long trial before the Superior Court, Sussex County. The trial was on the initial case referred to George by Geico through the efforts of Jack McGrath of the Scranton office. The jury returned a verdict in a 49/51 liability split in favor of the defendant, even though the defendant was alleged to have run a red light and was making a left turn in front of the plaintiff. The plaintiff did walk away with some money as prior to trial a High/Low agreement was entered into by the carrier as the plaintiff's demand was in excess of the policy limits. The plaintiff had filed an Offer of Judgment for the policy limits, and there was a bad faith allegation being presented.

Pamela Bower and Michael Obringer (Jacksonville, FL) won a "no permanency" verdict in an auto negligence case tried in Duval County, Florida. The case was tried over the course of four days, and the jury deliberated over four hours before rendering its verdict. A "no permanency" verdict means that a jury is precluded from awarding a plaintiff any monies for non-economic damages (e.g., pain and suffering, loss of enjoyment of life, etc.). The jury's verdict was only a few thousand dollars greater than what was offered at a much earlier mediation, and many tens of thousands of dollars below the last demand made by the plaintiff. Also, before the trial, the defense obtained summary final judgment in its favor as to the loss of consortium claim made by the plaintiff's wife.

Jim Lare (Philadelphia, PA) recently obtained a complete dismissal of an aircraft maintenance and modifications company from a lawsuit arising out of a serious aircraft accident on Martha's Vineyard. The company was sued in Massachusetts state court, and, although it had contacts with and conducted business in the forum, the court, after briefing and oral argument, dismissed the client from the case and entered judgment in its favor, holding that even though the state's long-arm statute was satisfied, the exercise of personal jurisdiction would run afoul of established due process standards. Equally significant to the ruling was the court's decision to accept the defense's argument that the plaintiff should be denied the opportunity to engage in jurisdictional discovery.

Rick Ravine and Ryan Burns (Ft. Lauderdale, FL) obtained a defense verdict of no liability for their client, a flea market, in a premises liability case. The plaintiff was an 86-year-old woman who had been hit by a tent while shopping at the flea market. She fell and broke her hip, requiring surgery and internal fixation. The plaintiff attempted to hold the flea market liable on theories of direct negligence for failure to properly inspect its own property and operating the property in an unsafe manner. Additionally, the plaintiff sought from the court, in motions in limine for specific jury instructions and findings and in a motion for summary judgment on liability, a ruling that the flea market was vicariously liable for any negligence on the part of vendors on its property that resulted in the creation of dangerous conditions. After a series of extensive briefs and oral arguments on a relatively grey area of Florida law, all of the plaintiff's motions were denied. The plaintiff and her husband presented themselves as extremely sympathetic and honest. The defense position focused on lack of evidence of negligence and the nature of the defendant's operations. The jury returned a defense verdict after two hours of deliberations.

Pamela Lynde Bower (Jacksonville, FL) obtained dismissals of two defendants in a premises liability case. The injured party was a four-year-old child who lost parts of two toes as a result of an accident on her grandmother's property. The child's mother, who was divorced from the child's father (and enmeshed in a bitter custody battle), filed suit against the grandmother (her former mother-in-law), alleging that the grandmother negligently maintained the premises. Later, the child's mother added the child's uncle as a party, alleging negligent supervision of the minor child. After discovery, including depositions and requests for admission, and the filing of motions for attorneys' fees pursuant to Fla. Stat. Section 57.105 by the defense, the child's mother dismissed both parties and dropped the lawsuit.

David Williams (Bethlehem, PA) received a voluntary discontinuance after filing a Motion for Summary Judgment in an action pending in Monroe County. The 30-year-old plaintiff slipped and fell while attending a pool party (pool as in billiards) on property owned by our clients but leased to their son. Due to the plaintiff's size, he sustained a very serious injury to his right leg requiring open reduction surgery and significant ongoing hospitalization due to medical complications from the surgery. A Motion for Summary Judgment was filed based upon our clients being landlords out of possession and the fact that there was no defect in the property. Plaintiff's counsel agreed to discontinue the action as to our clients.

Kimberly Wyss and Samuel Casolari (Akron, OH) obtained a defense verdict after a four-day jury trial in the United States District Court for the Southern District of Ohio. The plaintiffs filed suit against Ohio Wesleyan University claiming the school negligently led a college tour through a hazardous parking lot, causing the plaintiff to slip and fall. The plaintiff sustained a serious brachial plexus injury of the right arm and claimed over $2 million in damages and the complete loss of use of her dominant arm and hand. Despite the fact that the court did not instruct the jury on contributory negligence, the jury returned a defense verdict in less than 40 minutes.

Robin Snyder and Alicia Schweyer (Scranton, PA) obtained Summary Judgment in a slip and fall case. The defendants rented a home to the plaintiffs in a rural area. The lease included "snow removal" but no elaboration on what that included. The plaintiff was claiming that she was injured the day after snow was removed, sliding on ice under snow that blew over through the night. She argued that the manner of snow removal (no salt or sand, just plowing) created a dangerous and artificial condition. The Wayne County court found that the plaintiff could not establish negligence on the part of the defendants pursuant to the Hills and Ridges Doctrine, which does not hold a possessor of land liable for general slippery conditions because to require all walkways to always be free of snow and ice would be an impossible burden.

David Wolf (Philadelphia, PA) defended a Liberty Mutual personal markets client in a slip and fall jury trial before Judge Greg Smith in the Philadelphia Court of Common Pleas. The plaintiff, a young woman, with her 4-year-old nephew on her back, tripped on a one-inch sidewalk depression after descending the exterior steps of a common walkway shared with the adjacent neighbor-defendant. The concrete contractor who had recently constructed the sidewalk was also a defendant. The plaintiff sustained a fractured ankle, which required internal fixation. She also developed an embolism. The demand was $500,000. Although the judge pro tem evaluated the case at $90,000, the plaintiff would not consider that number. At the close of the plaintiff's case, the Judge granted a non-suit as to all defendants on the basis that the defect was trivial as a matter of law.

Jason Banonis (Bethlehem, PA) obtained summary judgment for his client in the Northampton County Court of Common Pleas. While shopping for a door at a home improvement warehouse, the plaintiff allegedly suffered head, neck, and shoulder injuries when a door fell and struck him. The court agreed the store utilized proper procedures and systems for inventory control. The court found that the plaintiff failed to identify any evidence of actual or constructive notice of the condition.

John Viggiani and Giovanni Stewart (Jacksonville, FL) obtained an Order of Dismissal with Prejudice via a Motion to Dismiss in federal court on behalf of their client, a national rental car company. The plaintiffs alleged a violation of their civil rights and a violation of Florida's Security of Communications Act. In factual support, the plaintiffs alleged that the client violated their Fourth Amendment Right to Privacy by allowing the Florida Department of Law Enforcement and the Jacksonville Sheriff's office to place a mobile tracking device on their rented automobile. The plaintiffs further alleged in factual support that the rental car company also violated Florida's Security of Communications Act by tracking the vehicle's movements via the device. At the time of the device's placement, the plaintiffs were under investigation by law enforcement for committing armed robberies and using rental cars as getaway vehicles. The District Judge issued a four-page opinion dismissing the Complaint with prejudice, ruling that tracking a vehicle's movement through a mobile tracking device was not an electronic communication regulated by the Security of Communications Act. The District Judge also found that no Fourth Amendment right of the plaintiffs were violated because law enforcement had the client's consent to place the device on the rental car.

Health Care

Bradley Blystone (Orlando, FL) obtained a favorable appellate decision from the 5th District Court of Appeals reversing a final administrative order denying his hospital client Florida Birth-Related Neurological Injury Compensation Act (NICA) benefits. The underlying action involved a traumatic birth resulting in significant brain injury and resulting death at six days of age. The administrative law judge ("ALJ") denied NICA benefits at trial. However, Brad successfully argued to the 5th DCA that the ALJ erred in his interpretation of the applicable statute as a matter of law and that his findings were not supported by competent, substantial evidence. The 5th DCA agreed on both counts and not only reversed the ALJ's decision, but remanded with instructions to enter an order providing NICA benefits. The decision is precedent setting in the state of Florida in two respects. It is the first appellate decision in the state of Florida to significantly expand the scope of NICA benefits by including brain injuries occurring during continued resuscitative efforts after birth. Second, it is the first decision to apply a statutory presumption favoring compensability under NICA to a hospital.

Bradley Goewert (Wilmington, DE) obtained a defense verdict after a week of trial in the Superior Court of the State of Delaware. The plaintiff sued an obstetrician/gynecologist alleging that her ureter was injured during a hysterectomy and that the physician did not timely diagnose the injury. The plaintiff's injuries and damages included an obstruction to the ureter resulting in hydronephrosis, or distension of the kidney, with urine from the obstructed outflow, requiring a nephrostomy tube to drain the kidney and a subsequent surgery to reimplant the ureter to the bladder. The jury deliberated for approximately 30 minutes before returning a verdict in favor of the defendant doctor.

Michele Primis and Ronald Puntil (Pittsburgh, PA) received a defense verdict in an eight-day nursing home negligence trial in Westmoreland County, Pennsylvania. The plaintiff alleged that her husband was allowed to develop a pressure ulcer, malnutrition, and dehydration while a resident at the defendant's long-term skilled nursing facility. The plaintiff claimed that the pressure ulcer led to the development of sepsis, which caused the decedent's death. The decedent was 83 years of age and had been working as the CEO of his own construction company prior to sustaining a second hip fracture that required him to become a resident at the defendant's facility. It was the defendant's position that the decedent had a peri-rectal abscess, not a decubitus ulcer, and that the dehydration and malnourishment were the result of the decedent not eating and drinking. The defendant further argued that there was no evidence of sepsis and that the decedent's death was unrelated to the care provided at the nursing home. The jury returned a verdict in favor of the defendant after one hour of deliberations.

Professional Liability

Bruce Seidman (Roseland, NJ) successfully defended an appeal by three former police officers in a LAD and 1983 civil rights action. The police officers appealed orders granting summary judgment to our client, the police chief, and to their former employer, the township. The plaintiffs had pleaded guilty to falsifying documents concerning their police activities, were admitted into a pretrial intervention program, resigned their positions as police officers, and stipulated they would not work again in law enforcement in New Jersey. Following their completion of PTI, they sued the defendants alleging retaliation in violation of their civil rights pursuant to 42 U.S.C.A. § 1983 and unlawful termination based on age in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12. The plaintiffs asserted that the retaliatory action was premised on a prior lawsuit they had filed contesting the police chief's decision to change the promotion procedures thereby adversely affecting their promotion potential. After reviewing the plaintiffs' contentions and the applicable employment law, the appellate division, in a published decision, affirmed the orders for summary judgment.

Frank Leanza and Alicia Calaf (Roseland, NJ) defeated the plaintiff's appeal to the Third Circuit Court of Appeals. The plaintiff, owner of a discotheque, filed repeated Complaints in the District Court alleging that the City of Union City, the Union City Police Department, and its police officers' enforcement of a liquor control ordinance violated his civil rights under 42 U.S.C. §1983. The plaintiff's initial Complaint was dismissed by way of summary judgment. However, the plaintiff filed two additional Complaints in the District Court while the initial motion for summary judgment was pending. As a result, we filed a motion for summary judgment arguing that the defendants were entitled to summary judgment under the Entire Controversy Doctrine because the plaintiff failed to raise the facts which were alleged in his two subsequent lawsuits while his first Complaint was being adjudicated. We also argued that the plaintiff had a fair and reasonable opportunity to litigate his two subsequent Complaints during the litigation of the first Complaint as they arose from the same set of facts and involved identical legal issues. The District Court agreed, ruling that the defendants were entitled to summary judgment under the Entire Controversy Doctrine. Subsequently, the plaintiff filed an appeal of the aforementioned ruling. The Third Circuit Court of Appeals agreed with the District Court's ruling that the plaintiff did not allege any facts in the subsequent Complaints that were not within his knowledge during the pendency of his first state court action. As such, the Court of Appeals affirmed the District Court's holding, dismissing the plaintiff's claims under the Entire Controversy Doctrine.

Richard Goldstein and Kara Pullman (Cherry Hill, NJ) obtained summary judgment in United States District Court for the District of New Jersey in a case where the plaintiff, a former teacher, sued the insured, the Pine Hill Board of Education, claiming that she was subject to discrimination and harassment on the basis of her age. The plaintiff's evaluations throughout her three-year employment with the District indicated that she had consistent issues with classroom management that eventually led to her non-renewal. We argued that the plaintiff's discrimination claims were based on self-serving statements and did not establish a causal link between what she considered retaliatory behavior and some adverse employment action. Judge Kugler accepted our arguments and granted the motion in its entirety.

Alan Johnson (Pittsburgh, PA) won summary judgment on all claims against a security company that employed a security guard in a public school. The security guard began a romantic and sexual relationship with a 14-year-old female student, culminating in the girl secretly living with him from 1996 to 2006. After her public reappearance, the young woman sued the security company in federal court, alleging federal constitutional claims and state negligence claims. Although other defendants also filed motions for summary judgment, Alan was the only defense counsel to brief and orally argue a statute of limitations defense. The federal court granted summary judgment for all represented defendants on all claims based solely on Alan's statute of limitations argument. The federal court also dismissed all federal claims against the unrepresented security guard (now incarcerated) based on Alan's argument that the security guard did not act under color of state law.

Patrick Boland (Scranton, PA) secured a judgment of non-suit in the Pike County, Pennsylvania. The wife-plaintiff was removed from the Property Owners' Association's Board of Directors for violation of the Community's Rules and Regulations and By-Laws. She and her husband sued the Board and certain members of the Board, as well as the co-defendant security company which was hired by the Board to enforce the community's rules. After three days of a jury trial, the plaintiffs rested, and Patrick moved for non-suit. Judge Gregory Chelak granted non-suit on all five counts of the plaintiffs' complaint, which had claims both in equity and at law, including: civil conspiracy, corporate malfeasance and negligence, libel, loss of use of property, unlawful use of civil proceedings, punitive damages, and also sought the reinstallation of the plaintiff to the Board of Directors.

Edwin Schwartz and Lauren Burnette (Harrisburg, PA) obtained summary judgment and dismissal with prejudice of a complex legal malpractice action wherein the estimated damage model exceeded $8 million. The plaintiff was the sole shareholder of a national trucking company that owned and/or leased approximately 300 trucks and employed over 75 full-time employees (excluding the drivers). In 2003 the company sought protection under Chapter 11 of the United States Bankruptcy Code and ultimately retained our client as the bankruptcy attorney for the company. Throughout the history of the company, it was necessary for the plaintiff to personally infuse substantial amounts of capital into the company and to further execute personal indemnity/guaranty agreements for some of the company's loan, lease, and debt obligations. The plaintiff filed a malpractice action against our client alleging that, as the sole shareholder of the company, our client owed an independent duty to protect the plaintiff's personal interests and to provide counsel and advice regarding the plaintiff's personal exposure to any company debt discharged by the bankruptcy proceedings to which the plaintiff had executed indemnity/guaranty agreements. We argued that, notwithstanding the status of the plaintiff being the sole shareholder of the company, the company itself was a separate and distinct legal entity such that it would have been impermissible under the United States Bankruptcy Code (and the Pennsylvania Code of Professional Responsibility) for the client to have represented both the company and the individual plaintiff shareholder. After extensive briefing and argument, the court agreed with our position and opined that, absent some pre-existing personal relationship between the plaintiff shareholder and our client (bankruptcy counsel), there was no basis for an inference of an attorney-client relationship to exist between the plaintiff in an individual capacity and our client.

Jack Slimm and Dante Rohr (Cherry Hill, NJ) obtained a dismissal in a legal malpractice action brought against a Seattle, Washington-based collection law firm. The plaintiffs alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq., and improper filing of a Notice of Unpaid Claim and Right to File Lien pursuant to the New Jersey Construction Lien Law, N.J.S.A. 2A:44a-1, et seq. The Superior Court found that jurisdiction extended to the defendant Washington-based law firm based upon its correspondence and efforts to collect a commercial debt from a business based in New Jersey with regard to construction activity which occurred in New Jersey. The plaintiff claimed that the firm violated the FDCPA in its effort to collect a debt for building materials owed to the co-defendant building material supply company. The FDCPA claims were dismissed because the plaintiff builder was not a consumer as defined by the Act, and the debt at issue in the case was a commercial debt relating to construction materials provided by one commercial entity to another commercial entity. Further, we successfully argued that the plaintiff's cause of action for slander of title was precluded by the New Jersey Construction Lien Law on the basis that the statute provides a mechanism for relief which limits the recovery of damages from the claimant, i.e. the material supplier who is alleging the debt owed. Therefore, because the construction lien law provides a full remedy, it would preclude any cause of action for slander of title against the law firm.

Howard Mankoff (Roseland, NJ) obtained summary judgment in a complex legal malpractice case. The case was particularly hard fought, involving a $2 million real estate deal. Our client represented one of the buyers. After the deal fell through, not only did the litigants sue each other for fraud, but the lawyers sued each other as well. After our client filed suit against the sellers and their attorneys, the sellers' attorneys sued our client for tortious interference with their client relationship, fraud, and ethics violations. The plaintiffs opposed our initial summary judgment motion by arguing that a judge who previously was managing the case stated in dicta that the suit filed by our client was in bad faith. We prevailed on a motion for reconsideration by convincing the judge that the plaintiffs could not prove malice, which is a critical element of a tortious interference claim, and that the previous judge's ruling was in error because he did not have a complete record before him.

Howard Mankoff (Roseland, NJ) obtained a dismissal of a slander claim against our clients, the Board of Directors of an orthodox Jewish congregation. We initially moved for a dismissal on the pleadings, arguing that the court's involvement in the case would violate the establishment clause of the First Amendment. Our motion was denied based on a lack of discovery. We then convinced a religious court, known as a Beis Din, to invoke a thousand-year-old procedure to summon the litigants for a hearing before the tribunal, which ordered the plaintiff to dismiss his claims in civil court. The New Jersey Superior Court enforced the decision of the Beis Din and dismissed the suit.

Bruce Morrison (Philadelphia, PA) obtained summary judgment in a UIM bad faith case in the Philadelphia Court of Common Pleas. The plaintiff asserted that the insurer committed bad faith by using a known "defense expert" for an IME during the underlying UIM claim. The plaintiff also asserted that the carrier delayed the UIM claim, asked for needless materials, and made a "low ball" offer of $30,000 when the arbitrator later awarded $75,000. The plaintiff also asserted that the carrier committed bad faith due to its defense of the bad faith case. The court granted the insurer's motion for summary judgment with prejudice.

Daniel Ryan (Philadelphia, PA) obtained a defense verdict in an asbestos product liability suit by a mesothelioma victim for a wire manufacturer in Northampton County, Pennsylvania, in a two-and-a-half week trial.

Thomas DeLorenzo and Ronda O'Donnell (Philadelphia, PA) won a significant victory in a toxic tort medical monitoring class action recently when Judge Pratter of the federal court in Philadelphia granted the defendants' motion for summary judgment as to one of the two class plaintiffs. Since the other class representative has already conceded that she does not have a claim against Tom and Ronda's client, Judge Pratter's decision essentially results in a dismissal of the case against our client. The plaintiffs were claiming they needed life-long medical monitoring as a result of being exposed to Beryllium fumes and dust coming from our client's plant. However, the defendants argued that under the Redland Soccer case the plaintiffs could not seek medical monitoring unless and until they proved that they were "sensitized" (in essence, allergic) to Beryllium because, unless they were sensitized, they were not at a substantially increased risk of contracting chronic Beryllium disease; mere exposure was not enough. Judge Pratter's decision was reported in a front page article in The Legal Intelligencer on September 24, 2008.

Christopher Santoro, John Hare, and Carol VanderWoude (Philadelphia, PA) obtained a defense verdict after a three-week jury trial in front of Judge Stephen Baratta in Northampton County. The plaintiff alleged that he had developed mesothelioma, a cancer of the lining of the lung that is almost exclusively caused by asbestos, as a result of working with welding rods manufactured by our client, The Lincoln Electric Company. The plaintiff was 80 years old at the time of trial. The theory was that the flux coating on welding rods when manipulated released respirable asbestos fibers into the air, which the plaintiff inhaled over many years while working as a steamfitter from 1950s until the 1970s. On the eve of trial, the plaintiff produced two cans of Lincoln asbestos-containing welding rods that he contended were removed from a jobsite over 30 years ago and stored in his garage. Lincoln's defense was that, because the asbestos in the flux coating is encapsulated in a sodium silicate binder, it was not possible that fibers of the proper size and shape could be released and inhaled by the plaintiff. In support of the defense, an expert witness in fracture mechanics from MIT was called, as well as a certified industrial hygienist and a pulmonology expert. After deliberating for about seven hours, the jury returned an unanimous verdict in favor of Lincoln.

Denis Dice and Joel Wertman (Philadelphia, PA) received a defense verdict in a FINRA binding non-appealable multi-day arbitration. The claimant alleged that our national broker dealer client defamed him by maliciously reporting the basis for his termination from the firm. The claimant sought a reformation of his regulatory record to reflect that he voluntarily resigned and was not subject to any internal investigation by the firm. The claimant also sought compensatory damages, attorneys fees, and punitive damages. However, the arbitration panel determined that our client did not set forth an untrue basis for the claimant's involuntary termination from the firm, that such information was not defamatory, and denied the claimant's claims in their entirety.