Defense Digest 6/09: On The Pulse...Our Litigation Achievements...We Are Proud Of Our Attorneys For Their Recent Victories
Casualty
Brad Remick and Alex Norman (Philadelphia, PA) obtained a unanimous defense verdict in a products liability case before Judge Louis Pollak in the Eastern District of Pennsylvania. The plaintiff claimed that a pneumatic nailer was defective and double fired as a result the defect. The defense focused on the usefulness of the tool, the inconsistencies between the plaintiff's story and the facts, and lastly the manifest lack of credibility of the plaintiff's expert. Prior to trial, the plaintiff successfully fought to make a claim for punitive damages. The plaintiff made a claim for $650,000 in compensatory damages and a multiple of that in punitive damages. Before making his closing argument, Brad was able to persuade the judge to amend the jury charge on punitive damages so that it was clear that punitive damages should only be awarded in extreme circumstances. After deliberating for two hours and twenty minutes, the jury found that the product was not defective.
Carolyn Bogart and Jessica Wachstein (on brief) (Cherry Hill, NJ) obtained summary judgment on behalf of Sigma Pi International, a fraternity defendant, in a traumatic personal injury action. Two plaintiffs suffered significant head traumas, skull and facial fractures, as well significant cognitive loss when they were beaten during a brawl at Rutgers University. Twenty-two defendants were brought into the suit under the negligent bystander theory. After extensive oral argument, the court agreed that Sigma Pi International could not be liable for the individual actions of some of its chapter members when there was no nationally sponsored event on the night of the incident.
Walt Klekotka (Cherry Hill, NJ) obtained a defense verdict for The Stone Pony in Monmouth County, New Jersey. The plaintiff claimed injuries to her left hand, as well as cervical and lumbar disc herniations, as a result of her fall on a piece of Plexiglas marquee which was snow-covered and had come down during a Nor'easter. The jury was unanimous and was out less than ten minutes.
Employment Law
Lawrence Berg and JoAnn Veltrup Diaz (Cherry Hill, NJ) obtained dismissal of a lawsuit in which an employee lost several fingers while operating a table saw at work. The plaintiff argued that the conduct of the employer, specifically, the alleged removal of a safety guard from the blade of the table saw and the failure to provide training, was sufficient to establish liability against the employer and to overcome the exclusivity bar of the Workers' Compensation Act. In support of his position, the plaintiff retained an expert who concluded that the accident was substantially certain to occur. In dismissing the case, the Judge concluded that there was no evidence that the employer knew with 'substantial certainty' that its actions would cause injury and/or that the industrial equipment involved in this accident created a risk that was beyond the contemplation of the Legislature when enacting the Workers' Compensation Act.
Health Care
Matt Schorr and Scott Eichhorn (Roseland, NJ) obtained a defense verdict following a one-month trial in the case Boyan v. The Orchards at Holmdel. The plaintiff, a 47-year-old female periodontist, alleged she sustained a career-ending injury, resulting in total disability, when she was struck by a deteriorated section of a wood privacy fence at the insured's condominium complex where she lived. The plaintiff underwent anterior and posterior lumbar spinal fusion surgery three months after the accident and then sold her practice three months later. She had been earning approximately $200,000 annually. Several fact witnesses were called by the plaintiff to establish the quality of her professional work and her love of the practice of periodontics. There were no medical records indicating any prior back complaints, although she was determined to have pre-existing spondylolisthesis of her spine. The defense argued that the circumstances of the accident were suspect and that the accident may have been contrived. In support of this argument, among other things, it was pointed out that the plaintiff allowed her dentistry license to lapse before her spinal surgery, that she apparently told one of her treating physicians before her surgery that she would likely need to give up dentistry (contrary to the testimony of her surgeon as to his expectation), and that she entered into a multi-page contract for the sale of her dental practice less than two weeks from the date she alleges that her surgeon told her she may not be able to return to her profession. The defense further asserted that the condominium association had attempted to replace the fence prior to the accident but was prevented from doing so by the plaintiff because she was not satisfied with the association's intention to replace the fence with another wood fence, rather than PVC, which had been used for the replacement of other fences in the community. The plaintiff rejected a $2 million settlement offer (which had been extended to protect an excess layer) on the last day of trial, holding firm on a $7 million demand.
Candy Barr Heimbach and Michelle Wilson (Bethlehem, PA) achieved a defense verdict on behalf of their hospital-client. The plaintiff had alleged negligence in the interpretation of a mammogram, claiming damages relating to an eleven-month delay in the diagnosis of her breast cancer. The jury found that there was no negligence.
Professional Liability
Chuck Craven (Philadelphia, PA), on the Motion and Brief, and Dave Williams (Bethlehem, PA) argued a Motion for Summary Judgment on behalf of the East Stroudsburg School District. The plaintiff alleged she fell on cracked curbing at the Bushkill Elementary School. According to the complaint, the plaintiff's fall occurred on October 19, 2004, and suit was instituted on October 19, 2006. During their depositions, however, the plaintiffs testified that, in fact, the fall had occurred on October 18, 2004. Numerous medical records substantiated the earlier date. Chuck prepared a Motion for Summary Judgment and Brief arguing (among other things) that the statute of limitations had expired and the suit was time-barred. At oral argument, the plaintiffs' counsel argued that his clients were "confused" at their deposition as to the date of the accident. Monroe County Court of Common Pleas Judge Linda Miller was not confused and granted summary judgment as to all three defendants on the grounds that the plaintiffs had failed to file their action within the applicable two-year statute of limitations.
Terry Lefco and Aaron Moore (Philadelphia, PA) prevailed on their Motion to Dismiss all claims asserted against their clients, three employees of the Insurance Department of New York, and the New York Liquidation Bureau. The plaintiff had previously been a defendant in a case brought by the Liquidation Bureau in New York state court, which resulted in a jury verdict against her for nearly $13 million. The Liquidation Bureau then transferred the judgment to Chester County, Pennsylvania, where the plaintiff resides, and initiated execution proceedings against her, specifically seeking to have the Sheriff of Chester County sell the plaintiff's multi-million dollar home and other assets. The plaintiff contended that the judgment was invalid because it did not result from a 5/6ths jury verdict as required under New York Law because only six of eight jurors found against her. She had previously appealed this issue in the New York courts; however, the New York appellate court determined that she, through her attorneys, waived her right to a 5/6ths jury verdict. Nonetheless, once the execution proceedings were initiated, the plaintiff filed complaints in Philadelphia and Chester County against our clients alleging that as related to the execution proceedings, they were liable to her for violation of her right to due process, violation of her right to equal protection, abuse of process, and intentional infliction of emotional distress. She further sought an order striking the judgment entered against her by the Liquidation Bureau and prohibiting enforcement of the judgment. The defendants removed both actions to the United States District Court for the Eastern District of Pennsylvania and promptly filed Motions to Dismiss all claims asserted against them. The District Court dismissed all claims, primarily concluding that the full faith and credit clause of the United States Constitution required Pennsylvania to recognize the New York judgment; thus, the execution proceedings were proper.
Dana Argeris and JoAnn Diaz (Cherry Hill, NJ) obtained summary judgment dismissal in a coverage action concerning the applicability of provisions of competing policies issued by two insurance carriers with regard to underinsured insurance benefits. The plaintiff claimed she sustained injuries in a motor vehicle accident with a value greater than the monetary settlement she received from the carrier of the tortfeasor. The plaintiff sought underinsured insurance benefits under her personal automobile insurance policy as well as her husband's business automobile insurance policy. In our motion, we successfully argued that the Step Down Limit of Insurance provision contained in our client's policy reduced any potential exposure to the lower limits of the plaintiff's other policy; and, moreover, pursuant to the Other Insurance provision of our policy, any coverage was rendered excess of the other policy under which the insured was a named insured. The court granted our motion for summary judgment and dismissed our client accordingly.
John Gonzales and Deirdre Collins (King of Prussia, PA) obtained a Directed Verdict before the Honorable Cynthia Rufe after a six-day sexual harassment/malicious prosecution trial in the U.S. District Court for the Eastern District of Pennsylvania. A correctional officer from the Montgomery County Correctional Facility accused the warden of sexually harassing her and then filing false criminal charges accusing the plaintiff of having sexual relations with multiple inmates. The criminal charges were eventually nolle prossed by the District Attorney's Office. The demand had exceeded $3 million.
Terry Lefco and Aaron Moore (Philadelphia, PA) obtained a defense verdict in a complex legal malpractice case brought in the Philadelphia County Court of Common Pleas in which the plaintiff claimed $99 million in damages. The plaintiff, an insurance agency, alleged that our attorney-client failed to timely prosecute its third-party beneficiary contract claim against a reinsurer who allegedly put the plaintiff out of business by terminating its reinsurance contract with an insurance company. The plaintiff, through previous counsel, originally filed its underlying third-party beneficiary contract claim against the reinsurer in the U.S. District Court for the Eastern District of Pennsylvania 1994. In 1997, the District Court ordered the case to arbitration. Each party was to select an arbitrator. The two selected arbitrators were to then select a neutral arbitrator. In 2001, the plaintiff's original counsel withdrew his appearance and our client undertook to continue the representation. The plaintiff, however, had yet to name its arbitrator. Upon the plaintiff's naming an arbitrator in late 2003, the underlying defendant reinsurance company moved to dismiss the claim for lack of prosecution. That motion resulted in a dismissal of the underlying third-party beneficiary claim. The plaintiff then filed its legal malpractice claim against our client seeking recovery of what it claimed would have been awarded had the underlying case gone to arbitration. The plaintiff's last settlement demand had been for $7 million.
