Defense Digest

On The Pulse ….OUR LITIGATION ACHIEVEMENTS … We are Proud of Our Attorneys for Their Recent Accomplishments …

Dan Hart (Philadelphia) obtained a defense verdict on behalf of Kohler Company after a two-day trial.  The plaintiffs had alleged that a Kohler toilet malfunctioned and overflowed for approximately three days while the homeowners were away, causing extensive water damage to their residence.

Richard Kraemer and Dan Hart (Philadelphia) obtained judgment NOV for their client Oshkosh Truck Corporation.  In granting judgment for Oshkosh in this product liability case, Philadelphia Court of Common Pleas Judge McInerney vacated a $500,000 jury verdict.

Ed Tuite (Philadelphia), with the assistance of associates Julia Rafferty and Michele Mintz (Philadelphia), obtained a directed verdict on a troublesome spoliation issue in a month-long products liability trial.  The product was a Freightliner tractor-trailer.  The plaintiff lost his arm and was awarded $5.5 million in compensatory damages and $10 million in punitives.  Our client, Penske, will be completely indemnified by the product manufacturer.  Ed also obtained a summary judgment in the Philadelphia Court of Common Pleas on all issues of owner-out-of-possession and delegation of work site safety.  This was no small feat considering the incident happened in Philadelphia City Hall during its ongoing renovations.

Maureen Herron (Scranton) received a favorable decision from Workers' Compensation Judge Joseph Grady.  Judge Grady had previously granted the claimant's claim petition, but Maureen successfully argued on appeal that the case should be remanded.  Following remand, Judge Grady denied the claimant's claim petition.

Maureen also successfully obtained a decision and order from Judge Peleak.  The judge accepted her evidence that, although the claimant sustained an injury at work, work was available to him with the employer, but he chose not to return to the available employment.  Therefore, his claim petition was denied.

Ben Nicolosi (Scranton) obtained a defense verdict in a trip and fall case against Lowe's in Lackawanna County. The plaintiff, a 74-year-old woman, claimed that Lowe's employees loaded her cart with 200 pounds of product. When she was pushing the cart through the parking lot, she saw a drainage grate with a concrete border but was unable to avoid it. The wheels of the cart got snagged, and when the plaintiff moved to the side to hold the cart up, it fell on her. She suffered a rotator cuff tear.  The jury found both parties negligent, but attributed 85 percent to the plaintiff. Under comparative negligence, she recovered nothing.

Jack McGrath (Scranton) obtained defense verdicts on several jury trials over a 60-day period.  The first involved a 40-year-old plaintiff who was struck by an automobile.  The plaintiff was rendered totally disabled as a result of the accident, but Jack was able to argue that the plaintiff's negligence outweighed that of the defendant.  The jury in that matter found no negligence on behalf of the defendant.

The second case involved an 18-year-old man who was struck by a motor vehicle while riding his bicycle.  The accident resulted in the death of the plaintiff.  Jack was able to argue that the plaintiff's negligence far outweighed that of the defendant.  The jury came back with a finding of no negligence on behalf of the defendant.

The third case was a medical malpractice case involving two doctors and a hospital.  The plaintiff in this matter was a physician himself who claimed that as a result of the defendants' negligence, he suffered irreversible brain damage.  The doctor plaintiff in this matter was rendered totally disabled, and he will never practice medicine again.  Jack represented the hospital in a corporate negligence claim, as well as ostensible agency, and all three defendants were found not liable. 

Mike McGirney and Mindy Miller (Tampa) were successful in having the Second District Court of Appeal affirm the trial court's dismissal of an action against a life insurance agent.  The plaintiff, a trustee controlling an irrevocable life insurance trust, filed the action against the agent, claiming that the trust was damaged by the replacement of $5 million of existing life insurance by the agent.  When discovery uncovered evidence of misconduct by the trustee, the plaintiff and her attorney engaged in obstructive delay tactics to avoid having the case tried.  It was believed that the plaintiff was trying to delay the trial to keep evidence of the misconduct from the donor of the trust.  The plaintiff did the minimum amount of work on the case to keep it active.  The case was unsuccessfully mediated.  The plaintiff filed a motion to compel another mediation but never sent the motion for hearing.  A motion to dismiss for lack of prosecution was granted, which effectively dismissed the case with prejudice due to the age of the case.  The plaintiff appealed on the issue of whether settlement negotiations were taking place and whether this was sufficient activity to keep the case from being dismissed.  The Second District agreed that the purported negotiations and the motion to compel mediation were not sufficient record activity, and the dismissal was affirmed.

Mindy Miller (Tampa) obtained a summary judgment in a legal malpractice case in which the plaintiff alleged that the client lawyer had failed to file a lawsuit prior to the expiration of the statute of limitations.  Mindy was able to show that the plaintiff fired the lawyer, and that the plaintiff hired another lawyer before the statute expired.  Mindy also successfully argued that the plaintiff could not show that she had suffered any damages as a result of the failure to file the lawsuit.

Dan Sherry (Newtown Square) obtained a defense verdict in a case where he represented a community hospital and several radiologists.  The plaintiff was a 59-year-old female who had gastro-intestinal bleeding.  A number of tests were run, but no definitive diagnosis could be made.  The plaintiff ultimately was diagnosed with a sarcoma (malignant) and died several months later.  The defense was that all appropriate tests were run and correctly interpreted.  The radiologists were dismissed from the case, and the jury found that the co-defendant surgeon and gastroenterologists were not the ostensible agents of the hospital.  The jury did find the G-I defendants liable. 

Cynthia Banks (Scranton) obtained a nonsuit in a trip and fall case against Staples.  The plaintiff tripped on the front curb at the entrance of the store and alleged a tear of his rotator cuff.  The plaintiff's expert testified that Staples could have painted the curb.  He also acknowledged that there is no local ordinance or law requiring that the curb be painted.  The Lackawanna County judge found that the plaintiff failed to establish that Staples breached any duty of care.

Cynthia Banks and Alicia Caridi (Scranton) secured a dismissal of a case on a summary judgment motion.  The plaintiff alleged significant injuries when she walked between two parked cars into the street and was struck by their client, who was driving a van down the street.  The Luzerne County judge ruled that the evidence failed to establish any negligence on the part of their client.

Cathy Carey (Scranton) obtained a defense verdict in her first jury trial.  Liability was contested in this automobile accident case.  The plaintiff alleged that the insured, who had the stop sign, failed to yield the right of way to her and caused the accident.  The Luzerne County jury found that the plaintiff was 60 percent negligent and the insured was 40 percent negligent.

John Gonzales (Norristown) obtained a defense verdict in a flooding case tried in Bucks County involving Middletown Township and PennDOT.  The plaintiffs alleged that the Township contributed excessive runoff and failed to adequately control storm water, which caused a significant flood that destroyed eight homes.  The jury returned a verdict against PennDOT but found no liability on behalf of the Township.  The demand was $1.5 million.

John also obtained summary judgment in a land use civil rights case in which a township favored one developer over another based upon a donation to the Township's Open Space Fund.  The district court applied the shocks the conscience standard from the Third Circuit's decision in United Artists v. Warrington, a case which is being handled by Terry Lefco of our Philadelphia office.  The district court held that the Township's actions were not sufficient to support a substantive due process claim and entered judgment in favor of all defendants.  The demand was $4.5 million.

John Riddell (Newtown Square) received a compulsory nonsuit in favor of his client, JFK Hospital.  The case involved a claim against the hospital and physicians for the allegedly improper care of an elderly patient.  Damages were very significant as the patient developed gangrene and subsequently underwent three operations, resulting in the amputation of both legs.  Judge Thomas Watkins of the Court of Common Pleas of Philadelphia determined that the provisions of the MCare Act relating to expert qualifications applied to our case, which was filed in 2000.  The plaintiff's only medical expert was not currently licensed to practice medicine, and the court precluded his testimony.  Since the plaintiff was unable to make out a prima facie case of malpractice without the expert, motions for nonsuit were granted.

Paul Laughlin (Bethlehem) received a defense verdict in a case involving allegations of medical malpractice in the performance of a laparoscopic burch procedure during which the defendant surgeon lacerated the external iliac artery.  The injury required four subsequent procedures to be repaired.  The case was defended on the basis that the injury was a recognized complication of the procedure, which occurred in the absence of negligence.  The Northampton jury returned a verdict of no negligence.

Jody Mooney (Bethlehem) received a defense verdict after a three-day trial in Lehigh County.  The plaintiff, who had limited tort, claimed extensive damages, including a herniated disc and a large wage loss claim, as a result of a rear-end accident.  The accident happened when the plaintiff was merging from an off ramp onto an expressway, and for some reason suddenly stopped.  Our client bumped the rear of the plaintiff's car. Under the facts and circumstances of this incident, the jury found no negligence. 

Ross Carrozza (Scranton) received a considerable number of favorable decisions recently.  In one matter, Judge Kutz denied and dismissed the claimant's claim petition.  The judge believed Ross's fact witnesses over the claimant's testimony and found that the claimant had previously been terminated and, therefore, was not in the scope and course of his employment.

Another matter involved an Appeal Board decision which agreed with Ross's argument that the filing of the petition for review of utilization review determination was late under the regulations. 

In a third case Judge Kutz granted Ross's termination petition and denied the claimant's reinstatement and review petitions.

In a final case, Judge Kutz granted Ross's suspension and termination petitions.  The judge also deemed the utilization review issue moot based on the other decisions; thus, this was a complete defense decision.

Denis Dice (Philadelphia) obtained a defense verdict in a National Association of Securities Dealers arbitration. The third party claim against our client asserted a claim for indemnification in the event of an award based upon the claimant's allegations that she purchased an unsuitable over concentration of limited partnership units. However, the panel found that the claimant's claims were barred by the statute of limitations and NASD eligibility rule. The panel denied the claimant's claims and the third party claims in their entirety.

Denis obtained a defense verdict in another NASD arbitration.  The claimants alleged that the recommended variable annuity mutual fund sub-accounts were unsuitable in light of their stated investment objectives and risk tolerance, and that the broker recommended an over concentration of equity funds.  However, the panel rejected the claimants' claim and ordered the claimants to pay forum fees in an amount of $8,900.

Diane Magram (Cherry Hill) obtained a summary judgment motion before the Honorable Marie Colalillo in Camden County, New Jersey.  The plaintiff argued that he was not subject to the verbal threshold because he was an employee of a corporation.  Diane distinguished this case from the leading case law by arguing that the plaintiff in this instance was the sole decision maker and sole beneficiary of the election of the tort threshold.  In addition, Judge Colalillo found that the plaintiff did not meet either prong of the Oswin analysis; i.e., he did not have credible medical evidence of permanent injury, and he did not satisfy the serious impact prong of Oswin.  The plaintiff was previously awarded $65,000 at arbitration, based upon his alleged cognitive injury.

In another matter, Diane successfully argued a summary judgment motion before Judge Ronald Freeman in Camden, New Jersey. Judge Freeman agreed with Diane's argument that the plaintiff's injuries, bulging lumbar discs, did not pierce the tort threshold, nor did the injuries have a serious impact on the plaintiff's life.

Frank Wickersham (Newtown Square) obtained a favorable decision from a workers' compensation judge terminating a claimant's benefits for a 1995 work-related carpal tunnel injury.  He also received a favorable decision from the Workers' Compensation Appeal Board, affirming a judge's decision to modify a claimant's benefits to $22.00 per week, based on a labor market survey.

Patrick Carey (Erie) obtained a defense verdict in a federal civil rights case.  The plaintiff claimed two Erie police officers violated his civil rights by using excessive force during an encounter outside a bar.  The plaintiff claimed the police broke his nose, elbow, and teeth while arresting him.  After six days of testimony, the jury deliberated less than three hours, deciding the Erie police did not use excessive force when arresting the plaintiff.

Kacey Wiedt (Harrisburg) obtained a favorable decision on a claim petition on behalf of AIG.  The claimant alleged that he sustained a low back injury and was disabled from the injury.  The workers' compensation judge found that the claimant did not sustain a work injury but was disabled from a pre-existing injury.

John Mastronardi (Cherry Hill) successfully obtained a judgment awarding attorney's fees, pursuant to the New Jersey Insurance Fraud Prevention Act, against an insured who provided false and misleading information on an insurance application.  The insured failed to disclose prior policy cancellations, revocations, or non-renewals and also provided misleading information regarding the health and driving status of her husband.  The husband's driving record made him ineligible for standard market rates, and the insured implied that his health made him unable and unlikely to drive.  Five months after the policy was written, the insured added a second vehicle to the policy, which was questioned; but before the matter could be resolved, the husband was involved in a one-car accident and accumulated $150,000.00 in medical bills.  In addition to awarding fees and costs, the judgment voided the policy ab initio and eliminated the insured's claim for vehicle damage and the medical bills.

Bob Seiferth (Williamsport) obtained a defense verdict for two residents and the Williamsport Hospital in a Lycoming County.  This stillborn baby medical malpractice case alleged that the need for an emergency C-Section should have been recognized earlier.

Christopher Reeser (Williamsport) obtained summary judgment in three different cases.  The first case was a product liability/premises liability case in Centre County in which the court agreed that there was no evidence the plaintiff was injured by a defective product or by a dangerous condition of the supermarket Chris represented. 

The second case was in Sullivan County, in which the court dismissed a complaint against an insurance agency that allegedly had failed to properly advise an insured that the insured's coverage was insufficient. 

The third case was a limited tort case in Centre County in which a plaintiff, who was riding a bicycle, was hit by a truck operated by our client and suffered a hairline fracture of the fibula.  Judge Brown initially ruled that the plaintiff was not bound by his limited tort selection because he was on a bicycle.  However, he reversed himself after the Superior Court's decision in L.S. v. Eshbach was published.  Judge Brown then agreed that the plaintiff did not suffer a serious injury as a matter of law.

Tracy Burleigh (Wilmington) obtained her fourth lemon law defense verdict in a row on behalf of DaimlerChrysler.

Larry Berg and Sharri Horowitz (Cherry Hill) obtained a dismissal on behalf of Seabrook House, Inc., insured by United States Liability Insurance Co.  Judge Louis Donaldson in Camden County Superior Court granted the defense's motion for a directed verdict after a two-week trial and at the end of the defense's case.  In this case, the plaintiff, a 19-year employee of Seabrook House, an alcohol and drug treatment residential facility in Cumberland County, New Jersey, alleged that the defendant terminated her in retaliation for complaints to her boss, the president of the organization.  She claimed that during the last six months of her employment, six illegal activities occurred at the nonprofit organization, and she complained about all of them.  The plaintiff alleged that her termination violated the New Jersey whistleblower statute, Conscientious Employee Protection Act (CEPA).  The judge, after reading the briefs and hearing oral argument, found that the defendant had legitimately terminated the plaintiff due to restructuring and financial difficulties stemming from managed care.

Walter Klekotka and Walter Kawalec (Cherry Hill) were victorious in the New Jersey Appellate Division.  The plaintiff was injured while a patron at the Jewish Community Center in Atlantic City.  The trial court granted summary judgment under the Charitable Immunity Act, and the Appellate Division affirmed.  The court rejected the plaintiff's arguments that the Center was not exclusively a charitable organization, and that she was a beneficiary of the Center's works.

Kathy Walsh (Scranton) obtained a dismissal of a civil rights complaint filed against an insured school district, its superintendent, and a school principal.  The plaintiffs alleged that the school officials failed to take adequate steps to protect the minor plaintiff from physical attacks and the verbal intimidation of other students.  Chief Judge Vanaskie granted a 12(b)6 Motion to Dismiss on the basis that the plaintiffs failed to establish viable claims under either a state-created danger theory or a practice, policy, or custom theory.

Cynthia Banks (Scranton) obtained a defense verdict in an automobile accident case.  Negligence was admitted, but factual cause was not.  The plaintiff alleged soft tissue injuries to her neck and back, in addition to lost wages.  The Luzerne County jury found that the accident was not a factual cause of the plaintiff's injuries.  No defense expert was presented.

Jack Slimm (Cherry Hill) obtained a dismissal prior to trial in a legal malpractice action arising out of a real estate attorney's alleged failure to properly exercise an option in a lease on behalf of a medical group.  The trial court granted Jack's in limine motion for dismissal based upon his argument that the legal malpractice expert report submitted on behalf of the plaintiff was not sufficient to establish standard of care and causation.

Kara Pullman (Cherry Hill) obtained a summary judgment in favor of her client in a complex products liability action filed in Burlington County, New Jersey.  The plaintiff was critically injured when, during a test of the radio system, he fell several stories from a tower when a climbing peg came loose as a result of either a defective design or manufacture.  Kara was able to successfully argue that the plaintiff's attorneys failed to meet the requirement of New Jersey's fictitious defendant rule, 4:26.  Although the plaintiff had named fictitious persons and entities in their complaint, they did not comply with the strict requirements of the rule, as a result of which, the statute of limitations had run, thus barring the plaintiff's claims.

Dan Krebbs (Philadelphia) obtained a defense verdict in a case involving a woman who was shopping at a Lowe's store when she was struck in the head by a box that fell off a shelf.  The plaintiff developed epileptic seizures as a result of the accident.  Her demand was $7 million.  After a two-week trial, the jury deliberated for approximately one-and-a-half hours before rejecting the plaintiff's res ipsa loquitur and other negligence claims against Lowe's.

Jim Johnson (Philadelphia) obtained defense verdicts in three recent arbitration hearings involving property damage claims.  The plaintiffs did not appeal two of the defense verdicts.  Jim also testified at a major jury trial involving subrogation to recoup his prior attorneys' fees, costs, and settlement payment.  The defendant had refused to accept his prior tender of defense and request for indemnification.  The jury found in favor of our client and awarded damages in the amount of $186,000 plus $40,000 in interest.

Eric Fitzgerald (Scranton) obtained summary judgment for CNA in the Middle District on a case of first impression applying a "dual interests" exclusion in a directors and officers liability policy.  The  multi-million dollar claim was brought by a bank on assignment from individual directors who were alleged to have engaged in a check-kiting scheme through the use of interrelated, closely-held corporations. The court held that the exclusion unambiguously applied to all of the individual officers, despite allegations in the complaint that certain of the officers negligently failed to supervise the corporation's chief financial officer.  This decision will have a significant impact on attempts to obtain insurance recovery in corporate fraud cases.

Eric Fitzgerald and Michael Blazick (Scranton) obtained summary judgment on a policy cancellation case for Progressive.  The Middle District agreed that Progressive cancelled the policy during the statutory 60-day period, even though the cancellation did not go into effect until 72 days after the inception of the policy.

Michele Punturi (Philadelphia) received a favorable decision in a case involving four petitions: reinstatement, penalty, review, and termination.  Judge Kelly found all of Michele's evidence more substantial, credible, and competent over that of the claimant.  The judge denied the claimant's reinstatement, review, and penalty petitions and granted Michelle's termination petition.

Ed Tuite and Julia Rafferty (Philadelphia) obtained a defense verdict on behalf of Chubb Insurance in the uninsured motorist forum.  The claimant demanded in excess of $200,000.  Ed and Julia were able to raise serious credibility and governmental reporting issues that swayed the panel.

Lynn Nahmani (Norristown) obtained a defense verdict on behalf of a family physician in a medical malpractice matter after a jury trial before Judge Furber in the Court of Common Pleas of Montgomery County.  The plaintiffs complained that the defendant failed to timely diagnose diverticulitis.

Megan Cinberg (Norristown) obtained summary judgment in an action pending in the Eastern District of Pennsylvania where the plaintiff had alleged civil rights claims of religious discrimination and excessive force against a prison administration.

Ed Galang (Norristown) obtained a defense verdict on behalf of Glenn Mills after a jury trial in the Eastern District of Pennsylvania before Judge Smith.  The plaintiff filed a cause of action pursuant to 42 U.S.C. §1983, alleging violations of the First and Eighth Amendments of the United States Constitution.  The plaintiff also alleged state law claims of assault and battery against staff members of Glen Mills.

James McGovern and Dave Chmiel (Pittsburgh) obtained summary judgment on behalf of an attorney and his law firm in a legal professional liability case.  The plaintiff alleged causes of action based upon abuse of process and malicious prosecution against the defendants.  The court found that the defendant attorneys had probable cause of instituting and maintaining the underlying action and dismissed the plaintiff's complaint with prejudice.

Larry Berg and Sharri Horowitz (Cherry Hill) obtained a favorable decision from the New Jersey Department of Labor dismissing the petitioner's case. The petitioner claimed retaliatory firing for having filed a workers' compensation claim.  He also claimed an entitlement to damages.  After a trial and submitting briefs, the administrative law judge accepted all of the respondent's arguments, finding that no discrimination occurred.  The administrative law judge wrote that the respondent applied its absenteeism policy neutrally and terminated the petitioner pursuant to that policy.  The administrative law judge also held that no retaliation occurred because the respondent did not even receive service of the claim petition until a month after the petitioner's termination.  Finally, the petitioner would not have been entitled to back pay damages because he rejected the respondent's offer of reinstatement.