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On the Pulse…Important and Interesting Litigation Achievements*…We Are Proud of Our Attorneys for Their Recent Victories

December 1, 2016

Defense Digest, Vol. 22, No. 4, December 2016

 

Casualty Department

Following a two-day trial in Berks County, Brooks Foland and Brittany Bakshi (Harrisburg, PA) obtained a defense verdict on behalf of our client in a negligence action arising from a motor vehicle accident. The plaintiff filed suit seeking compensation for her broken left wrist, foot and ribs. The focus at trial centered on liability and the plaintiff’s attempt to prove circumstantially, and without a liability expert, that our client was speeding. The plaintiff was unsuccessful in her attempt as the jury returned a unanimous verdict of “no negligence” after ten minutes of deliberation. The plaintiff’s pre-trial demand had been $250,000.

Vlada Tasich (Philadelphia, PA) obtained a defense verdict on the issue of negligence for a utility company employee who rear-ended the plaintiff while driving in wintery conditions. As a result of the accident, the plaintiff alleged a complete rotator cuff tear that required surgery and multiple stints of therapy, but with no relief. The plaintiff husband was a passenger in the vehicle operated by his wife. The speed limit was 55 mph. It was dark and snowing, and she testified to traveling 30 mph. A vehicle traveling two to three car lengths ahead of them began to swerve, and the plaintiff’s wife started braking abruptly. The leading vehicle regained control and managed to drive away. Our client was maintaining the same distance and speed behind the plaintiff, but could not stop in time. The wife testified that she felt the speed and distance she kept from the vehicle in front of her was safe and appropriate for the prevailing weather conditions. Our client said the same for himself. Vlada argued that our client, supported by the plaintiff’s wife’s own testimony, acted in a reasonably careful manner by trying to safely operate his vehicle given the overall road conditions and that sometimes accidents happen despite the exercise of reasonable care. The jury returned a defense verdict after 15 minutes and found that our client was not negligent.

Samuel Higginbottom and Michael Archibald (Tampa, FL) obtained a defense verdict in a negligence action brought against our client, a rent-to-own business. The plaintiff, an insurer exercising its subrogation rights under an insurance policy, alleged that our client improperly installed a clothes dryer vent tube in a tenants’ apartment, resulting in a fire that destroyed eight apartments owned by its insured. Our client’s limited records indicated the dryer was installed at the tenants’ prior address, and our client had no record of it being moved to the insured’s apartment complex. The tenants (husband and wife) were adamant that our client installed the dryer. The store manager was insistent that our client did not install the dryer because the vent tube clamps and materials were not the type the company used. After a four-day trial, the jury answered the preliminary verdict question as to whether the defendant installed the dryer at the apartment complex in the negative.

Maureen Kelly (Scranton, PA) obtained summary judgment on behalf of our client, a commercial property owner. The plaintiff alleged a slip and fall on ice and snow in the parking lot of a strip mall. Our client owned the property but had retained a property manager to oversee the daily operations of the property. The plaintiff claimed that we retained some control over the property by, inter alia, requiring approval for property improvements that would cost over a certain sum of money. Meg successfully convinced the judge that our client was a landlord out of possession and, therefore, no duty was owed to the plaintiff.

After a jury trial before Magistrate Judge Timothy Rice in the U.S. District Court for the Eastern District of Pennsylvania, Keith Heinold and Michael Salvatti (Philadelphia, PA) obtained a defense verdict on behalf of a motorcycle manufacturer. The plaintiff alleged that he regularly let his motorcycle idle in his garage to warm it up in the winter. On the day in question, the plaintiff became distracted by a telephone call and forgot about the motorcycle, which eventually overheated and caught fire, causing significant damage to his home. The defense of our client focused on the fact that the motorcycle was air cooled, which, unlike an engine with a radiator, needs movement for cooling, and on two warnings in the motorcycle’s rider’s manual that specifically instructed users not to leave the motorcycle idling at a standstill because a fire could result. At trial, the plaintiffs argued that the motorcycle was defectively designed and never should have caught fire, and that the warnings in the manual were inadequate because an additional on-product warning was required. On the fourth day at trial, the jury returned a unanimous defense verdict.

In a premises liability case alleging a spinal injury, Mark Riley (King of Prussia, PA) obtained a defense verdict after a four-day trial in Philadelphia. ​The plaintiff alleged that she slipped and fell on a spill on the premises of the defendant grocery store. She claimed that she underwent two years of treatment for resulting back injuries and experiences ongoing pain and disability. Mark was able to establish that the defendant store had and followed an exemplary floor inspection policy and that there was no negligence. Mark also highlighted problems with the plaintiff’s credibility, including a prior accident and inconsistent statements in her medical records and at deposition. Further, Mark was able to preclude the expert testimony of the plaintiff’s medical “wrap up” expert. The jury deliberated for only 90 minutes before rendering a defense verdict.

Matthew Hall and David Williams (Allentown, PA) received a significant victory in a highly-contested food poisoning case. ​The judge granted our motion for judgment on the pleadings. He also dismissed the joinder complaint that had been filed by the original defendant restaurant against numerous other restaurants where the plaintiff had allegedly purchased food within the previous seven days before becoming ill.

Health Care Department

Candy Barr Heimbach (Allentown, PA) obtained a defense verdict for our client, an orthopedist, whom the plaintiff alleged caused him to sustain a soft tissue infection following aspiration and injection of his left knee. ​The plaintiff, who had severe osteoarthritis in that joint as a result of a prior injury, sustained a work injury. He sought follow-up care from our client after his knee failed to progress, despite conservative treatment and physical therapy provided by his workers’ compensation provider. At his second visit with our client, the plaintiff had a swollen, painful knee, whereupon an aspiration and injection were performed. The plaintiff developed a MSSA infection that required debridement surgery and IV antibiotics. He ultimately underwent total knee replacement and claimed to have developed low back complaints as a result of an altered gait due to his knee issues. On cross-examination of the plaintiff’s orthopedic standard of care expert, Candy was able to establish that his opinions were based entirely upon his acceptance of the plaintiff’s factual assertions and that, if those assertions were incorrect, his opinions were necessarily flawed. Candy was also able to establish that, given his advanced osteoarthritis, the plaintiff would have required knee replacement surgery regardless of this incident. The jury deliberated for 40 minutes before returning a verdict in favor of our client.

Matthew Keris and Robert Aldrich (Scranton, PA) obtained a defense verdict in a medical malpractice case in the U.S. District Court for the Middle District of Pennsylvania. ​The plaintiff alleged to be permanently disabled and in a wheelchair, requiring home health care for the rest of her life, as a result of an Emergency Room physician’s failure to timely diagnose and treat a viral infection involving the 7th and 8th cranial nerves (Ramsay Hunt Syndrome). We represented the ER physician, his employer (who staffed the ER) and the hospital. Plaintiff’s counsel submitted a $4 million life care plan to the jury for consideration, and the final settlement demand was $2 million. The jury agreed with the defense’s position that the ER doctor did not deviate from the standard of care. Because of this, no liability could be found against our client or any of the other defendants.

Following a day of jury selection and a four-day trial in Cumberland County, Pennsylvania, Craig Stone (Harrisburg, PA) obtained a defense verdict on behalf of a radiologist and his group. Our client interpreted an MRI to show a herniated lumbar disc, without nerve root impingement. He admittedly did not see or report a small disc protrusion at or near the L3 nerve root, which he saw in retrospect. The plaintiff, a chiropractor, contended that she would have had surgery sooner if our client had identified a free fragment of disc impinging the nerve root. Her treating neurosurgeon testified that the sooner a compressed nerve is freed, the more favorable the outcome. Our defense experts in neuroradiology, orthopedic spine surgery and neurosurgery disputed the finding of a large, free impinging fragment at the time of the MRI, although one was found at surgery two months later. The plaintiff’s settlement demand was $850,000 based on permanent nerve injury, lower extremity weakness and a pronounced limp. The jury returned in 30 minutes with a unanimous finding of no negligence.

Fredric Roller, Mary Kate McGrath and Michelle Moses (Philadelphia, PA) obtained a defense verdict in state court in Montgomery County in a case involving aspiration pneumonia suffered during a routine colonoscopy. We represented a gastroenterologist who had nothing to do with the administration of anesthesia. Following completion of the procedure, the plaintiff aspirated and was transferred to a hospital where he was diagnosed with aspiration pneumonia, treated and discharged after two days. He went on to suffer numerous exacerbations of pre-existing COPD (which he claimed had never occurred prior to the aspiration), which the defense maintained was due to his history of heavy smoking. There were no issues concerning the colonoscopy. Although we had the plaintiff’s sole liability expert disqualified, we remained in the case under a “Captain of the Ship” agency theory. The trial lasted for seven days, at the conclusion of which the jury deliberated for 12 minutes before returning a defense verdict. 

Professional Liability Department

Martin Schwartzberg (Long Island, NY) was successful on a motion to dismiss where the plaintiffs claimed that there were various design and construction defects in a building that was converted to a condominium. ​Marty represented the engineer who prepared the plans and specifications for renovations to the mechanical systems in the building. The engineer was impleaded by the sponsor of the condominium conversion, which asserted claims against the engineer for indemnification and contribution. The court granted our pre-answer motion to dismiss, holding that, since the sponsor was sued for its own active wrongdoing, it could not obtain indemnification from the engineer. The contribution claim was dismissed by the court, which held that contribution was not available where the claims being asserted were seeking damages for economic loss.

Timothy Schenkel and David Oberly (Cincinnati, OH) secured a victory in Ohio’s First District Court of Appeals in Cincinnati that affirmed summary judgment that was originally granted to Tim and David’s client at the trial court level. ​In that case, the plaintiff was discharged from bankruptcy five months after filing her lawsuit against our client. Importantly, the plaintiff failed to disclose her lawsuit to the bankruptcy trustee at any time before she was discharged. The court granted summary judgment on the basis of judicial estoppel, which the plaintiff appealed. On appeal, the First District affirmed the trial court’s decision, finding that, as a result of pursuing her claim without disclosing it as an asset in bankruptcy, the plaintiff was judicially estopped from pursuing the claim, entitling Tim and David’s client to judgment as a matter of law.

James McGovern (Pittsburgh, PA) was successful in having a case voluntarily dismissed upon preliminary objections. The plaintiff, a towing company located in Western Pennsylvania, towed a vehicle at the request of the Pennsylvania State Police after a single-vehicle accident. The towing company stored the vehicle for many months and then filed suit against the vehicle owner and our client, which had financed the purchase for the owner, for breach of contract and unjust enrichment. The plaintiff was seeking several thousand dollars in accident removal, towing and storage fees, as well as attorney’s fees. Jamey filed preliminary objections in the nature of a demurrer on the basis that the Pennsylvania Vehicle Code, Abandoned Vehicles and Cargo section, precluded the plaintiff from seeking recovery of such expenses and limited the plaintiff’s recovery to the salvage value of the abandoned vehicle (which was a total loss). Plaintiff’s counsel did not file a response in opposition and then dismissed the case with prejudice.

Adam Calvert (New York, NY) successfully argued the appeal of a summary judgment motion before the Appellate Division, First Department, which resulted in the affirmance of the trial court’s order granting summary judgment to his client. Adam represented the owner of a construction project, a high-rise residential building. The plaintiff worked for a cleaning company that performed “final cleans” of the apartments, which consisted of cleaning each apartment after construction was completed. The plaintiff fell from a kitchen counter while cleaning the top of a cabinet. The main issue in the case was whether the plaintiff’s work qualified for protection under Labor Law 2240(1), which imposes absolute liability on owners of construction projects for workers who fall from a height. Protection under 240(1) depended on whether the plaintiff’s “cleaning” work was protected under the statute, requiring the application of a four-factor analysis from a recent Court of Appeals case Soto v. J. Crew, Inc., 998 N.E.2d 1045 (N.Y. 2013). In one of the first appellate cases to interpret Soto, the court upheld the trial court’s decision.

Lila Wynne and Kevin Bright (Cherry Hill, NJ) prevailed on a motion for summary judgment as to liability in an environmental case involving claims related to a leaking underground storage tank (UST). In this environmental subrogation case, our client sued a fuel delivery company under the New Jersey Spill Compensation and Control Act for delivering fuel oil to the UST while it was leaking, as well as asserted claims for negligence and breach of contract. In response, the defendant filed a cross-motion, seeking to hold our client liable under the Spill Act and to dismiss the negligence and breach of contract claims. Following oral argument, the court granted our motion and denied the cross-motion, finding that a fuel delivery company can be liable under the Spill Act for delivering to a UST while the UST is leaking, even absent actual or constructive notice of the leak.

David Shannon and Shane Haselbarth (Philadelphia, PA) obtained a favorable decision from the Third Circuit Court of Appeals in a data breach class action lawsuit. The plaintiffs and the proposed class members were employees and customers of an on-line prescription drug company. The company was allegedly a victim of a hacking incident in which W2 and other personal information of employees and customers was compromised. In 2015, our client’s motion to dismiss was granted on the basis that no implied contract existed with the entities for privacy protection and the negligence claims were not available under Pennsylvania law. The plaintiffs appealed to the Third Circuit, which affirmed the District Court’s decision dismissing all counts against our clients.

Howard Mankoff (Roseland, NJ) obtained a defense verdict in a malpractice case where our client was a lawyer whose former client obtained a building permit to expand his beach house. When the construction was almost complete, the town issued a stop work order on the basis that the construction did not conform to the plans filed with the town. Our client determined that someone employed by the town altered the plans. Our client filed an answer and counterclaim. Although our client was successful in obtaining an order allowing the plaintiffs to complete construction, several causes of action in the counterclaim were dismissed because our client did not comply with the notice provisions of the Tort Claims Act and the statute of limitations. These dismissals were sustained by the Appellate Court, with one exception, which was remanded for trial. Our client did not represent the plaintiffs on the remand because the plaintiffs had not paid our client. Other counsel tried the case for three weeks and then settled while the jury was deliberating. The plaintiffs then sued our client, arguing that the case would have been worth more if the barred claims were still in the case. The malpractice case was tried over 13 days. The jury found that our client deviated from accepted standards of practice, but that the deviations did not proximately cause the plaintiffs to suffer any damages. The demand at the start of trial was $2 million. The plaintiffs rejected an offer of $425,000.

Edwin Schwartz and Nicole Ehrhart (Harrisburg, PA) were successful in having the plaintiff’s entire complaint dismissed upon preliminary objections for failure to state a claim. The plaintiff was a former attorney and county commissioner who was indicted in the “Kids for Cash” scandal. A federal jury convicted the plaintiff of conspiracy to commit bribery, bribery, conspiracy to commit extortion under color of official rights, extortion, conspiracy to commit money laundering, and similar relation charges. The plaintiff subsequently filed a legal malpractice action against his criminal attorneys, one of whom was our client, alleging 22 separate instances where our client purportedly breached his duty of care. We were able to convince the court that the plaintiff had exhausted his criminal appellate rights and had been unsuccessful in establishing any basis to overturn the jury’s conviction. As such, under the law of Pennsylvania, the plaintiff could not prove actual innocence based upon attorney error. Therefore, the court dismissed the plaintiff’s claim based upon his inability to establish a claim for legal malpractice as a matter of law.

Rachael von Rhine (Cherry Hill, NJ) obtained a defense verdict at trial on behalf of a condominium association. The plaintiff filed a complaint seeking damages arising from an incident where an entity purchased a condominium directly above the plaintiff’s. The entity purchased the foreclosed condominium at a Sheriff’s sale and proceeded to perform unauthorized renovations that resulted in extensive flooding in the plaintiff’s unit. The defendant owner filed a third-party complaint, alleging that the flooding was caused by the condo association’s failure to maintain the common elements. At trial, Rachael was able to get the defendant/third-party plaintiff and their expert to admit that after conducting a site inspection, there was no evidence of any defects with respect to the common elements. The court agreed, and all claims against the condominium association were dismissed.

John Gonzales and Candace Embry (Philadelphia, PA) obtained a defense verdict in a Section 1983 excessive force case before the Honorable John E. Jones in the U.S. District Court for the Middle District of Pennsylvania. ​The plaintiff alleged that a police sergeant physically attacked him after he had been arrested and handcuffed. The incident was captured on video by a neighbor who posted the video on YouTube. The defense presented evidence that the sergeant struck the plaintiff in an effort to separate from him after the plaintiff attempted to wipe blood onto the sergeant’s uniform. The jury found that the sergeant’s actions were reasonable and did not violate the Fourth Amendment.

James McGovern (Pittsburgh, PA) successfully obtained dismissal of a case filed in the U.S. District Court for the Western District of Pennsylvania alleging violations of Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968; the Pennsylvania Wiretapping and Electronic Surveillance Control Act; and Section 1983 equal protection rights. The plaintiff was an employee of a charitable organization and was terminated for insubordination. While she was being fired, the executive director of the charity had his conversation with her transmitted via intercom to a supervisor in an adjacent office. The plaintiff alleged that she was not aware of anyone else hearing her conversation and did not provide consent. Chief Judge Joy Flowers Conti agreed with Jamey’s arguments that, (1) pursuant to federal law, only the consent of one participant to a conversation (i.e. the executive director) is required, and (2) the charity is a non-profit organization and cannot be considered a “state actor,” nor was it “acting under color of state law” when it discharged the plaintiff. Judge Conti dismissed the federal claims with prejudice and declined to exercise supplemental jurisdiction over the remaining claim for violation of the Pennsylvania Wiretapping Act, allowing the plaintiff leave to re-file this claim in state court. Should the plaintiff do so, Pennsylvania case law is clear that the use of a telephone intercom used in the ordinary course of business does not constitute “wiretapping.”

Christopher Conrad (Harrisburg, PA) successfully defended a local Intermediate Unit in a special education due process hearing. ​The dispute involved a five-year-old student with multiple disabilities who is receiving services through the IU’s preschool early intervention program. The student’s parents are separated and live in different school districts, but they share educational decision-making rights. The mother retains primary physical custody. The father contended the program offered by the IU was not appropriate for the student and failed to provide her with a free, appropriate public education as the IDEA requires. He also contended that the student should be placed in a multiple disabilities classroom offered by the mother’s school district of residence. By contrast, the mother objected to enrolling the student in kindergarten because she wanted the student to remain in the IU’s early intervention program for another year. The father filed a complaint against the IU, alleging its program failed to offer the student an appropriate education. He also sought an order compelling the IU to place the student in the district’s kindergarten program. The hearing officer agreed with our argument that as a matter of law the IU could not be compelled to place the student into a school-age program offered by a local education agency over which the IU has no control, particularly in view of the mother’s objection to enrolling the student in kindergarten. The hearing officer also agreed that the early intervention program offered by the IU was appropriate for the student, which was enabling her to make meaningful educational progress. Consequently, the hearing officer denied and dismissed all of the father’s requests for relief.

Workers’ Compensation Department

Michele Punturi (Philadelphia, PA) obtained a seven-figure reimbursement from the Supersedeas Fund of the Commonwealth of Pennsylvania. This extraordinary recovery of $1,771,961.74 for medical payments stemmed from a complicated fact pattern. The facts of the case involve a 2005 injury with a self-insured employer who had excess coverage provided by a carrier that was a reimbursement policy. In 2000, the employer lost its self-insurance status and replaced it with a workers’ compensation self-insurance replacement policy. The claim then pierced to self-insured retention, and the replacement policy carrier became insolvent (liquidated in 2001), and upon liquidation, the claim came under the ongoing payment policy of the Pennsylvania Workers’ Compensation Security Fund administered through its third-party administrator. The TPA administered payment of the ongoing claim benefits and submitted reimbursement requests to the excess carrier under the excess policy originally issued to the employer. A URO request was filed challenging the medical treatment as of April 5, 2000, and a decision was issued finding the treatment reasonable and necessary, which was appealed and remanded back to the judge. The judge ultimately found the treatment to be neither reasonable nor necessary by decision in August 2014. No further appeals were filed. In January 2014, the indemnity aspect of the claim resolved by Compromise and Release. The issue in the case was the right/standing of the excess carrier to secure reimbursement for the medical payments found unreasonable and unnecessary. The analysis for the Supersedeas Fund reimbursement focused on Regulation 127.208(g), which addresses URO decisions and reimbursement from the Fund, and Section 443(A), pertaining to supersedeas requests and denials, and the fact that the excess carrier was ultimately the liable entity. The Supersedeas Fund was in agreement with Michele’s arguments and awarded the significant reimbursement.

Tony Natale (Philadelphia, PA) successfully defended a Lehigh Valley textile facility in an appeal stemming from litigation involving a neck and shoulder injury. ​In the underlying litigation, Tony convinced the judge that the claimant’s departure from work after a shoulder injury was unrelated to that injury. On appeal, the claimant argued that the judge relied on speculative evidence presented by the employer to support a non-work-related disability. Tony argued to the Workers’ Compensation Appeal Board that the underlying evidence at issue marked a legitimate area of inquiry and examination, and the end result was that the claimant’s credibility was suspect. The Board agreed, and the appeal was dismissed.

Tony Natale (Philadelphia, PA) was successful in defending a Berks County mushroom farm in an action involving incessant medical treatment stemming from a work-related low back injury. The claimant lives in Berks County and treated with a Philadelphia physician for what the employer argued was palliative, non-essential pain relieving modalities. Tony was able to make a legal argument that allowed the judge to find in the employer’s favor without any review of the treatment in question. All payment allegations for medical treatment at issue were dismissed based on a res judicata finding by the judge.

Ross Carrozza (Scranton, PA) secured a favorable decision in a highly contested claim and penalty petition case involving an employer/owner who was alleged to have assaulted the claimant over a work-related issue. The employer testified that she had a romantic relationship with the claimant and that it was the claimant who assaulted her at their shared apartment on the date in question. The judge found the claimant’s testimony not credible, based upon Ross’s cross-examination of the claimant concerning the fact that the Philadelphia Police Department Domestic Violence report indicated that the altercation had nothing to do with the employer’s business but, rather, with a personal altercation over an alcohol issue. As such, the claimant was not in the scope and course of employment. 

*Prior Results Do Not Guarantee A Similar Outcome

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Defense Digest, Vol. 22, No. 4, December 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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