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

September 1, 2017

Defense Digest, Vol. 23, No. 3, September 2017

CASUALTY DEPARTMENT

Samuel Casolari (Cincinnati, OH) obtained summary judgment in the Butler County Court of Common Pleas in favor of our client, an international retailer. ​The plaintiff was sitting on a pallet in the self-service aisle when a boxed sofa fell on her. The plaintiff claimed soft tissue injuries to her neck and back, as well as post concussive syndrome. The court granted summary judgment on the basis that the plaintiff failed to present any evidence that our client knew of a hazard that might harm a customer.

Laurianne Falcone (Philadelphia, PA) obtained a defense verdict at a binding arbitration hearing in Philadelphia. ​The plaintiff claimed that he slipped and fell on ice at a condominium complex and suffered a severe ankle fracture. We represented the association and the property manager. The arbitrator found in favor of all defendants due to the plaintiff’s own negligence. The arbitrator also found that our clients and their snow removal contractors were able to prove that they were on site and doing everything they could do to ensure the safety of the property, considering the weather conditions.

In a case involving a trip and fall on the grounds of a university, Robert Faller and Jennifer Roberts (Melville, NY) obtained summary judgment in favor of the firm’s client. ​The plaintiff was an employee of the university bookstore, which was operated by our client pursuant to a contract with the university. The plaintiff tripped on a metal grate in a loading dock area that was regularly used by bookstore employees as a means of ingress and egress. The plaintiff sued the university, which brought a third-party action for indemnification against our client. Robert and Jennifer argued that our client’s contract with the university required indemnification only for activities involving operation of the bookstore and that the plaintiff’s entrance into the building to begin her workday did not constitute such activities. We further argued that, inasmuch as the university was responsible for maintenance and repair of the loading dock area, any defect in the ramp’s condition would have been due to the university’s own negligence, as to which it was not entitled to indemnification. The court granted summary judgment dismissing the third-party action.

In another case handled by Robert Faller and Jennifer Roberts (Melville, NY), they obtained summary judgment in favor of our client in a case involving an alleged fall on snow and ice in a parking lot at an airport. ​Our client was a snow removal company hired to remove snow in various locations at the airport. The plaintiff alleged that our client failed to perform snow removal properly, as a result of which, ice was allowed to form, on which the plaintiff slipped. In a 19-page decision, the court granted summary judgment to our client. Following case law, the court found that our client: (1) did not cause or create a condition so as to become an instrument of harm; (2) as a third-party contractor, did not perform services upon which the plaintiff relied; and (3) did not assume such control over the parking lot so as to displace the owner with respect to a responsibility to third parties.

Ray Freudiger and David Oberly (Cincinnati, OH) received an Ohio 4th District decision upholding the jury’s defense verdict in a wrongful death case. The plaintiff was the estate of an 18-year-old woman who was struck and killed by a commercial truck as it was backing up an access ramp to deliver product at a grain receiving facility at the same time the plaintiff traversed onto the ramp. Ray and David represented the driver of the commercial vehicle, as well as the vehicle’s owner. Midway through the four-day jury trial, the court entered a directed verdict in favor of the owner of the commercial vehicle. At the conclusion of this lengthy trial, the jury returned a defense verdict in favor of the vehicle’s driver. Accordingly, the Fourth District affirmed the proceedings at the trial court level in their entirety, upholding the jury’s verdict that the decedent—and not Ray and David’s client—was wholly responsible for her injuries and resulting death.

In another matter handled by David Oberly (Cincinnati, OH), he obtained summary judgment on behalf of a hotel chain in a premises liability slip-and-fall action. ​A guest staying at the Cincinnati-area hotel sued the hotel after he allegedly slipped and fell while walking over a wet carpet mat situated in a hallway leading to the main lobby area of the hotel. Based upon favorable testimony elicited during the plaintiff’s deposition, David moved for summary judgment, arguing that our client was entitled to judgment as a matter of law because: (1) the plaintiff could not present any facts to establish that his fall resulted from the existence of a hazardous condition on the hotel’s premises; (2) the plaintiff could not identify the cause of his fall or the source of the water that allegedly caused the mat to become wet and hazardous; and (3) the hotel had neither actual nor constructive notice of the allegedly “wet” mat condition that served as the basis for the plaintiff’s fall. At the conclusion of oral argument, the judge ruled from the bench on the dispositive motion, granting summary judgment in favor of David and his client.

Patrick Furlong (Philadelphia, PA) successfully obtained summary judgment on a contested motion filed in the Philadelphia Court of Common Pleas. ​The plaintiff alleged she fell on droplets of water in a bathroom at the office building where she worked. The droplets were on the floor between the sink and paper towel dispenser and appeared to be from someone who had washed their hands. She did not know how long the droplets had been on the floor, had not previously complained about water on the bathroom floor, and there was no evidence of prior complaints. The motion, granted by Judge Daniel Anders, had argued that there was no evidence of actual or constructive notice from which the plaintiff could establish liability against the defendants.

Based on lack of jurisdiction over a truck manufacturer, Keith Heinold and Mike Salvati (Philadelphia, PA) prevailed on preliminary objections in Philadelphia County. ​The case was originally filed in the federal court, but jurisdiction was found to be improper. If a party is an LLC, citizenship for diversity purposes is determined by the citizenship of the members of the LLC. Our client’s sole member was a Pennsylvania citizen and, therefore, not diverse with a Pennsylvania plaintiff. The case was dismissed and subsequently refiled in Philadelphia County. Mike identified the issue of whether the tests for general jurisdiction and diversity jurisdiction were necessarily the same. The question became whether a company who is a citizen of Pennsylvania for diversity jurisdiction purposes could, nevertheless, argue it was not “at home” in Pennsylvania under the Daimler v. Bauman decision in the U.S. Supreme Court, and, thus, the plaintiff lacked jurisdiction over that company on general jurisdiction grounds. Mike’s research revealed cases from which we could argue that the test for jurisdiction for an LLC did not involve the citizenship issues present in diversity jurisdiction analysis. Rather, the court should look to the state in which the LLC was formed and its principal place of business. Our client was neither formed in Pennsylvania nor had its principal place of business in Pennsylvania, therefore, no general jurisdiction existed. Nor was there specific jurisdiction. The Philadelphia Court of Common Pleas agreed and dismissed the case.

After a two-week jury trial before Judge M. Teresa Sarmina, Christopher Santoro, Kevin Hexstall, John Hare, Christine Dower and Shane Haselbarth (Philadelphia, PA) obtained a defense verdict. ​The 64-year-old plaintiff contended that he developed asbestosis, which required him to use oxygen 24 hours a day, as a result of working with welding rods manufactured by the two defendants while working as a welder throughout his career. The defense presented evidence that welding rods do not release free respirable asbestos fibers and that working with welding rods does not expose the welder to asbestos. Additionally, the defense contended that the plaintiff did not have asbestosis because all of the plaintiff’s treating physicians diagnosed him with idiopathic pulmonary fibrosis. The only physicians who diagnosed asbestosis were the plaintiff’s experts. After two hours of deliberations, the jury returned a defense verdict and found the plaintiff did not have asbestosis.

HEALTH CARE DEPARTMENT

Bradley Blystone and Chanel Mosley (Orlando, FL) obtained a final summary judgment on behalf of an optometrist in a medical malpractice case. ​The plaintiff alleged she was neither informed of the elevated pressures in her eyes nor referred for a glaucoma evaluation by our client. She was later diagnosed with glaucoma and sought damages for permanent eye injuries, asserting that our client deviated from the professional standard of care. The court granted summary judgment on the basis that the plaintiff was unable to meet her burden of proof on causation as there was no evidence that the optometrist, who did in fact recommend a referral to a glaucoma specialist, caused or contributed to the diagnosis or progression of the plaintiff’s glaucoma.

After a four-week trial in Bergen County, New Jersey, Rosalind Herschthal and Heather LaBombardi (Roseland, NJ) obtained a defense verdict in a medical malpractice action that alleged negligence and lack of informed consent. The plaintiff alleged that our client, an internist, negligently prescribed an iron infusion to a 52-year-old man with severe anemia (from newly diagnosed colon cancer). During the test dose of the iron, the decedent had a reaction that was unobserved by the nurse. The allergic reaction continued until the decedent had a cardiac arrest. He was resuscitated, but he died a day later. The defendant asserted that the only treatment for the severe anemia was an iron infusion and that it was properly ordered—a test dose and observation by the nurse for an hour before the full dose is administered. Unfortunately, the patient did have a reaction, but the nurse was not around for 25 minutes of that hour. The doctor also asserted that he explained the treatment plan and alternatives to the patient before ordering the medication.

Victoria Scanlon and Robert Aldrich (Scranton, PA) were successful in obtaining dismissal of a case involving a health care center. ​The court concluded that dismissal was appropriate due to the lack of subject matter jurisdiction and lack of diversity. The decedent, a long-time resident of Florida living at a skilled nursing facility in Florida, was transferred to the defendant/long-term care facility located in Wilkes-Barre, Pennsylvania. She died 11 days later. The plaintiff claimed the decedent was a citizen of Florida at the time of her death. We filed a motion to dismiss the complaint based on lack of diversity, arguing that the decedent intended to make Pennsylvania her state of domicile and to reside there indefinitely. We argued that the Middle District of Pennsylvania did not have subject matter jurisdiction because the decedent and the long-term care facility are both considered citizens of Pennsylvania. We submitted documents from the decedent’s resident record, demonstrating that she intended to make Pennsylvania her state of domicile upon her admission. The court agreed, reasoning that the defendant submitted sufficient evidence to support that the decedent intended to make Pennsylvania her state of domicile and citizenship prior to her death and, therefore, was a citizen of Pennsylvania at the time of her death. The court granted the defendant’s motion and dismissed the complaint, noting that the plaintiff must file the complaint in a court with proper jurisdiction.

PROFESSIONAL LIABILITY DEPARTMENT

Patrick Boland and Mark Kozlowski (Scranton, PA) obtained summary judgment on behalf of their client, a police officer, in a civil rights action. The plaintiff had complained to the police about her ex-husband violating a protection from abuse order. After investigating, the police determined that no protection from abuse order was in effect, and they arrested the plaintiff instead of her former husband and charged her with: (1) tampering with public records or information; (2) false reports to law enforcement authorities; and (3) unsworn falsification to authorities. Following a preliminary hearing, the court dismissed the charges against the plaintiff. She then sued the police department and several individual officers, including our client, seeking damages for First Amendment retaliation, malicious prosecution and abuse of power. Following the close of discovery, the parties each filed a motion for summary judgment. The court granted the defense motion filed on behalf of our client, finding that probable cause existed for the plaintiff’s arrest and that the plaintiff could not establish the elements necessary to support her claims. Judgment was entered in favor of the police officer on all claims against him.

In a breach of contract/quantum meruit action in Chester County, Pennsylvania, Jeffrey Chomko (Philadelphia, PA) obtained a defense verdict on all claims. ​The matter involved a dispute between a premium financing company and a Managing General Agent (MGA) concerning the financing of an insurance policy for the A&E client of a retail agent (who defaulted under the agreement). Jeff successfully argued that there was no privity and that no contract existed between the premium finance company and the MGA. Thus, there was no legal basis for the contract claim to proceed against the MGA.

Christopher Conrad and Lara Dellegrotti (Harrisburg, PA) successfully defended an Adams County real estate broker who represented the seller in a residential real estate transaction. ​The homeowner plaintiffs claimed that the seller and our client failed to disclose certain material defects in the property prior to closing. The plaintiffs’ complaint consisted of claims against our client for negligent misrepresentation and alleged violations of Pennsylvania’s Unfair Trade Practice and Consumer Protection Law (UTPCPL) and Real Estate Sellers Disclosure Law (RESDL). In preliminary objections, Chris and Lara argued that the plaintiffs’ claims should fail as a matter of law because the complaint did not allege that our client had actual knowledge of any material defects or that our client made any misrepresentations concerning the property. The plaintiffs’ UTPCPL claim was premised primarily upon the Seller’s Property Disclosure Statement, which the court agreed did not apply to our client as our client did not prepare or sign the document, and because our client was not identified in the document as a source of any information about the property. The court also dismissed the RESDL claim on similar grounds, holding that the Disclosure Statement failed to identify any misrepresentation made by our client. Furthermore, the court emphasized the clear language in the RESDL, which provides that a seller’s agent shall not be liable for any violation of the RESDL unless the agent had actual knowledge of a material defect, which, again, the plaintiffs failed to allege.

Christopher Conrad and Nicole Ehrhart (Harrisburg, PA) successfully defended the board of directors of a condominium association in a binding arbitration. The plaintiff is the owner of a unit in a cluster of five townhomes located in the condominium development. The association is comprised of the owners of 55 total units clustered throughout the development. Each cluster is serviced by its own system of wooden railings and walkways. In 2014, the board completed an improvement project that included replacing the wooden railings that serviced the plaintiff’s unit and the other four homes in his cluster. The board assessed the plaintiff and the other four owners equally for the replacement cost. The plaintiff disputed the assessment, arguing the replacement cost should have been shared equally by all 55 owners in the development rather than by the five owners in his cluster only. The plaintiff sought relief under the Declaratory Judgment Act. After the court denied both parties’ summary judgment motions, the parties agreed to submit the matter to binding arbitration. The arbitrator agreed with the board that the cost to replace the railings was a common expense benefitting fewer than all of the units in the development, and, therefore, the board’s decision to assess the plaintiff and the other four unit owners only was correct and consistent with both the Condominium Act and the association’s governing documents. The arbitrator directed the plaintiff to pay the assessment, plus interest.

After an eight-week trial in Sarasota, Florida in this construction defect/defective design claim, Michael DeCandio and Amanda Ingersoll (Jacksonville, FL) obtained a defense verdict. The plaintiff purchased a new residence on Sarasota Bay for approximately $19 million from the original owner the week the Certificate of Occupancy was issued. He then began remodeling the 21,000-square foot home, which grew to a $19 million remediation claim. Of an original claim against 18 defendants, all but six settled. In a lesson on trial strategy, the six remaining defendants made an agreement to defend together and refrain from pointing fingers. The jury deliberated for three and one-half days. Three of the six co-defendants had verdicts against them, but our client and two others were completely exonerated.

Paul Krepps, April Cressler and Tim Stienstraw (Pittsburgh, PA) obtained summary judgment and dismissal of the plaintiff’s entire complaint in a complex police civil rights case. The plaintiff, a mentally-challenged individual, was alleged to have pushed off of a wall another resident of the personal care home where they both lived. The victim later died of his injuries. Our client, a detective, was assigned the investigation of this event. The plaintiff was charged with homicide after this investigation, which included an interview of the plaintiff, who confessed to pushing the victim off of the wall. At the preliminary hearing, criminal defense counsel alleged that the “confession” was coerced and that the plaintiff did not have the mental capacity to appreciate his constitutional rights. He was referred for a mental capacity evaluation to determine if he was competent to stand trial. After more than nine years in some form of custody, his criminal defense counsel moved to have the criminal charges nolle prossed, which was unopposed by the Commonwealth. The state court granted the motion, but without prejudice. Thereafter, the plaintiff brought suit against several defendants, including the detective. The court’s Memorandum Opinion found that probable cause existed for the plaintiff’s arrest and dismissed the false arrest and false imprisonment claims. The claim of intentional infliction of emotional distress was dismissed for lack of evidence of harm caused by the detective, and the court found that all causes of action were barred by the statute of limitations. The key to achieving summary judgment was the ability of April and Tim, relying upon their backgrounds as former prosecutors, to interpret many years of criminal court activity in order to demonstrate the cause for the plaintiff’s lengthy detention.

In a case filed against an insurance company, James McGovern (Pittsburgh, PA) obtained a defense verdict in the Court of Common Pleas of Fayette County, Pennsylvania. The plaintiff was the beneficiary of a term life insurance policy issued to his fiancé by the defendant. The fiancé denied any prior history of health and medical issues on the recorded telephonic policy application and on the written application. She died of cardiac arrest, coronary artery disease and diabetes mellitus four months after the policy was issued. Our client investigated the claim and rescinded the policy based upon false statements on the application. The beneficiary sued, alleging that our client wrongfully rescinded the policy, and made a demand of the full amount of the death benefits. The panel of three arbitrators unanimously ruled in favor of our client after a deliberation of approximately five minutes.

In another case handled by James McGovern (Pittsburgh, PA), he received a defense decision in a Financial Industry Regulatory Authority binding arbitration proceeding. ​The 78-year-old investor sued her financial advisor for breach of contract and breach of fiduciary duty, alleging that he failed to properly invest the cash in her IRA account, resulting in a rate of return that was much lower than allegedly promised by the advisor. The claimant sought a return of the advisory fees paid to the firm, the difference between the amount the account actually earned compared to the amount she thought it should have earned, interest, attorney’s fees and punitive damages. After considering the pleadings, testimony and evidence presented at the hearing, the arbitrator denied the investor’s claims in their entirety and entered an award in favor of the financial advisor.

Aaron Moore (Philadelphia, PA) obtained judgment on the pleadings on behalf of our attorney client in a legal malpractice action. ​The plaintiff alleged that the attorney failed to sue all entities that could have been liable to it under a breach of oral contract theory. In the underlying action, the attorney obtained a verdict at trial for the full amount due his client. However, the plaintiff alleged that the judgment was worthless and that the attorney should have sued others who could have been held liable and able to pay a judgment. In its opinion dismissing the claims, the trial court held that the plaintiff’s claims were barred by the applicable statutes of limitation because he failed to file a timely reply to new matter contradicting the attorney’s factual new matter averments. The trial court further held that, even if it were to accept the plaintiff’s untimely reply to new matter, its general denials to the factual averments in new matter were deemed admissions.

In an interesting case involving privity issues, Aaron Moore and Stephen Keim (Philadelphia, PA) successfully obtained dismissal of our attorney client by way of preliminary objections. ​In the underlying matter, the attorney represented the mother of an individual who was alleged to have been wrongfully shot and killed by a Philadelphia police officer. The mother served as the administrator of her son’s estate and claimed to be its primary beneficiary. Our client attorney settled the case for a substantial sum that was distributed to the mother/administrator, who thereafter shared the proceeds with her two other sons. Subsequently, the mother of the decedent’s two young children brought a malpractice and conversion action against the attorney, claiming that he knew or should have known that the decedent was the father of her children and that the attorney failed to protect her children’s interests as the sole heirs to the decedent’s estate. We filed preliminary objections, contending that neither the plaintiff nor her children had standing to bring a malpractice suit against the attorney because they had not retained the attorney to provide legal services. We further pointed out that the attorney could not have converted assets that never belonged to the plaintiffs. Initially, the Philadelphia Court of Common Please denied our preliminary objections without an opinion. A motion for reconsideration, however, resulted in our client’s dismissal.

Edwin Schwartz and Nicole Ehrhart (Harrisburg, PA) successfully defended an attorney in his individual capacity and in his capacity as executor of an estate. The plaintiff (the decedent’s son) had a verbal agreement to move into the decedent’s (his father’s) home and provide him with care. In exchange, the decedent agreed to leave his entire estate to the plaintiff, and he did so in a Will executed in 2010. After a deteriorating relationship, in May 2013, the decedent executed a new Will that essentially left the plaintiff with nothing. Clearly unhappy with the distribution scheme in his late father’s Will, the plaintiff filed a civil action in Dauphin County against our client. We filed preliminary objections challenging every claim, as well as standing. The court agreed that the plaintiff could not maintain any civil action against our client in his individual capacity or in his capacity as executor of the estate. As such, the entire complaint was dismissed, with prejudice.

WORKERS’ COMPENSATION DEPARTMENT

Ross Carrozza (Scranton, PA) successfully prosecuted a workers’ compensation termination petition. ​The claimant had his leg run over by a garbage truck while at work. After the recovery period, he contended that he could not perform his pre-injury job or go back to work and that he needed further treatment for Complex Regional Pain Syndrome. Ross was able to successfully prosecute the petition to terminate benefits before the Workers’ Compensation Judge, who found that the claimant had fully and completely recovered from his work-related injuries and was able to return to work without restriction.

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition and defended both a petition to review and a petition to reinstate on behalf of a Berks County canning, mushroom and food processing distribution facility. In 2013, the claimant had injured her bi-lateral upper extremities doing assembly line work. She underwent bi-lateral upper extremity surgery and returned to work, only to abandon the job one year later. Subsequently, an extremely sedentary-duty job was offered to her (visually examining mushrooms), which was refused. After litigation, indemnity benefits were suspended based upon the claimant’s unjustified refusal of available employment. The claimant then alleged that her condition severely worsened to such a degree that she was incapable of performing the job she had previously refused. Tony offered evidence to support the fact that the claimant’s injuries had fully recovered and that her work injuries (even if they allegedly worsened) did not prevent her from viewing mushrooms in a sedentary capacity. The claimant responded, arguing that her upper extremity injuries had “moved” into her shoulders bi-laterally and disabled her totally from employment. The Workers’ Compensation Judge reviewed the medical evidence presented by the parties and found the claimant to be fully recovered from her work injury, while further finding the claimant did not sustain any additional injuries or disabilities.

Michele Punturi (Philadelphia, PA) successfully litigated a termination petition on behalf of a retailer. ​The claimant sustained a work-related hand injury, for which he underwent surgery. Michele presented substantial, competent and credible evidence via the defense medical expert, who reviewed all the claimant’s medical records and diagnostic study films and performed two comprehensive physical examinations. The doctor ultimately concluded upon the second exam that the claimant was fully recovered. His testimony was accepted by the Workers’ Compensation Judge, and the termination petition was granted.

Andrea Cicero Rock (Philadelphia, PA) successfully defended a claim petition in which the claimant alleged that he sustained a work-related heart attack while lifting plywood in the course of his employment. Andrea offered evidence to support the fact that the claimant’s heart attack did not occur as a result of his work activities as a delivery driver but, rather, were symptoms that he had been having for some time. The Workers’ Compensation Judge was particularly persuaded by the testimony of the employer’s medical expert, that the claimant continued to work for three days after the alleged heart attack in his full-duty capacity before going to the Emergency Room. Based on the medical evidence, the judge found the claimant failed to met his burden of proof, and benefits were denied.

Lori Strauss (Philadelphia, PA) successfully defended a claim and penalty petition filed by the claimant, alleging that he sustained Charcot foot and specific loss of three toes as a result of an injury that occurred at work. Lori offered testimony from three employer fact witnesses. Additionally, there was testimony from medical experts regarding the serious nature of injury and causality. During cross examination, Lori was able to obtain an admission from the treating doctor that an incident that occurred while the claimant was on vacation was a substantial, contributing factor to the claimant’s need for surgical procedures. Ultimately, the Workers’ Compensation Judge found the employer’s fact witnesses and medical expert to be more credible than the claimant and his doctor. There was a significant lien, which the employer would have also been responsible for had the claim been found to be related. However, both petitions were dismissed, and no appeal was filed by the claimant.

Ashley Talley (Philadelphia, PA) was successful in defending against a claim petition and penalty petition for right shoulder injuries the claimant alleged were caused by repetitive, cumulative trauma at work. The claimant was employed as an assembly line worker for the insured, a thermometer manufacturer. Her specific job was to assemble various thermometer parts. During testimony, the claimant described her job as a very physical and high-volume position. However, Ashley was able to undermine these allegations by presenting witness testimony, as well as a live demonstration of the claimant’s pre-injury duties, to demonstrate how little physical exertion was actually required. This made a lasting impression on the Workers’ Compensation Judge, who also found testimony from the employer’s orthopedic expert to be more credible than that of the claimant’s well-recognized, vetted shoulder expert. The judge issued a complete denial of the claim and penalty petitions.

*Prior Results Do Not Guarantee A Similar Outcome

 

Defense Digest, Vol. 23, No. 3, September 2017. 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. © 2017 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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