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

September 1, 2015

Casualty Department

Eric Weiss, Eric Yun, Shane Haselbarth and John Hare (Philadelphia, PA) obtained summary judgment on behalf of a large Japanese equipment manufacturer in a catastrophic brain injury case in a product liability action in Armstrong County, Pennsylvania. A front-end loader was being operated on a public highway and was making a left turn while a vehicle operated by a co-defendant was attempting to pass. The passing vehicle struck the raised bucket of the front-end loader, sheering off the top of the vehicle and, unfortunately, causing significant skull shattering and loss of brain tissue to the plaintiff, resulting in profound neurological defects and cognitive and physiologic disabilities. The plaintiff, 27 years old at the time of the accident, is totally dependent. The plaintiff claimed that the lighting array on the front-end loader was defectively designed because the “hazard” or “flashing lights” had been incorporated into the directional lighting such that when the vehicle’s hazard lights were turned on, the directionals were overridden by the hazard lights. We filed a motion for summary judgment contending that the operator of the passing vehicle unequivocally testified that he only observed red lights illuminated, not amber lights, and, thus, the purported defect could not have been a cause of the accident. The lower court granted summary judgment. The plaintiff’s motion for reconsideration was denied, and the case was appealed. The Superior Court denied a petition for appeal, and John and Shane were able to prevail at each level of the appeal.

Walter Klekotka (Cherry Hill, NJ) won a defense verdict in Monmouth County, New Jersey. The case involved a 90-year-old plaintiff who fell while walking to a seat in a darkened movie theater. She fractured her right dominant shoulder and elbow, requiring open reduction and internal fixation. Walt was successful in getting counsel to agree to an expedited trial in which the medical expert reports were submitted to the jury without the need for live testimony. This was done to limit the potential downside exposure as both experts agreed that the plaintiff was severely and permanently disabled as a result of the fall and necessary surgeries. The case involved a Medicare lien of $51,333, which counsel also agreed would not be submitted to the jury but would be added on to any potential verdict at the end of the plaintiff’s case. After a little over an hour, the jury returned a verdict in favor of our client.

George Helfrich and Gregory Speier (Roseland, NJ) won a defense verdict following a six-day jury trial in the Superior Court of New Jersey, Bergen County. The plaintiff alleged a slip and fall accident on snow and ice at the defendant’s commercial property in Westwood, New Jersey. The plaintiff alleged that she sustained an aggravation of prior cervical herniated discs; torn labrum in both shoulders necessitating bilateral surgeries; aggravations of certain bilateral TMJ issues; as well as aggravation of certain pre-existing anxiety disorders. George and Gregory were able to significantly limit the medical testimony of the plaintiff’s medical experts in regard to the aggravation claims due to the experts’ failure to provide a comparative analysis of the pre-existing conditions to the injuries actually sustained in this accident. In addition, they were able to significantly limit the medical expense issues presented to the jury and the alleged lost wage claim in their cross examination of the plaintiff’s experts. As to liability, the defense not only produced the owner and managing agent for the building, but George and Gregory also elicited testimony about the development and construction of the sidewalk to rebut the plaintiff’s allegations concerning defects. Also, two representatives of the tenant who occupied the building were presented to testify about the foot traffic at the building that day. The jury returned a No Cause verdict in 12 minutes, finding no negligence as to the owner or the managing agent.

John Tucci, Douglas Kent, Nicolai Schurko and Shivaun Rashid (Philadelphia, PA) won a defense verdict in a property damage case where a fire gutted the interior of a restaurant. The plaintiff, the owner of the restaurant, sought damages in excess of $2.5 million, and there was also a subrogated insurance claim of $450,000. The plaintiff alleged that our client, a fire suppression company, was negligent in its bi-annual inspection and maintenance of the kitchen fire suppression system. The other defendants in the case included a duct cleaning company and, somewhat bizarrely, the plaintiff’s own companies and employees on theories of improper management and failure to activate the fire protection system manually on the date of the fire. The key issue in the case was the cause and origin of the fire. The plaintiff asserted that the fire occurred as a result of heat transfer or a flare up on the cooking surface, which caused the ignition of grease or grease vapors in the exhaust ducts. The plaintiff presented evidence that our client had failed to inspect and service three fire suppression nozzles that were located in a remote section of the restaurant’s ductwork. However, the defendants were able to prove through the testimony of various lay and expert witnesses that there were at least five potential causes of the fire and that the origin of the fire was not the cooking surface. Accordingly, while the jury did find that the defendants were negligent, they found that there was no causal connection between the negligence of the defendants and the fire.

Matthew Schorr and Gregory Speier (Roseland, NJ) won a defense verdict following a two-week trial in Camden County, New Jersey. Our client, a stevedore company responsible for discharging cargo ships, had off-loaded telephone pole-sized pillars of solid steel, known as “blooms,” from a ship at a marine terminal port and stacked them on the pier. The plaintiff was a supervisor for the port owner, whose company was responsible for subsequently loading the blooms by forklift onto trucks for delivery to the end user. During the truck loading process, the forklift operator and our client’s “checker” (responsible for insuring that the correct inventory was being loaded and shipped) experienced difficulty loading the last of three blooms onto a truck. The plaintiff, as supervisor of the forklift operator, stopped to assist. While attempting a routine repositioning procedure, the bloom, which weighed approximately seven tons, inadvertently rolled off the forklift blades, crushing the plaintiff’s right leg and necessitating an above-the-knee amputation. The plaintiff alleged that the accident and injury resulted from our client’s negligence with improperly stacking the blooms after discharge, as well as the checker’s involvement during the repositioning procedure. The plaintiff’s demand was $3.5 million. The jury ultimately concluded that any negligence of our client did not proximately cause the accident but, rather, the accident was caused by the conduct of the forklift operator and the plaintiff himself.

James Cole (Doylestown, PA), David Krolikowski (King of Prussia, PA), John Hare and Bruce Morrison (Philadelphia, PA), Thomas Specht (Scranton, PA) and Katharine Mooney (Doylestown, PA) won a unanimous jury verdict after a four-week trial in Bucks County, Pennsylvania. The plaintiffs’ demand never moved from $9 million throughout the trial. The plaintiff family (mother, father and adult daughter) claimed that their house was contaminated by a common disinfectant solution with the same active chemical composition as Chloraseptic throat spray. The product was applied during a water mitigation by a contractor referred by their homeowners’ insurance company. The family claimed a myriad of injuries, including “chemical desensitization,” with symptoms ranging from heart palpitations to bleeding gums to bowel incontinence. The family abandoned their home, claiming it needed to be torn down, the foundation ripped out of the ground and all of the personal property disposed of. Jim and his team represented the homeowners’ insurance carrier in claims for breach of contract, promissory estoppel, bad faith, and violations of the Unfair Trade Practices and Consumer Protection Law. The plaintiffs’ theory was that, because the insurance company referred the contractor, the insurance policy was transformed from a policy of insurance to an irrevocable contract of construction, thereby making the insurer liable for any consequential damages resulting from the contractor’s work. Legal and evidentiary issues abounded, but ultimately the jury returned a unanimous defense verdict on the breach of contract claim, and the judge entered a verdict in favor of our clients on the bad faith and UTPCPL claims.

Jennie Philip (Doylestown, PA) won her first trial before in the Philadelphia Court of Common Pleas. Jennie represented the homeowners’ insurance carrier in a claim for breach of contract. The plaintiffs’ theory was that a storm caused interior and exterior water damage to their home to the extent that the entire exterior stucco of the home required replacement. The plaintiffs presented testimony that the damage was “sudden and accidental” within the terms of the insurance policy. Jennie was able to establish, through testimony of expert witnesses, that the sheathing behind the stucco of the plaintiffs’ home was rotted and had been deteriorating for a significant period of time and, therefore, was properly excluded pursuant to the terms of the insurance policy. The judge found in favor of the defense.

David Wolf (Philadelphia, PA) achieved a defense verdict in a non-jury trial in Philadelphia Common Pleas Court. The plaintiff slipped and fell on liquid soap in our client’s store and claimed to have sustained a torn shoulder labrum. David argued that the plaintiff failed to prove that the store had ample constructive notice of the liquid, which was bolstered by the store’s “clean sweep” inspection program logs, which showed that the floor area was last checked five minutes earlier. Plaintiff’s counsel argued that an adverse inference was warranted due to our client’s alleged spoliation of video depicting the prior inspection, despite production of video showing the plaintiff’s movements within the store. The judge ruled that any such video depicting the activities of the floor inspector would not be probative on the issue of notice. Further, she ruled that, despite the admitted occurrence of the accident, based on the plaintiff’s description of the liquid as fresh, our client was not on sufficient notice of the hazard.

Health Care Department

Candy Barr Heimbach and Wendy R.S. O’Connor (Allentown, PA) achieved a defense verdict on behalf of our client, an orthopedist, with respect to claims that surgical screws used during surgery to repair a fracture of the right forearm were excessively long. The plaintiff had sustained a fracture as a result a car accident. After our doctor casted him, the plaintiff neglected to return for treatment, removed his cast and sutures himself, and was generally non-compliant such that the surgery was needed. The plaintiff continued to be non-compliant during the post-operative period and never told his doctor that he was experiencing unusual pain or crepitus until four months after the surgery. Eventually, the plaintiff sought treatment with another physician, who testified as his expert at trial. The jury returned a unanimous defense verdict.

Lynne Nahmani and Matthew Rydzewski (Cherry Hill, NJ) obtained their client’s dismissal at trial. The active, 36-year-old plaintiff claimed that the defendant podiatrist improperly used a modified Youngswick surgical technique to correct her first metatarsal and, instead, suggested that a fusion should have been performed. The plaintiff claimed permanent disability, pain and suffering, and an unsteady gait that resulted in multiple subsequent injuries. Additionally, the plaintiff claimed that the surgery was performed below the standard of care and that the physician did not obtain informed consent. Surveillance found the plaintiff at a local beach, walking blocks in the sand, carrying beach gear and later gingerly walking in flip flops without difficulty. Once the plaintiff’s expert was aggressively deposed, motions in limine were carefully crafted to limit the expert’s testimony, thereby reducing the matter so significantly that a dismissal was granted at trial.

Sharon Suplee (Cherry Hill, NJ) won a defense verdict in a jury trial in Middlesex County, New Jersey. The plaintiff claimed that our client, a podiatric surgeon, failed to diagnose osteomyelitis in a patient who had initially presented with a gangrenous left toe and cellulitis in the leg. Three days after his last visit to our client, the decedent plaintiff was hospitalized with bacteremia, developed septic shock and died. The plaintiff asserted that, had the diagnosis been made sooner, the plaintiff could have been treated more aggressively, thereby preventing his death. The case was defended on the standard of care in that the patient had already been on an antibiotic prescribed by his personal physician, had shown signs of improvement and, ultimately, resolution of the cellulitis. The case was further defended on causation through an infectious disease expert, who opined that the blood stream infection was not related to the osteomyelitis (which was later confirmed) but, rather, to a soft tissue infection of the toe. The infectious disease expert further testified that there was no reason to suspect such an infection was occurring during the time our client saw the patient. The jury found that our client did not deviate from the standard of care and was not negligent.

Robert Evers, Nicholas Rimassa (Roseland, NJ) and Walter Kawalec (Cherry Hill, NJ) won a victory in the New Jersey Appellate Division. Our client is a surgeon whose patient had multiple procedures involving cardiac catheters, some done by our client. One of the catheters broke and lodged in the plaintiff’s heart. When it was discovered and removed, our client told the plaintiff and his wife that he was taking full responsibility and noted it as much in the medical record. The plaintiffs’ attorney did not file suit against our client but attempted to build a product case against the manufacturers of one of the catheters. The plaintiffs were convinced that the catheter piece was from a surgery other than the one our client performed. By the time they learned they were wrong, the statute of limitations had run. The plaintiffs argued that the discovery rule applied, but the Appellate Division rejected that argument, finding that the plaintiffs were on notice sufficiently from at least the time when our client stated he was taking responsibility. Bob and Nick prevailed on the summary judgment motion. On appeal, Walt drafted the brief, and Nick argued the matter before the Appellate Division.

Candy Barr Heimbach and Michelle Wilson (Allentown, PA) won a defense verdict in favor of our client, a hospital, which was sued as a result of a non-employee radiologist’s interpretation of films taken due to pain post-total knee replacement. The plaintiff claimed that the radiologist, who was not sued, failed to note a femur fracture that allegedly then progressed to a more complex fracture throughout the course of the plaintiff’s inpatient rehabilitation. The plaintiff also sued the operating orthopedic surgeon for his review of the films or, alternatively, for his failure to clinically diagnose an occult fracture and to make the patient non-weight bearing while following up further. Finally, she sued two physiatrists and the rehabilitation hospital to which she was admitted under that alternative theory. The plaintiff alleged she required three subsequent surgeries to address the more complex fracture and its sequelae, underwent longer and more extensive inpatient and outpatient rehabilitation, lost additional time from work, and continues to have pain, loss of function and diminishment of activities. After a two-week trial against all defendants, the jury quickly returned a verdict of no negligence against all defendants, finding that the radiological interpretation and clinical were appropriate.

Candy Barr Heimbach and Michelle Wilson (Allentown, PA) won a defense verdict in favor of our client, a radiologist, who was sued for his interpretation of the x-ray study of a hip for hip pain. The plaintiff claimed that the x-ray showed evidence to suggest the start of avascular necrosis (AVN) and that the failure to diagnose and immediately treat the patient allowed death of the bone to the point where a hip replacement was required. The case was defended on the propriety of the interpretation, which had been criticized only by the plaintiff’s orthopedic expert. Our expert and client pointed out to the jury the lack of any evidence of AVN, which, instead, was apparent on an x-ray and MRI taken over four months later for which the plaintiff still did not have treatment for another four months. The jury quickly returned a unanimous verdict of no negligence as to our client.

Sharon Suplee (Cherry Hill, NJ) won a defense verdict in a jury trial in Gloucester County, New Jersey. Our client was a podiatric surgeon who performed a lapidus procedure on the plaintiff. The 44-year-old plaintiff claimed the surgery was inappropriate and a deviation from the standard of care, which caused an imbalance in the structure of her foot that will cause her problems for the rest of her life and require additional surgeries. The plaintiff further claimed a lack of informed consent, asserting she was never advised that this procedure was being performed and she was not aware that plates and screws would be used. The defendant doctor died prior to trial, so he was not deposed, and no testimony was ever taken from him. The plaintiff’s case included claims for spoliation of evidence and punitive damages related to billing and recordkeeping issues. The case was defended through expert testimony supporting the surgery as appropriate and the preferred procedure for this patient. Informed consent was defended by challenging the credibility of the plaintiff. The plaintiff’s demand going into trial had been $750,000.

Fredric Roller, Michelle Moses (Philadelphia, PA) and Michele Primis (Pittsburgh, PA) won a defense verdict in Allegheny County, Pennsylvania. The plaintiff claimed she underwent unnecessary foot surgery that not only exacerbated ongoing complex regional pain syndrome (CRPS) but also resulted in the amputation of a toe. The plaintiff claimed the doctor failed to recognize ongoing CRPS following a fracture and several months of conservative care and had mistakenly attributed her chronic pain to a malunion of the fracture site, which the doctor maintained was causing nerve compression. He performed two surgeries over the course of nine months, after which she left the practice and, ultimately, underwent three more surgeries, as well as being treated for CRPS. Facebook pictures showed a different story about her activity level over a 16-month period prior to her toe amputation. The jury returned with a unanimous defense verdict.

Stacy Delgros (Cleveland, OH) received a defense verdict in a case involving a delay in the diagnosis of lung cancer in a 55-year-old non-smoker. A lung nodule was found coincidentally on a CAT scan of the plaintiff’s chest after he was involved in a bicycle crash, which occurred sometime after a cardiac event. The plaintiff was admitted to the hospital where he underwent a catheterization. He was sent home without being told of the finding and claimed he was not told until seven months later, after which he waited another four months to see a physician. Stacy represented the Emergency Medicine physician who ordered the test, who admitted that he did not tell the plaintiff about the finding. After a seven-day trial, the jury found that the physician acted properly in not telling the patient about the finding. There were co-defendants who settled the case the week before the trial, in addition to a cardiologist who was also found to have acted properly in not telling the patient. Although they were not required to make this determination, the jury answered the interrogatories in which they found the patient 100% responsible for the delay, causing his cancer to go from a curable stage to terminal.

Robin Snyder and Mark Kozlowski (Scranton, PA) won a defense verdict after a nine-day trial in Wayne County, Pennsylvania. The 52-year-old plaintiff presented to the emergency department with chest pain and stroke-like symptoms. She was administered 25 mg Phenergan IV in her hand, twice. When her symptoms resolved and the MRI was clean, she was discharged. She returned two days later complaining of swelling in her hand and was diagnosed with infiltration. The plaintiff claimed she developed Complex Regional Pain Syndrome and that she was disabled and unable to continuing working. Phenergan carries a Black Box warning that subcutaneous injection or perivascular extravasation may cause necrotic tissue. The jury found that the doctor, nurse and hospital did not breach the standard of care.

Rasheen Davis and William Banton (Philadelphia, PA) won a defense verdict in a medical malpractice case involving a nursing home in a jury trial in the Philadelphia Common Pleas Court. The case involved a 64-year-old woman who suffered a severe CVA with hemiparalysis. The plaintiffs asserted claims of professional malpractice based on the theories of corporate and vicarious liability. The plaintiffs alleged that the nursing home failed to monitor and adjust as necessary the administration of Coumadin and Lovenox, which allegedly caused several injuries, including acute hypotension, disseminated intravascular coagulopathy, cardiovascular arrest and severe dehydration, which ultimately led to the patient’s death. The plaintiff also alleged that the defendant failed to promptly identify and treat the plaintiff’s sepsis. After two days of deliberations, the jurors returned with a defense verdict.

Professional Liability Department

Thomas Gerard and Art Aranilla (Wilmington, DE) won an appellate victory before the Delaware Supreme Court in their representation of a Maryland government agency. The matter had been dismissed at the trial court level based on lack of personal jurisdiction. On appeal, the plaintiffs reasserted personal jurisdiction in Delaware on several bases, but primarily because they were injured in Delaware and were allegedly covered by our client’s insurance policy. Tom and Art argued that, while the Delaware Long Arm Statute confers personal jurisdiction on Delaware courts when tortious injury occurs in Delaware, the plaintiffs had asserted no tort; rather, the plaintiffs had brought a no-fault PIP claim. Accordingly, the Delaware Supreme Court found no cognizable basis for personal jurisdiction in Delaware and affirmed the lower court’s decision.

Ray Freudiger and Matthew Hamm (Cincinnati, OH) obtained dismissal of a putative class action lawsuit in the Hamilton County Court of Common Pleas. Ray and Matt were local counsel on behalf of a national supermarket chain, and they worked with a defense team that had previously settled similar cases in New Jersey, Florida and California. The plaintiffs’ claims arose as a result of allegedly false, deceptive and/or misleading labels/packaging on poultry products in violation of state statute and common law. The defense moved to dismiss on the basis of federal preemption. The trial court agreed that it had no subject matter jurisdiction and that the plaintiffs had failed to state a claim. The court dismissed all of the plaintiffs’ claims with prejudice. Our firm’s knowledge of and experience in the local forum was instrumental in the formulation and ultimate success of the defense strategy.

Gregory Fox (Philadelphia, PA) obtained summary judgment in favor or our client, a large mortgage lender, in a complex mortgage foreclosure proceeding in Berks County, Pennsylvania. The borrower challenged our client’s standing to foreclose, arguing that it could not prove standing since it did not produce the original promissory note that had been signed over to it. In addition, the borrower contended that the foreclosure was improper because: (1) the Assignment of the mortgage to our client was signed by a person purporting to be a representative of the prior mortgagee (when, in fact, she was really an employee of our client); and (2) our client allegedly violated the National Mortgage Settlement and the directives under the federal Home Affordable Modification Program by failing to consider loss-mitigation alternatives to foreclosure. Although the borrower cited authority supporting its standing argument, Greg was able to distinguish the cases, arguing that, unlike in those matters, the borrower had produced absolutely no evidence to create an issue of fact as to whether our client held her promissory note. Greg was able to defeat the borrower’s other arguments because: (1) although the Assignment of the mortgage to our client was actually signed by our client’s own employee, he showed that the employee was also authorized by corporate resolution to execute such assignments on behalf of the prior mortgagee; and (2) although violation of the National Mortgage Settlement and Home Affordable Modification Program directives can be an equitable defense to a “quick foreclosure” that only applies when the lender makes no effort to explore alternatives to foreclosure, Greg showed the court that our client had actually worked with the borrower for years in an effort to avoid foreclosure. The judge signed the summary judgment order from the bench following the oral argument.

Sharon O’Donnell (Harrisburg, PA) was successful in defending a local non-profit organization whose dual purpose is to rehabilitate persons newly released from prison, by providing them with education and jobs in food service, and to make and distribute fully-prepared nutritious meals to 600 disadvantaged public school children in the Harrisburg area. The plaintiff, a former employee, filed a Whistleblower complaint with OSHA, alleging he was terminated for reporting improper food service safety practices. We prevailed by convincing OSHA that his unprofessional conduct was the real basis for his termination.

Lila Wynne and Kevin Bright (Cherry Hill, NJ) won summary judgment in a toxic tort case involving claims of mold exposure. Our client was hired to perform a post-remediation inspection of the plaintiffs’ basement following a sewage backup that resulted in several inches of raw sewage entering their home. The plaintiffs argued that our client was negligent for failing to test the basement for mold as part of its post-remediation inspection and that the failure to do so constituted consumer fraud. The court granted our motion on the basis that there was no evidence that our client was hired to test for mold and that the only evidence of mold following the incident was the plaintiffs’ expert report, which was based on an inspection that occurred four years after the sewage backup. Regarding the fraud claims, the court found that, because our client was hired by the remediation company, not the plaintiffs, there were no representations to the plaintiffs and, thus, no basis to allege fraud.

Gabriella Garofalo-Johnson (Roseland, NJ) won a defense verdict on behalf of our insurer client following a bench trial in the Superior Court of New Jersey, Passaic County. The plaintiff filed suit against our client alleging breach of contract and bad faith, among other counts, after our client denied coverage on the basis of fraud and material misrepresentations. The plaintiff alleged that his vehicle was hit while left parked in a vacant lot in Paterson, New Jersey. After conducting a thorough investigation using a collision analyst expert, our client determined that the damage to the vehicle occurred while the vehicle was in motion, not parked. Gabriella was able to demonstrate that the plaintiff lacked credibility, since he failed to present any witnesses to the accident, failed to file a police report and became hostile during a recorded statement conducted by our client’s claims professional. Further, Gabriella utilized a damage appraiser and a collision analyst expert to present testimony proving that the vehicle was damaged while it was in motion. The judge denied every count of the plaintiff’s complaint, finding no bad faith as our client had a reasonable basis to deny coverage.

Arthur “Terry” Lefco, Wilhelm Dingler and Kimberly Boyer-Cohen (Philadelphia, PA) successfully defended a Montgomery County Court of Common Pleas entry of a non-suit for failure of the plaintiff to prosecute the matter. This accounting malpractice action had been pending since June 2001. When the motion was filed in November of 2012, the plaintiff had not taken any action of record for over five years. The court was persuaded that we had demonstrated sufficient prejudice to warrant entry of non pros. During the delay, the director of the client accounting firm had passed away, as did his successor a year later; our client was diagnosed with a degenerative neuromuscular disease; and our expert “retired,” leaving no forwarding address. The trial court concluded that the plaintiff’s delay caused sufficient prejudice and that the plaintiff had no reasonable explanation for the delay. The Superior Court affirmed. 

Claudia Costa (Roseland, NJ) won a defense jury verdict in a legal malpractice action in the Superior Court of New Jersey, Morris County. The plaintiffs alleged that our defendant clients, an attorney and his law firm, committed legal malpractice during a real estate closing. At the closing, the plaintiffs sold a fitness facility and, at the same time, entered into a five-year lease for that facility with the purchasers of the business. The tenant defaulted at the end of the first year, and the plaintiffs retained possession of the premises and terminated the lease. It was at that time that the plaintiffs allege they first learned that no personal guarantees had been procured and there was no lien against the gym equipment. The plaintiffs never procured another tenant, and the property went into foreclosure. The plaintiffs insisted that they would have not gone through with the transaction without the protection of the personal guarantees and the lien, and they brought claims for $1.5 million for loss of the facility. The defense demonstrated that the plaintiffs had signed a series of agreements at closing that waived any requirements and the attorney had reviewed the closing documents with the plaintiffs. The court dismissed the $1.5 million claim, and the jury found no liability on the part of the attorney or the law firm.

Jeffrey Chomko and Allison Livezey (Philadelphia, PA) won a defense verdict after a five-day trial in Delaware County, Pennsylvania. They successfully argued that a real estate appraiser owed no legal duty to the purchasers of a bank-owned property when the appraisal failed to reveal that the house straddled two separate tax parcels, and the plaintiffs took title to only a portion of the house. Plaintiffs’ counsel unsuccessfully argued that the mortgage lender, the realtors and the appraiser should have discovered the title defect, accepting instead the defense argument that only a survey of the property would have revealed the defect.

Gregory Fox and Alesia Sulock (Philadelphia, PA) secured the dismissal of a disciplinary matter against our client, a lawyer, brought by his former client. The claimant filed a complaint with the Office of Disciplinary Counsel (ODC), alleging that our client coerced and forced her into agreeing to a settlement she never wanted to accept. The ODC issued a formal request for our client’s position on the complaint, suggesting that the allegations, if true, would constitute a violation of RPC 1.2(a), which mandates that matters of settlement are ultimately up to the client. Greg and Alesia argued that, while our client had certainly recommended the settlement, he properly left the ultimate decision to her, as evidenced by both his correspondence to her and her testimony before the judge as to her understanding of, and agreement to, the settlement. The ODC agreed and dismissed the complaint after receiving our response.

Joseph Santarone (Philadelphia, PA) won the granting of a motion to dismiss after oral argument in the U.S. District Court for the Eastern District of Pennsylvania. Joe represented a Bucks County, Pennsylvania school district, its superintendent and assistant superintendent. The case arose out of the elementary school restricting the father of a student from coming within 50 feet of the entrance of the school that his children attended. The restriction was put in place following complaints that had been made about him by teachers. The plaintiff’s case alleged a violation of the equal protection clause, of substantive due process and of procedural due process. Evidence established that the plaintiff had a six-year history of stalking claims arising out of a very acrimonious divorce. The court dismissed the equal protection claim, noting that, unlike the plaintiff, his ex-wife and her current husband did not have a history of stalking. The court further ruled there was a rational basis for the school’s imposition of the 50-foot rule and that the plaintiff was owed no procedural due process.

Sharon O’Donnell (Harrisburg, PA) and Thomas Specht (Scranton, PA) obtained summary judgment on behalf of a regional hospital that was sued for age discrimination by a 30-year veteran radiology technician. The plaintiff opposed the motion by arguing that corrective action information contained in her personnel file was hearsay and, therefore, inadmissible and unavailing to support a decision in favor of the hospital. The judge, in rendering his decision in a 20+ page opinion, disagreed, borrowing poignant language from a Second Circuit opinion that, “[i]n a discrimination case, we are decidedly not interested in the truth of the allegations against the plaintiff. We are interested in what motivated the employer [citations omitted]; the factual validity of the underlying imputation against the employee is not at issue.... Plaintiff’s personnel file was offered to explain the reason for the discharge, and as such, is admissible.”

Edwin Schwartz and Nicole Ehrhart (Harrisburg, PA) obtained a non-suit at the close of the plaintiffs’ case in a legal malpractice jury trial in York County, Pennsylvania. The plaintiffs’ claims arose from our client’s drafting of a will that divided the decedent’s estate among his wife (a half share) and his two children from a prior marriage (a quarter share each). The plaintiffs argued that the decedent’s intentions were that their share of any jointly owned accounts (approximately $400,000) would be included in the estate and available for distribution to the plaintiffs. The plaintiffs argued that a prior 1983 Deed evidenced the decedent’s intentions to include jointly-owned property. We argued that the Pennsylvania Multiple Party Accounts Act specifically precluded this finding and that the parole evidence rule precluded the plaintiffs’ ability to argue the existence of verbal communications of the decedent that occurred after the drafting of the will by our client. After three days of trial, the court agreed that, despite the presentation of very contentious arguments by the plaintiffs, their witnesses and their expert, the plaintiffs had not satisfied their burden of proof.

Workers’ Compensation Department

Tony Natale (Philadelphia, PA) successfully defended a Philadelphia-based chemical mixing company in an appeal arising out of a workplace injury in Lancaster, Pennsylvania. The claimant sustained a large disc herniation at the L5-S1 level of his spine while lifting company property. Ultimately, the claimant developed severe right-sided radiculopathy and was given a surgical recommendation. The diagnosis and mechanism of injury were never disputed by the employer/insurer. However, Tony was able to uphold the underlying dismissal of the claim petition based on the claimant’s failure to give notice of any injury within the meaning of the Pennsylvania Workers’ Compensation Act. The claimant’s appeal centered on the perceived violation that the notice provision of the Act had on the “humanitarian perspectives” of the legislation. Tony argued that the letter of the law can be harsh at times but, nonetheless, fair. The Workers’ Compensation Appeal Board agreed and dismissed the claimant’s appeal.

Tony Natale (Philadelphia, PA) successfully defended a well known decorative home furnishings supply company based in Allentown, PA. The claimant injured her lower back and left shoulder during the course and scope of employment due to repetitive lifting. She ultimately returned to work earning her pre-injury wages. The claimant then alleged that her work duties became so unbearable that she was forced to leave work, and she requested resumption of work-related disability benefits. Tony uncovered medical treatment records that documented a material intervening non-work-related accident involving the claimant’s use of her motor vehicle which caused the alleged disability. The claimant vehemently denied that an “auto accident” had taken place. However, she was forced to admit on cross examination that, even if an actual “accident” did not occur, her non-work-related physical activities that were being performed in her car on the date in question caused her disability. Tony then was able to cross examine the claimant’s medical expert and force him to admit that those non-work-related activities could lead reasonable minds to agree that causation for the claimant’s disability was not work related. The judge dismissed the claimant’s request for reinstatement of benefits.

Michele Punturi (Philadelphia, PA) received a favorable decision in a workers’ compensation claim petition case. The claimant alleged work-related injuries to the neck and left shoulder. The claimant’s testimony was taken by deposition, and also live, and was submitted with the deposition testimony of his medical expert. Michele presented three fact witnesses from the employer who were very familiar with the claimant’s job duties and interacted often with the claimant, along with the testimony from the employer’s Independent Medical Expert (IME) for the defense. The judge found the employer’s witnesses’ testimony credible and noted the lack of complaints made to them by the claimant, as well as the claimant’s lack of reporting a work injury. Further, the testimony of the defense medical expert was found more credible than the testimony of claimant’s medical expert on the basis that the defense’s expert clearly addressed all of the prior medical records. The claimant’s medical expert did not have the opportunity to review and analyze all of the medical records and relied upon the claimant’s present history, which was inconsistent with the prior medical records. This decision emphasizes the importance of submitting medical records and diagnostic films to the IME for review and analysis.

Tony Natale (Philadelphia, PA) successfully defended a large transportation authority in litigation surrounding an alleged lumbar spine disc aggravation injury during the course and scope of employment. The claimant originally sustained a low back injury in 1999. He eventually returned to work to a lighter-duty position and worked more than a decade before leaving work and collecting an employer-sponsored pension. Two years into his receipt of the pension, the claimant alleged a new workplace injury dating back to one of the last days he physically worked. The claimant presented a medical expert who opined that the claimant “aggravated” the 1999 low back condition by “sitting on a stool,” among other things, at work, causing debilitating lumbar radiculopathy and worsened two pre-existing disc herniations. On cross-examination, Tony established that the “expert” medical opinions offered on direct were contrary to the opinions contained in the medical notes in the doctor’s file. The claimant admitted on cross-examination that no new injury took place prior to his retirement and receipt of pension. The judge dismissed the claim petition summarily.

Tony Natale (Philadelphia, PA) successfully prosecuted a termination petition on behalf of the Educational Commission for Foreign Medical Graduates. The claimant sustained an injury in her role as a standardized patient for the Commission. A student rigorously examined her, causing injuries to her abdomen, among other areas. The claimant treated for years while collecting partial disability payments for reduced work hours, allegedly due to the injury. Tony presented a Board Certified internal medicine expert who specializes in traumatically induced abdominal injuries and sports injuries, including sports hernias. Tony then cross examined the claimant and established that her current treatment regimen for the injury was basically non-existent except for two doctor visits after the termination petition was filed. The judge found the claimant to be fully and completely recovered from the work injury and terminated her right to all benefits.

*Prior Results Do Not Guarantee A Similar Outcome

Defense Digest, Vol. 21, No. 3, September 2015

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. © 2015 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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