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On the Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

December 1, 2015

Shane Haselbarth (Philadelphia, PA) obtained a judgment in the Court of Appeals for the Eleventh Circuit affirming the entry of judgment as a matter of law by the Middle District of Florida in favor of Marshall Dennehey’s client, an employer with a health care plan governed by ERISA. The plaintiff sought statutory damages of up to $110 per day going back years, plus attorney’s fees, against the employer and the co-defendant third-party administrator. The basis for the claim was that the plaintiff requested documents from both parties that were necessary to appeal the termination of her long-term disability benefits. Against the employer specifically, the plaintiff asserted it had a duty to amend historical plan documents to update its address (its headquarters had moved), as she relied on an old address to seek documents without success. The Eleventh Circuit flatly rejected the claim, holding that the District Court did not abuse its discretion in declining to award statutory penalties where the plaintiff not only had the document she later requested, but also had the means of knowing the proper address to which to send requests. Smiley v. Hartford Life and Accident Insurance Company, 610 Fed. Appx. 8, (11th Cir. Jul. 17, 2015).

Audrey Copeland (King of Prussia, PA) successfully appealed the District Court’s denial of summary judgment on a qualified immunity issue to the Third Circuit, which reversed and ordered the entry of summary judgment for the defendant, a PE teacher. The plaintiff brought suit under a state created danger theory against a school district and one of its PE teachers for the alleged “delayed drowning” of a minor student, who had a seizure in his classroom approximately one hour after his gym class in the pool. On review, the court was required to accept the facts asserted by the plaintiff, although the defendant disputed the plaintiff’s allegations that the student experienced any submersion under water or exhibited any signs of distress, was ordered into the pool after complaints of feeling unwell, or that the cause of death was secondary drowning. The court analyzed whether the law in this context was sufficiently well-established that it would have been apparent to a reasonable PE teacher “that failure to take action to assess a non-apparent condition that placed the student in mortal danger violated that student’s constitutional right under the state-created-danger theory.” The court observed that those cases finding colorable constitutional violations in school athletic settings involved “patently egregious and intentional misconduct,” which was notably absent here. Therefore, the defendant teacher was entitled to qualified immunity because the student “did not have a clearly established constitutional right to dry-drowning-intervention protocols while participating in PE class.” The court denied rehearing on September 22, 2015. Spady v. Bethlehem Area School District, 2015 U.S. App. LEXIS 15450 (3d Cir. Sept. 1, 2015).

Audrey also obtained the Pennsylvania Superior Court’s affirmance of the denial of the plaintiff’s post trial motions which challenged the defense verdict in a medical malpractice informed consent case. In Shinal v. Toms, 2015 Pa.Super. LEXIS 487 (Pa.Super. Aug. 25, 2015), the court found no error in the denial of the plaintiff’s motions to strike certain prospective jurors for cause who had an indirect relationship with the defendant physician through non-party corporate entities. Based upon its independent review, the court found that none of the jurors had a sufficiently close relationship with the litigation participants such that prejudice should have been presumed and, therefore, refused to expand the range of relationships requiring a presumption of prejudice. The court also found no error in instructing the jury that it could consider information conveyed to the plaintiff by a qualified member of the physician’s staff as evidence of informed consent.

In Reppert v. WCAB (Reading Materials, Inc.), 2015 Pa. Commw. Unpub. LEXIS 550 (Pa. Commw. July 27, 2015), Audrey secured the Commonwealth Court’s affirmance of the Workers’ Compensation Appeal Board’s decision that had affirmed the denial of a claim petition. The court held that, because the employer offered evidence disputing the claimant’s medical evidence regarding loss of use of her forearm, a reasonable contest was presented. The court also affirmed the denial of the claimant’s penalty petition, which claimed a unilateral cessation of payment for home care services, holding that the employer was not required to provide benefits for the non-medical home care services described.

Lauren Burnette recently prevailed on two significant appellate decisions. In the first case, Jenson v. Pressler & Pressler & Midland Funding, 2015 U.S. App. LEXIS 11188 (3d Cir. June 30, 2015), a case of first impression, the Third Circuit adopted a materiality requirement for claims of false, misleading and deceptive conduct against a debt collector under the Fair Debt Collection Practices Act. In a per curiam opinion, the Third Circuit decided that a claim premised on a false misstatement of information under the FDCPA must constitute a material misstatement to be actionable.

Lauren prevailed in Mostofi v. Midland Funding, LLC, et al, 117 A.3d 639 (Md.App. 2015) before the Court of Special Appeals of Maryland, where the court refused to adopt a “meaningful attorney involvement” requirement under the FDCPA. In a recent decision in the U.S. District Court for the District of New Jersey, Bock v. Pressler & Pressler, 30 F. Supp.3d 283 (D.N.J. 2014), the District Court crafted a “meaningful attorney involvement” requirement in the context of attorney letters under the FDCPA. The Bock decision is presently on appeal in the Third Circuit. The Mostofi court rejected a “meaningful attorney involvement” requirement under the FDCPA, refused to adopt Bock, and was critical of the holding in Bock.

*Prior Results Do Not Guarantee a Similar Outcome

Defense Digest, Vol 21, No. 4, December 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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