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

September 1, 2016

Casualty Department

James Johnson (Cherry Hill, NJ) saw the claimant voluntary withdraw an arbitration demand that involved first-party claimed medical expenses in excess of $163,000. Jim relied upon a favorable IME and the medical records review reports of multiple physicians, who opined that the surgical procedures were neither medically necessary nor causally related to the subject motor vehicle accident, as well as a pending Medical Review Organization request that contained strong medical evidence of a lack of causation, to convince opposing counsel to withdraw the arbitration demand.

At a UIM arbitration in Cumberland County, Christopher Woodward (Harrisburg, PA) prevailed in a case involving a claimant with significant pre-existing conditions and a continuation of pre-accident treatment for years after the accident in question. Compelling evidence offered at the hearing included the investigating police officer’s description of the accident as a “tap.” Bodily injury limits were $15,000. The arbitrators’ valuation was well below that, resulting in an award of zero damages for the plaintiff.

Robert Faller and Mark Agin (Long Island, NY) obtained summary judgment in favor of their client in a construction case. The plaintiff sustained a serious injury when a wheeled trash container owned by the defendant client, and filled with construction debris that weighed almost 800 pounds, ran over the plaintiff’s foot. The plaintiff alleged that there was a defect in the wheels of the container that caused it to stop and start while the plaintiff was pushing it. The plaintiff claimed the container’s wheel became stuck, causing the container to jump and roll back onto his foot. Following discovery, the defendant moved for summary judgment. Mark prepared the motion and Bob handled the oral argument. The court granted summary judgment from the bench following oral argument. The plaintiff then moved to reargue the decision, which the court denied.

In a construction accident case filed in the New York Supreme Court, Bronx County with a potential seven-figure exposure, Steve Kaplan (New York, NY) obtained summary judgment. The plaintiff allegedly sustained brain and other injuries when struck by a steel stud that fell from the third floor of the premises. He filed suit against the general contractor and seven of its subcontractors, including our client, who provided a hoist, among other things. Steve successfully obtained an order directing the general contractor to make the construction site available for an inspection. He then obtained an order directing the plaintiff to produce, in advance of that inspection, a description of the specific location of the accident and photographs depicting that location. After the inspection, and before written discovery was complete or any depositions were held, Steve moved for summary judgment based on an investigator’s affidavit that the hoist was sufficiently distant from the accident location that it could not have been involved. The plaintiff, general contractor and two other defendants all opposed the motion, arguing that summary judgment was premature. The general contractor also argued that, based on a broadly-worded indemnification provision, our client was contractually obligated to indemnify it for any personal injuries occurring on the construction site while the hoist remained on site, whether or not those injuries related to or arose out of our client’s work or equipment. These arguments were rejected by the court.

David Blake (Cherry Hill, NJ) recovered $575,000 for a national insurance company in an insurance fraud suit. The case involved several types of fraud, including premium fraud, fraud in the application for insurance and claim fraud (pre- and post-claim submission).

Alicia Smith (Cherry Hill, NJ) obtained summary judgment as to the claims against her client, a health drink brand. Alicia’s client was sued when packaging came undone and a pallet of its product fell onto a delivery driver. Discovery revealed that the packaging and shipping was all outsourced to other companies, the product was delivered safely and intact from California to Pennsylvania, and the product packaging remained intact, even after the pallet fell off the lift gate of the truck at its final destination in Philadelphia. The photos showing torn packaging were established to have been taken after the store owners came out to bring the product into the store.

The Delaware Supreme Court affirmed Gary Kaplan and Jessica Tyler’s (Wilmington, DE) judgment on the pleadings for a national fitness center. The plaintiff signed a gym membership agreement upon joining the facility that included a release of liability for all claims, including those arising from the alleged negligence of the client. Years later, the plaintiff filed suit, alleging he was injured at the gym due to the fitness center’s negligence. On the basis of the release he signed, Gary and Jessica filed a motion for judgment on the pleadings. The plaintiff asserted various arguments, including that the Connecticut court did not uphold the same client’s release in that state. While Delaware law permits releases for one’s own negligence, in practice, the releases are rarely upheld. The Superior Court granted the motion for judgment on the pleadings, finding that the release was clear, not unconscionable and not against public policy. The Delaware Supreme Court agreed and affirmed.

Following oral argument before the Montgomery County Court of Common Pleas, David Wolf and Michael Salvati (Philadelphia, PA) obtained summary judgment in a case that presented an unusual fact pattern. Our client was the franchisor of a janitorial brand that sold a franchised cleaning business to a franchisee. When a customer suspected that the franchisee or his workers were stealing, the customer reviewed security video, which showed the franchisee engaging in inappropriate sexual activity. He was also accused of stealing certain alleged missing items, including costly jewelry. The plaintiffs filed suit solely against the franchisor, seeking compensatory and punitive damages. The plaintiffs claimed the franchisee was not an independent contractor as stated in his franchise contract, but was a de facto employee based on the franchisor’s control over the means and methods of the cleaning work. The plaintiffs also argued that the franchisor was directly liable for failing to perform a background check of the franchisee, which would have revealed a series of drug charges and a guilty plea for aggravated assault. In granting summary judgment for the franchisor, the court agreed that, even if an agency relationship existed, the actions of the franchisee were outside the course and scope of the agency and that the prior criminal conviction did not relate to the current alleged offenses of theft and inappropriate sexual activity.

Thomas Wagner and Robert Stanko (Philadelphia, PA) successfully defended a local luxury hotel and its Paris-based parent company in an eleven-day jury trial in the Philadelphia County Court of Common Pleas. The plaintiff alleged she suffered from post traumatic stress disorder as a result of hotel employees allowing her ex-boyfriend unauthorized access to her hotel room as she was sleeping. The jury of six women and two men awarded no compensatory damages and $25,000 in punitive damages against a final demand of $2.5 million.

Following a three-day jury trial, Martin Sitler and Michael Humphries (Jacksonville, FL) obtained a defense verdict in favor of a Jacksonville apartment complex. The plaintiff alleged that on a rainy day, when exiting the apartment complex’s leasing office, she slipped on the top step of the stairway leading from the leasing office to the parking lot. The plaintiff claimed that she suffered a concussion, a torn rotator cuff, a partial tear of the superior labrum and permanent back pain. She subsequently had surgery to repair her rotator cuff and superior labrum. The plaintiff sought compensation for past and future medical expenses, lost wages and loss of earning capacity for the rest of her life, as well as pain, suffering, mental anguish and loss of the capacity for the enjoyment of life. The defense relied on the plaintiff’s poor choice of footwear, her lack of credibility and the lack of credibility of her witnesses. Additionally, the defense presented inconsistencies in the plaintiff’s reporting of previous neck and back injuries to her treating physicians. The jury returned a defense verdict after less than an hour of deliberation.

After a six-day bench trial in the U.S. District Court for the Southern District of New York, Jay Hamad, Daniel McDermott and Christopher DiCicco (New York, NY) obtained a verdict, defeating our adversary’s cross-claims for indemnity and defense costs, and won partial indemnity on behalf of our client, together with an award of attorneys’ fees and defense costs. Our client, the general contractor on a project to rehabilitate the Tappan Zee Bridge, chartered a barge as a floating work platform and entered into a subcontract agreement with the tug operator whose tug was used to ferry electricians to the work site. Our client’s employee, a barge deckhand, fell into the river after an impact between a tug and the barge. After jointly settling with the employee for $794,448.97, the subcontractor and our client sought indemnification from one another. We prevailed by establishing that the tug was registered with the U.S. Coast Guard under a defunct entity and was operated by an unlicensed captain, and the subcontractor breached its duty of care by failing to exercise ordinary care, caution and maritime skills in the operation of the tug. Additionally, the court accepted our argument that the subcontractor’s destruction of the captain’s logbook after anticipation of litigation constituted spoliation, warranting an adverse inference that evidence contained within the logbook would have been unfavorable to the subcontractor. The court rendered a verdict in our client’s favor, dismissing the subcontractor’s cross claims and ordering the subcontractor to pay $62,779.59 to our client, representing the amount our client paid in excess of its percentage of fault.

Julie Dorfman (Roseland, NJ) obtained a defense verdict following a one-week bench trial in Morris County, New Jersey. Julie represented a lake community association in a lawsuit involving a dispute over the non-payment of annual dues and assessments by the plaintiffs, five homeowners living within the community. The lawsuit was initiated shortly after the association filed liens against the plaintiffs’ properties for failing to pay dues and assessments for more than a decade. It was the plaintiffs’ position that membership in the association was voluntary because there was no deed restriction requiring either mandatory membership in the association or the payment of dues to the community. Therefore, the plaintiffs sought declaratory relief that the liens were improper and that they were not obligated to be members of the association and not obligated to pay dues. The plaintiffs also sought an award of monetary damages, punitive damages and attorney’s fees. Prior to trial, Julie was successful in obtaining dismissal of the plaintiffs’ claims for punitive damages and attorney’s fees. Following trial, the court held that the defendant’s by-laws, although unrecorded, applied to everyone in the community, requiring all property owners in the community to participate as members of the association and pay annual dues and assessments.

After a five-day trial in Burlington County, New Jersey, Douglas Suplee (Cherry Hill, NJ) obtained a defense verdict on behalf of an auto manufacturer. The plaintiff alleged a violation of the New Jersey Lemon Law, as well as breach of express and implied warranties, in connection with her lease of a vehicle she claimed to be substantially unsafe as a result of erratic shifting. Two different dealers were unable to find a problem with the way the vehicle shifted gears, but each performed customary software updates to the vehicle on all but one occasion. The vehicle was equipped with a nine-speed transmission, which is relatively new to the automotive industry. Doug was able to explain to the jury the benefits of a nine-speed transmission and why it shifts differently from other vehicles. He successfully argued that modern day vehicles are, to some extent, computers on wheels and that the software updates performed were not repairs but, rather, regular updates similar to those on one’s smartphone or personal computer. In addition, Doug was able to preclude the plaintiff’s expert at trial, resulting in a directed verdict as to the plaintiff’s breach of warranty claims. As to the remaining Lemon Law claim, the jury found that the plaintiff had not established a substantial impairment to the use, value or safety of the vehicle, especially considering the fact that the plaintiff had accumulated over 18,000 miles per year during each of the first two years of the lease period. The jury returned a defense verdict in less than 30 minutes.

Christopher Reeser and Brittany Bakshi (Harrisburg, PA) obtained summary judgment in York County, Pennsylvania in a negligent security/wrongful death case. Chris and Brittany represented a local gas station/convenience store. The plaintiff (the Estate for the deceased) claimed that on the date of the incident, the deceased and a friend pulled into the convenience store and parked their vehicle. Immediately thereafter, a female co-defendant parked her vehicle and began to yell at the pair, accusing them of cutting her off. Unbothered by the yelling, the friend entered the convenience store and then exited. In the short amount of time the friend was in the store, the female co-defendant had called her boyfriend, who arrived on scene and began to assault the friend. The deceased came to the friend’s aid and suffered traumatic injuries at the hands of the boyfriend. The entire assault lasted 39 seconds. Upon seeing the deceased injured, the convenience store’s employees called the police. The plaintiff filed suit, arguing that our client failed to adequately ensure the safety and security of its customers and failed to intervene in the altercation and/or rescue the deceased. The court concluded that our client could not have foreseen that a person who was not previously on the property would have arrived and assaulted a patron based merely on the female co-defendant yelling at the friend and the deceased.

Ray Freudiger (Cincinnati, OH) obtained a defense verdict in a week-long trial. The wrongful death and survivorship claims were filed by the estate of the decedent, who was killed when a farm truck backed over her at a grain processing facility. We represented the driver and owner of the farm truck. The estate sought $5 million in damages and had rejected an offer of $200,000. The plaintiffs had four experts: an agricultural safety expert, an accident reconstructionist, an ER doctor and an economist. Their safety expert and accident reconstructionist claimed the truck driver failed to follow safe backing procedures, the truck had an inoperable reverse lamp and inoperable horn, which made the truck unsafe to be driven. Ray was successful in a motion for directed verdict on behalf of the truck owner on the grounds that the driver was not acting as his agent or employee and that there was no evidence of negligent entrustment. The case proceeded against the truck driver and the grain company. Ray presented evidence that: the plaintiff’s decedent was familiar with the area, particularly that the ramp where the incident happened was used almost exclusively for trucks to back up to the grain receiving pit; our driver saw the pedestrian on the ramp and who then moved from the ramp before our driver began backing up; and that the plaintiff must have been distracted by her use of a cell phone and stepped up on the ramp while the driver was backing up. Ray argued that the driver was not required to ensure the pedestrian was paying attention, did not have to give her verbal warning that he intended to back up, and that the size and sound of the truck was ample warning of his intentions. The jury held that the plaintiff’s decedent was 100% responsible for the accident.

In a case involving a fatal traffic accident, Daniel Krebbs, Sang Lee, Kimberly Boyer-Cohen and Shivaun Young (Philadelphia, PA) obtained a defense verdict following a two-week trial in the Philadelphia Court of Common Pleas. The case involved a tragic accident that resulted in the death of a 29-year-old woman four days before Christmas. We represented the owner and operator of the tractor-trailer that caught fire following a blown tire in the Lehigh Valley Tunnel. As a result of this initial incident, traffic through the tunnel was stopped completely while the tractor-trailer fire was being extinguished. The plaintiff’s decedent was killed when she was rear-ended by one of the co-defendants while stopped in the traffic backlog. The day before the accident, the tractor-trailer was cited for having an active engine oil leak, which the plaintiffs claimed caused the initial accident and resulting fire. After four hours of deliberations, the jury found in favor of the owner and operator and apportioned liability at 100% against the co-defendants in the amount of $1.8 million.

 

Health Care Department

Thomas Lent and Bethany Blood (Erie, PA) obtained summary judgment in a medical malpractice case on behalf of our client, a family practice physician, who was consulted to provide medical management for a female patient admitted to the hospital’s mental health unit. On the fourth day of the patient’s stay, she died as a result of bilateral pulmonary emboli. The case brought against the admitting psychiatrist, the hospital and our client alleged gross negligence for failing to provide prophylactic anticoagulation and failing to appreciate the risk for development of deep vein thrombosis due to an alleged immobility. Thom and Bethany successfully argued that our client was covered by the provisions of the Pennsylvania Mental Health Procedures Act because our doctor’s care of the patient was medical care designed to facilitate the patient’s recovery from mental illness; therefore, the doctor was entitled to immunity. Although the plaintiff’s counsel used the magic words “gross negligence” in the complaint, the court correctly determined that our client’s conduct did not rise to this level. Our motion and brief pointed to all of the steps the doctor had taken to treat the patient for conditions of dehydration and tachycardia, as well as his assessment of DVT risk prior to death. It appeared that plaintiff’s counsel had drafted her three expert reports, not only based on the identical nature of the reports (despite being from three different specialty areas), but also due to the footnotes and citations to sections of the Pennsylvania Code in the reports. The overlay of the “gross negligence” language in the reports was fairly obvious, and the court focused not on that language, but on the actual conduct of our client physician.

Candy Barr Heimbach and Michelle Wilson (Allentown, PA) obtained a defense verdict in favor of our client, a hand surgeon, who had performed a carpal tunnel release procedure during which he admittedly lacerated—and immediately repaired—the median nerve. We contested negligence insofar as he adequately protected the nerve and was proceeding with the procedure when he felt something out of the ordinary. He investigated further and found that the median nerve had been pushed off its normal course by other tissue and was crossing the forearm. The jury found that he was not negligent.

 

Professional Liability Department

Sharon O’Donnell (Harrisburg, PA) and Thomas Specht (Scranton, PA) won a victory in the Berks County Court of Common Pleas relating to an appeal from a school board adjudication to terminate a former superintendent. The plaintiff appealed to the Berks County Court twice, alleging that the school board’s adjudication was inherently biased, factually contrived and legally incorrect. The first adjudication was remanded to the board for reconsideration of its decision that was rendered against the plaintiff in absentia, after she failed to appear for a hearing. The second adjudication was appealed when the board president sat as a panel member and testified against the plaintiff. We argued that the law of the Commonwealth allows for this type of due process. The court thereafter heard argument, agreed with the District and affirmed the board’s decision.

In an appeal of an insurance coverage dispute, Walter Kawalec (Cherry Hill, NJ) secured a victory in the Appellate Division. Our client’s insured was a woman whose marriage fell apart when her husband left the marital home unannounced, desiring to start a new life, free of his then-wife. The insured moved out of the marital home, which stood empty for a number of months. Due to financial circumstances, the husband later returned to the marital home well after the insured had moved. He then was involved in an accident as a pedestrian as he was hit by a car. His auto insurer brought a coverage action against our client, alleging the husband was owed coverage under his wife’s policy. The claim for coverage stemmed from two arguments. First, he alleged that an initial declaration sheet, which had mistakenly named the husband along with the wife but which was later amended to exclude him, established coverage for the husband through the initial policy period. The second argument advanced was that the husband and wife continued to be part of the same “household,” thus triggering coverage during the initial policy period. The Appellate Division rejected these arguments, finding that the initial error in issuing the declaration sheet with the husband erroneously listed did not establish coverage at the time of the accident as an amendment had been issued prior to that date, which removed him from the policy. Further, the irrefutable evidence of record demonstrated that the husband had willfully left the property and abandoned the marriage well before the policy was instituted. As a consequence, the Appellate Division affirmed the decision of the lower court.

In an OSHA whistleblower/relaliation claim, Phillip Harris (Tampa, FL) and Jessica Lanifero (Jacksonville, FL) obtained a dismissal from the U.S. Department of Justice. The complainant alleged that his employer (a car dealership) failed to meet various OSHA workplace standards. The employee alleged he was terminated for making complaints to his employer. The respondent argued that the employee never made any complaints, the company complied with all OHSA standards and the employee was fired for a valid and non-retaliatory reason. Specifically, the employee was found to have engaged in time-theft by billing the company for an extensive amount of work that was not done. After both parties briefed the issues, the DOJ issued a formal dismissal of the charges.

On the eve of trial, Sharon O’Donnell (Harrisburg, PA) and Thomas Specht (Scranton, PA) won a summary judgment ruling in favor of all of the defendants, dismissing with prejudice the plaintiff’s amended complaint and granting judgment in favor of the defendants on their counterclaim. The case was styled as an action for breach of contract (consulting agreement) and a violation of the Pennsylvania Wage Payment & Collection Law brought before the Philadelphia County Court of Common Pleas against a Harrisburg-based company by a former CEO who was fired for cause. The plaintiff claimed that, although he had a contract, he was treated as an employee and was entitled to an exit salary under his contract. We answered on the basis that he deceived the company’s shareholders about his business practices and the true state of the company’s financial affairs. We counterclaimed for approximately $100,000 in personal expenses he usurped from a financially-unstable corporate treasury. The plaintiff’s failure to respond adequately to our pleadings and discovery rendered a jury trial unnecessary.

Michael Packer and Danielle Robinson (Fort Lauderdale, FL) obtained final summary judgment in favor of our insurance company client. The plaintiffs filed suit for breach of an umbrella policy after their claim for $1 million in uninsured motorist benefits was denied because they failed to maintain the required underlying auto insurance. The plaintiffs claimed actual damages in excess of $15 million and filed a count for bad faith, which was stayed pending the outcome of the breach of contract count. The plaintiffs argued the carrier waived its right to enforce the provision of the policy requiring the underlying insurance because it had knowledge that the plaintiffs did not maintain the required limits before it issued the policy. The court granted summary judgment in favor of our client, finding the policy was clear and unambiguous as to the required underlying limits, and because the plaintiffs failed to maintain those limits.

Following a three-day non-jury trial in the Allegheny County Court of Common Pleas, Brigid Alford (Harrisburg, PA) obtained a defense verdict. At issue were counts for breach of contract and statutory insurance bad faith, challenging the insurer’s denial of a hail claim under a commercial property insurance policy.

Trish Monahan (Pittsburgh, PA) successfully resolved an insurance contract/bad faith lawsuit in federal court by joining an independent adjusting company as a third-party defendant on a breach of fiduciary duty claim. The adjusting company was unsuccessful on a motion to dismiss, and the case proceeded to mediation, where the adjusting company eventually agreed to pay 80% of the contract claim against the carrier. The adjusting company had agreed to settle a property damage claim with the insured’s public adjuster without authority from the carrier, in breach of the adjusting company’s fiduciary duty to the carrier.

Following a jury trial, Allison Krupp (Harrisburg, PA) obtained a directed verdict from a Philadelphia County judge in a case that arose from a rear-end motor vehicle accident in which the insured’s nephew was operating the insured’s vehicle without his knowledge or permission. The plaintiff filed suit against the insured and his nephew. The nephew was sued for negligence, and the insured was sued for negligent entrustment. The plaintiff failed to present evidence to establish either element, and a motion for compulsory non-suit was granted as to the negligent entrustment claim at the close of the plaintiff’s case. Despite strong opposition, the judge permitted the alleged negligence claim to proceed. At the close of the insured’s case, a motion for directed verdict on the negligence claim was granted by the judge.

David Shannon and Jon Cross (Philadelphia, PA) obtained a non-suit after a three-week bench trial spread over several months in Bucks County, Pennsylvania. Our client was a third-party defendant in a multi-million dollar breach of contract claim related to an ERP software implementation. The defendant had filed a counterclaim against the plaintiff, alleging breach of contract related to a computer system outage that occurred during the course of our client’s consultant services at a public utility water company. Both the plaintiff and the defendant claimed several million dollars in damages against each other, along with multi-million dollar attorney fees claims. After hearing all of the evidence by both parties, the court ordered a non-suit on all third-party claims against our client, including any claim for attorney fees and costs.

In this legal malpractice action, Edwin Schwartz (Harrisburg, PA) successfully defended the attorney/defendant who was prosecuting a collection action on behalf of a local bank (co-defendant) against the plaintiff and caused the plaintiff’s private financial information (name, address and SSN) to become part of the public record. The plaintiff responded by filing a complaint against the attorney and the bank, asserting claims of negligence, negligence per se, invasion of privacy, conversion, intentional infliction of emotional distress and concerted tortious action. The plaintiff claimed psychiatric injuries due to the worry of future identity theft, which was initially supported by the plaintiff’s medical expert. After two days of trial and effective cross-examination of the plaintiff’s medical expert, the court granted non-suit in favor of the defendant attorney on all counts, finding that the plaintiff failed establish any “actual” quantifiable damages.

Arthur “Terry” Lefco and Alesia Sulock (Philadelphia, PA) obtained a directed verdict after a four-day jury trial in Philadelphia County. The plaintiff, a Philadelphia police sergeant who had been discharged, sued the lawyer provided by the FOP at a grievance arbitration on the basis that, had the lawyer done a better job, he would never have been fired. In response to videotape evidence of 22 clear instances of lying about work hours and proven false entries by him in the official time records, the sergeant maintained that: (1) “everybody did it.”; (2) his supervisors had approved it; and (3) no one had ever been fired for such trivial matters before. His discharge was affirmed. The case was defended by essentially replicating the arbitration hearing, playing the surveillance videos for the jury and putting on convincing evidence, including that of former Police Commissioner Ramsay. We also showed through expert testimony that the lawyer represented the union, not the grievant, at the arbitration and that the union had been consulted and approved the trial strategy. We eventually prevailed on a directed verdict because the plaintiff utterly failed to prove damages, which were non-speculative.

After receiving summary judgment in the lower court, Arthur “Terry” Lefco and Alesia Sulock (Philadelphia, PA) successfully received affirmation in the Pennsylvania Superior Court. The plaintiff operated a restaurant in northeastern Pennsylvania and claimed that he had been the victim of official oppression by representatives of the Pennsylvania Department of Agriculture who arbitrarily discriminated against him and eventually closed down his restaurant for alleged health violations when the real reason was revenge. This revenge was allegedly based upon the failure to give the inspector and her family the usual 50% discount. Allegedly enraged, the inspector set out to destroy the plaintiff’s business. Our client was one of a string of lawyers who had represented the restaurateur in the underlying action, but that case was dismissed on several grounds by the federal district court. In this malpractice case, the plaintiff asserted that, had our client conducted the underlying case differently, he would have prevailed. We were successful in demonstrating to the court that the underlying case could never have succeeded as a matter of law.

Lee Durivage and John Gonzales (Philadelphia, PA) obtained summary judgment in a Title VII race discrimination case filed in the U.S. District Court for the Eastern District of Pennsylvania. The plaintiff worked as a correctional officer for a county prison. He was caught falsifying a log sheet and was terminated. The plaintiff argued that white employees had engaged in similar misconduct but had not been terminated. The court held that the plaintiff presented insufficient evidence to establish that the prison’s stated reason for termination amounted to a pretext or that the decision was motivated by the plaintiff’s race.

In a Section 1983 excessive force lawsuite, John Gonzales, Candace Embry and Lauren Moser (Philadelphia, PA) obtained summary judgment on behalf of the City of York and a city police officer. The plaintiff’s decedent was shot and killed by police officers who had responded to a radio call of a disturbance at an after-hours club. The plaintiff alleged that the decedent was unarmed and surrendering to police when he was shot through the back and leg. Using experts in ballistics and forensic pathology, we were able to prove that the fatal shot could not have been fired from the location and at the angle the plaintiff alleged, thus disproving the plaintiff’s theory that the officers shot the decedent while he was unarmed. The court, relying on the Supreme Court’s decision in Scott v. Harris, held that the eyewitness testimony provided by the plaintiff was wholly unreliable when compared with the physical evidence at the scene. The court concluded that the force used by the officers was reasonable under the circumstances and dismissed the plaintiff’s complaint with prejudice.

Joseph Santarone (Philadelphia, PA) obtained summary judgment in the U.S. District Court Eastern District of Pennsylvania. Our client was a small, private school that had allowed a coach to resign after it was learned that he exchanged thousands of text messages with a student, some of which were alleged to be sexual in nature. A number of years later, that same coach was arrested after having a sexual relationship with a 16-year-old student athlete while he was employed at a public school. He is currently in prison. The claim against our client was for negligence, and negligence per se, for violation of the Child Protective Services Law. The employment at our school occurred prior to the January 2014 post-Sandusky changes to the law. The court found there was no common law duty and that the law, as written at the time, did not apply to a prior school that the student plaintiff had never attended. The carriers attempted a number of times to negotiate a settlement, but plaintiff’s counsel never moved from a $1.2 million demand. 

 

Workers’ Compensation Department

John Zeigler (Harrisburg, PA) obtained a decision denying and dismissing an original claim petition specific to an alleged lower back injury. The Workers’ Compensation Judge, relying on defense photo, video and testimonial evidence specific to the work site, determined that it was not possible the claimant had stepped off of a step into a drain hole as alleged. Additionally, the judge relied on surveillance evidence of the claimant tearing down a shed to discredit the claimant’s allegation of disability. Critical to this determination was the employer’s testimony about communications with the claimant, contemporaneous with the surveillance, wherein the claimant described himself as totally disabled. Finally, the judge credited the employer’s medical expert over the claimant’s treating physician that the claimant had no acute injury but, rather, a pre-existing and unrelated degenerative condition without any proven aggravation. The dismissal of the claim petition by the judge not only avoids potential long-term indemnity exposure, but also significant medical exposure as the claimant was scheduled for multi-level disc fusion surgery.

Tony Natale (Philadelphia, PA) successfully defended a national, mid-market life insurance company in the litigation of a claim petition wherein the claimant alleged a debilitating lumbar nerve root injury that occurred while carrying company property from her car into her home. Under cross-examination, the plaintiff admitted that she previously injured her back many months before the alleged work injury and was actively treating for the same at the time of the work incident. The claimant also admitted she was discharged from employment for cause and did not report the alleged work injury until after this discharge. In cross-examination of the claimant’s medical expert, Tony highlighted that the expert was unaware of the claimant’s prior injuries and treatment and had an incomplete history as to the date of onset of the her back pain and radiculopathy. The judge found the credibility of both the claimant and her expert to be in considerable doubt and denied and dismissed the claim petition.

Ashley Talley (Philadelphia, PA) obtained a defense verdict in a matter where the claimant was injured after a slip and fall at work. Although liability was initially acknowledged for a low back injury, the claimant sought to expand the injury to include a right shoulder condition, which required extensive surgical intervention. Medical depositions were presented on behalf of both parties, and in a decision mirroring the carrier’s legal and factual arguments, the judge granted a termination of benefits, finding the claimant to have effected a full recovery from the work injury, while denying additional liability for the alleged right shoulder condition.

In this high-exposure case, Michele Punturi (Philadelphia, PA) received a favorable decision modifying a claimant’s benefits. His benefits were subsequently terminated, and Michele defeated his penalty and modification petitions to expand the nature of injury. This case involved a significant amount of evidence, including the claimant’s testimony, the deposition testimony of the IME expert, the claimant’s medical expert and fact witness testimony of the employer. It is significant to note that in his decision, the Workers’ Compensation Judge recognized the extreme importance of supplying all of the medical records and diagnostic study films, as well as past medical history, past medical records and diagnostic studies to the IME expert for comparison. The claimant’s medical expert was not furnished with all medical records and diagnostic studies, nor did he have the applicable area of expertise. Also, the fact witness testimony of the employer was very detailed, and this witness was extremely knowledgeable of the employer’s work availability and job tasks. His testimony supported Michele’s argument that the job offer made to, and rejected by, the claimant was within the restrictions of the claimant.

In a claim petition filed against a national eye lens manufacturer, John Swartz (Harrisburg, PA) obtained a defense verdict. The claimant alleged a stress fracture due to overuse of the left foot while working for the employer. The claimant did stand 10-12 hours per day in her employment. The Workers’ Compensation Judge found that, despite the claimant’s extensive walking and standing during her shift, the stress fracture and subsequent surgery were not related to any work condition but were pre-existing. The judge relied on the evidence and testimony of the defendant’s medical expert over that of the claimant’s expert. Under cross-examination, the claimant’s medical testimony was discredited since the physician’s opinion was not supported by the objective diagnostic evidence or by the opinion of other treating physicians. In addition, the claimant did not report this as a work-related injury until after her short-term disability benefits expired. Claimant’s counsel then appealed to the Workers’ Compensation Appeal Board. John was successful in defending the appeal before the board, and the judge’s decision dismissing the claim petition was affirmed in its entirety.

Tony Natale (Philadelphia, PA) successfully prosecuted a termination/suspension petition and defended a penalty/reinstatement petition for a large mushroom farm and distribution company in Berks County, Pennsylvania. The claimant suffered a traumatic fall that resulted in a myriad of neck, back and lower extremity injuries. Tony was able to establish through cross-examination of the claimant’s medical expert that all of the ongoing treatment and disability was unrelated to the judicially determined work-related injury. The Workers’ Compensation Judge rejected the claimant’s medical expert on this basis and found that the claimant fully recovered from the work-related injury. The termination petition was granted, and the claimant’s petitions were dismissed.

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*Prior Results Do Not Guarantee A Similar Outcome

Defense Digest, Vol. 22, No. 3, September 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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