On the Pulse...Marshall Dennehey Is Happy To Celebrate Our Recent Appellate Victories

Ed Schwartz (Harrisburg, PA) and Chuck Craven (Philadelphia, PA) won decisive battles initiated by a renowned plaintiff’s attorney in a legal malpractice case that has generated a significant precedential opinion from the Pennsylvania Superior Court in Smith v. Morrison, 2012 Pa. Super. 105, -- A.3d -- , 2012 Pa. Super. LEXIS 545 (May 23, 2012). The malpractice case followed on the heels of a rescission case that the plaintiffs, Mabel G. Smith and her son Cris, successfully brought against Mabel's other son, Richard, who was found to have exerted undue influence on his mother, who had transferred her interest in the family farm to him for less than market value, thereby also depriving Cris of an anticipated inheritance. In the malpractice case, the plaintiffs theorized that the defendant attorneys, a father and a son who shared office space, but did not practice together, and had previously represented Mabel, her sons and their father in prior transactions, were negligent and breached their fiduciary duty by representing two clients who had divergent interests. Plaintiffs alleged that the attorneys had failed to appropriately consider and protect Mabel's interests in that they allowed her to make a transaction that disfavored her, as well as Cris -- another of the attorneys’ former clients.

Ed won the first battle when he persuaded the trial judge to dismiss Cris because he had no attorney-client relationship with the defendant lawyers. In addition, Ed ultimately convinced the jury that the attorney did not have an attorney-client relationship with Mabel and that the other attorney had not been negligent or breached his fiduciary duty to Mabel.

Chuck and Ed won the second battle by defeating the plaintiff’s post-trial motions, which Chuck briefed and Ed argued. Chuck won the final battle on appeal, handling both the briefing and oral argument stages of the appeal.

The Superior Court opinion advances the defense of attorney malpractice claims by strongly confirming that plaintiffs cannot ask for jury instructions based on the Pennsylvania Rules of Professional Conduct. Additionally, the opinion provides some very useful lessons and language concerning the preservation of objections to jury instructions and evidence, as well as appeals involving those claims of error. Overall, the opinion demonstrates the value of having an experienced and well-prepared trial attorney capable of exploring and favorably presenting all aspects of a complicated, layered attorney malpractice case and the extra value of having the post-trial and appellate stages handled meticulously and convincingly by a dedicated and experienced appellate lawyer. Great job, guys!

After a series of decisions reversing a particular Philadelphia County judge's grant of summary judgment to defendants in asbestos disease cases, the Superior Court affirmed judgment for the manufacturer of graphited-asbestos packing—represented by Jim Gicking (Philadelphia, PA) on appeal and Dan Ryan (Philadelphia, PA) at the trial level—and two other asbestos-product manufacturers. In a published decision, the court concluded that the plaintiff-decedent's testimony that he was exposed to "dust" in cleaning out his toolbox -- which contained, among other things, dried-out graphited asbestos packing material -- was not enough to establish exposure to asbestos from the manufacturer of the packing material. The court said a trial court has "considerable discretion" at the summary judgment stage to determine whether a plaintiff has met the "frequency, regularity and proximity" threshold standard established by Eckenrod v. GAG Corp., 544 A.2d 50 (Pa. Super. 1988). The court also limited the holding of Howard v. A.W. Chesterton, Co., 31 A.3d 974 (Pa. Super. 2011) (which noted that "the frequency and regularity prongs become less cumbersome when dealing with cases involving diseases, like mesothelioma, which can develop after only minor exposures to asbestos fibers.") to the context of mesothelioma claims and refused to extend Howard to small-cell carcinoma claims like the plaintiff's. As a result, the court rejected as insufficient the generic affidavit of the plaintiff's expert suggesting the plaintiff "[m]ay have suffered exposure even where no asbestos dust was visible… . " Fisher v. J.A. Sexauer, 2012 Pa. Super. LEXIS 1021 (May 29, 2012).

Audrey Copeland (King of Prussia, PA) on the appeal, and Joe Vender (Scranton, PA) at the Workers' Compensation Bureau and Appeal Board levels, succeeded in persuading the Pennsylvania Commonwealth Court to reverse (with one judge dissenting) the grant of a fatal claim petition where the decedent had died of a fatal valium overdose, which the claimant surviving spouse attributed to medical treatment with Valium for pain relief for a work-related injury. The decedent had a history of substance abuse of street drugs and prescription medication and had been through rehabilitation multiple times, including after treatment for the work injury. Even though the claimant could not testify with any certainty or produce a specific prescription for Valium from any physician at the time of the decedent's overdose, the judge had accepted her testimony as credible and found that the employer failed to meet its burden of showing that the decedent's use of Valium at the time of his death was illegal. The claimant had testified that the decedent had severed ties with his former treating physicians and sought treatment with Dr. A, who was known to give people "what they want." The claimant had accompanied him on a visit to Dr. A, whom she "believed" had prescribed Valium. The claimant's medical expert offered a "continuing medication" theory based upon prior treatment of the decedent's work injury with Valium.

The Commonwealth Court held that the Workers' Compensation Judge's decision (affirmed by the Appeal Board) was not supported by substantial evidence where both medical experts had agreed that the medical records showed no contemporaneous Valium prescriptions and the medical records of Dr. A were never presented (claimant had stated that the records of Dr. A were unavailable because of criminal charges against him involving distribution of controlled substances). The court also conducted a thorough review of the decedent's medical records and rejected the judge's sua sponte identification of several references in the medical records of another doctor as references to Valium prescriptions. This case is presently pending on the claimant's petition for allowance of appeal before the Pennsylvania Supreme Court. Lubrizol Corp. v. (WCAB) McCann, 2012 Pa. Commw. Unpub. LEXIS 342 (May 16, 2012).

Kimberly Boyer-Cohen and John Hare (Philadelphia, PA) won before the Commonwealth Court. The plaintiffs, who brought the case against the defendant Township after their decedent was struck and killed while crossing a township road, argued that the Township was negligent in replacing a missing speed limit sign and that the absence of the speed limit sign caused the fatal accident. Following a jury verdict holding it liable for the decedent's death, the Township argued that the evidence did not support the jury's finding that the absence of a speed limit sign caused the accident. In its decision, the Commonwealth Court agreed, finding that the record was devoid of any evidence showing that, had the 35 mph speed limit sign been posted, the negligent driver's speed would not have exceeded the speed limit. Citing the driver's testimony that the presence or absence of a speed limit sign did not affect her driving and played no part in the accident, the court held that the record did not establish that the absence of a 35 mph speed limit sign was the actual or proximate cause of the accident and any finding of causation by the jury was pure speculation. As a result, the Commonwealth Court vacated the jury verdict and remanded for entry of judgment nov in favor of the defendant. Rahman v. Falls Township, 1308 C.D. 2011 (February 16, 2012, Cmwlth Ct.).

Chuck Craven (Philadelphia, PA) persuaded the Pennsylvania Superior Court to affirm the dismissal of a case on preliminary objections that Bill Foster (Philadelphia, PA) obtained from the Bucks County Court of Common Pleas. The plaintiff sued our workers' compensation insurer defendant and its IME doctor, claiming that the insurer purposefully mishandled and wrongfully denied his total disability claim and that the doctor fraudulently and baselessly denied that the plaintiff was disabled. The plaintiff contended that his claims were not and should not be barred by the exclusivity provisions of the Workers' Compensation Act and that the exception for current and future litigation provided in a release agreement written by the carrier's workers' compensation lawyer and signed to settle the underlying workers' compensation litigation negated the protection afforded by the Workers' Compensation Act. The unanimous Superior Court panel agreed that the claim was barred by the Workers' Compensation Act and that the settlement agreement did not waive the immunity provided by the Act to the insurer and to its doctor. LeBoon v. Schmidt, No. 2235 EDA 2011, (Pa. Super.2012).

Defense Digest, Vol. 18, No. 3, September 2012