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

Chuck Craven (Philadelphia, PA), working closely with Scott Eichhorn (Roseland, NJ), developed and briefed a motion for summary judgment on behalf of New York University School of Medicine and New York University Hospitals Center in a complex, high-exposure case involving pre-implantation genetic diagnosis (“PGD”), in vitro fertilization (“IVF”), and intricate choice of law and substantive issues. Their motion succeeded in persuading the U.S. District Court for New Jersey to hold that New York’s 30-month medical malpractice statute of limitations applied to and barred the plaintiffs’ claims for wrongful birth, wrongful life and wrongful pregnancy based on their child’s being born with cystic fibrosis, the disease which the parents sought to avoid through the PGD and IVF procedures. Chuck continued to work with Scott in briefing and arguing in defense of the plaintiffs’ appeal of the District Court’s summary judgment to the Third Circuit. A unanimous three-judge panel of the Court of Appeals upheld the defense arguments that the District Court was correct in holding that New York law applied and that the 30-month statute of limitations barred the plaintiffs’ claims. The Court of Appeals also agreed that the plaintiffs waived the arguments that they advanced for the first time on appeal about the application and construction of the statute of limitations. Grossbaum v. Genesis Genetics Institute, LLC, 2012 U.S. App. LEXIS 15212 (3d Cir. July 24, 2012).

Chuck Craven (Philadelphia, PA), working closely with Jack Farrell (Philadelphia, PA) in a claimed paraplegic medical malpractice case, supplemented the briefs filed in support of in personam preliminary objections and successfully defeated the plaintiff’s subsequent appeal to the Pennsylvania Superior Court from the dismissal of our client, a New Jersey doctor who was sued in Pennsylvania. The plaintiff contended that the doctor could be sued in Pennsylvania because that was where the spinal infection for which the doctor treated the plaintiff culminated in the plaintiff’s claimed paralysis. In the plaintiff’s view, although the infection stemmed from a surgery that the plaintiff underwent in Pennsylvania, the doctor’s allegedly negligent treatment of the infection in New Jersey caused her alleged harm in Pennsylvania and, thus, fell squarely under 42 Pa.C.S. § 5322(a)(4) (regarding conduct outside this Commonwealth which causes tortious injury in this Commonwealth). In addition, the plaintiff contended that the doctor had the requisite minimum contacts with Pennsylvania because: he had a Pennsylvania medical license; his practice had been associated for several years with Jefferson University Hospital in Philadelphia; the doctor belonged to and was the president of a medico-social group based in Philadelphia; the doctor took several CME courses in Pennsylvania; and, his E-Z Pass account showed numerous trips into Pennsylvania. However, a unanimous Superior Court panel upheld the defense arguments and sustained the dismissal of the doctor for lack of in personam jurisdiction. The court concluded “[t]hat in the instant action, the alleged negligence of Underwood and Doctor Ocasio did not ‘[cause] harm or tortious injury in this Commonwealth’ as contemplated by section 5322(a)(4). The mere fact that Mendel's paralysis was discovered in Pennsylvania, or that it manifested in Pennsylvania, does not necessarily mean that it was caused in Pennsylvania.” Noting that “[c]ourts have generally been reluctant to extend specific personal jurisdiction to out-of-state medical providers for causing injury to Pennsylvania patients, even though the effects of the doctors’ negligence may be felt in Pennsylvania,” and that “[t]he majority of other jurisdictions have applied a similar approach to personal jurisdiction over out-of-state doctors in medical malpractice actions,” the Superior Court explained that this policy “assumes that medical practices tend to be ‘localized’ within a single state” and that “courts are more likely to uphold specific jurisdiction over the out-of-state physician” only “where the practice involves interstate activity, either through marketing or purposeful and continued treatment of foreign patients.” As the defense explained in detail, none of those criteria existed in this case. The doctor restricted his practice to New Jersey and never saw patients in Pennsylvania. His activities in Pennsylvania were incidental to his New Jersey medical practice and had nothing to do with the plaintiff’s infection or claimed paralysis. Mendel v. Williams, 2012 Pa. Super. LEXIS 2060 (Pa. Super. August 20, 2012).

Chuck Craven (Philadelphia, PA) won unanimous affirmance of a dismissal of a federal action that Ed Schwartz (Harrisburg, PA) obtained in defense of a lawyer-client in a complicated case stemming from the plaintiff’s maneuvers in various state and federal court actions to avoid and, later, to obtain judicial relief from, and damages for, his eviction for failure to make mortgage payments. In the District Court and later in the Court of Appeals, the defense argued for the dismissal of the plaintiff’s current federal civil rights complaint on grounds ranging from a lack of subject-matter jurisdiction under the Rooker-Feldman doctrine to the plaintiff’s failure to state a claim upon which relief could be granted. The District Court upheld all of those grounds and dismissed the complaint. On appeal , the Court of Appeals held that, “To the extent that [plaintiff] is attempting to solicit direct federal review of the Pennsylvania courts’ decisions, he is directly complaining of injuries caused by the state-court judgments and his efforts are therefore barred by Rooker-Feldman. But he is not prevented from otherwise attacking the parties to the foreclosure proceedings or alleging that the methods and evidence employed were the product of fraud or conspiracy, regardless of whether his success on those claims might call the veracity of the state-court judgments into question.” The Court of Appeals also held that the plaintiff’s contentions “[t]hat the prior proceedings did not afford him due process” were meritless, because “[c]onstitutional due process requires an opportunity to be heard in a proceeding appropriate to the nature of the case, which does not guarantee [plaintiff] a hearing of the form he might otherwise desire. And if he intended it to bolster his claim that the state judgment is or was void, such a direct attack is facially barred by Rooker-Feldman.” Finally, the Court of Appeals also upheld the dismissal of the plaintiff’s civil rights claims against our lawyer-client because “[a]ttorneys performing their traditional functions will not be considered state actors solely on the basis of their position as officers of the court. Nor can conspiracies generally exist within the attorney-client relationship. Furthermore, we conclude that [plaintiff] insufficiently pleaded racial or class-based discriminatory animus sufficient to state a claim under 42 U.S.C. § 1985(3), and has failed to elevate his allegations of conspiracy to a level that is plausible, rather than merely possible.” Conklin v. Anthou, 2012 U.S. App. LEXIS 18430 (3rd Cir. August 30, 2012).

Audrey Copeland (King of Prussia, PA) persuaded the Commonwealth Court to affirm the grant of a termination of benefits petition obtained by Joe Vender (Scranton, PA). The Commonwealth Court rejected the claimant's challenge to the Workers' Compensation Judge's credibility findings, finding that the reasons advanced by the Judge for disbelieving the claimant's expert had an objective basis; namely, the fact that he had not seen the claimant for a relatively long period of time and that, when he did, he treated her in a new area. The court also found that the Judge supplied an objective basis for crediting the employer's expert, whose opinion provided substantial evidence to terminate the claim. The court held that the Judge did not need to resolve every evidentiary conflict (here, a conflict concerning the MRI stating that a Judge need only resolve the issues relevant to the Judge's decision. Clark v. WCAB (Mestek/Anemostat Products), 2012 Pa. Commw. Unpub. LEXIS 509 (Pa. Cmwlth. July 19, 2012).

Audrey also secured the Commonwealth Court's affirmance of a dismissal of a defendant township on preliminary objections filed by Joe Santarone (King of Prussia, PA), which were sustained on the basis of governmental immunity. The plaintiff's claims arose out of a $25,000 grant and loan provided by the township for the purpose of rehabilitating her home under a housing rehabilitation program, which provided that, if the plaintiff sold the property within a certain time, she would have to re-pay all or part of the loan. The plaintiff claimed that the township negligently failed to properly carry out its responsibilities under the program and contract to ensure that the work was performed in a good, workmanlike manner. She alleged that, because the township acted in a proprietary role with regard to her property and/or described itself as the owner or lienholder, its conduct fell within the real estate exception to governmental immunity. The Commonwealth Court disagreed, finding that the factual allegations of the complaint did not establish that the township had possession of the property, and that its position as lienholder did not elevate its status to a party with "possession" of the property. The court held that the township merely facilitated the work, and that, although it had power to approve payment for the work, this did not constitute total control over the property. Williams v. Ramos, J.L. & Associates, Inc., 2012 Pa. Commw. Unpub. LEXIS 670 (Pa. Cmwlth. September 7, 2012).

Maureen Fitzgerald (King of Prussia, PA) obtained an August 21, 2012, decision from the Superior Court that affirmed the trial verdict of the Philadelphia County Court of Common Pleas in a defamation case. The Superior Court considered whether the defendant attorney had defamed a group of physicians when he wrote a series of letters to the FDA about the physicians' performance of Lasik surgery and accused them of engaging in illegal conduct. The attorney thereafter gave the letters to his client, who had been a patient of the physicians. The client posted the letters, over the course of time, on an internet site he had created, which warned the public about Lasik surgery and was critical of the physicians. The physicians alleged that the attorney had "published" the letters on the internet because he knew his client would post them. Prior to trial, the parties disputed whether the physicians were private figures or limited purpose public figures for the purpose of speech concerning Lasik surgery. Due to the extensive advertising and promotional efforts undertaken by the physicians and the subject matter nexus between that advertising and the alleged defamatory speech, the trial court held that the plaintiffs were limited public purpose figures. As a result, the physicians had to prove their defamation claims against the attorney by showing that he acted with actual malice, as opposed to negligence. The trial court found that the attorney did not act with malice and held in favor of the attorney. On appeal, the Superior Court considered the limited public figure classification and held that, because the physicians had voluntarily injected themselves into the public arena, by way of promotion and advertising, they were appropriately deemed to be limited purpose public figures by the trial court. The Superior Court also held that the physicians failed to prove that the attorney acted with malice and affirmed the verdict in his favor. Nevyas, et al v. Friedman, et al, 921 A.2d 8 (Pa. Super 2012).

Defense Digest, Vol. 18, No. 4, December 2012