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

In Nelson v. Airco Welders Supply, Nos. 865, 866, 867 and 889 EDA 2011 (Pa. Super. Sept. 5, 2013), the Pennsylvania Superior Court reversed a $14.5 million verdict on two bases and remanded for a new trial on liability and damages. The appeal was handled by Kim Boyer-Cohen, Carol Vanderwoude and John Hare (Philadelphia, PA). In its 2-1 panel decision, the Superior Court awarded a new trial on liability because the testimony of plaintiff’s expert was invalid under Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923), as applied to asbestos cases by the Pennsylvania Supreme Court in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012). The Superior Court further held that a new trial on damages was required because, in his closing argument, the plaintiff’s lead counsel improperly suggested specific dollar amounts for the award of noneconomic damages—a violation of Pennsylvania law.

In Redding v. Estate of Robert Sugarman, 2013 U.S. App. LEXIS 17576 (3rd Cir. Aug. 22, 2013), an appeal handled by Audrey Copeland (King of Prussia, PA), the Third Circuit affirmed the summary judgment obtained by Fred Roller (Philadelphia, PA) against the pro se plaintiff in her professional malpractice case on the ground that she could not meet her burden of proof without expert testimony, which she failed to proffer.

In Whitesell v. Workers’ Comp. Appeal Bd. (Staples, Inc.), 74 A.3d 297 (Pa.Cmwlth. 2013), the Commonwealth Court was persuaded by Audrey Copeland (King of Prussia, PA) to affirm the decision of the Appeal Board and the Workers’ Compensation Judge denying the claimant’s fatal claim petition, which was secured below by Tony Natale (Philadelphia, PA), because the decedent’s death from a mixed drug toxicity did not occur within 300 weeks of the date of her 2003 work injury as required by § 301(c)(1) of the Act. The court held that the compensable work injury occurred in 2003 and that it was irrelevant to the computation of the 300-week limitations period that the decedent’s work injury was expanded in 2006. The court also rejected any argument that the injury was “insidious,” rather than a standard work injury, and what amounted to the claimant’s attempt to create a new classification for the decedent’s work injury.

Jamey McGovern (Pittsburgh, PA) and Jim Gicking (Philadelphia, PA) successfully defeated a petition for allowance of appeal to the Supreme Court of Pennsylvania. The case involved a husband and wife who purchased $6 million in coverage on several life insurance policies, insuring their lives and the lives of their three minor children. The allegations were that the sales practices of the insurance company and its agent violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). The plaintiffs demanded a jury trial, and the judge denied their motion. Jamey tried the case before a different judge in a bench trial and obtained a defense verdict. Jim handled the Superior Court appeal in which the defense verdict was affirmed. Most notably, the Superior Court agreed with us that there is no right to a jury trial in a case based solely upon violations of the UTPCPL. The Pennsylvania Supreme Court declined to accept the appeal, so this important precedent remains the law in Pennsylvania.

Defense Digest, Vol. 19, No. 4, December 2013

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. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.