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

Chuck Craven (Philadelphia, PA) succeeded in persuading the Third Circuit to affirm the decision of the District Court, obtained by John Gonzales (King of Prussia, PA), to deny the plaintiff's motion for F.R.Civ.P. 60(b) relief from a judgment. In response to the plaintiff's complaint, John filed a timely motion to dismiss. When the plaintiff failed to file a response to the motion when due, the District Court granted the motion as uncontested and dismissed the plaintiff's complaint. Five months later, the plaintiff filed a motion for relief under Rule 60, claiming excusable neglect and extraordinary circumstances. The essence of the plaintiff's motion was that its outside counsel had misled it by promising to answer the motion to dismiss and by sending a draft of the motion, along with assurances that the dismissal was a mistake that would be rectified. In his successful opposition to the plaintiff's Rule 60 motion, John pointed out that there was no excusable neglect or extraordinary circumstances since the plaintiff's in-house counsel knew of the dismissal at least four months before hiring new counsel to seek relief from the dismissal, and he persuaded the District Court to find that the plaintiff had not satisfied the criteria governing relief under Rule 60. On appeal, Chuck responded to the plaintiff's attacks against the District Court's decision by persuading the Court of Appeals that, for several reasons supported by the record and the applicable case law, the District Court had not abused its discretion in denying Rule 60 relief. Ethan Michael, Inc. v. Union Township, No. 09-4325, 2010 U.S. App. LEXIS 18182 (3d Cir. 2010) (8/30/10).

Kim Boyer-Cohen (Philadelphia, PA) succeeded in having the Pennsylvania Superior Court affirm the entry of summary judgment and dismissal of the plaintiff's complaint. After the plaintiff filed a workers' compensation claim, his employer contested benefits and retained the defendant, an investigating company, to perform surveillance on the plaintiff. As part of its investigation, the defendant observed and videotaped the plaintiff as he stood inside an Islamic Center near a window and prayed. The investigator was between 79 and 80 yards away and videotaped the plaintiff using a zoom lens. The videotape was subsequently shown to a Workers' Compensation Judge, and the plaintiff brought suit against the defendant under the intrusion upon seclusion tort of invasion of privacy. After the trial court granted summary judgment in favor of the defendant, the issue on appeal was whether an individual who was participating in a worship service in a sanctuary had a reasonable expectation of privacy. In a published opinion, the Superior Court held the plaintiff failed to show that he had an expectation of privacy while praying in public. First, he had a diminished expectation of privacy because of his workers' compensation claim. Second, the Islamic Center was open to the public, and the plaintiff was praying directly in front of a plate glass window. Finally, the Superior Court held that the defendant's use of a zoom lens, similar to using binoculars, was not unreasonable. Thus, there was no abuse of discretion in granting the motion for summary judgment and dismissing the complaint. Tagouma v. Investigative Consultant Services, Inc., __ A.2d __, 2010 Pa. Super. 147 (Pa. Super. 2010).

Audrey Copeland (King of Prussia, PA) successfully obtained the Third Circuit's affirmance of the District Court's summary judgment procured by Thomas Wagner (Philadelphia, PA) in a case involving the Medical Device Amendments ("MDA") to the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §360k(a), which concerned a Class III medical device given pre-market approval by the FDA. The court reasoned that the allegations of strict liability based upon manufacturing defect and breach of warranty (i.e. generalized common law theories of liability) were pre-empted by the MDA pursuant to the Supreme Court's decision in Riegel v. Medtronic, Inc. in that the plaintiffs would be required to prove that the device was unsafe or ineffective despite the pre-market approval process, thus interfering with the requirements already established by the MDA. The plaintiffs' strict liability claim for malfunction failed because they did not explain how the device deviated from FDA requirements, instead attempting to ground the defendant's liability on requirements beyond the MDA. Williams v. Cyberonics, Inc., no. 09-3800 (3d. Cir., July 30, 2010).

Audrey Copeland (King of Prussia, PA) succeeded in obtaining the Commonwealth Court's affirmance of an employer's second Termination Petition and denial of Utilization Review Petitions obtained by Niki Ingram (Philadelphia, PA) in a workers' compensation matter. The court found that the employer's expert unequivocally opined that the claimant had recovered from her remaining injuries, including chronic pain syndrome, and that the Workers' Compensation Judge had found a change in the claimant's physical condition since the last determination of her disability. Although the expert never specified that the prior injury included chronic pain syndrome, he did not opine that she never had it or had a different injury, only that there were no objective signs of it at the time of his examination; thus, his testimony was competent. This was akin to the testimony in Jackson v. W.C.A.B. (Resources for Human Development) and To v. W.C.A.B. (Insaco, Inc.). In that no objective medical testimony corroborated the pain complaints, the Workers' Compensation Judge was free to find a full recovery. The expert's competent and unequivocal opinion also provided substantial evidence for the Workers' Compensation Judge to deny the Utilization Review petitions. Biawogei v. W.C.A.B. (Woods Services), 2334 CD 2009 (Pa. Cmwlth. July 27, 2010).

Audrey Copeland (King of Prussia, PA) successfully obtained an affirmance from the Commonwealth Court of the denial of a Claim Petition originally litigated by Joe Vender (Scranton, PA). The claimant sought workers' compensation benefits, asserting that as a result of his exposure to raw sewage in the performance of his work duties, he developed an infection of his lower left extremity diagnosed as osteomyelitis. While diagnostic studies confirmed this diagnosis, the Workers' Compensation Judge found that his exposure to raw sewage was not the proximate cause of this condition. Rather, the Judge ascribed the cause of his condition to a chronic infection the claimant had prior to his employment. This finding was based on the Judge's attachment of credibility to medical testimony stating that the development of this infection was too close in time to the claimant's exposure to raw sewage for that exposure to constitute the proximate cause. The court also noted that there was evidence that the claimant had a left foot problem prior to commencing work with the employer and that the claimant's testimony was equivocal as to when he began working on the sewer construction project. Stefanek v. W.C.A.B. (Jim Lagana Plumbing and Heating Inc.), 673 C.D. 2010 (Pa. Cmwlth. September 10, 2010).

Walter Kawalec (Cherry Hill, NJ) succeeded in persuading the Third Circuit Court of Appeals to affirm the decision obtained by John Gonzales (King of Prussia, PA). In a 2-1 decision, the court affirmed the grant of summary judgment in favor of our client, a company which ran a prison in Delaware County, Pennsylvania. The plaintiffs were a group of female Muslim employees who sued under Title VII for religious discrimination based on a prison policy that outlawed the wearing of headgear by employees, including the Muslim headdress, the khimar, which the women wanted to wear. The court agreed with the district court that it would be an undue hardship for the prison to permit the women to wear khimars in light of safety concerns and because of the prison's interest in preventing smuggling of contraband into the facility. EEOC v. The Geo Group.

Walter Kawalec (Cherry Hill, NJ) succeeded in persuading the New Jersey Appellate Division to affirm the decision obtained by Howard Mankoff (Roseland, NJ). The case was a legal malpractice case brought against our client, a matrimonial attorney, by a disgruntled former client who, after being sued to recover the attorney's fee, countersued alleging malpractice. The trial judge granted summary judgment on the grounds that by settling the underlying matrimonial action, the plaintiff could not then sue his attorney for malpractice. During the pendency of the appeal, the New Jersey Supreme Court issued a decision clarifying some of the key points of the law in this area. The Appellate Division, applying this new law, found that the plaintiff's malpractice claim was properly dismissed because he failed to provide adequate factual and expert evidence to support his allegations of negligence, and the court affirmed. Gidding v. Heathcote.

Defense Digest, Vol. 16, No. 4, December 2010