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John R. Ninosky

Portrait of John R. Ninosky

John is a member of the firm's Health Care Department. He concentrates his practice in medical malpractice, representing correctional health care providers, health systems, long term-care facilities, assisted living facilities, physicians, nurses and mental health professionals. John also has extensive experience in handling general liability matters which is a significant asset in defending legal malpractice actions, particularly as they relate to claims against trial counsel. When a legal malpractice claim derives from an underlying medical malpractice or general liability matter, John brings depth and added knowledge to the defense of the matter. He has successfully tried cases to verdict in all three of Pennsylvania's federal courts, and in 12 county courts of common pleas. John has also participated in various types of ADR activities, including arbitrations and mediations, throughout Pennsylvania.

John partners with his clients to resolve matters as efficiently and effectively as possible. He evaluates each case with an eye toward prompt resolution, whether through ADR or trial. An experienced trial attorney, John assesses the risk of exposure and focuses on developing a persuasive story that is easily understandable for the jury. 

While attending the Dickinson School of Law, John was a member of the ATLA trial team. He was also an adjunct professor with the Advocacy Program. Prior to law school, John graduated summa cum laude from Indiana University of Pennsylvania. As an undergrad, he participated in varsity baseball and was named a three-time PSAC scholar athlete award winner. John remains active with IUP and has served as the president of the Alumni Association Board of Directors. He was the recipient of the Distinguished Alumni Award for Service in 2018.

John has been recognized among the Best Lawyers in America since 2018, and has been selected a Best Lawyers “Lawyer of the Year” in the Harrisburg region in both 2022 and 2020. He has additionally been selected a Pennsylvania Super Lawyer numerous times since 2014.  

As an active member of the legal and civic communities, John is involved in various organizations. He is a member of the Federal Bar Association, Middle District of Pennsylvania Chapter, as well as the Dauphin and Cumberland County Bar Associations, the Pennsylvania Defense Institute, and the St. Thomas More Society. John is the former Mayor of Paxtang Borough and past president of the Paxtang Borough Council. He coached youth sports through the Wilhem Paxtang Athletic Association and the St. Margaret Mary Athletic Association for a number of years.

    • Penn State Dickinson Law (J.D., 1996)
    • Indiana University of Pennsylvania (B.A., summa cum laude, 1993)
    • Pennsylvania, 1996
    • U.S. District Court Eastern District of Pennsylvania, 1997
    • U.S. District Court Middle District of Pennsylvania, 1997
    • U.S. Court of Appeals 3rd Circuit, 1997
    • U.S. District Court Western District of Pennsylvania, 2002
    • Supreme Court of the United States, 2002
    • West Virginia, 2013
    • U.S. District Court Southern District of West Virginia, 2013
    • The Best Lawyers in America®, "Lawyer of the Year," Harrisburg, Litigation - Insurance (2020, 2024)
    • The Best Lawyers in America®, Personal Injury Litigation - Defendants; Litigation - Insurance (2018-2027)
    • Pennsylvania Super Lawyers (2014-2018, 2021-2025)
    • Pennsylvania Super Lawyers Rising Star (2010-2011)
    • Federal Bar Association, Middle District of Pennsylvania Chapter
    • Cumberland County Bar Association
    • Dauphin County Bar Association
    • Defense Research Institute
    • Pennsylvania Defense Institute
    • St. Thomas More Society

Results

Thought Leadership

Defense Digest

Third Circuit Holds There Is No Right to Intervention in a Medical Context

March 1, 2024

Key Points:  There is a constitutional right to medical care for those individuals in custody.  Although there is a right to have a government actor intervene when the underlying constitutional violation involves excessive force or sexual assault of a person in custody or detention, the Third Circuit, in Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023), has definitively stated that there is no cause of action for a failure to intervene in a medical context. In correctional medicine, the Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” With respect to prisoner confinement, the Eighth Amendment obligates the government “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Thus, for decades those individuals in custody have had a constitutional right to medical care.  Creative plaintiffs’ lawyers have since brought federal civil rights claims seeking to create a cause of action for a failure to intervene against both law enforcement and medical staff personnel, arguing those individuals had a duty to prevent a violation of the right to medical care where medical care was not provided or adequately provided to a person in custody. For years there had been conflicting case law as to whether there was a cause of action for a failure to intervene in the medical context in correctional facilities.  Older authority stood for the proposition that medical providers could not be liable for failing to intervene in situations involving excessive force. See, e.g., Ali v. McAnany, 262 Fed. Appx. 443, 446 (3d Cir. Jan. 25, 2008); Goldsmith v. Franklin County, 2016 WL 6440141, at *7 (M.D. Pa. Sept. 30, 2016) (“[T]he [Third Circuit] has expressly declined to extend its holding in Smith beyond correctional officers to impose a duty to intervene upon medical employees working within a prison setting.”); Harris v. Hershey Med. Ctr., 2009 WL 2762732, at *6 (M.D. Pa. Aug. 27, 2009). In Goldsmith, the District Court explained:  [A]lthough [the Third Circuit in] Smith announced that corrections officers have a legal duty to intervene . . . the court clearly grounded its decision in the fact that a corrections officer, like a police officer, is a law enforcement officer, sworn to uphold the law, and authorized to use force if necessary. 2016 WL 6440141, at *7. Thus, a medical provider has “no legal duty to intervene on behalf of an inmate in the midst of physical altercations with staff.” Id. More recent decisions have been decided differently. District courts have found plausible causes of action for failure to intervene against medical professionals where they have allegedly failed to provide emergency medical care. See Thomas v. Harrisburg City Police Dep’t, 2021 WL 4819312 (M.D. Pa. Oct. 15, 2021) and Cyr v. Schuylkill Cnty., 2023 WL 1107879 (M.D. Pa. Jan. 30, 2023).  The Thomas decision was appealed to the Third Circuit by individual police officers on qualified immunity grounds after their motion to dismiss was denied. See Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023). The decedent in Thomas ingested cocaine at the time of his arrest. The plaintiff argued that the arresting police officers had a duty to intervene to prevent the violation of the decedent’s constitutional right to medical care. Specifically, it was alleged that the police officers should not have taken the decedent to the county booking center but, rather, should have taken the decedent to the hospital for evaluation. The police officers argued that they had qualified immunity.  The Third Circuit found that the District Court properly denied the police officers’ motion to dismiss as to the failure to render medical care. However, the Third Circuit held that the District Court erred in denying the motion to dismiss on the failure to intervene claim. The court stated: The Officers contend that the District Court improperly denied their motion to dismiss because (1) Sherelle Thomas cannot adequately plead a violation of failure to intervene to prevent a violation of the right to medical care where no such cause of action exists and (2) there is no clearly established right to intervention in the context of medical care.  The District Court does not directly address whether individuals have a clearly established right to intervention. We agree with the Officers that we have not recognized any such right, nor has the Supreme Court. Though we have recognized a right to have a government actor intervene when the underlying constitutional violation involves excessive force or sexual assault of a person in custody or detention, we have since concluded that our precedent does not establish, let alone clearly establish, a right to intervention in other contexts.  Thomas, 88 F.4th at 285.  Thus, the Third Circuit has definitively stated that there is no cause of action for a failure to intervene in a medical context, and this holding has been followed by at least one subsequent district court case where such a claim was pursued. See Rossman v. PrimeCare Medical, Inc., 2024 WL 115203 (M.D. Pa. Jan. 10, 2024). As such, neither medical professionals nor law enforcement should be required to defend a failure to intervene claim arising from medical care, and these claims should be challenged. John is a shareholder in our Harrisburg, Pennsylvania, office. He can be reached at (717) 651-3709 or JRNinosky@mdwcg.com.    Defense Digest, Vol. 30, No. 1, March 2024, is prepared by Marshall Dennehey 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. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.