Matthew P. Keris

We received a defense verdict in a contentious long-term care case that included a unique spoliation issue, allegations of cover-up regarding the cause of death and a “no show” plaintiff. A longtime nursing home resident, who was suffering from “end-stage dementia,” died nine days after suffering head trauma following a fall. The plaintiff was the resident’s son who was not his mother’s guardian. The plaintiff contacted a lawyer who delivered the body across Pennsylvania to a forensic pathologist for a private autopsy. No notice was provided to the nursing home administration of the impending autopsy, despite the fact that the lawyer had sued the long-term facility several times in the past. The corpse was cremated shortly after the autopsy without an opportunity for the defense to examine the body. The defense did not learn about the private autopsy until years later, when the report was provided in discovery. A motion for sanctions for spoliation was filed by the defense, which was followed by depositions of the funeral home staff and a hearing involving the forensic pathologist and the attending physician. Although the spoliation motion was denied, the court held that the defense could question the forensic pathologist on the cremation, destroyed specimens and failure to produce the autopsy photographs at trial. On the eve of trial, the judge proctored an agreement between the parties to arbitrate the case “on expert reports only.” At arbitration, plaintiff’s counsel continued to pursue a conspiracy theory about “the true cause of death” along with standard negligence criticisms about fall prevention. The plaintiff was cross-examined on a prior crimen falsi conviction and an Orphans’ Court petition initiated by the local Area Agency on Aging, wherein the deceased resident complained that she was afraid of her son, which was relevant to his “loss of society and companionship” claim. Not surprisingly, the plaintiff denied every allegation of the Orphans’ Court petition, which detracted his appearance and credibility. 

In the complaint and throughout discovery, the plaintiff raised claims of overarching neglect in addition to a fall that occurred during physical therapy. The plaintiff alleged negligence, corporate negligence, and punitive damages premised upon allegations of understaffing, Department of Health violations and putting profits over patient care. The plaintiff sought to hold not only the nursing home, but also its management company and a holdings company, liable for such claims. The defense sought partial summary judgment and asked the court to limit the plaintiff’s claims to the fall only and argued that neither the record evidence nor the plaintiff’s expert reports supported the all-encompassing claims of neglect. The court agreed and narrowed the claims, thereby significantly hampering the plaintiff’s case. The court limited the claims to proceed at trial to the fall only. The court also dismissed punitive damages and dismissed the holdings company defendant outright.

The verdict came within 30 minutes of deliberation in a five-day Bradford County PA fire-loss subrogation trial. Social distancing protocols were in place: all participants had their temperatures taken before entering the courthouse; jury selection took place at a local school auditorium; everyone in the courtroom was required to wear masks or face shields; and the jurors were spread out to the gallery section of the courtroom instead of the jury box. Witnesses could appear via Zoom. Two witnesses were flawlessly broadcasted to the courtroom with help from the firm’s Allentown and Mount Laurel offices.

We successfully obtained a defense verdict on behalf of a dentist in a dental malpractice action in Luzerne County. ​The plaintiff asserted causes of action for negligence and lack of informed consent. Regarding negligence, the plaintiff alleged the dentist used excessive force in extracting a lower third molar, thereby causing a fracture of the mandible and alleged permanent paresthesia. In response, the defense admitted that the mandible was fractured during the extraction, but offered expert testimony that the fracture was an extremely rare complication and was not caused by negligence. The defense argued there was no evidence of the use of excessive force, such as TMJ disorders or dislocation, lacerations or broken adjacent teeth. As for informed consent, the plaintiff argued the dentist did not obtain informed consent because he did not discuss the risk of fracture. The dentist testified that he discussed the possibility of permanent numbness as a risk, but he admitted that fracture was a risk of the extraction and that he did not discuss this risk because the chances of it occurring were astronomically low. The plaintiff’s and the defendant’s experts both agreed that the chances of a fracture occurring were less than 0.0009%. The jury returned a defense verdict on all causes of action in less than one hour.

We were successful in obtaining the dismissal of the plaintiff’s corporate negligence claims against an adult inpatient drug rehabilitation center. The plaintiff filed a complaint under wrongful death and survival acts, alleging that the decedent died of unspecified cardiac dysrhythmia while she was a voluntary inpatient resident at the facility. The complaint included claims of negligence/vicarious liability and corporate negligence. We filed preliminary objections seeking to dismiss the corporate negligence claim against the facility. We argued that the plaintiff’s cause of action for corporate negligence against it must be dismissed with prejudice because the doctrine of corporate negligence, as a matter of law, does not extend to drug and alcohol treatment facilities but, instead, applies only to hospitals, HMOs, nursing homes and professional medical corporations. In response, the plaintiff argued that the preliminary objections should be overruled because she alleged in the complaint that the defendant owed the same duties to the decedent that are owed to patients by hospitals, as set forth in Thompson v. Nason, the seminal corporate negligence case. The court ultimately rejected the plaintiff’s arguments, sustained our preliminary objections, and dismissed the plaintiff’s corporate negligence claim against the defendant, with prejudice.

The plaintiff alleged to have suffered a fall in a hospital bathroom three days post-operatively that reinjured his surgically repaired knees. The nurses denied the patient fell to the ground and testified, consistent with their charting, that the patient lost his balance in the bathroom and sat on a commode. There was a significant economic damage claim in that the plaintiff was a young restaurant owner who suffered two distinct orthopedic injuries that required multiple surgeries and additional future care. The jury returned a defense verdict 50 minutes after deliberations began, finding that the nurses were not negligent.